Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Gau) 548

IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Manash Ranjan Pathak, Malasri Nandi, JJ.
Md. Ekramul Hussain, S/o Md. Ideish Ali – Petitioner
Versus
The Union of India, represented by the Secretary, Ministry of Home Affairs, Govt. of India, New Delhi and ors. – Respondents
WP(C) No. 5122 of 2022
Decided On : 10-08-2022

Advocates:
Advocate Appeared:
For the Petitioner: Ms. A H Atia
For the Respondent: Mr. P K Medhi, CGC, Ms. L Devi, SC, Ms. A Verma, SC, Mr. A I Ali, SC, Ms. K. Phukan, GA

Point of Law: Needless to say, in event of failure on part of petitioner to appear before concerned Tribunal and on subsequent dates, as may be fixed by said Tribunal, said authority shall be at liberty to pass necessary order(s) as per law.

Headnote:
Foreigners' Act, 1946 – Section 9 – Petitioner has challenged ex parte order - Passed by Foreigners’ Tribunal, in FT (D) Case, corresponding to Case, arising out of SP(B)’s F.T. Case, by which, petitioner was declared a foreigner of 1971 stream - Tribunal held that in spite of giving adequate opportunity, petitioner failed to produce any relevant and trustworthy documents to prove his citizenship and accordingly declared him a foreigner, who had entered India through Assam - Needless to say, in event of failure on part of petitioner to appear before concerned Tribunal and on subsequent dates, as may be fixed by said Tribunal, said authority shall be at liberty to pass necessary order(s) as per law. (Para 11).
Findings of the Court :
Since citizenship of petitioner has come under cloud, petitioner will appear before Superintendent of Police (Border), and will furnish a bail bond of Rs. 5,000/- (Rupees Five Thousand Only) with one local surety of like amount to satisfaction of said authority, where after petitioner shall be allowed to remain on bail - On such appearance, concerned Superintendent of Police (Border), may obtain necessary information and documentation as required under Rules, from petitioner for securing his presence and shall also take steps for capturing fingerprints and biometrics of iris of petitioner - It is also made clear that petitioner shall not leave jurisdiction of Superintendent of Police (Border), without obtaining prior permission from said authority and further without giving information about his place of destination and his place of stay, to Superintendent of Police (Border).
Result: Writ petition disposed of.

JUDGMENT :

Malasri Nandi, J.

Heard Ms. A H Atia, learned counsel appearing for and on behalf of the petitioner; Mr. P K Medhi, learned Central Government Counsel, appearing for the respondent No. 1, Ms. A Verma, learned Standing Counsel, Foreigners’ Tribunal, appearing for the respondent Nos. 2, 3, 5 and 6, Ms. K Phukan, learned Government Advocate, Assam, for the respondent No. 4, Mr. A I Ali, learned Standing Counsel, Election Commission of India, for respondent No. 7 and Ms. L Devi, learned Standing Counsel, NRC, for respondent No. 8.

2. In this petition, the petitioner has challenged the ex parte order dated 06.12.2021, passed by the Foreigners’ Tribunal, No. 10th, Nagaon at Sankardev Nagar, Hojai, Assam, in FT (D) Case No. 1550/2015, corresponding to Case No. F.T./H/3178/2012, arising out of SP(B)’s F.T. Case No. 377/2010, by which, the petitioner was declared a foreigner of the 1971 stream. The Tribunal held that in spite of giving adequate opportunity, the petitioner failed to produce any relevant and trustworthy documents to prove his citizenship and accordingly declared him a foreigner, who had entered India through Assam, on or after 25.03.1971.

3. Learned counsel for the petitioner claims that the petitioner duly appeared before the Foreigners’ Tribunal, after receipt of notice, but because of non-availability of proper documents at the relevant time, he could not appear before the Tribunal for filing the documents in support of his evidence. Learned counsel for the petitioner also submits that inability of the petitioner to appear before the Tribunal on the date so fixed by the Tribunal was because of lack of communication of the petitioner with his engaged counsel. Otherwise, the petitioner was all along ready to appear before the learned Tribunal.

4. We have gone through the order of the learned Tribunal dated 06.12.2021. The said order indicates that the petitioner had appeared before the Tribunal on 28.02.2020 and due to the COVID-19 (first wave) protocol, the said case was re-fixed on 19.06.2020 and the written statement was filed by the present petitioner on 17.11.2020. It also appears that the present petitioner sought adjournment for filing of evidence on 05.12.2020, 18.12.2020 and 04.01.2021 and the evidence-in-chief was filed without any documents on 21.01.2021. Thereafter, the present petitioner sought adjournment for filing of documents in support of his evidence on 17.03.2021, 07.04.2021 and 29.04.2021. Thereafter, due to COVID-19 (second-wave), the case was re-fixed by the learned Tribunal on 05.08.2021. Subsequently, the case was also refixed on 26.10.2021. The present petitioner as an opposite party again sought adjournment for filing documents on 26.10.2021, 16.11.2021 and 06.12.2021 (the date on which, the ex parte order was passed by the learned Tribunal).

5. What we have noticed from the above is that it is not the case that the petitioner totally ignored the summons from the Tribunal or was duly negligent towards the proceeding of the Tribunal. From the documents available on record, it appears that attempts were made on the part of the petitioner to collect some documents, because of which, the petitioner took time. As regards the subsequent dates, the petitioner remained absent.

6. We have also noticed that there was some mis-information between the petitioner’s counsel and him, after filing of the written statement and evidence-in-chief for which he was shown absent in the matter and the learned Tribunal passed the impugned ex parte order on the ground that the petitioner failed to discharge the burden casted upon him under Section 9 of the Foreigners’ Act, 1946. Though technically, the order of the learned Tribunal could not be faulted with, however, we are aware that this is a very important proceeding dealing with the citizenship of a person and, in the present case, the petitioner, annexing a number of documents submitted that he should be given a chance to prove those documents before the conc

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