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2015 DIGILAW 1507 (GAU)

RAFIQUL ISLAM v. STATE OF ASSAM

2015-12-09

B.K.SHARMA, MANOJIT BHUYAN

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JUDGMENT B.K. Sharma, J. Heard Mr. MA Sheikh, learned counsel for the petitioner. Also heard Mr. M. Bhagabati, learned State counsel and Ms. G. Sarma, learned counsel appearing on behalf of Mr. S.C. Keyal, learned ASGI, for the respondents. 2. By means of this writ petition filed on 26.11.2015, petitioner has challenged the order dated 14.9.2009 passed by the Foreigners Tribunal (1st), Sonitpur, Tezpur in FT(D) Case No.252/2007 and Superintendent of Police (B), Sonitpur, Tezpur Case No.TZP.(B)/06/1190 dated 24.4.2006 (State of Assam v. Rafiqul Islam). By the said order passed ex-parte, the petitioner has been declared to be a foreigner. In the writ petition, the petitioner has urged the following grounds for non appearance; "10. That the petitioner hails from very poor family. In the year 2007 the petitioner asked for Rs.20/- from his mother but his mother provided him Rs.10/- and on that count threw away the money and his mother assaulted him and as a result being angered to mother he left the house and along with a mason he went to Nagaland started to work with the mason as jogali. After some months he was willing to return back home but the mason said to him that he could return home along with the mason and one date after another the mason responding his date of return and in this way virtually petitioner was detained by the mason. It is also pertinent to mention here that the mason took the work from the petitioner as bonded labourer. The mason provided only food, shelter and clothing to the petitioner but no extra money was given to him to meet his expenditure for travelling to his village home. In this way the petitioner continued up to 4.8.2015 in Nagaland. In August, 2015 the father of the petitioner went to Nagaland for his business purpose and suddenly and luckily found the petitioner in a market in the evening time in Nagaland on 4.8.2015. Then his father brought him back home on 5.8.2015 at village Uriamguri under Tezpur Police Station. Thereafter on 8.8.2015 police arrested the petitioner and sent him to detention camp, Goalpara District Jail. 12. That on receipt of the case on transfer it was registered as FT(D) Case No.252/2007 by the Foreigners Tribunal (1st), Sonitpur, Tezpur and the said Tribunal (1st) issued notice dated 24.12.07 directing appearance of the petitioner on the aforesaid FT Case on 26.2.08. Thereafter on 8.8.2015 police arrested the petitioner and sent him to detention camp, Goalpara District Jail. 12. That on receipt of the case on transfer it was registered as FT(D) Case No.252/2007 by the Foreigners Tribunal (1st), Sonitpur, Tezpur and the said Tribunal (1st) issued notice dated 24.12.07 directing appearance of the petitioner on the aforesaid FT Case on 26.2.08. Notice was issued by the Tribunal to the petitioner in the absence of the petitioner at home since 2007. The notice was received by his mother. The petitioner did not receive any notice. However, as the mother of the petitioner as she received notice on behalf of the petitioner deemed it fit to file a petition for adjournment of the case and the Hon'ble Tribunal was pleased to grant adjournment. However, the mother of the petitioner did not know of where about of the petitioner, so, she was unable to give any information about the case to the petitioner and subsequently she did not appear in the case. As the petitioner did not receive any copy of the notice, so, he could not appear in the court." 3. The petitioner has also contended that his father was declared to be an Indian citizen by the same very Tribunal in another proceeding, namely, FT(D) Case No.253/2007 [SP(B) Case No.TZP(B)/06/1191] vide order dated 29th May, 2009. On perusal of the above order dated 29th May, 2009 passed by the Foreigners Tribunal, Sonitpur, Tezpur, it is found that the projected father of the petitioner, namely, Jabed Ali, was held to be not a foreigner primarily on the basis of the affidavit allegedly sworn by him before the Executive Magistrate on 17th November, 1993, by which he made a declaration that he had converted to Islam with effect from 4th August, 1975 changing his name as Jabed Ali in place of Khagen Keot. In the instant writ petition also, the petitioner said to be the son of said Jabed Ali @ Khagen Keot has placed reliance on the said affidavit of 1993 allegedly sworn before the Executive Magistrate, Tezpur on 17th November, 1993. On perusal of the said affidavit, we find that unlike other affidavits, there is no heading as to before whom the same was sworn in. On perusal of the said affidavit, we find that unlike other affidavits, there is no heading as to before whom the same was sworn in. Although the affidavit refers to an earlier affidavit purportedly sworn on 4th August, 1975 but on being asked the learned counsel for the petitioner could not produce the same. Significantly, the verification part of the affidavit depicts the date as 10th November, 1993 but the purported signature of the Magistrate contains the date as 17th November, 1993. 4. Irrespective of the above position in respect of the affidavit, it is also to be seen as to whether a person can change his religion adopting such a procedure. If this is allowed, any foreign national and for that matter, the Bangladeshi national, illegally migrating to India will sworn an affidavit projecting an Indian citizen as his/her father or grandfather with the plea that he/she had changed his/her religion subsequently. This being the position, we are of the considered opinion that the learned Tribunal was wrong in accepting the said affidavit towards declaring Jabed Ali as Indian citizen. However, in absence of any challenge to the said order, we will refrain from interfering with the said order. At the same time, we place on record that in case any reliance being placed on the said affidavit by the petitioner so as to claim that he is the son of Jabed Ali @ Khagen Keot, the learned Tribunal shall deal with the matter strictly in accordance with law without being guided by the said order of the Tribunal. 5. As per the Full Bench decision in State of Assam v. Moslem Mondal reported in 2013 (1) GLT (FB) 809, a Tribunal is empowered to entertain an application for setting aside an ex-parte order upon showing good and sufficient causes. For ready reference para 92 of the judgment is quoted hereinbelow: "92. 5. As per the Full Bench decision in State of Assam v. Moslem Mondal reported in 2013 (1) GLT (FB) 809, a Tribunal is empowered to entertain an application for setting aside an ex-parte order upon showing good and sufficient causes. For ready reference para 92 of the judgment is quoted hereinbelow: "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 proceedee 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 proceedee 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." 6. Considering the matter in its entirety, this writ petition is disposed of granting liberty to the petitioner to approach the Tribunal on or before 31.12.2015 and to file an application for setting aside the ex-parte order dated 14.9.2009. In the event of filing such application, the Tribunal shall dispose of the same in accordance with law and also taking note of the aforesaid facts and circumstances and also the observations made in paragraphs 3 and 4 above. However, if the petitioner fails to appear before the Tribunal on or before the aforesaid stipulated period of time, the Superintendent of Police (B), Sonitpur shall take appropriate action towards implementation of the impugned order dated 14.9.2009. 7. It is submitted that the petitioner was arrested on 8.8.2015 and he is in District Jail, Goalpara. The petitioner shall be released forthwith from the District Jail, Goalpara, upon furnishing adequate surety to the satisfaction of the SP (B), Sonitpur. 7. It is submitted that the petitioner was arrested on 8.8.2015 and he is in District Jail, Goalpara. The petitioner shall be released forthwith from the District Jail, Goalpara, upon furnishing adequate surety to the satisfaction of the SP (B), Sonitpur. Upon furnishing such surety, the SP(B), Sonitpur, shall intimate the same to the District Jail, Goalpara accordingly.