Allowed

Asha Begum @ Ashu @ Ayesha Begum v. the Union of India and 6 Ors.

Gauhati HC1 Nov 2019WP(C)/4896/2019

Case brief

AI extract

What is this about?

The Gauhati High Court, while hearing a writ petition challenging an ex parte order declaring the petitioner a foreigner, observed that she had already filed a written statement. Consequently, the Court afforded her one more opportunity to contest the reference on merits and directed the Foreigners' Tribunal to conclude proceedings within 45 days.

What did the court decide?

Impugned ex parte opinion set aside; petitioner directed to appear before Tribunal on 21.11.2019; Tribunal permitted 45 days to conclude proceedings.

Asha Begum @ Ashu @ Ayesha Begum Vs the Union of India and 6 Ors. — Gauhati HC (2019) — LawSathi Research

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GAHC010162842019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 4896/2019

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1:ASHA BEGUM @ ASHU @ AYESHA BEGUM D/O. SIRAJ UDDIN, VILL. GOASPUR, P.O. AND P.S. KARIMGANJ, DIST. KARIMGANJ, ASSAM, PIN-788710.

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VERSUS

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1:THE UNION OF INDIA AND 6 ORS.

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REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI-110001.

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2:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM POLITICAL AND HOME DEPTT. DISPUR GUWAHATI-781006.

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3:THE ELECTION COMMISSION OF INDIA NEW DELHI REP. BY THE ELECTION OFFICER INDIA PIN-782105.

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4:THE NATIONAL REGISTRAR OF CITIZENS REP. BY THE ASSAM STATE CO-ORDINATOR 1ST FLOOR ACHYUT PLAZA BHANGAGARH GUWAHATI ASSAM PIN-781005.

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5:THE SUPDT. OF POLICE (B) KARIMGANJ ASSAM PIN-788710.

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6:THE DY. COMMISSIONER KARIMGANJ DIST. KARIMGANJ PIN-788710.

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7:THE FOREIGNERS TRIBUNAL-I KARIMGANJ ASSAM PIN-788710

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Advocate for the Petitioner : MRS R BEGUM

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Advocate for the Respondent : ASSTT.S.G.I.

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BEFORE HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE AJIT BORTHAKUR

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order

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Date : 01-11-2019

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(Manojit Bhuyan, J)

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Heard Ms. S.B. Choudhury, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no. 1. Mr. J. Payeng, learned counsel represents respondent nos. 2, 5, 6 and 7. Ms. B. Das, learned counsel represents respondent no. 3 whereas Ms. A. Verma, learned counsel appears for respondent no. 4.

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Petitioner assails ex parte order/opinion dated 19.05.2016 passed by the Foreigners’ Tribunal-I, Karimgnaj, in FT Case No. 1670/2012, declaring her to be a foreigner, having illegally entered into India (Assam) after 24.03.1971.

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It appears from the materials available on record that consequent upon due service of notice the petitioner appeared before the Tribunal on 04.02.2015 and eventually submitted

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written statement on 02.11.2015. The case was then fixed for evidence. Thereafter, on 21.11.2015, 15.12.2015, 04.01.2016, 27.01.2016 though the petitioner was present before the Tribunal but due to some reasons evidence of the petitioner could not be taken by the Tribunal. Although on 24.02.2016 petitioner filed hazira but when she was called to adduce evidence, she was found to be absent. Thereafter, on as many as five occasions i.e. 07.03.2016, 21.03.2016, 07.04.2016, 28.04.2016 and 11.05.2016, the petitioner remained absent and only on one date in between the petitioner filed petition seeking time.

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On the above, the Tribunal recorded that the petitioner was deliberately delaying the proceeding despite grant of reasonable opportunities to adduce evidence and to prove the documents. In such a situation, an adverse view was taken by the Tribunal and the impugned order/opinion dated 19.05.2016 was rendered.

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Ms. Choudhury submits that having regard to the fact that the petitioner could not appear before the Tribunal for valid reasons on certain dates, the reference case ought not to have been decided against the petitioner without granting adequate opportunity to defend the case. It is further stated that the petitioner has a good case on merits and, given one more opportunity, she can successfully discharge the burden as required of her under section 9 of the Foreigners’ Act, 1946. It is further stated that since the petitioner has already filed written statement along with documents, an opportunity requires to be afforded, although such opportunity cannot be relegated to an endless exercise. It is also submitted at para 6 of the writ petition that the petitioner came to learn about the impugned opinion only in the first week of June, 2019 when people used to discuss that Police were asking about her in connection with the case.

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We have heard the learned counsels for the parties and have also perused the materials on record. Apparently, the petitioner has already filed written statement. We are of the opinion that for the ends of justice at least one more opportunity should be afforded to the petitioner to contest the police reference on merits. In this view of the matter, we set aside the order/opinion dated 19.05.2016 with direction to the petitioner to appear before the Foreigners’ Tribunal-I, Karimgnaj, on 21.11.2019 at 10.30 AM, on which date she shall file evidence-on-affidavit without fail. In this regard, no fresh notice is required to be issued by the Tribunal for her appearance. The Tribunal shall proceed accordingly and conclude the

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proceeding within 45 (forty five) days from 21.11.2019. We make it clear that if the petitioner defaults in appearing before the Tribunal on 21.11.2019 and/or evades filing of evidence-onaffidavit on 21.11.2019, it shall be open to the Tribunal to pass such order or orders as may be deemed fit and proper and in accordance with law.

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For the purpose of concluding the reference case within the period specified above, the Tribunal shall act upon the certified copy of this order, which the petitioner is permitted to furnish before the Tribunal on the date of appearance i.e. 21.11.2019.

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To the extent above, the writ petition stands allowed.

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Office to return the case records to the Tribunal forthwith.

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JUDGE JUDGE

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Comparing Assistant

Asha Begum @ Ashu @ Ayesha Begum v. the Union of India and 6 Ors.

Case brief

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Asha Begum @ Ashu @ Ayesha Begum v. the Union of India and 6 Ors.

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