Allowed

Rabindra Mandal v. the Union of India and 5 Ors.

Gauhati HC14 Nov 2022WP(C)/737/2021

Case brief

AI extract

What is this about?

The Gauhati High Court allowed this petition, setting aside an ex parte order declaring the petitioner an illegal migrant. The Court distinguished a precedent where the lack of appearance justified the order, noting here the failure was due to the counsel's unauthorized withdrawal of vakalatnama. The case is remanded for fresh consideration, potentially concluding in the petitioner's favor based o

What did the court decide?

The ex parte order was set aside; the matter remanded to the Foreigners Tribunal for fresh consideration; bail of Rs. 5,000 granted with conditions regarding appearance and biometrics.

Rabindra Mandal Vs the Union of India and 5 Ors. — Writ and Judicial Review | Gauhati HC (2022)

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GAHC010015022021

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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)/737/2021

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RABINDRA MANDAL

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S/O HIRALAL MANDAL @ HIRALAL NAMUDAS,

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RESIDENT OF VILLAGE NEWLARBHITA, PO SARHEBARI, DIST BARPETA, ASSAM, PRESENTLY RESIDING AT VILLAGE KARAGARI KAWAIMARI, BLOCK GHA, PS SARTHEBARI, DIST BARPETA, ASSAM 781352

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VERSUS

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THE UNION OF INDIA AND 5 ORS

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REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA. MINISTRY OF HOME DEPARTMENT, NEW DELHI 1

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2:THE STATE OF ASSAM

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REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI 6

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3:THE SUPERINTENDENT OF POLICE (B) BARPETA

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PO AND DIST BARPETA ASSAM 781315

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4:THE DEPUTY COMMISSIONER BARPETA

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BARPETA

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ASSAM 781315

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5:THE ELECTION COMMISSION OF INDIA

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REPRESENTED BY THE CHIEF ELECTION COMMISSIONER NEW DELHI 1

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6:STATE CO ORDINATOR NATIONAL REGISTER OF CITIZENS (NRC) ASSAM ACHYUT PLAZA BHARALUPAR BHANGAGARH GUWAHATI 78100

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Advocate for the Petitioner : MR. S ALIM

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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 N. KOTISWAR SINGH HON’BLE MR. JUSTICE ARUN DEV CHOUDHURY order

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(oral)

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14-11 -2022

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[N. Kotiswar Singh, J]

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Heard Mr. S. Alim, learned counsel for the petitioner. Also heard Mr. P.K. Medhi,

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learned CGC appearing for respondent no.1; Mr. J. Payeng, learned Special Counsel, F.T. appearing for respondent nos. 3 and Mr. A.I., Ali, learned Standing Counsel, ECI, appearing for respondent no.5, Ms. L. Devi, learned Standing Counsel, NRC appearing for respondent no.6 and Mr. M.K. Das, learned Government Advocate, Assam, appearing for respondent nos. 2 & 4.

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The present petition has been filed by the petitioner, namely, Sri Rabindra

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Mandal, son of Hiralal Mandal @ Hiralal Namudas, resident of village Newlarbhitha under P.S.-Sarthebari, Dist. Barpeta, Assam, presently residing at Village- Karagari Kawaimari, Block-Gha, P.S.-Sarthebari, Dist.-Barpeta, on being aggrieved by the impugned ex parte order dated 21.11.2018 passed by the Foreigners Tribunal-III, Barpeta, Assam, in F.T. Case No.1491 (III) of 2013, declaring the petitioner an illegal migrant who entered in to India (Assam) after 25^th March, 1971.

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Learned counsel for the petitioner submits that after the notice was served upon the petitioner/proceedee, the learned Tribunal fixed a number of dates for filing of written statement, which, however, could not be filed. Accordingly, since the proceedee did not file the written statement even after giving sufficient opportunities, the learned Tribunal proceeded with the matter ex parte.

