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2024 Supreme(Online)(GAU) 11940
HIGH COURT OF GAUHATI
MR. JUSTICE KALYAN RAI SURANA, MR. JUSTICE SOUMITRA SAIKIA, JJ
FARJAN NESSA – Appellant
Versus
THE UNION OF INDIA AND 6 ORS – Respondent
WP(C) / 5192 / 2024
MR. M I HUSSAIN, M HUSSAIN, N. UDDIN, MS. P AHMED
The court underscored the need for fair opportunity and communication in Tribunal proceedings, particularly under extraordinary circumstances, and noted the requirement for specificity in declarations of illegal migration.
Headnote:(A) Foreigners Tribunal Act, 1946 - Declaration of illegal migrant - Writ petition assailing ex-parte order of Tribunal declaring petitioner an illegal migrant - Petitioner contended that COVID Pandemic hindered communication and appearance before Tribunal - Tribunal's failure to specify stream of illegal migration as required by law was noted. (Paras 2, 3, 4, 5)
(B) Ex-parte proceedings - The necessity for a party's presence and the implications of proceeding without it - The court emphasized the importance of ensuring that parties are afforded a fair opportunity to present their case before the Tribunal. (Paras 3, 4)
Facts of the case:
The petitioner challenged an ex-parte order from the Foreigners Tribunal declaring her an illegal migrant, arguing that the pandemic hindered her ability to participate in the proceedings.
Findings of Court:
The court noted the lack of specification in the Tribunal's order regarding the stream of illegal migration and recognized the impact of the pandemic on the petitioner's ability to appear.
Issues: The main issues included whether the Tribunal's ex-parte decision was justified and the requirement for specifying the stream of illegal migration under the Foreigners Tribunal Act.
Ratio Decidendi: The court highlighted the necessity of fair process and communication for parties involved in Tribunal proceedings, particularly in light of extraordinary circumstances like a pandemic.
Result: The matter is to be listed after the receipt of Tribunal records.
ORDER
04.10.2024 (S. Saikia, J.)
Heard Mr. M. I. Hussain, learned counsel for the petitioner, Mr. A.K. Dutta, learned CGC appearing for the respondent No. 1, Ms. N. Bedi on behalf of Ms. P. Baruah, learned Standing counsel for the ECI respondent No. 3, Mr. G. Sarma, learned Standing counsel for the Home Department respondents No. 2, 6 and 7, Mr. H.K. Hazarika, learned Senior Government Advocate for the respondents No.5.
By filing this writ petition, the petitioner has assailed the order/petition dated 02.11.2021, passed in F.T. Case No. 23(III)/2019 by the learned Member Foreigners Tribunal No. III Barpeta. By the order impugned the Tribunal answered the reference ex-parte in favour of the State and declaring the petitioner to be an illegal migrant under the provisions of the Foreigners Tribunal Act, 1946. Being aggrieved the present writ petition has been filed.
Learned counsel for the petitioner submits that because of the COVID Pandemic situation which was prevailing at the relevant point of time, there could not be effective communication between the petitioner and his engaged counsel. The petitioner also could not take steps to appear before the Tribunal. Consequently, the matter came to be proceeded ex-parte and the impugned order was passed by the learned Tribunal declaring to him be an illegal migrant. It is also submitted by the learned counsel for the petitioner that the petitioner had no fault or had not deliberately evaded from the proceeding in the matter by appearing before the Tribunal. Further, the learned counsel for the petitioner submitted that although the Tribunal proceeded to decide the matter be ex- parte by the impugned order dated 02.11.2021 and had answered the reference in favour of the State and had also declared the petitioner as an illegal migrant under the provision of Foreigners Act, 1946, the impugned order dated 02.11.2021 does not specify the stream in which the petitioner has been held to be an illegal migrant as is required under the provision of the law under the provision of Foreigners Tribunal Act, 1946.
Mr. G. Sarma, learned Standing counsel for the Home Department submits that he would like to complete his instructions.
Before proceeding further in the matter the Court would like to examine the Tribunal records.
Let the registry call for the Tribunal records pertaining to FT. Case No. 23(III)/2019 from the Foreigners Tribunal No. III, Barpeta.
Matter to be listed after receipt of the Tribunal records.
The petitioner, namely Farjan Nessa, shall appear before the Superintendent of Police (Border) Barpeta, within 10 days from the date of this order and furnish bail bond of Rs. 5,000/- with two local sureties of the like amount to the satisfaction of the said authority. Further, the Superintendent of Police (Border), Barpeta, is directed that on appearance of the petitioner within the period indicated above, the biometrics of the iris of both eyes, the fingerprints of both hands and the photographs of the petitioner shall be obtained, where after, she shall be allowed to remain on bail.
On his appearance before the Superintendent of Police (Border), Barpeta, as directed above, the said authority shall obtain necessary information and documentation as required under the Rules from the petitioner for securing his presence.
Extra copies be furnished to the respective standing counsel appearing for the parties.
Matter to be listed after receipt of the Tribunal records.
