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2019 DIGILAW 1086 (GAU)

Samsun Nehar v. Union of India

2019-09-20

KALYAN RAI SURANA, MANOJIT BHUYAN

body2019
JUDGMENT : K.R. Surana, J. Heard Mr. A. Sharif, 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 to 5, Ms. B. Das, learned counsel for the respondent No.6 and Ms. A. Verma, learned counsel for the respondent No.7. 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 04.09.2012, passed by the learned Member, Foreigners' Tribunal (2nd), Morigaon in F.T. (D) Case No. 439/10, holding the petitioner to be a foreigner who had illegally entered into India after 25.03.1971. 3. Aggrieved by the ex parte opinion, the petitioner filed an application for vacating the ex parte opinion together with a petition under section 5 of the Limitation Act, the said application was registered as Misc. Case No. 4/2016. The said misc. case was rejected by the learned Tribunal by order dated 14.06.2016. 4. The petitioner has submitted that although all the material instructions were given to the counsel, but it appears from the ex parte opinion dated 04.09.2012 that the counsel took adjournments without filing any written statement. The petitioner had no information that her lawyers were not taking steps in the matter or she was un-represented in the proceedings. Accordingly, the learned counsel for the petitioner has relied on the cases of (1) Rafiq & Anr. Vs. Munshilal & Anr., (1981) 2 SCC 788 , and (2) Jeleka Khatun Vs. The Union of India & 4 Ors., WP(C) No. 3595/2017 decided on 03.08.2017, to project that for the fault of counsel, the party should not suffer. The learned counsel for the petitioner further submits the petitioner had filed Misc. Case No. 4 of 2016 seeking vacating of the ex parte opinion, but in this occasion also the petitioner was not properly guided by his counsel and, as such, the said application was filed without any supporting medical documents and on the said grounds, Misc. Case No. 4 of 2016 was rejected on the said ground. Case No. 4 of 2016 seeking vacating of the ex parte opinion, but in this occasion also the petitioner was not properly guided by his counsel and, as such, the said application was filed without any supporting medical documents and on the said grounds, Misc. Case No. 4 of 2016 was rejected on the said ground. Moreover, the learned counsel for the petitioner by referring to the documents annexed to this writ petition has submitted that the petitioner has all the requisite documents to prove that she is a citizen of India and, as such, it is submitted that one opportunity be granted to the petition to prove her citizenship. 5. We have heard the learned counsel for the appearing parties and have perused the documents annexed to this writ petition. For reasons best known to the petitioner, she has not annexed the copy of petition which was registered as Misc. Case No. 4 of 2016. However, upon a perusal of the order dated 14.06.2016 passed in the said Misc. Case No. 4 of 2016, it appears that two petitions were filed by the petitioner, one being a petition for vacating the ex parte opinion and the other being petition 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 were registered as Misc. Case No. 4/2016. Both the said petitions were rejected by order dated 14.06.2018, passed by the said learned Tribunal. Thus, the opinion dated 04.09.2012 as well as the said order dated 14.06.2018 is also under challenge in this writ petition. 6. From the order dated 14.06.2016, it appears that in the petition filed under section 5 of the Limitation Act, the petitioner had taken a plea of her illness but no supporting medical documents had been annexed. On a perusal of the ex parte opinion dated 04.09.2012, it appears that the notice of the proceedee was duly served on petitioner and accordingly, she had appeared before the learned Tribunal on 21.05.2011 with her lawyers and had filed petition No.105 for another date. Thereafter, several adjournments were taken by the counsel on various grounds and the case was fixed on 05.11.2011. On 05.11.2011, the petitioner had remained absent without steps without filing her written statement and accordingly, the case was fixed for ex parte hearing. Thereafter, several adjournments were taken by the counsel on various grounds and the case was fixed on 05.11.2011. On 05.11.2011, the petitioner had remained absent without steps without filing her written statement and accordingly, the case was fixed for ex parte hearing. Thereafter, the verification officer, namely, Sri Tarun Hazarika was examined as P.W.1 and the learned Tribunal on considering the materials available on record passed an ex parte opinion on 04.09.2012. Thus, it is apparent that without any undue hurry or haste, rather after waiting for about 10 months from the date, the petitioner had stopped appearing in the proceeding from 05.11.2011, the learned Tribunal had delivered its opinion on 04.09.2012. 