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2016 DIGILAW 558 (GAU)

Md. Idrish Ali v. Union of India

2016-06-16

RUMI KUMARI PHUKAN, UJJAL BHUYAN

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JUDGMENT AND ORDER : Rumi Kumari Phukan, J. The petitioners, herein, in response to the notice so served in connection with F.T. Case No. 55/2007 entered their appearance on 24.4.07 in the said case and prayed time for filing written statement which was allowed by the learned Tribunal but as the petitioners did not file their written statement till 28.5.08 and did not contest the case, so ultimately the Tribunal proceeded ex-parte and vide order dated 13.7.10 declared the petitioners as foreigners of post 25.3.71 stream. 2. Challenging the aforesaid ex-parte order dated 13.7.10 the petitioners approached before this Court by filing W.P. (C) 6053/10 and this Court by order dated 4.4.13 granted leave to the petitioners to approach the learned Tribunal for setting the ex-parte opinion. Accordingly, the petitioners appeared before the learned Tribunal by filing an application for setting aside the ex pate order on the basis of which Misc. Case 1/2013 was registered. But, however, the learned Tribunal by its order dated 29.6.13 dismissed the said application by providing another opportunity to file fresh petition under appropriate provision of law. In view of the liberty granted by the learned Tribunal, the petitioners filed two applications under the provisions of Order 9, Rule 13 read with Section 151 CPC for setting aside the ex parte order and also filed another application under Section 5 of the Limitation Act to condone the delay in preferring the application on the basis of which Misc. Case 13/2013 was registered. By order dated 17.10.13, the learned Tribunal was pleased to reject both the applications solely on the ground that there was no explanation for his absence before the Tribunal since 15.11.07 to 13.7.10. 3. Being aggrieved with the aforesaid order of Tribunal the present petition has been preferred for invoking the writ jurisdiction for setting aside the impugned ex parte order dated 13.7.10 passed in F.T. (C) 55/07 as well as order dated 29.6.13 and 13.7.10 as aforesaid. 4. The petitioners are now being detained in detention camp in pursuance to the aforesaid order. 5. The contention now raised by the petitioners that the learned Tribunal has erred in law by rejecting the application so filed by the petitioners for vacating the ex-parte order and to condone the delay for filing the petition. 4. The petitioners are now being detained in detention camp in pursuance to the aforesaid order. 5. The contention now raised by the petitioners that the learned Tribunal has erred in law by rejecting the application so filed by the petitioners for vacating the ex-parte order and to condone the delay for filing the petition. The main grievance so raised by the petitioners is that they being illiterate and ignorant, fully depend upon the learned Advocate to represent their case but the learned engaged counsel neither represented them nor advanced any advice to them as to how to present their case. They are under the bona fide belief that the engaged counsel has conducted their case, which in fact was not done by the counsel which has resulted the ex-parte order. This is the bone of contention of the petitioners while filing the earlier writ petition before this Court and also the subsequent application before the Tribunal as discussed above. 6. We have considered the submissions of learned counsel for both the parties and gone through the impugned orders as well as the case record of FT (C) 55/07. The learned counsel for the petitioners, Mr. A. Alam has vehemently argued that the petitioners being illiterate and ignorant about the court procedure has relied upon the engaged counsel and as he did not provide proper guidance to the petitioners about the procedure of the case as a result of which they could not appear and the case was decided ex-parte and for the conduct of the counsel the petitioners should not be allowed to suffer. Further by way of filling additional affidavit the petitioners have filed some copies of documents in support of their contention that the petitioners have sufficient evidence to prove the citizenship and has prayed to consider the said documents. 7. On the other hand, the learned counsel for the State respondents and the SGI has vehemently raised objection against such contention of learned counsel for the petitioners that by blaming the conduct of the counsel and by showing ignorance about the court procedure, the petitioners cannot be exonerated from their own liability to prove their citizenship. Accordingly it has been urged that there is no illegality or irregularity in the findings of the learned Tribunal under challenge. 8. Accordingly it has been urged that there is no illegality or irregularity in the findings of the learned Tribunal under challenge. 8. We have given due consideration to the submissions so made by the learned counsel for both the parties and carefully gone through the matters on record and the impugned orders mentioned above. It is evident from the record that the petitioners took sufficient time to file their written statement but in spite of giving such time they failed to file any such statement and remained totally absent all through out the case for which ultimately the learned Tribunal has passed the impugned ex-parte order. For proper appreciation of the matter, the operative part of the impugned order dated 13.7.10 of the learned Tribunal is reproduced below : “Para 1. On receipt of the case for disposal from F.T., Nagaon in pursuance to Govt. Notification PLB 101/2005/PT/226 dated 5.7.06 and in this respect Tribunal notice was issued to the suspected foreigners namely Md. Idris Ali, (2) Musstt. Anwora Begum (wife), (3) Amel Ali (son), (4) Md. Nur Hussain (son), (5) Md. Aktar Ali (son), (6) Musstt. Mamata Begum (daughter) and (7) Najuma Begum to appear and file WS, if any. On receipt of the notice O.P. filed petition No. 853 dated 24.4.07 and petition dated 1001 dated 12.6.07 and petition no. 1227 dated 10.08.07 praying for