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2019 DIGILAW 1062 (GAU)

Rejia Begum Abdul Hafij v. Union of India

2019-09-18

KALYAN RAI SURANA, MANOJIT BHUYAN

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JUDGMENT : K.R. Surana, J. Heard Mr. G. Uddin, learned counsel for the petitioner. Also heard Ms. G. Hazarika, learned counsel for the respondent No.1, Mr. J. Payeng, learned counsel for the respondent Nos.2,3,6 & 7, Ms. A. Borgohain, learned counsel for the respondent No.4 and Ms. U. Das, learned counsel for the respondent No.5. 2. By this writ petition filed under article 226 of the Constitution of India, petitioner has prayed for setting aside the impugned ex parte opinion dated 06.03.2012, passed by the learned Member, Foreigners' Tribunal No. 1st, Morigaon in F.T. (D) Case No. 348/2007, holding the petitioner to be a foreigner who had illegally entered into India after 25.03.1971. 3. Aggrieved by the ex parte opinion, two petitions were filed, one being petition No. 119/18 dated 03.04.2018 under Section 3A (1) of the Foreigners (Tribunal) Order, 1964 read with Order IX Rule 13 CPC for vacating the ex parte opinion, and the other being petition No. 120/18 dated 03.04.2018 under Section 5 of the Limitation Act, 1963 for condoning the delay in filing the petition to vacate the ex parte opinion. The said two petitions was registered as Misc. Case No. 14/2018 [arising out of F.T. (D) Case No. 348/2007]. Both the said petitions were rejected by order dated 14.09.2018, passed by the said learned Tribunal. The said order dated 14.09.2018 is also under challenge in this writ petition. 4. The learned counsel for the petitioner has submitted that on receipt of notice in F.T. (D) Case No. 348/2007, the petitioner appeared before the learned Tribunal. On 09.08.2007 and 13.11.2007, the petitioner had prayed for time for filing her written statement. Accordingly, the case was fixed on 21.02.2008 for filing written statement by the petitioner. It is submitted that unfortunately, the petitioner had suffered "chronic attack of peptic ulcer with paroxysmal attack of melena" from 25.02.2008 to 31.03.2018, for which she could not take any steps before the learned Tribunal. Therefore, due to absence of the petitioner, the learned Tribunal had passed an ex parte opinion on 06.03.2012. It is further submitted that on 03.04.2018, the petitioner had filed the two herein before referred petitions, being Misc. Case No. 14/2018. It is submitted that the learned Tribunal had rejected the said Misc. Therefore, due to absence of the petitioner, the learned Tribunal had passed an ex parte opinion on 06.03.2012. It is further submitted that on 03.04.2018, the petitioner had filed the two herein before referred petitions, being Misc. Case No. 14/2018. It is submitted that the learned Tribunal had rejected the said Misc. Case 14/2018, inter alia, on the ground that the Tribunal can entertain the application for setting aside the ex parte opinion, provided such an application is filed within a period of 30 (thirty) days from the date of the ex parte decision only on explaining the exceptional circumstances for her non-appearance, as well as on the ground that said application was not supported by any medical certificate. The learned counsel for the petitioner has submitted that the petitioner is illiterate and had no idea about the consequences that would follow if she remained absent in the proceeding without filing her written statement. It is submitted that the petitioner was having the medical certificate with her, which is annexed to the writ petition, but due to ignorance, the same was not filed before the learned Tribunal and, as such, the learned counsel for the petitioner prays for granting the petitioner one opportunity to contest the reference proceedings before the learned Tribunal on merit. 5. Having heard the submissions made by the learned counsel for the appearing parties, we have examined the documents annexed to the writ petition. At the outset, it would be relevant to reproduce the statement made in paragraph 3 of the petition No. 119/18 dated 03.04.2018 (Annexure-2) under Sec.3A(1) i.e. Misc. Case 14/2018:- "3. That, the petitioner/opp. party had been suffering for illness of Chronic attack of peptic ulcer with paroxysmal attack of melena from 25-02-2008 to 31-03-2018 and she could not move here and there and therefore she could not appeared before the Hon'ble Tribunal to file WS and to contest her case in due times. Her treatment was going on privately by the doctor of Morigaon Civil Hospital." 6. We also deem it appropriate to quote paragraph-6 of the writ petition, which is as follows:- "6. That the petitioner begs to state that, the absence of the petitioner in the Tribunal was not intentional but due to some compelling circumstances. Her treatment was going on privately by the doctor of Morigaon Civil Hospital." 6. We also deem it appropriate to quote paragraph-6 of the writ petition, which is as follows:- "6. That the petitioner begs to state that, the absence of the petitioner in the Tribunal was not intentional but due to some compelling circumstances. The petitioner had been suffering from illness of Chronic attack of peptic ulcer with paroxysmal attack of melena and she was unable to move from one place to another due to her detoriated health condition. As a result of that she fells in a critical situation and failed to attend before the Learned Tribunal in due time to contest her case. As regard to illness of the petitioner the doctor of National Health Mission, Assam issued Prescription dated 13-05-2012 and lastly a Medical Certificate dated 23-01-2018 issued to the petitioner by the Sr. Medical & Health Officer, Morigaon Civil Hospital." 7. The provisional diagnosis of the doctor, as recorded in the prescription dated 13.05.2012 is "Old case of pulmonary T.B. with irregular treatment. Now having heampoxis. USG reveals Rt. Renal calculi. To attend DTC & to attend GMCH for needful." 8. The contents of the medical certificate dated 23.01.2018 is as under: "This is to certify that Mrs. Rajia Begum w/o. Md. Abdul Hafiz of vill.-Ghunsa; under Jagiroad P.S. Dist.