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2018 DIGILAW 1259 (GAU)

MD JALAL UDDIN v. UNION OF INDIA

2018-08-27

A.K.GOSWAMI, M.R.PATHAK

body2018
JUDGMENT : A.K. GOSWAMI, J. 1. Heard Mr. A.K. Purkayastha, learned counsel for the petitioner. Also heard Mr. A. Kalita, learned special standing counsel, Foreigners Tribunal, appearing for respondent Nos.2, 3, 4 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.5 and Ms. A. Verma, learned standing counsel, NRC, appearing for respondent No.6. 2. Challenge in this writ petition is to an order 18.09.2017 passed by the learned Member, Foreigners Tribunal No.5, Morigaon in Case No.F.T.(C) 308/2016, whereby, the petitioner was declared to be a foreigner, who had illegally entered into India after 25.03.1971 as well as to an order dated 30.10.2017 passed by the Foreigners Tribunal-5th, Morigaon, on an application filed by the petitioner under Order 3A of the Foreigners (Tribunal) Order, 1964, whereby, the said application was rejected on the ground that the petition was filed beyond the period of 30 days and, therefore, cannot be accepted. 3. Because of failure of the petitioner to file written statement on four occasions, the case was fixed on 14.06.2017 for ex parte decision. On that day, a petition was filed on behalf of the petitioner for fixing another date for filing written statement. The petition was rejected fixing 03.07.2017 for ex parte order. As the ex parte order could not be prepared on 03.07.2017, next date was fixed on 18.07.2017 for ex parte order. On 18.07.2017, the writ petitioner, who was present before the Court, prayed for vacating the ex parte order along with a prayer to allow him to file written statement. On such prayer, the ex parte order was vacated. The petitioner had also filed written statement. 03.08.2017 was fixed for evidence of the petitioner. On that day, the petitioner was absent on the ground of illness and accordingly, 16.08.2017 was fixed for evidence. On 16.08.2017, an adjournment petition was filed by the learned counsel for the petitioner on the ground of inability of the petitioner to come and adduce evidence on account of flood. This petition was rejected on the ground that sufficient opportunities were granted to the petitioner to adduce evidence. Resultantly, the impugned order dated 18.09.2017 was passed. 4. The application under Order 3A of the Foreigners (Tribunals) Order, 1964 for vacating the ex parte order was filed on 30.10.2017. This petition was rejected on the ground that sufficient opportunities were granted to the petitioner to adduce evidence. Resultantly, the impugned order dated 18.09.2017 was passed. 4. The application under Order 3A of the Foreigners (Tribunals) Order, 1964 for vacating the ex parte order was filed on 30.10.2017. The learned Tribunal, as noticed earlier, rejected the said petition on the ground that the application could not be accepted as it was filed beyond the period of 30 days from the date of the original order. 5. In the application under Order 3A(1) and 3A(2), amongst others, a plea was taken that in the intervening period there were holidays on account of Puja. 6. While it is correct that opportunities were granted to the petitioner to adduce evidence, what cannot be lost sight of the fact is that the plea of flood taken by the petitioner for adjournment and for grant of opportunity to adduce evidence was not disbelieved while rejecting the petition filed by the petitioner. In our opinion, flood may prevent a person from coming to the Court to depose and in that event, the fact that on earlier occasions opportunities were granted, will pale into insignificance. The Court has to consider as to whether the cause for seeking adjournment is a genuine and sufficient ground. When the ground itself was not disbelieved, we are of the opinion that the learned Tribunal was not justified in proceeding with the case on the ground that the petitioner was granted sufficient opportunities earlier and in passing the impugned order dated 30.10.2017. 7. Taking that view, we set aside the impugned orders dated 18.09.2017 and 30.10.2017. The petitioner is directed to appear before the learned Tribunal on 24.09.2018. No further notice will be issued to the petitioner for appearance. The learned Tribunal will fix date(s) for evidence and dispose of the case within a period of 2(two) months from the date of appearance on 24.09.2018. It is made clear that if there is default on the part of the petitioner, the Tribunal will be at liberty to proceed in accordance with law. 8. With these observations and directions, the writ petition is disposed of.