B.K. Sharma, J. - By means of this writ petition, the petitioner seeks to challenge the order dated 12.1.2009 (Annexure-11) of the Foreigners Tribunal (III), Barpeta passed in FT Case No. 160(III)/07 (Ref. Case No. 10393/98). By the said order, passed ex-parte, the petitioner was declared to be an illegal migrant. The Tribunal had to pass the impugned order ex-parte as the petitioner did not respond to the proceeding after filing written statement.

2. I have heard Mr. K. Bhuyan, learned counsel for the petitioner. Also heard Mr. M. Bhagawati, learned State Counsel and Mr. S.C. Keyal, learned ASGI. I have also considered the entire materials on record.

3. It appears that the petitioner after filing written statement failed to adduce any evidence towards discharging the burden of proof as envisaged under Section 9 of the Foreigners Act. 1946, about which detail discussions have been made in Sarbabanda Sonowal v. Union of India reported in AIR 2005 SC 2920. Coming to the Writ Court, the petitioner has urged the following ground for non-appearance before the Tribunal.

"11. That the petitioner most respectfully submits that all the relevant document for proving her nationality was furnished to her engaged Advocate and accordingly was furnished before the Tribunal but without due procedure that is to be exhibited at the time of evidence of D.W.-1. The said young Advocate never informed the petitioner to appear before the court for adducing her evidence and also the said Advocate due to inefficiency of knowledge could not exhibit the relevant documents as per procedure. Therefore, it is a procedural defects from the sides of the young engaged Advocate. The petitioner is illiterate and layman. She does not know how to and in what manner the documents is to be furnished before the Tribunal. Even the engage Advocate for the petitioner did not appear at the time of argument in record of this case.

That the learned Foreigner Tribunal never informed the petitioner regarding continuous absent of the engaged Advocate of the petitioner in connection of this case. Further no order was passed by the Tribunal regarding absence of the engage Advocate. How many dates was fixed for argument in absence of engage Advocate of the petitioner not found on record. The petitioner approached several times to her engage Advocate to get information of the proceeding in connection of the said case. But in reply the said Advocate told that every thing was going on properly in support of the petitioner. And later on the petitioner in doubt approach before eh said Tribunal and found that one judge and order dated 12-01-2009 has been passed against her claim. Thereafter she applied for certified copy of such judgment and order on 26-02-2009 which she received the certified copy of the said judgment and order on 14-05-09 and after gone through the judgment and order she come to know that she has declared as foreigner by the learned court of Foreigner Tribunal which is purely impugned, illegal and arbitrary in the eye of law."

4. In the decision of State of Assam v. Moslem Mondal, reported in 2013 (1) GLT (FB) 809, the Full Bench of this Court has held that the Tribunal is empowered to set aside an ex-parte order only upon showing special/exception circumstances, otherwise the very purpose of enacting the Foreigners Act and Foreigners (Tribunal Order would be frustrated. For a ready reference, paragraph-92 of the decision 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 appearin