Abdul Subur Vs Union of India and 9 Ors.

Heard Mr. T.K. Dey, learned counsel appearing on behalf of Mr. N. Islam, learned counsel for the petitioner. Also heard Mr. G. Sarma, learned standing counsel for the FT matters and NRC; Mr. I. Islam, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for the ECI; and Mr. H.K. Hazarika, learned Govt. Advocate for the State respondent.

¶37

By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the ex parte impugned opinion dated 27.03.2018, passed by the learned Member, Foreigners’ Tribunal No.10^th at Sankardev Nagar, Hojai in F.T.(D) Case No. 1253/2015, arising out of SPs F.T. Case No. 568/2006, by which the petitioner was declared as an illegal migrant.

¶38

To assail the ex parte opinion, the learned counsel for the petitioner has submitted that the notice was not properly served on the petitioner in accordance with law. It is further submitted that the enquiry made by the Inquiry Officer was perfunctory has examined two witnesses, but as per the Tribunal’s records, the signature of the said two witnesses were not taken. In the said connection, it is submitted that the petitioner has impleaded the said two witnesses as respondent nos. 9 and 10 and despite service of notice, the said respondents have not appeared and denied the allegation against them.

¶39

The learned counsel for the petitioner has submitted that his father,

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namely, Safikur Rahman (since deceased) whose name appears in the two voter list of 1966 and 1970 and had died in the year 1973 when the petitioner was about two years of age and after the death of his father he is residing with his mother till date and his name appeared in the voter list of 1993 along with his mother, namely, Musst. Sakina Bibi. Accordingly, by referring to the documents annexed to this writ petition which are, Kabin Nama, voter list of 2005 and voter list of 2010, it is submitted that the petitioner has sufficient documents to prove that he is a citizen of India and accordingly, the learned counsel for the petitioner prays for an opportunity to the petitioner to contest the proceeding by filing his written statement before the learned Tribunal. It is further submitted that the petitioner has recently provided to him with a copy of transfer certificate dated 06.11.2012, issued by the Headmaster. However, the name of the school is illegible, stating that Md. Abdus Subur was a student of the said school in the year 1984 and he had passed out class- IV.

¶42

The learned standing counsel for the FT matters has opposed the prayer made in this writ petition.

¶43

Perused the materials available on record and have also examined the records of the learned Tribunal which has called for and received by the Registry.

¶44

In this writ petition, the concerned Foreigners Tribunal has been engaged as respondent no.8 and the two purported witness whom the Enquiry Officer had examined are arrayed as respondent no.9 and 10. To assail the order of the Tribunal, the respondent no.8 is not a necessary party and as no relief has been claimed against the respondent nos. 9 and 10, they are also neither a proper nor a necessary party. Therefore, the names of respondent

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nos. 8, 9 and 10 are ordered to be struck off.

¶47

Insofar as the mode and manner of service of notice is concerned, the records reveal that the notice of appearance before the learned Tribunal after being returned without service on several occasions was ultimately served on Musst. Mahmuda Begum, the wife of the petitioner who has received the notice by affixing her right hand thumb impression on the service report. We find that the said name of Musst. Mahmuda Begum tallies with the name of the wife of the petitioner, as disclosed in the copy of Kabin Nama (Annexure-5 to the writ petition). Furthermore, the records reveal that as per order dated 30.01.2018, the process server’s report was returned back to the learned Tribunal and the learned Tribunal had recorded that the notice was duly served as per Para 3(5) (b) of the Foreigners (Tribunals) Order, 1964. However, the matter was adjourned to 13.02.2018 for written statement and surety etc. However, later on the notice of the learned Tribunal was brought to petition no. 2834/2018, whereby a prayer was made for appearance, written statement and production of the surety, etc. The matter was adjourned and thereafter taken up on 13.02.2018. On the said date, on the prayer for adjournment made by the learned counsel for the petitioner, the matter was adjourned to 27.02.2018. Once again on the prayer made by the petitioner, the matter was adjourned to 16.03.2018. Thereafter, the matter was again adjourned to 19.03.2018. As per order dated 19.03.2018, the prayer for adjournment was rejected and the matter was directed to proceed ex parte against the petitioner and the case was fixed on 27.03.2018 for ex parte opinion. Accordingly, on 27.03.2018, the learned Tribunal in its opinion, declared the petitioner as foreigner of post 25.03.1971.

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¶49

Therefore, the petitioner had filed an application for recalling of the ex parte opinion dated 27.03.2018. However, the learned Tribunal by order dated 24.07.2018, upon perusal of the materials on record observed that the petition is not supported by any delay condonation petition as it was filed after gap of 3 months and 27 days, which is beyond the prescribed period of limitation and secondly, the petition in the review petition was in the name of Sufia Begum, was found not to be in relation to the petitioner in this case and therefore, the petition was rejected.

¶50

As regards the manner in which the process was served on the petitioner, the Court is inclined to hold that the notice was duly served on the adult family member of the petitioner and therefore, the learned Tribunal had rightly accepted the service of notice in terms of Para 3(5)(b) of the Foreigners (Tribunals) Order, 1964 by treating the notice to be duly served.

¶51

The manner of service can otherwise not be challenged by the petitioner in this case because on date fixed for appearance i.e. on 30.01.2018, the petitioner made appearance before the learned Tribunal and prayed for adjournment on the said date as well as on two subsequent dates and on the fourth occasion i.e. on 19.03.2018, the petition was rejected and the case was ordered to proceed ex parte.

¶52

In the case of Azmat Ali @ Amzad Ali v. Union of India & 6 Ors., 2018 (4) GLT 623, this Court has held as follows.

