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2015 DIGILAW 1104 (GAU)

Md. Usman Ali v. Union of India

2015-08-28

B.K.SHARMA

body2015
JUDGMENT : B.K. Sharma, J. 1. The challenge in the writ petition is the judgment and order dated 07.02.2013 passed by the Foreigners Tribunal (2nd), Morigaon in Case No. FT(D) 411/2010 (Police Reference D/N Case No. 1766/97 dated 07.12.1997) E.R.O's Reference No. MYC 29/97/3000 dated 06.11.1997, State of Assam vs. Md. Usman Ali. 2. The petitioner is also aggrieved by the order dated 09.12.2013 passed in Misc. Case No. 08/13, by which the application for setting aside the impugned ex-parte order dated 07.02.2013 was dismissed. 3. I have heard Mr. A. Matin, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned ASGI as well as Mr. B.J. Ghosh, learned State Counsel. I have also perused the entire materials on record including the records received from the Tribunal. 4. As the records would reveal, the petitioner kept on taking time on various dates till passing of the impugned judgment and order dated 07.02.2013. In between, he also remained absent without steps on 26.04.2012, 19.05.2012, 15.06.2012, 05.07.2012, 18.09.2012, 29.11.2012 and finally on 07.02.2013. On 15.06.2012, the learned Tribunal referring to the earlier dates on which the petitioner remained absent passed an order for ex-parte hearing. 5. In the writ petition, the petitioner has blamed his engaged counsel. In this connection, he has made the following statements in paragraphs 4, 7 and 8 of the writ petition, which are quoted below:- "4. That however, after filing of the W/S, the learned engaged Advocate did not intimate the petitioner to appear as witness before the Tribunal for placing the documents on the basis of which the petitioner claims to be a citizen of India by birth. As such, in absence of any evidence from the side of the petitioner, the case was disposed of by the Judgment and Order dated 07.02.2013 holding the petitioner to be a foreigner. 7. That it is due to the deliberate inaction and gross negligence of the engaged Advocate Sri Bipul Sarkar, for which the case came to be disposed of without recording evidence from the side of the petitioner. Had the engaged Advocate intimated the petitioner to get his evidence recorded by the learned Tribunal, and had the petitioner got the opportunity to place on record and prove the documents etc in his possession to prove that he is a citizen of India by birth, the case would have certainly been decided in his favour. 8. Had the engaged Advocate intimated the petitioner to get his evidence recorded by the learned Tribunal, and had the petitioner got the opportunity to place on record and prove the documents etc in his possession to prove that he is a citizen of India by birth, the case would have certainly been decided in his favour. 8. That the petitioner was meeting the engaged Advocate Sri Bipul Sarkar, as and when required by him, paid him the necessary fees regularly and also handed over all the relevant documents for submitting in the Tribunal. Sri Sarkar assured that he would inform the petitioner when he will have to appear the before the Tribunal as an witness, and as such, he was waiting. But, to his utter dismay, only after dismissal of the case by the learned Tribunal, Sri Bipul Sarkarhad informed that case was dismissed. It was only due to deliberate inaction and gross negligence of the Advocate Sri Bipul Sarkar that the case came to be disposed without recording evidence from his side." 6. Earlier also the petitioner had challenged the impugned judgment and order dated 07.02.2013 by filing a writ petition being WP (C) No. 3438/2014 and the same was disposed of on 18.07.2014 on the basis of the submission made by the petitioner that he was let down by the engaged counsel before the Tribunal and that the petitioner would like to make a complaint against him. For a ready reference the order dated 18.07.2014 (Annexure-E) is quoted below:- "Mr. A. Alam, the learned counsel for the petitioner prays for liberty to withdraw the case as the petitioner was led down by the engaged lawyer before the Foreigners Tribunal. The petitioner wants to lodge complaint against the errant lawyer and wants to implead him as party in the proceeding. In view of this submission made by the petitioner's lawyer, the case is disposed of as not pressed." 7. The petitioner has now filed the instant writ petition with the aforesaid statements. However, on perusal of the subsequent order dated 09.12.2013 passed in M.C. No. 08/2013 when it appeared that altogether a different ground was urged in the application for setting aside the ex-parte order, the records of Misc. Case No. 08/13 was also called for. 8. The petitioner has now filed the instant writ petition with the aforesaid statements. However, on perusal of the subsequent order dated 09.12.2013 passed in M.C. No. 08/2013 when it appeared that altogether a different ground was urged in the application for setting aside the ex-parte order, the records of Misc. Case No. 08/13 was also called for. 8. The learned counsel for the petitioner was also directed to furnish a copy of the application filed for setting aside the ex-parte order, as the same is not annexed to the writ petition. 