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2015 DIGILAW 722 (GAU)

Majina Bibi v. State of Assam

2015-06-11

B.K.SHARMA

body2015
JUDGEMENT : 1. By means of this writ petition, the petitioner has prayed for a direction to the respondents not to enforce the judgement and order dated 10/01/2011 passed by the Foreigners Tribunal No.1, Dhubri in FT Case No. 723/GPR/06 (Ref. case No. 7178 of 1998) (State Vs. Marjina Begum, wife of Hossen). 2. According to the petitioner, the judgement in question does not pertain to her and pertains to Marjina Begum. In the writ petition, the petitioner has identified her as Majina Bibi wife of Hasen Ali of Village Fulkumari, P.S. Gauripur, District Dhubri, Assam. Throughout the writ petition, it is the definite case of the petitioner that Marjina and Majina are 2 (two) different persons and the impugned judgement having been delivered against Marjina, the same is not binding on her. 3. Although the impugned judgement was delivered on 10/01/2011, the petitioner has challenged the same more than 4 (four) years thereafter and there is no explanation as to the cause of delay. In paragraph 11 of the writ petition, the petitioner has stated thus :- “11. That in the instant case, the respondents had made a reference vide R/IM(D)T Case No. 7178/98 against Marjina Begum, wife of Hosen, House No. 211, Village Fulkumari, P.S. Gauripur and Judgement & Order dated 10.01.2011 has been passed in connection with the said reference case but not against the petitioner. The respondents instead of processing the enforcement of the said judgement against said Marjina Begum are processing against the petitioner. The above impugned activities are arbitrary, illegal and without jurisdiction. It is accordingly a fit case where this Hon’ble Court would be pleased to interfere directing the respondents not to enforce the judgement and order dated 10.01.2011 against the petitioner, otherwise the petitioner will suffer irreparable loss and injuries.” 4. Considering the above projection made in the writ petition, this Court while entertaining the writ petition on 11/05/2014 (11/05/2015) was inclined to stay the impugned judgement and order dated 10/01/2011 referred to above. 5. I have heard Mr. B. Sinha, learned counsel for the petitioner and so also Mr. J. Handique, learned State Counsel. I have also heard Ms. G. Sarma, learned counsel representing Mr. S.C. Keyal, learned ASGI. I have also considered the entire materials on record including the records received from the Tribunal. 6. While Mr. 5. I have heard Mr. B. Sinha, learned counsel for the petitioner and so also Mr. J. Handique, learned State Counsel. I have also heard Ms. G. Sarma, learned counsel representing Mr. S.C. Keyal, learned ASGI. I have also considered the entire materials on record including the records received from the Tribunal. 6. While Mr. Sinha, learned counsel for the petitioner referring to the averments made in the writ petition submits that the proceeding before the Tribunal was pertaining to another lady and not in respect of the petitioner, the learned counsel representing the respondents submit that Marjina and Majina is one and the same person. 7. On perusal of the records, there is absolutely no manner of doubt that this writ petition has been filed suppressing the material fact. On perusal of the records received from the Tribunal, it is found that the petitioner on receipt of the notice from the Tribunal appeared on 04/07/2009 and filed her written statement. The matter was adjourned fixing the next date on 01/08/2009. On 01/08/2009 also, prayer was made for an adjournment and accordingly the same was granted fixing the matter on 28/08/2009. On 28/08/2009, the petitioner remained absent without any step and so also on the next date i.e. on 28/09/2009. Situated thus, fresh notice was issued and served on the petitioner. However, she again remained absent on 30/11/2009 and 04/01/2010 on which date another notice was issued to her and served. 8. On 06/02/2010, although the petitioner was absent but her engaged counsel prayed for time and the same was granted fixing the matter on 10/03/2010. On 10/03/2010 also, the petitioner remained absent and her engaged counsel filed petition praying for time and the same was granted fixing the matter on 13/04/2010. 