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2018 DIGILAW 142 (GAU)

Kulsum Bibi v. Union of India

2018-01-25

AJIT BORTHAKUR, UJJAL BHUYAN

body2018
ORDER : 1. Heard Mr. B.P. Borah, learned counsel for the petitioner and Mr. S.P. Choudhury, learned Government advocate, Assam. 2. A short point arises for consideration in this proceeding. 3. By order dated 7.4.2016, passed by the Foreigners Tribunal (9th), Nagaon in FT Case No. 218/2015, State vs. Musstt. Kulson Bibi, petitioner was declared to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.3.1971. 4. Petitioner filed an application before the said Tribunal for review of the aforesaid order dated 7.4.2016, which was registered as MC No. 10/2016. By order dated 26.5.2016, the review petition was dismissed on the ground that review was not maintainable. Relevant portion of the order dated 26.5.2016 is extracted hereunder: “On a careful perusal of the case record, it appears that the impugned order was passed on 7.4.2016 and the petitioner was declared as a foreigner as she has failed to produce relevant document and accordingly finding no other alternative the impugned opinion was passed. Admittedly the petitioner could have preferred an appeal against the impugned order but instead of filing the same she has filed instant petition under order 47 and section 114 of the CPC but the said provisions are not well attracted in this case. Hence, I do not find force in submission of the learned counsel appearing for the petitioner and I am of the view that the petition under order 47 and section 114 of the CPC is not maintainable as such liable to be dismissed. Accordingly, the petition filed by petitioner Kulson Bibi is dismissed. The miscellaneous case is disposed of on contest.” 5. This court by order dated 4.10.2016 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to her appearance before the Superintendent of Police (Border), Nagaon and furnishing of adequate surety. 6. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal. 7. Question for consideration is whether an application for review of the opinion rendered by a Foreigners Tribunal would be maintainable or not. 8. 6. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal. 7. Question for consideration is whether an application for review of the opinion rendered by a Foreigners Tribunal would be maintainable or not. 8. From the order of the Tribunal, as extracted above, it is evident that Tribunal had taken the view that petitioner had the remedy of preferring appeal but no appeal was preferred; instead review petition was filed which was held to be not maintainable. 9. We are afraid we can concur with the view taken by the Tribunal; rather, Tribunal had committed an error apparent on the face of the record while taking the aforesaid view. 10. We say this because of the following reasons. A proceeding before a Foreigners Tribunal is governed by the procedure laid down under the Foreigners (Tribunals) Order, 1964, as amended. As per the procedure laid down, there is no provision for filing appeal against an opinion rendered by a Foreigners Tribunal. This is not to say that a proceedee who has suffered an adverse opinion from a Foreigners Tribunal would be left remediless. An affected proceedee can move the writ court under article 226 of the Constitution of India questioning the legality and correctness of the opinion rendered by a Foreigners Tribunal. As a matter of fact, a large volume of writ petitions arising out of opinions rendered by Foreigners Tribunal have been preferred before this court which have been entertained and adjudicated upon. 11. Insofar review is concerned, we find that under order 3A(2) of the Foreigners (Tribunals) Order, 1964, there is a provision for filing of review petition by a proceedee if he is aggrieved by an opinion rendered by a Foreigners Tribunal but, such application for review would have to be filed within 30 days of the opinion sought to be reviewed. 12. Therefore, from the above, it is evident that petitioner had the remedy of filing review petition, which he availed of and it was not justified on the part of the Tribunal to have rejected the review petition by holding the same to be not maintainable. Maintainable certainly it is; but whether in the facts and circumstances of the case, prayer for review should be allowed or not is for the Tribunal to decide. 13. Maintainable certainly it is; but whether in the facts and circumstances of the case, prayer for review should be allowed or not is for the Tribunal to decide. 13. Resultantly, we set aside the order dated 26.5.2016 and remand the matter back to the Foreigners Tribunal (9th), Nagaon to consider afresh MC No. 10/2016 on its own merit. 14. Let the petitioner appear before the Foreigners Tribunal (9th), Nagaon in connection with MC No. 10/2016, arising out of FT Case No. 218/2015, State vs. Musstt. Kulson Bibi on 19.2.2018 at 10.30 a.m. whereafter, Tribunal shall proceed with the review petition strictly in accordance with law. 15. However, if there is any default on the part of the petitioner, Tribunal would be at liberty to pass such order as may be deemed fit and proper. 16. Before parting with the record, we make it clear that we have not expressed any opinion on merit. 17. Writ petition is allowed to the extent indicated above. 18. Registry to inform the concerned Foreigners' Tribunal, Deputy Commissioner and Superintendent of Police (Border) for necessary follow-up steps. 19. A copy of this order be furnished to learned standing counsel, Election Commission of India and State Coordinator, NRC.