9. On perusal of the records of Misc. Case No. 08/2013, it appears that the petitioner has taken recourse of falsehood, inasmuch as in the application filed before the Tribunal for setting aside the ex-parte order, the ground now urged in the writ petition was never the grounds. The only ground assigned was that on receipt of notice, the petitioner had been taking steps and took time to file written statement, but unfortunately due to illness, he could not submit the written statement and ultimately it resulted in passing the impugned ex-parte order. For a ready reference, the application is quoted below:- "The petitioner most respectfully begs to sheweiths as lender:- 1. That the petitioner is the opposite party of the F.T. (D) 411/2010 pending in the Foreigners Tribunal No. 2, Morigaon. 2. That the opposite party has been received notice issued against him from the Tribunal and after receiving notice the opposite party has also been taken steps seeking time to submit W/S but unfortunately due to illness the opposite party could not submit W/S in the time allowed to him by the Hon'ble Tribunal. Ultimately by the case proceeded ex-parte on default of the opposite party and the an ex-parte order passed on 07.02.2013 declaring that the petitioner has not been treated as an Indian Citizen. 3. That now the opposite party regrets that though the opposite party has all the relevant documents to prove his Indian Citizenship due to illness and unconsciousness the opposite party was not regular in this case for which he has been defaulted and declared a Foreigner in the ex-parte order in connection with this case. So if the said ex-parte order has not been vacated the opposite party will have suffer an irreparable loss. So if the said ex-parte order has not been vacated the opposite party will have suffer an irreparable loss. Therefore, it is prayed that your honour may graciously be pleased to allow this petition and kindly pass an order vacating the previous ex-parte order to review the case for the end of justice and oblige." 10. From the above facts, it is demonstrated that the petitioner has taken recourse of falsehood in blaming the engaged counsel, inasmuch as the application in the application for setting aside of the ex-parte order, there was no blame game against the engaged counsel. 11. The learned Tribunal has rightly rejected the application for setting aside the ex-parte order, inasmuch as the medical certificate although not enclosed to the writ petition but available in the LCR clearly discloses that the same is a fake and forged certificate. In the medical certificate said to have been issued by the doctor, there is no mention of the name of the doctor and his qualification and address. Coupled with this the said certificate is also not on any letterhead. The same also does not contain any seal. On a bare perusal of the certificate available in the LCR, it is easily discernible that the same is the product of forgery. The learned Tribunal has discussed all these aspects of the matter in the impugned order rejecting the application for setting aside the ex-parte order. 12. A Full Bench of this Court in the case of State of Assam vs. Moslem Mondal and Others, 2013 (1) GLT (FB) 809 has held that the Tribunal has jurisdiction to set aside an ex-parte order provided good and sufficient grounds are shown. Paragraph 92 of the said judgment, it has been held thus:- "92. As discussed above, the Tribunals constituted under the Foreigners Act read with the 1964 Order have to regulate their own procedure and they have also the quasi-judicial function to discharge and hence in a given case the Tribunal has jurisdiction to entertain and pass necessary order on an application to set aside an ex-parte opinion, provided it is proved to the satisfaction of the Tribunal that the proceeded was not served with the notice in the reference proceeding or that he was prevented by sufficient cause from appearing in the proceeding, reason for which was beyond his control. Such application, however, should not be entertained in a routine manner. The Tribunal can entertain such application provided the proceeded could demonstrate the existence of the special/exceptional circumstances to entertain the same by way of pleadings in the application filed for setting aside the ex-parte opinion, otherwise the very purpose of enacting the 1946 Act and the 1964 Order would be frustrated. The Tribunal, therefore, would have the jurisdiction to reject such application at the threshold, if no ground is made out." 13. In the instant case, the petitioner has assigned false and concocted ground. This being the position, I see no reason to interfere with the impugned judgment and order dated 07.02.2013 passed by the Foreigners Tribunal (2nd), Morigaon in Case No. FT(D) 411/2010 and also the order dated 09.12.2013 passed in Misc. Case No. 08/13 and accordingly, the writ petition is dismissed. Consequently, the Superintendent of Police (Border), Morigaon shall take the petitioner into custody and detain him in the detention camp forthwith till such time he is deported to his country of origin. Simultaneously, the Deputy Commissioner, Morigaon shall ensure deletion of his name from the voter list, if found. 14. The Registry shall transmit the case records to the Foreigners Tribunal (2nd), Morigaon, Assam alongwith a copy of this order. 15. Copies of this order shall be sent to the Secretary to the Government of India, Ministry of Home Affairs, New Delhi, Commissioner & Secretary to the Government of Assam, Home Department, Dispur, the Superintendent of Police (Border), Morigaon and the Deputy Commissioner, Morigaon. Another copy of this order shall also be furnished to Mr. B.J. Ghosh, learned State Counsel, for his necessary follow up action. 16. List the matter after 1 (one) month for submission of report by the Superintendent of Police (Border) and the Deputy Commissioner, Morigaon.