-Morigaon (Assam) was examine by me on last 13/5/2012 vide Regd. No. 9293/12 having heamoplysis with cough and fever. On clinical examination she was diagnosed as a case of Pulmonary Koch. She was under my conservative treatment with DOTs, Cat I regime & was advised to take rest for at least 6 (six) months. Also advised to come for regular check up." 9. Thus, it is apparent that the disease mentioned in paragraph 3 of petition No. 119/18 (part of Misc. Case No. 14/2018) is not the disease for which prescription (Annexure-5) and medical certificate (Annexure-6) was procured. 10. It is mentioned in the impugned opinion dated 06.03.2012, that after seeking time on 09.08.2007 and 13.11.2007 to file written statement, the petitioner had not taken steps before the learned Tribunal. Thus, it is apparent that without any undue hurry or haste, rather after waiting for about 41 / 2 years from 13.11.2007, the date from which the petitioner had stopped to take steps in the proceeding, the learned Tribunal had delivered its opinion on 06.03.2012. 11. Thus, it is apparent that without any undue hurry or haste, rather after waiting for about 41 / 2 years from 13.11.2007, the date from which the petitioner had stopped to take steps in the proceeding, the learned Tribunal had delivered its opinion on 06.03.2012. 11. On a perusal of the documents annexed to the writ petition including the doctor's prescription dated 13.05.2012 (Annexure-5) and the medical certificate dated 23.01.2018 (Annexure-6), it transpires that that there is no record that the petitioner was suffering from any medical indisposition between 09.08.2007 to 06.03.2012 (i.e. the date of petitioner's first appearance and the date of the opinion), which could possibly prevent the petitioner to file her written statement within such time. As per the medical certificate dated 23.01.2018 (Annexure-6), the petitioner was merely advised to take rest for at least 6 (six) months. Thus, the said medical documents i.e. Annexure-5 & 6 does not support the statement of the petitioner in paragraph 6 of the writ petition and paragraph 3 of petition No. 119/18 (Annexure-2) that the petitioner was suffering from "chronic attack of peptic ulcer with paroxysmal attack of melena" from 25.02.2008 to 31.03.2018". 12. In terms of the provisions of paragraph 3A(1) of the 1964 Order, the petitioner was required to show sufficient cause for not appearing before the learned Tribunal. In the case of State of Assam Vs. Moslem Mondal, (2013) 1 GauLT 809 : 2013 1 NEJ 460 : (2013) 3 GLR 402 : (2013) 0 Supreme(Gau) 6, the Full Bench of this Court had held that the Tribunal can entertain application for setting aside ex parte opinion provided the proceedee could demonstrate the existence of the "special/ exceptional circumstances" to entertain the same by way of pleadings in the application filed for setting aside the ex-parte opinion, otherwise the very purpose of enacting the 1946 Act and the 1964 Order would be frustrated. The relevant paragraph 91 [quoted from (2013) 0 Supreme(Gau) 6] as under:- "91. The relevant paragraph 91 [quoted from (2013) 0 Supreme(Gau) 6] as under:- "91. As discussed above, the Tribunals constituted under the Foreigners Act read with the 1964 Order have to regulate their own procedure and they have also the quasi-judicial function to discharge and hence 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 from appearing in the proceeding, reason for which was beyond his control. Such application, however, should not be entertained in a routine manner. The Tribunal can entertain such application provided the proceedee could demonstrate the existence of the special/exceptional circumstances to entertain the same by way of pleadings in the application filed for setting aside the ex-parte opinion, otherwise the very purpose of enacting the 1946 Act and the 1964 Order would be frustrated. The Tribunal, therefore, would have the jurisdiction to reject such application at the threshold, if no ground is made out." 13. The provisions of Paragraph 3A(1) of 1964 Order specifically empowers the learned Tribunal to set aside the ex parte order on an application of the proceedee, if filed within thirty days of the said order. Thus, when a period of limitation is specifically provided under any law for the time being in force, by implication, the provisions of Section 29(2) of the Limitation Act, 1963 would not be applicable, as such, the provisions of Section 5 of the Limitation Act, 1963 cannot be invoked by the learned Foreigners Tribunal with a view to condone delay exceeding thirty days, which would have the effect of frustrating the provisions contained in Paragraph 3A(1) of the 1964 Order. Accordingly, we find that the learned Tribunal had rightly held that Limitation Act, 1963 is not applicable in Foreigners Tribunal. 14. Accordingly, we find that the petitioner could not show that she was prevented from special/ exceptional circumstances from filing her written statement/ representation between the date of her first appearance before the learned Tribunal on 09.08.2007 till 06.03.2012 i.e. the date when ex parte opinion was rendered. 14. Accordingly, we find that the petitioner could not show that she was prevented from special/ exceptional circumstances from filing her written statement/ representation between the date of her first appearance before the learned Tribunal on 09.08.2007 till 06.03.2012 i.e. the date when ex parte opinion was rendered. The petitioner has also not been able to show that she was prevented from special/ exceptional circumstances from filing her application for setting aside ex parte opinion within a period of thirty days from the date of such opinion. Thus, in view of the discussions above, no case is made out for interfering with (i) opinion dated 06.03.2012, passed by the learned Member, Foreigners Tribunal No. 1st, Morigaon in F.T. (D) Case No. 348/2007; and (ii) order dated 14.09.2018 passed by the said learned Tribunal in Misc. Case No.14/2018. Hence, this writ petition is dismissed. 15. The Registry shall communicate a copy of this order to the Foreigners Tribunal No. 1st, Morigaon for being kept in the record of F.T. (D) Case No. 348/2007 for future reference.