7. From the order dated 14.06.2016, in Misc. Case No. 4 of 2016, it appears that the said Misc. Case was filed on 05.04.2016, which is about 3= years after the ex party opinion was rendered. 8. In terms of the provisions of paragraph 3A(1) of the Foreigners (Tribunal) Order, 1964 (hereinafter referred to as "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 Foreigners Act, 1946 and the 1964 Order would be frustrated. 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." 9. In the case of Jeleka Khatun (supra), cited by the learned counsel for the petitioner, this Court had dealt with the plea on the point that the plea of limitation must be liberally construed. In this connection, it is seen that 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. Thus, the case of Jeleka Khatun (supra) is not found to apply under the facts and circumstances of this case. 10. 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 dates of her default in appearance before the learned Tribunal on 15.11.2011 to 04.09.2012 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 04.09.2012, passed by the learned Member, Foreigners Tribunal No.2nd, Morigaon in F.T. (D) Case No. 439/2010; and (ii) order dated 14.06.2016 passed by the said learned Tribunal in Misc.Case No.4/2016. Thus, in view of the discussions above, no case is made out for interfering with (i) opinion dated 04.09.2012, passed by the learned Member, Foreigners Tribunal No.2nd, Morigaon in F.T. (D) Case No. 439/2010; and (ii) order dated 14.06.2016 passed by the said learned Tribunal in Misc.Case No.4/2016. Moreover, this present writ petition has been filed on 18.07.2019. The petitioner has taken a plea that because of her acute financial hardship, she could not approach this Court immediately after obtaining certified copies of the said two opinion/orders. We have not impressed by the said plea because of the fact that if the petitioner is suffering from financial hardship, she could have applied for being provided with legal aid. The petitioner was aware that an ex parte opinion was rendered against her and that she has prayed for vacating the ex parte opinion, which was rejected by order dated 14.06.2016. The petitioner had applied for certified copy of the said order on 26.08.2016 and she was furnished with the certified copy on the same date i.e. 26.08.2016. Hence, there is no doubt that the petitioner was aware about her status as a foreigner, but she has approached this Court on 18.07.2019 i.e. after 3 years. 11. We find that the initial plea of the petitioner was that she was ill for which she could not appear before the learned Tribunal on and after 05.11.2011. In support of the said contention, the petitioner has not produced any medical documents in this writ petition. Therefore, this is not a case where we can accept the plea that the lawyers of petitioner appearing for her before the learned Tribunal were negligent in any manner because if the petitioner had any medical documents, there was no reason for her to withhold the same in this writ petition. Furthermore, we are of the considered opinion that if the petitioner is aggrieved by any act of omission on part of her counsel, her appropriate remedy would be the approach the competent forum having power to take disciplinary measures against the defaulting lawyer, but the conduct of the counsel cannot be a subject matter of the writ petition, prima facie, because the petitioner has not been able to show that she had provided all the requisite documents to her counsel. We presume so because from the documents annexed to this writ petition, we find that Annexure-A, Annexure-B, Annexure-F on which the petitioner was relying being voters list of 1997 and 2015 are uncertified copies, the Annexures C(1) to C(6) which are Elector Photo Identity Cards are dated 01.10.2013, which is after the ex parte opinion was rendered. Therefore, Annexures D & E of the writ petition are the only documents which are prior to the date of ex parte opinion, which could have been provided to the counsel before the ex parte opinion was rendered. 12. Under such circumstances, we do not find this to be an appropriate case wherein we can accept that the entire fault of non appearance of the petitioner on from 15.11.2015 till the ex parte opinion was rendered on 04.09.2012 was on account of the counsel because the petitioner has not been able to demonstrate that she was regularly visiting her lawyers from time to time to obtain the next date of appearance and for filing written statement. Accordingly, the case of Rafiq (supra) has no application. 13. Hence, in view of the discussions above, we do not find that the impugned opinion dated 04.09.2012 passed by Foreigners Tribunal No. 2nd, Morigaon in F.T.(D) Case No. 439/10 and order dated 14.06.2016 passed in Misc. Case No. 4 of 2016 can be faulted in any manner whatsoever, as such, this writ petition is dismissed. 14. The Registry shall communicate a copy of this order to the Foreigners Tribunal No. 2nd, Morigaon for being kept in the record of F.T. (D) Case No. 439/2010 for future reference.