9. After the above adjournments, further adjournments were granted on 13/04/2010, 21/05/2010, 22/06/2010, 22/07/2010, 18/08/2010, 21/09/2010, 28/10/2010, 04/12/2010, 05/01/2011 and 10/01/2011, on which date the proceeding was answered exparte. 10. After the aforesaid exparte order dated 10/01/2014, the petitioner vide her application dated 07/02/1011 prayed for setting aside of the exparte order which was rejected vide order dated 19/02/2011. This fact has been withheld from this Court as there is no averment in the writ petition about the filing of the application praying for setting aside of the exparte order and rejection of the same vide order dated 19/02/2011. This fact has been withheld from this Court as there is no averment in the writ petition about the filing of the application praying for setting aside of the exparte order and rejection of the same vide order dated 19/02/2011. Consequently, there is also no challenge to the order dated 19/02/2011 with which the impugned judgement dated 10/01/2011 has merged. 11. In the application filed on 07/02/2011 seeking vacation of the exparte order, the petitioner categorically stated about the filing of the written statement on 04/07/2009. On perusal of the said written statement, it is found that the petitioner identified her in the same as Marjina Begum but in the application seeking vacation of the exparte order, she signed as Majina Bibi. To quell any doubt, I have verified the said signature and the signature appearing in the Vakalatnama filed in this proceeding. There is absolutely no manner of doubt that both the signatures i.e. the one appearing in the application seeking vacation of the exparte order dated 10/01/2011 and the other appearing in the Vakalatnama executed on05/05/2015 is of the same person i.e. Majina Bibi. The learned counsel for the parties have also agreed that the signatures appearing therein are of the same person. 12. From the above narration of fact, there is absolutely no manner of doubt that Marjina Begum is also known as Majina Bibi. In the writ petition, the petitioner has identified her husband as Hasen Ali and in the proceeding before the Tribunal, he was identified as Hossen. In the written statement, the petitioner named him as Hasen Ali. Thus, there is no doubt that Hossen and Hasen Ali is one and the same person. If the proceeding did not pertain to the petitioner, there was no occasion for her to file the application seeking vacation of the exparte order on 07/02/2011 identifying her as Majina Bibi. 13. In the proceeding before the Tribunal, the petitioner also produced a photocopy of a certificate dated 24/10/1997 identifying her as Marjina. Later on the same was scored off and substituted as Majina. Thus, there is absolutely no manner of doubt that the petitioner identifies herself as Marjina @ Majina. 14. 13. In the proceeding before the Tribunal, the petitioner also produced a photocopy of a certificate dated 24/10/1997 identifying her as Marjina. Later on the same was scored off and substituted as Majina. Thus, there is absolutely no manner of doubt that the petitioner identifies herself as Marjina @ Majina. 14. Above being the position, apart from the delay in filing the writ petition, which is more than four years, there is absolutely no manner of doubt that the petitioner has invoked the writ jurisdiction of this Court with material suppression of fact and abusing the process of law. Consequently, the writ petition is dismissed. Interim order passed on 11/05/2015 stands vacated. 15. Consequent upon dismissal of the writ petition, now the Superintendent of Police (B), Dhubri shall ensure that the petitioner is arrested and detained in the detention camp till her deportation to her country of origin i.e. Bangladesh. The Deputy Commissioner, Dhubri shall ensure deletion of the name of the petitioner from the voter list, if any. 16. Let the matter be listed again after one month so as to submit report by the Superintendent of Police (B) Dhubri about the action taken in the terms of this order. 17. Registry shall send down the case records to the learned court below along with a copy of this judgement and order. A copy of the judgement and order may also be furnished to Mr. J. Handique, learned State Counsel as well as Mr. S.C. Keyal, learned ASGI, for their immediate necessary follow up action. Copies shall also be sent to the SP(B), Dhubri and Deputy Commissioner, Dhubri, for their immediate follow up action.