Kabel Uddin Vs the Union of India and 5 Ors.

Heard Mr. R. Ali, learned counsel for the petitioner as well as Mr. G. Sarma, learned standing counsel for the Foreigners Tribunal, Mr. P. Sarma, learned Govt. Advocate, Mr. M. Islam, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for the Election Commission of India and Ms. A. Gayan, learned CGC.

¶27

By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Kabel Uddin, son of Late Nasir Uddin, resident of village Silochi, P.O. Dharampur, P.S. Baghbar, District-Barpeta, has assailed ex-parte opinion dated 04.01.2022 passed by the learned Foreigners Tribunal No.4^th , Barpeta in F.T. Case No. FT-07/19 arising out of Ref. F.T. Case No.7849/98 thereby declaring him to be a foreigner/ illegal migrant who has entered Assam after 25.03.1971.

¶28

The learned counsel for the petitioner has submitted that he

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had remained absent on 5 (five) occasions due to lack of communication with his engaged counsel as he was out of station for earning his livelihood and during his absence his learned counsel did not take any steps. However, the petitioner came back and contacted his learned counsel, he was informed that he was declared to be a foreigner by virtue of ex-parte opinion dated 04.01.2022. It is submitted that the impugned opinion is bad and unsustainable in law as the opinion was passed in clear violation of principle of natural justice.

¶31

It is submitted that the petitioner has all the necessary documents to establish he is a citizen of India and therefore the petitioner deserves an opportunity to contest the proceedings by filing his written statement and by producing documents and evidence in his support. It is further submitted that in this case the Electoral Registration Officer doubted his citizenship upon his name being recorded in the Electoral Roll of 1997, the reference was submitted by the Superintendent of Police (Border), Barpeta by FT case no.7849/1998 wherein he took more than 19 years to register the proceedings in the year 2019. Accordingly, it is submitted that while 19 years delay in registering a case did not matter to the Foreigners Tribunal, his absence of 5 days has resulted in an ex-parte opinion being passed against the petitioner in declaring him to be a foreigner. Accordingly it is submitted that the impugned opinion be interfered with.

¶32

Per contra, the learned counsel for the FT matters has opposed the prayer made in this writ petition on the ground that the petitioner was a wilful defaulter in taking steps before the learned Foreigners Tribunal. Accordingly, relying on the case of Baharul Islam, W.P.(C) 291/2024, decided on 23.02.2024, it has been submitted that in terms of the provisions of Order 3(14) of the Foreigners (Tribunals) Order, 1964, the mandate of law is that the

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Foreigners Tribunal is required to dispose of a case within a period of 60 days of the receipt of the reference from the competent authority. Accordingly, it is submitted that the inaction on the part of the petitioner to take steps before the learned Foreigners Tribunal the petitioner is disentitled from any relief in this writ petition.

¶35

Examined the records received from the learned Foreigners Tribunal. Considered the materials available on record as well as the submission made by the learned counsel for both sides.

¶36

One of the submissions of the learned counsel for the petitioner is that the Foreigners Tribunal took nineteen years to issue notice upon the petitioner. As the issue was not raised by the petitioner before the learned Tribunal, there was no occasion for the learned Tribunal to deal with the point. Therefore, as this Court is exercising certiorari jurisdiction, a point not taken up and adjudicated by the learned Tribunal cannot be examined by the Court.

¶37

On the issue of delay in assailing the impugned opinion, the learned standing counsel for the petitioner has referred to the statements made in paragraph 9. 11, 12 and 13 of the writ petition. It was submitted that the learned counsel engaged by the petitioner did not inform the petitioner about the next date fixed, though he had assured to inform the petitioner about the next date of appearance over phone because the petitioner, who was employed as a labourer, had left for Tamil Nadu for work. It was also submitted that by the time the petitioner got the information about the impugned ex parte order, the time limit to apply for vacating ex parte opinion as prescribed under Order 4 of the Foreigners (Tribunals) Order, 1964 had already expired.

¶38

In this regard, it is seen that in this writ petition, the petitioner

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has not disclosed his learned counsel’s phone number. There is no statement that the petitioner had made any attempt to call his learned counsel to enquire about the next date and he was denied such information. There is also no statement that for appearing on each and every date, the petitioner was making payment of professional fees to his learned counsel. From the statement made by the petitioner in paragraph 6 and 7 of the writ petition, he has knowledge that against his name ‘D’ (i.e. doubtful) was inserted in the voters list of 1997 and 2005 and therefore, the petitioner is aware that he is a doubtful voter. The petitioner has not made any statement that after engaging his learned counsel on receipt of notice of the proceeding of Case No. FT- 07/2019, he had never returned to his place of residence in the State of Assam till 29.01.2024, the date when this writ petition was filed.

