Allowed

Hamida Khatun v. the Union of India and 6 Ors.

Gauhati HC18 Nov 2019WP(C)/5323/2019

Case brief

AI extract

What is this about?

This writ petition challenges a Foreigners Tribunal order declaring the petitioner a foreigner. The Court set aside the order and granted one final opportunity for the petitioner to appear and adduce evidence on merits before the Tribunal within a specified timeframe.

What did the court decide?

The order/opinion dated 14.07.2016 was set aside. The petitioner directed to appear before the Foreigners Tribunal on 05.12.2019 to adduce evidence. Tribunal to conclude proceedings within 45 days fro

Hamida Khatun Vs the Union of India and 6 Ors. — Pension and Retirement Benefits | Gauhati HC (2019)

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GAHC010174512019

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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) 5323/2019

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1:HAMIDA KHATUN

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W/O- LT HUSSAIN ALI, D/O- LT SAHED UDDIN, R/O- VILL- PACHIM DABLANG, P.S. LANKA, DIST- HOJAI, ASSAM, PIN- 782446

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VERSUS

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1:THE UNION OF INDIA AND 6 ORS. REP. BY THE SECY. TO THE GOVT. OF INDIA, DEPTT. OF HOME, NEW DELHI-1 2:THE STATE OF ASSAM REP. BY THE SECY. TO THE GOVT. OF ASSAM DEPTT. OF HOME DISPUR GHY-6 3:THE DY. COMMISSIONER HOJAI PIN- 782435

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4:THE SUPERINTENDENT OF POLICE (B) HOJAI PIN- 782435 5:THE ELECTION COMMISSION GOVT. OF INDIA NEW DELHI-1 6:THE STATE CO-ORDINATOR OF NATIONAL REGISTRATION (NRC)

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ASSAM GHY- 32

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7:THE FOREIGNERS TRIBUNAL NAGAON COURT NO 7 AT LANKA HOJAI REP. BY THE STANDING COUNSEL OF THE TRIBUNAL PIN- 78243

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Advocate for the Petitioner : MS. M R DEVI

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

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:: BEFORE ::

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HON’BLE MR. JUSTICE MANOJIT BHUYAN HON’BLE MR. JUSTICE AJIT BORTHAKUR

O R D E R

18.11.2019

(Manojit Bhuyan, J)

Heard Ms. M.R. Devi, 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, 3, 4 and 7. Ms. B. Das, learned counsel represents respondent no.5 whereas Ms. A. Verma, learned counsel appears for respondent no.6.

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Petitioner assails order/opinion dated 14.07.2016 passed by the Foreigners’ Tribunal, Nagaon Court No.7^th at Lanka, Hojai in F.T./L/Case No.316/2016, declaring her to be a foreigner, having illegally entered into the territory of India (Assam) after 25.03.1971.

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Ms. Devi submits that the order of the Tribunal was passed without granting opportunity to the petitioner to contest the case and/or opportunity to discharge the burden, as required of her, under Section 9 of the Foreigners’ Act, 1946.

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On perusal of the case records, particularly the order-sheet, it is seen that consequent upon service of Notice, the petitioner appeared along with her counsel before the Tribunal on 08.02.2016

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and filed petition seeking time to file written statement, which was allowed fixing 16.03.2016 for W/S. On 16.03.2016, the petitioner remained present with her counsel and filed written statement without enclosing any supporting documents. Thereafter, case was fixed on 19.04.2016 for filing of evidence. Also, on the fixed date i.e. on 19.04.2016 and thereafter on 09.05.2016, 18.06.2016 and 30.06.2016, though the petitioner remained absent but her counsel took steps on her behalf. In the interregnum i.e. on 04.06.2016, the petitioner neither appeared nor any steps were taken on her behalf. Eventually, on 11.07.2016 the case was fixed for evidence-in-chief. However, on that date too the petitioner neither appeared nor had taken any steps, which was adversely viewed and the case was fixed on 14.07.2016 for final order. The Tribunal rendered its opinion declaring her to be a foreigner, having illegally entered into the territory of India (Assam) after 25.03.1971.

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Ms. Devi submits that having regard to the fact that the petitioner could not appear and remained absent without steps only on two dates before the Tribunal i.e. on 04.06.2016 and 11.07.2016, the reference case ought not to have been decided against the petitioner without granting adequate opportunity to defend the case. It is submitted that it not a case where the petitioner had absolutely refrained from contesting the case. In fact, on 16.03.2016 the petitioner appeared and had filed written statement. Thereafter, the petitioner’s engaged counsel took steps on behalf of her and adjournment prayers were made, which were accordingly allowed. 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, an opportunity requires to be afforded, although such opportunity cannot be relegated to an endless exercise.

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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 14.07.2016, with direction to the petitioner to appear before the Foreigners’ Tribunal, Nagaon Court No.7^th at Lanka, Hojai on 05.12.2019 at 10.30 AM, on which date she shall adduce evidence in support of her case 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 proceeding within 45 (forty five) days from 05.12.2019. We make it clear that if the petitioner defaults in appearing before the Tribunal on 05.12.2019 and/or evades appearance on dates to be fixed, filing 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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To the extent above, the writ petition stands allowed.

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Office to send back the case records to the Tribunal forthwith.

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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. 05.12.2019.

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JUDGE JUDGE

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Comparing Assistant

Hamida Khatun v. the Union of India and 6 Ors.

Case brief

What is this about?

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Hamida Khatun v. the Union of India and 6 Ors.

Case brief

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