The court emphasized the requirement for the proceedee to show good and sufficient cause for setting aside an exparte order and cautioned against setting aside orders in a routine manner.

1. By means of this writ petition, the petitioner has assailed the order dated 04/07/2013 of the learned Member, Foreigners Tribunal, Goalpara in FT Case No. 3555/G/131 (Reference ERO’s Case No. 56-28/36) (Union of India Vs. Mohiton Bewa). By the said order, the petitioner has been declared to be an illegal Bangladeshi migrant having entered into Indian territory after the cut-off date i.e. 25/03/1971. The order so passed is exparte.

2. Mr. H.A. Sarkar, learned counsel for the petitioner, submits that having regard to the special circumstances involved in this case, the petitioner is entitled to another chance to defend her case before the Tribunal and accordingly the impugned order is required to be set aside. On the other hand, both Mr. B.J. Ghosh, learned State Counsel and Ms. G. Sarma, learned counsel holding for Mr. S.C. Keyal, learned ASGI, submit that the petitioner is not entitled to get another opportunity, inasmuch as, she was provided with adequate opportunity granting several adjournments but she did not avail the same.

3. The Full Bench of this Court in State of Assam Vs. Moslem Mondal and others reported in 2013 (1) GLT 809 while holding that although there is no provision for setting aside an exparte order in the Foreigners Act, 1946 but in special circumstances, the Tribunal can set aside an exparte order. The proceedee is required to show good and sufficient cause towards setting aside an exparte order. The Full Bench, however, expressed a note of caution that an exparte order should not be set aside merely for asking for it and in a routine manner, inasmuch as the very purpose of enacting the Act and the order referred above would be frustrated. For a ready reference, para 92 of the Full bench judgement in Moslem Mondal (Supra) is quoted below :-

“92. 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.”

4. In the instant case, not to speak of assigning good and sufficient ground, the petitioner has not even assigned any ground towards setting aside of the exparte order. What she has stated in the writ petition is that she had no proper guidance regarding filing of the case against the order of the Foreigners Tribunal. Further, although the impugned order was passed on 04/07/2013, the petitioner has filed the instant writ petition nearly two years thereafter on 05/06/2015 without explaining the delay.

5. On perusal of the records received from the Tribunal, it is found that on receipt of the notice, the petitioner appeared before the Tribunal on 03/12/2012 and prayed for an adjournment which was allowed. Thereafter, the matter was taken up on 14/12/2012, on which date also she again prayed for time and the same was allowed with a note of caution fixing the mater on 26/12/2012. On that date also (26/12/20121) the petitioner again prayed for time and the same was allowed as a last chance. She again prayed for time on 08/01/2013, however, on th