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2018 DIGILAW 1238 (GAU)

SAMSUL HOQUE v. UNION OF INDIA

2018-08-21

A.K.GOSWAMI, M.R.PATHAK

body2018
JUDGMENT : A. K. GOSWAMI, J. 1. Heard Mr. G. Uddin, learned counsel for the petitioner. Also heard Mr. A. Kalita, learned special standing counsel, Foreigners Tribunal, appearing for respondent Nos.2, 3, 6 and 7; Ms. G. Sarma, learned CGC appearing for respondent No.1; Mr. A.I. Ali, learned standing counsel, Election Commission of India, appearing for respondent No.4 and Ms. A. Verma, learned standing counsel, NRC appearing for respondent No.5. 2. By this writ petition under Article 226 of the Constitution of India, the petitioner prays for setting aside the order dated 06.05.2017 in F.T. Case No.07/2016 as well as the order dated 11.07.2018 in Misc. Case No.20/2017 passed by the Foreigners Tribunal-I, Karimganj. By the order dated 06.05.2017, the petitioner was held to be a foreigner, who had entered into India from Bangladesh on or after 25.03.1971. By the order dated 11.07.2018, the petition filed by the petitioner under Order 9 Rule 13 read with Section 151 CPC for setting aside the order dated 06.05.2017 was rejected. 3. On 15.09.2016 the case was fixed for filing written statement. On 15.09.2016 and 16.11.2016, the petitioner prayed for time for filing written statement and the same was granted. However, on and from 18.01.2017, the petitioner remained absent without any steps, as a result of which the learned Tribunal passed the order dated 06.05.2017. On 23.10.2017 the petitioner had filed the application under Order 9 Rule 13 read with Section 151 CPC. On receipt of the said application, Misc. Case No.20/2017 was registered. In paragraphs 3 and 4 of the said application, the petitioner stated as follows:- "3. That, petitioner/OP is a Mason by profession and doing work at Mamit District Mizoram under one Headman Abdul Hoque of Vill. Kanishail, P.S. & Dist. Karimganj, Petitioner/OP temporarily residing at Mungsung Mizoram in a rented home regarding his work. The original contractor of his work is a Mizo person under whom the petitioner did his work. That, petitioner/OP is a Mason by profession and doing work at Mamit District Mizoram under one Headman Abdul Hoque of Vill. Kanishail, P.S. & Dist. Karimganj, Petitioner/OP temporarily residing at Mungsung Mizoram in a rented home regarding his work. The original contractor of his work is a Mizo person under whom the petitioner did his work. After appearing in the FT Case No.07/2016, the petitioner went to Mizoram for his work to earn his livelihood informing his engaged Advocate and on the next date step was taken by engaged lawyer, as the petitioner could not come to attend his case from Mizoram in the meantime a riot between Mizo people and non-Mizo people started at Mizoram (work place of petitioner) and due to this reason the petitioner/OP and his colleagues are remain bound to stay at a place at Mizoram for their safety of life and also payment of the work also stopped by the original Mizo Contractor, as a result of that the petitioner/OP fells in a critical situation and failed to attend the Tribunal in due time to contest his case. Petitioner has 5 minor children, wife and widow mother, there is no other person to contact with the engaged lawyer of the case and no step has been taken in this case/proceeding, resulting which the case of the petitioner decided exparte against him, declaring him as a Foreigner on 06.05.2017. The petitioner doing job at Mizoram since last 15 years. 4. That, some days ago the payment was made to the petitioner by the contractor and the situation was normal at the work place of petitioner and the petitioner immediately came to his house and came to the Tribunal and applied for certified copies of his case on 26.09.2017 and after receiving the same he came to know that his case was decided exparte declaring him as a Foreigner by this Tribunal." 4. The petitioner had also filed an application for condonation of delay in preferring the application under Order 9 Rule 13 read with Section 151 CPC, under Section 5 of the Limitation Act. 5. In the order dated 11.07.2018, the Tribunal held as follows:- " .. Seen the exparte order passed in F.T. Case No.7/2016 passed by my Learned Predecessor. It is found that the exparte order was passed due to non appearance of O.P. for several dates. 5. In the order dated 11.07.2018, the Tribunal held as follows:- " .. Seen the exparte order passed in F.T. Case No.7/2016 passed by my Learned Predecessor. It is found that the exparte order was passed due to non appearance of O.P. for several dates. It is an established rule that a petition for setting asdie the exparte order should file within a period of 30 days from the date of passing the exparte order. Here, in this Case the petition has been filed after a long time on 23-10-2017. The grounds of non appearance is not found sufficient rather it is self made default. The O.P. had gone to another State for working according to his will in spite of having knowledge of a Case pending against him. Thus the cause of non appearance is not found sufficient for consideration. ." 6. It appears that the petitioner also examined himself in Misc. Case No.20/2017 as OPW No.1, where, the petitioner had deposed regarding clashes at Mamit District of Mizoram, where the petitioner was working as a Mason. The petitioner has brought on record the evidence-in-chief. It does not appear that any objection was filed to the application for condonation of delay or the application under Order 9 Rule 13 read with Section 151 CPC and it also appears that there is no cross-examination of the petitioner regarding the veracity of the statements made by him in evidence. 7. Rule 3A of the Foreigners (Tribunals) Order, 1964 reads as follows:- "3A. Procedure for setting aside ex parte order.- (1) Where the Foreigners Tribunal has passed an ex-parte order for non-appearance of the proceedee and he or she has sufficient cause for not appearing before the Foreigners Tribunal, it may on the application of the proceedee, if filed within thirty days of the said order, set aside its ex parte order and decide the case accordingly. (2) The proceedee may file an application to the Foreigners Tribunal within thirty days to review the decision of the Foreigners Tribunal claiming that he is not a foreigner and Foreigners Tribunal may review its decision within thirty days of the receipt of such application and decide the case on merits. (3) Subject to the provisions of this order, the Foreigners Tribunal shall have the powers to regulate its own procedure for disposal of the cases expeditiously in a time bound manner." 8. (3) Subject to the provisions of this order, the Foreigners Tribunal shall have the powers to regulate its own procedure for disposal of the cases expeditiously in a time bound manner." 8. In State of Assam Vs. Moslem Mondal, (2013) 1 GauLT 809 , this Court had held that 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 beyond his control from appearing in the proceeding. It was also laid down that such application, however, should not be entertained in a routine manner and the Tribunal can entertain such application provided the proceedee demonstrates the existence of special/exceptional circumstances in the application filed for setting aside the ex parte opinion. 9. As noticed above, the plea taken by the petitioner was not controverted. The Tribunal took note of the case presented by the petitioner that some communal clashes had taken place in the work place of the petitioner. If that be so, we are of the opinion that the petitioner was prevented by exceptional circumstances in appearing before the Tribunal to contest the proceeding. The reasoning given by the Tribunal for rejecting the application that the petitioner had gone to work in Mizoram despite knowledge of the case pending against him on his own volition does not commend for acceptance as it is the case of the petitioner that he was working in Mizoram for last 15 years for his livelihood. 10. For the reasons above, we set aside the impugned orders dated 06.05.2017 and 11.07.2018. The petitioner is directed to appear before the Foreigners Tribunal-I, Karimganj on 24.09.2018 and on that day, he may file his written statement. It is made clear that no further notice shall be issued by the Tribunal for appearance of the petitioner and for filing his written statement. No further time shall also be granted to the petitioner to file his written statement. The learned Tribunal is directed to conclude the proceeding within a period of 2(two) months from the date of appearance of the petitioner on 24.09.2018. 11. With the above observations and directions, the writ petition is allowed and disposed of.