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2016 DIGILAW 589 (GAU)

Jakir Hussain (Md. ) v. Union of India

2016-06-23

RUMI KUMARI PHUKAN, UJJAL BHUYAN

body2016
ORDER : Ujjal Bhuyan, J. 1. Heard Ms. S. Roy, learned counsel for the petitioner, Mr. M. Bhagawati, learned Govt. Advocate, Assam and Ms. G. Sharma, learned counsel for the Central Government. By filing this petition, petitioner seeks quashing of order dated 19.01.2016 passed by the Foreigners Tribunal No. 1, Nalbari as well as the order dated 01.03.2016 passed by the Foreigners Tribunal, Baksa, Tamulpur, rejecting the applications for setting aside the ex parte order declaring the petitioner to be a foreigner having illegally entered into India (Assam)after 25.03.1971. 2. On a reference made by the Superintendent of Police (Border), Nalbari, with the allegation that petitioner was a foreigner having illegally entered into India (Assam) after 25.03.1971, FT (Nal) Case No. 2269/2007 was registered in the Foreigners Tribunal, Nalbari. Though notice of the proceeding was served upon the petitioner, he did not appear before the Tribunal and contest the reference. As a result, Tribunal was compelled to proceed ex parte against the petitioner. After examining the evidence adduced on behalf of the State, Tribunal passed order dated 13.2.2012 holding that as the petitioner had failed to discharge his burden under Section 9 of the Foreigners Act, 1946, the reference would stand answered against him by opining that the petitioner was a foreigner of post 1971 stream. 3. It appears that petitioner had filed an application before the Tribunal on 27.04.2012 for setting aside the ex parte order but by the order dated 27.04.2012, Tribunal rejected the said application. 4. Thereafter, petitioner approached this Court by filing WP(C) No. 2792/2012. Learned Single Judge by order dated 21.09.2015 set aside the order of the Tribunal dated 27.04.2012 and remanded the matter back to the Tribunal with a direction to pass a fresh order on the basis of the application dated 27.04.2012 filed by the petitioner. 5. Following the order of this Court dated 21.09.2015, learned Member, Foreigners Tribunal No. 1, Nalbari, took up the application filed by the petitioner on 27.04.2012 for setting aside the ex parte order dated 13.02.2012. After hearing the matter, learned Member rejected the said application vide order dated 19.01.2016. 6. Thereafter, petitioner filed another application before the Tribunal to re-open FT (Nal) Case No. 2269/2007. This application was supported by another application filed under Section 5 of the Limitation Act, 1963. After hearing the matter, learned Member rejected the said application vide order dated 19.01.2016. 6. Thereafter, petitioner filed another application before the Tribunal to re-open FT (Nal) Case No. 2269/2007. This application was supported by another application filed under Section 5 of the Limitation Act, 1963. In the meantime, records of FT (Nal) Case No. 2269/2007 was transferred to Foreigners Tribunal, Baksa, Tamulpur, where it was re-numbered as FT Case No. 71/Baksa/2016. Learned Member on due consideration, passed the order dated 01.03.2016 dismissing the fresh application. 7. Hence, the present writ petition. 8. Facts of the case have already been noticed above. 9. The Supreme Court in Sarbananda Sonowal v. Union of India, reported in (2005) 5 SCC 665 , while striking down the Illegal Migrants (Determination by Tribunals) Act, 1983 as unconstitutional, has held that the provisions contained in the Foreigners Act, 1946 and the procedure prescribed under the Foreigners (Tribunals) Order, 1964, are just, fair and reasonable and do not offend any constitutional provision. 10. Despite notice being issued by the Tribunal, petitioner did not bother to appear before the Tribunal and to contest the proceeding. Following the mandate of Section 9 of the Foreigners Act, 1946, as the petitioner failed to prove his Indian citizenship because of his default, he was held to be a foreigner of post 25.03.1971 stream by the Tribunal. Thereafter, he filed an application dated 27.04.2012 before the Tribunal for setting aside the ex parte order. As per this application, as the petitioner was suffering from Tuberculosis, he could not appear before the Tribunal. He also stated that his father was declared as an Indian citizen by the Tribunal. No documents however were annexed to the said application. It was also not supported by any affidavit. Though the application was summarily rejected by the Tribunal, such rejection was set aside by this Court and the matter was remanded back to the Tribunal for a fresh decision on the basis of the application dated 27.04.2012. In the order dated 19.01.2016, Tribunal noted that the application filed by the petitioner for setting aside the ex parte order was not supported by any affidavit and also there was no separate petition for condonation of delay since admittedly the application dated 27.04.2012 was filed after expiry of the limitation period. In the order dated 19.01.2016, Tribunal noted that the application filed by the petitioner for setting aside the ex parte order was not supported by any affidavit and also there was no separate petition for condonation of delay since admittedly the application dated 27.04.2012 was filed after expiry of the limitation period. The Tribunal dismissed the application by holding that the application dated 27.04.2012 did not disclose any reasonable ground to vacate the ex parte order. 11. Thereafter, petitioner submitted another application before the Tribunal to re-open the case against the petitioner. This petition was supported by an application filed under Section 5 of the Limitation Act, 1963 wherein it was stated that petitioner was under medical treatment from 01.07.2010 to 27.02.2012 because of which he could not appear before the Tribunal. 12. Learned Member by a reasoned order dated 01.03.2016 rejected the said application. The Tribunal held that after passing of order dated 19.01.2016, the second petition filed for re-opening of the case was not maintainable. 13. An ex parte order passed by a Foreigners Tribunal cannot be set aside in a routine manner having regard to the fact that procedure adopted by the Tribunal are just, fair and reasonable. This aspect of the matter was gone into by a Full Bench of this Court in State of Assam v. Moslem Mondal, reported in 2013 (1) GLT 809, wherein it was held that a Foreigners Tribunal would have the jurisdiction to set aside an ex parte order if the procedee can demonstrate to the satisfaction of the Tribunal that he/she was prevented by 'special' or 'exceptional' circumstances from contesting the reference before the Tribunal. If no such 'special' or 'exceptional' circumstances are made out, Tribunal would have the jurisdiction to reject such application at the threshold. 14. On thorough consideration of the matter, we do not find that the petitioner is able to make out any 'special' or 'exceptional' circumstances to warrant interference with the ex parte order dated 13.02.2012. The view taken by the Tribunal cannot be said to be erroneous or suffering from any infirmity to warrant interference. 15. For the aforesaid reasons, we find no merit in the writ petition which is accordingly dismissed. 16. Registry to inform the concerned Deputy Commissioner & Superintendent of Police (Border) accordingly. Let a copy of this order be furnished to Mr. M. Bhagawati, learned Govt. 15. For the aforesaid reasons, we find no merit in the writ petition which is accordingly dismissed. 16. Registry to inform the concerned Deputy Commissioner & Superintendent of Police (Border) accordingly. Let a copy of this order be furnished to Mr. M. Bhagawati, learned Govt. Advocate, Assam, for information to the above concerned authorities.