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Learned counsel for the petitioner submits that it is not a case that the petitioner was not willing to contest the claim before the Tribunal but because of communication gap with the petitioner’s counsel the petitioner could not file the written statement. Learned counsel for the petitioner submits that the engaged counsel of the petitioner had withdrawn the vakaltanama at the time of the proceeding before the Tribunal without informing the petitioner and as such, the petitioner could not file his written statement before the learned Tribunal on the given dates. Accordingly, the matter was proceeded ex parte by the learned Tribunal and declared the petitioner a foreigner who entered into India (Assam) after 25.03.1971. It has been submitted that if the petitioner could file his written statement and furnish

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all the relevant documents including the fact that his father Hiralal Mandal @ Hiralal

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Namudas was declared an Indian by order dated 01.10.2009 passed by the Foreigners

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Tribunal-III, Barpeta in F.T. (3^rd Tribunal) Case No.126(III)/09, the learned Tribunal would not have declared the petitioner a foreigner by impugned ex parte order dated 21.11.2018 in F.T. Case No.1491 (III) of 2013.

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In this regard Mr. J. Payeng, learned Special Standing Counsel, FT, has relied on the decision of this Court passed in Ayub Ali (Md.) & Ors. vs. Union of India & Ors, reported in 2016 (1) GLT 273 in which this Court had made the observation that if the proceedee does not appear before the Tribunal and file her written statement in spite of giving repeated opportunities to do so, the same does not warrant interference of this Court. While there cannot be any dispute about such a proposition of law, in the present case what is distinguishable is that the petitioner’s lawyer had withdrawn his vakalatnama without informing him and as such, we are of the view that the proceedee ought not to suffer because of the fault of the engaged counsel.

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We have heard learned counsel for the parties and we have perused the LCR.

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This Court is of the view that since we have allowed Writ Petition being WP(C) No.7952/2019 filed by one Hiralal Mandal, whom the petitioner claims to be his father,

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we allow this petition also and remand the matter before the learned Foreigners Tribunal-III, Barpeta for a fresh consideration of the matter.

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In view of the above, we allow this petition by setting aside the ex parte order

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dated 21.11.2018 passed by the Foreigners Tribunal-III, Barpeta, Assam, in F.T. Case No.1491 (III) of 2013. The petitioner shall appear before the Foreigners Tribunal-III, Barpeta within a period of 1 (one) month from today and file his written statement and thereafter, the Tribunal will pass a fresh opinion as per law. Further, it may be mentioned that this Court in WP(C) No.7952/2019 has allowed the petitioner therein, namely, Hiralal Mandal to take the plea of res judicata and in the present case the petitioner being the son of said Hiralal Mandal may be allowed to rely upon the said plea before the Tribunal also.

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It goes without saying that if the Tribunal comes to the finding that Hiralal Mandal, projected father of the petitioner, is the same person who was proceeded in F.T. (3^rd Tribunal) Case No.126(III)/09 by the Foreigners Tribunal-III, Barpeta vide order dated 01.10.2009, whereby the said Hiralal Mandal was declared an Indian, the present proceeding against the present petitioner being the son of Hiralal Mandal will stand concluded in his favour and he will be accordingly declared as an Indian citizen.

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Only when the Tribunal comes to a finding that the said Hiralal Mandal is not the same person who was proceeded and was found to be an Indian in F.T. (3^rd Tribunal) Case No.126(III)/09, the Tribunal will proceed in accordance with law and pass a fresh opinion and such opinion of the Tribunal can be challenged by the petitioner both on the issue of his identity and other grounds raised.

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It is made clear that since the nationality of the petitioner is already under

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cloud, he will remain on bail on furnishing a bail bond of Rs. 5,000/- (Rupees five thousand) with one local surety of the like amount to the satisfaction of the Superintendent of Police (Border), Barpeta during the pendency of the proceeding before the Tribunal. The concerned Superintendent of Police (Border) shall also take steps for capturing the fingerprints of both hands and biometrics of the iris of the petitioner. The petitioner also shall not leave the jurisdiction of Barpeta district without furnishing the details of the place of destination and his place of stay to the Superintendent of Police (Border), Barpeta including relevant contact/mobile number.

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It is made clear that failure on the part of the petitioner to provide relevant mobile/contact number will warrant recalling of this bail order.

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With the above observations and directions, the writ petition stands disposed of.

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Copy of this order be furnished to the Superintendent of Police (B), Barpeta for doing the needful.

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The LCR may be remitted forthwith to the concerned Tribunal.

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JUDGE JUDGE

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Comparing Assistant

Rabindra Mandal v. the Union of India and 5 Ors.

Case brief

What is this about?

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Rabindra Mandal v. the Union of India and 5 Ors.

Case brief

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