submission of WS. But thereafter, OP used to default regularly without any step from 15.7.07 till the date of disposal. Hence waiting for OP for about 3 years the Tribunal had no other alternative but to dispose of the case in view of the negligence of the OP." 9. The aforesaid order was challenged before this Court on earlier occasion and this Court granted the liberty as mentioned above to approach the learned Tribunal. The learned Tribunal by its order dated 17.10.13 has dismissed the prayer for setting aside the ex-parte order. The operative part of the aforesaid order in Misc. Case No.13/2013 is reproduced below :- “ I have perused the record of the original FT(C) 55/07. Also I have gone through the evidence of PW1. The learned Tribunal by its order dated 17.10.13 has dismissed the prayer for setting aside the ex-parte order. The operative part of the aforesaid order in Misc. Case No.13/2013 is reproduced below :- “ I have perused the record of the original FT(C) 55/07. Also I have gone through the evidence of PW1. I appears from the record that OPs on receipt of the notice appeared before the Tribunal on 24.4.07, 12.6.07 and 10.8.07 along with learned engaged counsel and sought time for filing WS on this and that ground by filing Petition No. 853 dated 24.4.07, 1001 dated 12.6.07 and 1227 dated 10.8.07. But thereafter they remained absent before the Tribunal from 15.11.07 to 13.7.10 when such case was called on for hearing. Ultimately the Tribunal after examining the enquiry police officer as PW 1 gave opportunities to the OPs to adduce their evidence but all in vain. The ground of non-appearance before the Tribunal for about long 3 years from 15.11.07 to 13.7.10 cannot be regarded as sufficient ground which prevented them from appearing before the Tribunal. Illiteracy and poverty cannot be a sufficient ground for absence for such a long period. The fact is that the engaged counsel did not inform OPs. About the ex-parte order dated 13.7.10 is not tenable. When the OPs. Engaged counsel for them, it was the duty of the OPs. to keep the contact with the learned counsel but not the counsel himself. The patient runs to the doctor but not the doctor runs to the patient. The OPs. cannot escape from their responsibility merely by blaming the learned counsel engaged by them. Since the period of absence in the original case starts from 15.11.07, so the period of limitation also started from 15.11.07, the date of non-appearance of the OPs. In this respect no sufficient ground for non-appearance has been shown by the petitioners during the period from 15.11.07 to 13.7.10., when the ex-parte order was passed in FT (C) 55/07. The petition filed under Limitation Act is immaterial in view of above period of absence. The present petitioner is not sure where he will place his foot. ................................ In the result, petition stands rejected.” 10. The petition filed under Limitation Act is immaterial in view of above period of absence. The present petitioner is not sure where he will place his foot. ................................ In the result, petition stands rejected.” 10. The Full Bench decision in State of Assam v. Moslem Mondal (2013) 1 GLT 809 (para 92), it has been held that the ex-parte order passed by Tribunal cannot be interfered and set aside in a routine manner unless on exceptional ground, otherwise the very purpose of enacting the Foreigners Act, 1946 would be frustrated. 11. After going through the record and the petitions so filed by the petitioners, we have found that except blaming the engaged counsel and their ignorance they have not shown any reason for not pursuing their own case. The petitioners were very much aware about the vital issue against them to prove their nationality and the consequence of not proving their case will result their deportation from this country. In spite of being aware of such serious issues, the inaction of the petitioners to respond to the case itself indicative of the fact that they avoided from appearing before the Tribunal for the best reasons known to them but such an explanation as has been advanced before this Court has no any substance for acceptance. It is not the case of the petitioners that they approached their engaged counsel after filing of the case and he suppressed the result of the case etc. Such a casual approach by the petitioners cannot be held as an exceptional circumstances which prevented them from appearing before the Tribunal and as such, in terms of the observation in para 92 of aforesaid Moslem Mondal case, there appears no ground to set aside the ex parte either by the learned Tribunal or by way of writ jurisdiction. In absence of any irregularity or illegality in passing the order of the learned Tribunal we are not inclined to interfere into the aforesaid impugned orders. 12. In Moslem Mondal and Anr. v. Union of India & Ors., reported in 2010 (2) GLT, Division Bench of this Court held that the writ proceeding is not a substitute for a proceeding before the Tribunal and in a writ petition where the ex-parte order has been challenged, the Writ Court could examine only the materials made available before the Tribunal and not the new evidence. In view of such legal pronouncement this Writ Court cannot looked into any of the documents so produced by the petitioners by way of additional affidavit (which was filed along with the petition) which cannot be accepted. 13. In view of all above, we do not find any merit in the writ petition and accordingly it is dismissed upholding the impugned judgment and order of the learned Tribunal. Consequently, the Superintendent of Police (Border), Morigaon is hereby directed to take all necessary steps for deportation of petitioners to their country of their origin. Deputy Commissioner, Morigaon will ensure deletion of the names of the petitioners from the voter list, and other consequential action, as necessary. 14. Registry shall send down the case record to the learned Tribunal along with a copy of this judgment and order. Copy of this order may also be furnished to the learned State Counsel for its follow-up action and copies may also be sent to all concerned as indicated above.