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2014 DIGILAW 129 (GAU)

MD. FAZAR ALI v. UNION OF INDIA

2014-01-31

B.P.KATAKEY, C.R.SARMA

body2014
ORDER The appellant, who has been declared as foreigner coming to Assam from the specified territory post 25th March, 1971 by the Tribunal, has filed the present appeal challenging the order dated 28th June, 2013 passed by the learned single Judge in WP(C) No.3584/2013, whereby and whereunder the writ petition preferred challenging the ex-parte order dated 4th April, 2009 passed by the Foreigners Tribunal, Kamrup (R) in FT Case No.1830/2006 has been dismissed. [2] A notice under the provisions of the Foreigners Act was issued to the appellant by the Foreigners Tribunal asking him to show cause as to why he should not be declared as foreigner coming to Assam from erstwhile East Pakistan, i.e. the specified territory, between 1st January, 1966 to 25th March, 1971, fixing 19th April, 2008, as the date of appearance. Though the appellant initially appeared before the Tribunal on 19th April, 2008, he, however, has chosen not to contest the said proceeding, for which the learned Member, Foreigners Tribunal, Kamrup (R) vide order dated 4th April, 2009 declared the appellant as foreigner coming to India from the specified territory post 25th March, 1971. The said order was put to challenge in WP(C) No.3584/2013, after lapse of about 4(four) years, which writ petition has been dismissed vide order dated 28th June, 2013, on the ground that the appellant could not demonstrate sufficient cause in not approaching this Court immediately after passing the order by the Tribunal. Hence, the present appeal. [3] We have heard Mr. M.U. Mondal, learned counsel for the appellant, Mr. M. Bhgabati, learned Central Government counsel appearing for the respondent No.1 and Mr. J. Handique, learned State counsel appearing for the respondents Nos.2 to 7. [4] Mr. Mondal, learned counsel appearing for the appellant referring to the notice issued by the Tribunal on 13th March, 2008, based on which FT Case No.1830/2006 has been registered, has submitted that since the allegation against the appellant is that he has entered into India from the specified territory between 1st January, 1966 to 25th March, 1971 and not post 25th March, 1971, the Tribunal, at the most, ought to have declared the appellant to be a foreigner coming to India from the specified territory between 1st January, 1966 to 25th March, 1971 and not post 25th March, 1971, as has been done in the instant case. It has also been submitted that had the appellant been declared as a foreigner coming to India between 1966 to 1971 he would have accrued the right to file application seeking registration of his name under the provisions of the Citizenship Act and the Rules framed thereunder. The learned counsel further submits that the said aspect of the matter has not been taken into consideration by the learned single Judge while passing the impugned order. [5] Mr. Bhagabati, learned Central Government counsel as well as Mr. Handique, learned State counsel appearing for the respondents, on the other hand, supporting the order passed by the learned single Judge have submitted that it is apparent therefrom that the appellant could not demonstrate any reason as to why he did not file the writ petition challenging the order passed by the Tribunal immediately after passing of the said order. It has also been submitted that the appellant having not approached this Court within the reasonable period of time, the learned single Judge did not commit any illegality in passing the impugned order. On the submission made by the learned counsel for the appellant that in any case the appellant could not have been declared as foreigner coming to India post 25th March, 1971, in view of the notice issued to him, the learned counsel appearing for the respondents have fairly submitted that having regard to the contents of the aforesaid notice, the Tribunal ought to have declared the appellant as foreigner coming to India between 1st January, 1966 to 25th March, 1971 and not a foreigner coming to India post 25th March, 1971. [6] We have considered the submissions advanced by the learned counsel appearing for the parties and also perused the materials made available before this Court. [7] It appears from the notice dated 13th March, 2008 that the appellant was asked to show cause as to why he should not be declared as foreigner coming to India from the specified territory between 1st January, 1966 to 25th March, 1971. [8] The appellant did not contest the proceeding in FT Case No.1830/2006, though he put his appearance for once. Non contest of the proceeding does not mean that the appellant would be declared as foreigner coming to India post 25th March, 1971, there being an allegation that the appellant has entered into India between 1st January, 1966 to 25th March, 1971. Non contest of the proceeding does not mean that the appellant would be declared as foreigner coming to India post 25th March, 1971, there being an allegation that the appellant has entered into India between 1st January, 1966 to 25th March, 1971. It appears from the order passed by the Tribunal on 4th April, 2009 that the appellant was declared as foreigner coming to India post 25th March, 1971 though there was no allegation in that respect against the appellant. The said aspect of the matter has not been taken into consideration by the learned single Judge. [9] In view of the above, the order passed by the learned single Judge on 28th June, 2013 in WP(C) No.3584/2013 is set aside. The order passed by the Tribunal stands modified to the extent that the appellant is a foreigner coming to India from the specified territory between 1st January, 1966 to 25th March, 1971, who shall now, within 2(two) months from today, file necessary application for registration of his name under the relevant provisions of Law. The consequence of declaration of the appellants as foreigner coming to India between the aforesaid dates would follow. The appellant’s name, if in the voters list, shall be deleted for a period of 10(ten) years. [10] The appeal is accordingly allowed to the extent indicated above. No costs.