¶53

“15. It is more than three decades that the issue of influx of foreign nationals has been in public domain in the State of Assam and has engaged the attention of the people. Interest of the State is of paramount importance in that unabated influx has the potential to affect the integrity and sovereignty of the country. Citizenship of a person, no doubt, is a very valuable right and should be zealously guarded. There is

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no gainsaying the fact that a person who is alleged to be a foreigner must be given due and reasonable opportunity to establish that he is a citizen of India. However, if a person does not take steps for safeguarding his interest, he does so at his own risk and peril as grant of opportunity cannot be an endless exercise. Right to a fair hearing or principles of natural justice cannot be permitted to lead to a farcical situation and to be an engine for defeating the very object of identification and deportation of foreigners.”

¶56

Insofar as the manner in which the review petition was filed, the Court is surprised to note that the pleadings made in para 9 of the writ petition wherein it has been specifically stated that having come to know about the ex parte opinion, the petitioner had obtained the certified copy of the order on 23.05.2018 and intended to file a review petition for setting aside the impugned ex parte opinion dated 27.03.2018 and accordingly, he applied for certified copy of all orders and process server’s report. However, the record reveals that not only the review petition was filed, which is reflected in the order of the learned Tribunal dated 24.07.2018, but the said review petition was rejected purportedly on two grounds. Firstly, it was not supported by delay condonation petition and secondly, because the affidavit in support of the said petition was sworn by one Sufia Begum, wife of Late Ishaque Ali. In this regard of the Tribunal, the records reveals that the petition which was taken as a review petition is in fact is under the nomenclature of “an application under praying for vacating ex parte opinion dated 27.03.2018.” The said was filed vide petition no. 3470/2018 dated 24.07.2018, which is signed by the petitioner, Md. Abdus Subur and bears the filing signature of two advocates, namely, Nozmal Islam as well as one Fiazul Haque, Advocate, Hojai, Sankardev Nagar, bearing Enrollment No. 999/13. The affidavit in support of the said petition is in the name of Sufia Begum, wife of Late Ishaque Ali, aged about 58 years. However, the said affidavit bears the signature of Md. Abdus Subur, duly identified by Fiazul Haque, Advocate,

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referred above. Therefore, the affidavit with an incorrect description of name, though sworn before the Notary Public, namely, Sujit Ranjan Acharjee is no affidavit at all. We are also surprised to see that at page 54, 55 and 56 of the Tribunal records, the application under Section 5 of the Limitation Act is available. The said petition is supported by an affidavit again by Sufia Begum, wife of Late Ishaque Ali. However, the same bears the signature of Md. Abdus Subur, which is again identified by Fiazul Haque, Advocate and sworn before the same Notary Public, namely, Sujit Ranjan Acharjee. Therefore, an adverse comment was made by the learned Tribunal in its order dated 24.07.2018, stating that the petition was filed in a lackluster manner. The Court cannot find with such observation. It is left open for the petitioner to take such appropriate steps, as he may be so advised in light of said comment by the learned Tribunal.

¶59

Resultantly, the Court finds that although the petition for setting aside of the ex parte opinion was filed, which was rejected, the said order dated 24.07.2018 remains unchallenged and has attained finality. Moreover, as the affidavit in support of the said petition is inadmissible and cannot be relied upon, no purpose would be served to remand the matter back before the learned Tribunal. Therefore, even if the matter is remanded back, it will amount to issuance of a writ in futility.

¶60

The learned counsel for the petitioner has produced a copy of school transfer certificate. The Court would otherwise have required the said document to be produced by way of an additional affidavit. However, it is noticed that the said transfer certificate bears the State Emblem of Lion Pillar of Asoka, which makes the document inadmissible evidence. If one need an authority on the point, the decision of the Division Bench of the Court passed in the case of

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Afuja Begum @ Afruja Begum v. Union of India & Ors., WP(C) 7640/2016, decided on 19.04.2018 may be referred to. Therefore, no point would be served in having the said document brought on record by way of an affidavit, which is otherwise inadmissible evidence.

¶63

Therefore, this is not a case where the Tribunal did not give adequate opportunity to the petitioner to file his written statement and to contest the proceedings. Therefore, the petitioner is not been able to make out a case to interfere with the ex parte opinion dated 27.03.2018, passed by the learned Member, Foreigners’ Tribunal No.10^th at Sankardev Nagar, Hojai in F.T.(D) Case No. 1253/2015, arising out of SPs F.T. Case No. 568/2006.

¶64

Accordingly, the prayer made in this writ petition stands rejected. Resultantly, this writ petition stands dismissed.

¶65

Let the records be sent back to the learned Tribunal with a copy of this order to be made a part of record.

¶66

We feel it necessary for sending a copy of this order to the Commissioner and Secretary to the Govt. of Assam, Home & Political (B), Department so as to examine if any advisory is required to be issued to all the Foreigners Tribunal to mandatorily enter receipt all petitions filed in their Tribunal’s Register by cancelling the Court fee stamps so that mistakes of this nature of omitting to notice a condonation application does not reoccur in future as the procedural lapse erodes the very credibility of the Tribunals.

¶67

Moreover, it is left open to the wisdom of the Commissioner and Secretary to the Govt. of Assam, Home & Political (B), Department to examine whether it is feasible to have a dedicated email address through which

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complaints can be made by the proceedees that the concerned Foreigners Tribunals have not accepted petitions filed by the proceedee and the Court fee stamps have not been cancelled.

¶70

The Court also directs the Home & Political (B), Department to circulate a copy of this order to all the Foreigners Tribunals in the State.

¶71

JUDGE JUDGE

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Comparing Assistant

Abdul Subur v. Union of India and 9 Ors.

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Abdul Subur v. Union of India and 9 Ors.

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