Allowed

Arjun Sarkar v. Union of India and 5 Ors.

Gauhati HC18 Nov 2019WP(C)/5872/2019

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a writ petition challenging an ex parte order by the Foreigners' Tribunal declaring the petitioner a foreigner. The Court set aside the impugned order and granted the petitioner a final opportunity to appear and file evidence on affidavit within a specified timeframe to conclude proceedings.

What did the court decide?

The order/opinion dated 04.04.2013 was set aside. The petitioner was directed to appear before the Foreigners' Tribunal on 05.12.2019 to file evidence on affidavit without fail.

Arjun Sarkar Vs Union of India and 5… — Constitutional and Fundamental Rights | Gauhati HC (2019)

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Page No.# 1/4

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GAHC010183682019

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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) 5872/2019

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1:ARJUN SARKAR

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S/O- AMULYA SARKAR, R/O- VILL- SIALI PANARBURI, P.S. KRISHNAI, DIST- GOALPARA, ASSAM

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VERSUS

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1:UNION OF INDIA AND 5 ORS.

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REP. BY THE SECY. TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI- 110006

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2:STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-6

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3:THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI- 110001

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4:THE OFFICE OF THE STATE CO-ORDINATOR OF NATIONAL REGISTRAR OF CITIZENSHIP (NRC) ASSAM 1ST FLOOR ACHYUT PLAZA G.S.ROAD BHANGAGARH GHY-5 DIST- KAMRUP (ASSAM)

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5:THE DY. COMMISSIONER DIST- GOALPARA ASSAM

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6:THE SUPERINTENDENT OF POLICE (B) GOALPARA ASSA

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Advocate for the Petitioner : MR. D SARMAH

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

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BEFORE

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

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order

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Date : 18-11-2019

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(Manojit Bhuyan, J)

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Heard Mr. D. Bagchi, 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 and 6. 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 04.04.2013 passed by the Foreigners’ Tribunal-1, Goalpara, in FT Case No. 2873/G/10, declaring him 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 and eventually filed written statement on 27.09.2012 along with Petition No. 2259 praying another date for evidence. Prayer for time was granted and the case was then fixed for evidence on 26.10.2012. But, thereafter, on each date only petitions came to be filed seeking time to submit evidence, which the petitioner failed to do on any subsequent fixed dates. In such a situation, an adverse view was taken by the Tribunal and the impugned order/opinion dated 04.04.2013 was rendered.

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Mr. Bagchi submits that having regard to the fact that the petitioner was ably represented on each subsequent dates by the engaged counsel, it is not a case that the petitioner had altogether abandoned the proceedings. It is stated that the reference case ought not to have been decided against the petitioner without granting adequate opportunity to defend the case. Further, that the petitioner has a good case on merits and, given one more opportunity, he can successfully discharge the burden as required of him under section 9 of the Foreigners’ Act, 1946. Also, for the fact that the petitioner having already filed written statement along with documents, 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 04.04.2013 with direction to the petitioner to appear before Foreigners’ Tribunal-1, Goalpara, on 05.12.2019 at 10.30 AM, on which date he shall file evidence-on-affidavit without fail. In this regard, no fresh notice is required to be issued by the Tribunal for his 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 filing of evidence-onaffidavit on 05.12.2019, 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. 05.12.2019.

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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

Arjun Sarkar v. Union of India and 5 Ors.

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Arjun Sarkar v. Union of India and 5 Ors.

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