¶41

The case of the petitioner in paragraph 9 of the writ petition is that when he was not informed about the next date by his engaged learned counsel, he had contacted another counsel, who informed the petitioner that his case was already decided ex parte against him, declaring him to be a foreigner who has illegally entered into Assam after 25.03.1971.

¶42

The hereinbefore referred statements made by the petitioner does not inspire the confidence of the Court on the truthfulness of such statements because the petitioner has withheld vital information when he had contacted his engaged learned counsel and when he had contacted another learned counsel. The said aspect is vital because in the TCR, there is only one vakalatnama available and thus, no other learned counsel was engaged by the petitioner to obtain certified copy of the impugned opinion. The application for certified copy was made on 21.03.2022, and the certified copy was made over on 02.04.2022. Thus, it must be presumed that either the petitioner had

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obtained the certified copy of the impugned opinion or his already engaged learned counsel had obtained the certified copy of the opinion. However, the present writ petition was filed on 29.01.2024, i.e. after an unexplained delay and laches of 667 days (i.e. 1 year, 9 months, 27 days).

¶45

Thus, from 02.04.2022, the date of the petitioner’s knowledge about the ex parte opinion, the petitioner has accepted his status as a foreigner of post 25.03.1971 for 667 days. The learned counsel for the writ petition did not refer to any statement made in the writ petition to explain the said delay of 667 days.

¶46

In this case, the delay and laches on the part of the part of the petitioner to defend the accusation against him to be a foreigner is evident. The petitioner, even after knowing that due to his default in contesting the case before the Foreigners Tribunal, an opinion dated 04.01.2022 had been passed, declaring him to be a foreigner. Yet, the petitioner neglects to lay a challenge to the said ex parte opinion for 667 days. However, while filing this writ petition, he has laid all blame on his engaged counsel, without arraying his said engaged counsel as one of the respondents. The unexplained delay and laches are in three stages, firstly, from the date of receipt of summons till 04.01.2022, when the ex parte opinion was rendered; secondly, from 04.01.2022 till 21.03.2022, when application for certified copy of the impugned opinion was made; thirdly, from 02.04.2022, when the certified copy of the impugned opinion was made over to the petitioner or to his recognized agent till 29.01.2024, the date when the present writ petition was filed.

¶47

It is further seen that in this writ petition, the petitioner has annexed the certified copy of 10 (ten) voters list, of which certified copies were obtained as follows: (i) 1966 (02.02.2022); (ii) 1970 (03.02.20200; (iii) 1985

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(02.02.2022); (iv) 1989 (02.02.2022), (v) 1994 (02.02.2022); (vi) 1997 (02.02.2022); (vii) 2005 (28.01.2022); (viii) 2010 (28.01.2022); (ix) 2016 (02.02.2022) and (x) 2021 (28.01.2022), respectively. Hence, though the petitioner had obtained the documents that has been annexed to this writ petition by February, 2022, he showed no urgency to assail the impugned opinion. Thus, the presumption is to the effect that if the petitioner was not having nine out of ten voters list, now relied upon, it cannot be accepted that the petitioner had provided all instructions to his learned counsel appearing before the Foreigners Tribunal. Therefore, the explanation of the petitioner for the delay and laches does not inspire any confidence of the Court.

¶50

In light of the discussions above, the explanation regarding delay and laches is found to be wholly insufficient and therefore, the petitioner is not found entitled to any equitable relief. Though citizenship is a coveted right, but that alone would not enable the learned Foreigners Tribunal to overlook the provisions of Order 4 of the Foreigners (Tribunals) Order, 1964.

¶51

It may be stated that this Court is exercising certiorari jurisdiction in respect of the orders passed by the learned Member, Foreigners Tribunal. No.4^th , Barpeta. As the petitioner has not filed his written statement or led any evidence by proving any documents, this Court in exercise of certiorari jurisdiction would not examine the documents to render any finding of fact. Therefore, none of the documents filed with the writ petition could be examined on merit.

¶52

Therefore, this writ petition fails and the same is dismissed on the ground of inordinate delay and laches in assailing the impugned opinion.

¶53

There shall be no order as to cost.

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JUDGE. JUDGE.

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Kabel Uddin v. the Union of India and 5 Ors.

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Kabel Uddin v. the Union of India and 5 Ors.

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