Musstt Rukia Begum Vs the Union of India and 5 Ors.

Heard Ms. B. Devi, learned counsel for the petitioner. Also heard 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.

¶26

By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Musstt. Rukia Begum, daughter of Md. Suleman Ali, wife of Abu Usuf, resident of village No.2 Naramari, P.S. Dharamtul, DistrictMorigaon, has assailed ex-parte opinion dated 07.01.2023 passed by the learned Member, Foreigners Tribunal No.1^st , Morigaon in Case No. F.T. 117/2011 arising out of Police Reference F.T. Case No.98/2010, thereby declaring her to be a foreigner/ illegal migrant who has entered India (Assam) after 25.03.1971.

¶27

The learned counsel for the petitioner had submitted that the notice of the proceeding was served on the petitioner, fixing 21.03.2020 to appear and file her written statement, but at the relevant time the petitioner could not appear before the Foreigners Tribunal due to Covid-19 pandemic and

¶28

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on her petitions, the matter was adjourned from 20.01.2021 to 26.03.2021. Subsequently, neither the petitioner nor her engaged advocate appeared before the Tribunal and took any steps. Resultantly the ex-parte opinion was rendered on 07.01.2023.

¶30

The learned counsel for the petitioner has submitted that the petitioner has sufficient documents to show that her parents, grandparents and great grandparents were citizens of India and that her grand-father had also acquired immovable property before 1930-31, which he had inherited from his father. It is submitted that the other documents would disclose that she is a bona fide citizen of the country.

¶31

The learned counsel for the petitioner by referring to the statement made in para-10 of the writ petition, it is submitted that the petitioner had engaged a learned counsel from the Morigaon Bar to represent her and to place her defence and her counsel informed her that he would inform the petitioner whenever occasion arises. It is submitted that the petitioner is a hypertension patient and is suffering from various gynaecological problem and was also suspected to have Alzheimer’s disease and she was also ill due to Covid-19 pandemic and could not contact her engaged counsel and moreover her counsel did not intimate the petitioner about the fate of her case. It is submitted that only on 02.03.2023, when she came to Morigaon and met her engaged counsel she came to know that an ex-parte opinion had already been passed. It is also submitted that the petitioner had obtained the certified copy of the opinion on 06.06.2023 and the present writ petition was filed on 16.10.2023. In support of her submissions, the learned counsel for the petitioner has relied on the decision of this Court in the case of Jafar Ali @ Zafar Ali (Md.) v. Union of India, 2025 (2) GLT 880.

¶32

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¶33

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, it has been submitted that in terms of the provisions of Order 3(14) of the Foreigners (Tribunal) Order, 1964, the mandate of law is that the 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.

¶34

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.

¶35

It is not in dispute that disruption of proceedings before the concerned judicial authorities were affected during the period between 15.03.2020 till 28.02.2022 owing to Covid-19 pandemic. As per the TCR the petitioner had appeared before the Foreigners Tribunal on 20.01.2021, 22.02.2021, 26.03.2021 and prayed for adjournment which was allowed.

¶36

Therefore, excluding the said period between 15.03.2020 till 28.02.2022, the case was posted before the learned Foreigners Tribunal on 05.03.2022, 01.04.2022, 04.05.2022, 27.05.2022, 14.06.2022, 08.07.2022, 30.09.2022, 18.11.2022, but there was no representation from the petitioner or her learned counsel. By order dated 18.11.2022, the case was fixed on 07.01.2023 and on 07.01.2023 ex-parte opinion was rendered. However, this writ petition has been filed on 16.10.2023.

¶37

Therefore, though there are delay and laches on part of the

¶38

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petitioner in assailing the impugned opinion, but the delay and laches cannot be said to be fatal in the unique facts and circumstances of this case because the petitioner has received the certified copy of the impugned opinion dated 07.01.2023 on 06.06.2023 and the present writ petition was filed on 16.10.2023. The explanation of the petitioner is that she is an illiterate lady and was suffering from some gynaecological problems, for which the petitioner is relying on some medical prescriptions. Hence, the Court is of the considered opinion that in light of the discussions above, the delay of 282 days in filing this writ petition to assail the impugned opinion cannot be held to be fatal.

¶40

The case of Jafar Ali @ Zafar Ali (Md.) (supra) is not found to apply under the facts of this case. In the said case, the distinguishing feature projected by the petitioner was that his father and uncle were both declared to be Indian citizens and not illegal migrants vide opinion dated 12.03.2001, passed by the erstwhile Illegal Migrants (Determination) Tribunal, Goalpara, for which one opportunity was granted to the petitioner in the said case to contest the proceeding.

¶41

Accordingly, this writ petition is conditionally allowed on the following terms and conditions:-

¶42

a. The impugned opinion dated 07.01.2023 is hereby set aside.

¶43

b. The petitioner shall deposit a cost of Rs.5,000/- (Rupees Five thousand only) before the Secretary, District Legal Services Authority, Morigaon on or before 11.10.2025.

¶44

c. Thereupon, the petitioner, namely, Mustt. Rukia Begum, shall appear

¶45

before the learned Member, Foreigners Tribunal No.1^st , Morigaon on or before 25.10.2025, and file (1) a certified copy of this order; (2) copy

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of money receipt and/or acknowledgement of deposit of cost by the Secretary, District Legal Services Authority, Morigaon; (3) her written statement of defence; and (4) copies of all documents on which she intends to rely.

¶48

d. On appearance before the learned Member, Foreigners Tribunal No.1^st , Morigaon, it would be permissible for the said learned Tribunal to direct the petitioner to go on bail on such terms as it may deem fit and proper.

¶49

e. Thereupon, the learned Tribunal make an attempt to dispose of the proceeding as early as possible, if necessary by fixing short dates and by curtailing adjournments, unless expedient in the interest of justice.

¶50

f. It is clarified that in the event the petitioner defaults in appearing and/or taking steps before the said learned Tribunal on any date so fixed, or defaults in payment of cost within the time allowed, it would be permissible for the said learned Tribunal to treat the petitioner as absent on call and pass such order and/or opinion as the said learned Tribunal may deem fit and proper.

¶51

The Registry shall expeditiously send back the Tribunal’s record to the learned Tribunal.

¶52

The parties are left to bear their own cost.

¶53

JUDGE JUDGE.

¶54

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Musstt Rukia Begum v. the Union of India and 5 Ors.

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Musstt Rukia Begum v. the Union of India and 5 Ors.

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