Mustt. Amirun Nessa vs The Union Of India And 3 Ors
2021 Latest Caselaw 2337 Gua

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GAHC010155312017




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/8087/2017

            MUSTT. AMIRUN NESSA
            W/O. MD. KUKTAR ALI, VILL. BORDOLONG, P.S. LANKA, P.O. KARIKHANA,
            DIST. HOJAI, ASSAM.



            VERSUS

            THE UNION OF INDIA and 3 ORS.
            REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
            AFFAIRS, SHASTRI BHAWAN, NEW DELHI.

            2:THE STATE OF ASSAM
             REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM
             HOME DEPTT.
             DISPUR
             GHY.-06.

            3:THE DY. COMMISSIONER

             HOJAI
             P.O. and DIST. HOJAI
             ASSAM.

            4:THE SUPDT. OF POLICE B

             HOJAI
             P.O. and DIST. HOJAI
             ASSAM

Advocate for the Petitioner   : DR.B AHMED

Advocate for the Respondent : GA, ASSAM
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                                       BEFORE
                       HON'BLE MR. JUSTICE N. KOTISWAR SINGH
                       HON'BLE MR. JUSTICE MANISH CHOUDHURY
                                             :: O R D E R ::

28.09.2021 [N. Kotiswar Singh, J]

Heard Mr. K. Uddin, learned counsel for the petitioner. Also heard Mr. P.S. Lahkar, learned Central Government Counsel appearing for respondent No.1 and Mr. J. Payeng, learned Special Counsel, Foreigners Tribunal appearing for respondent Nos.2 and 4 and Ms. K. Phukan, learned Govt. Advocate for respondent No.3.

2. In this petition, the petitioner is aggrieved by the judgment and order dated

31.10.2017 passed by the learned Member, Foreigners Tribunal, Nagaon Court No. 7 th at Lanka, Nagaon in F.T./L/Case No.569/2016 [arising out of SP's Case No.135/2016] by which the petitioner was declared a foreigner and the reference was answered in affirmative by holding that the petitioner had failed to discharge her statutory burden to prove that she is an Indian citizen, not a foreigner.

3. Records requisitioned from the Foreigners Tribunal have been perused.

4. Perusal of the records as well as the order dated 31.10.2017 indicates that the petitioner responded to the summon issued by the Foreigners Tribunal and submitted her written statement. Subsequently, she filed certain affidavits purported to be examination-in- chief of as many as three witnesses. However, on the assigned dates of hearing, the petitioner remained absent on as many as three occasions.

5. Accordingly, learned Foreigners Tribunal passed an order on 03.08.2017 which reads as follows:

"The O.P. is absent without any step. The matter will (be) decided available on the records by declining the examination in chief.

Fixing the next date for judgment."

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6. Thereafter on 31.10.2017, the following order was passed and the judgment was rendered.

"The O.P. is represented by her counsel engaged. The O.P. is declared as a foreigner of post 1971 stream as alleged by the State. The judgment delivered in the open Court. The case stands disposed of on contest.

Inform all the authorities concerned."

7. In the impugned opinion, the learned Tribunal has referred to certain exhibits which were filed by the petitioner before the Foreigners Tribunal.

In respect of Exts. 1 and 2, which are the certified copies of voters lists of 1966 and 1970, the learned Tribunal observed that while the names of some of the family members have been reflected in Ext. 1, the same are not in mentioned in Ext. 2 and the reasons have remained unexplained.

As regards Exts. 3 and 4, which are the certified copies of voters lists of 1985 and 1997, the learned Foreigners Tribunal found certain discrepancies as regards the age of the father of the petitioner as well as the name of the mother of the petitioner, which according to the learned Tribunal, was not properly explained.

As regards Exts. 5, 6 and 7, which are the certified copies of voters lists of 2005, 2010, 2014, the learned Tribunal held that these are not considered relevant as these were recent documents which could not form any linkage for the petitioner's claim.

As regards Exts. 8 and 9, which are the residency certificate issued by the Govt. Gaonburah, and Kabinnama, the learned Tribunal held that the exhibits have not been proved as per law. So is the Ext.10, the marriage certificate, which the learned Tribunal held, was not proved in accordance with law.

Accordingly, learned Tribunal gave the opinion that the petitioner has failed to prove her case.

8. We have also gone through the records and the exhibits.

As mentioned above, in respect of some exhibits, the learned Tribunal found certain discrepancies. Some of the exhibits were not considered by the learned Tribunal on the Page No.# 4/6

ground that these were not proved in accordance with law.

We are not making any observation as to the aforesaid finding rendered by the leaned Foreigners Tribunal. However, the fact remains that the said opinion was rendered without hearing the submission of the petitioner before the opinion was rendered as the opinion was rendered ex parte though the documents filed by the petitioner were referred to as discussed above.

The assessment was made by appreciation of the evidence by the learned Tribunal without having the benefit of hearing the petitioner or her counsel before the judgment was rendered.

9. Be that as it may, we are of the view that the opinion dated 31.10.2017 is in effect an ex-parte order, though no such specific order was passed by the learned Tribunal that the petitioner had been proceeded ex-parte. Since the learned Tribunal observed in the order dated 03.08.2017 that the matter will be decided on the basis of materials available on records by declining the examination-in-chief, thereby meaning that the affidavits filed by the petitioner by way of examination-in-chief would not be taken into consideration at the time of rendering the opinion.

10. We are of the view that if the petitioner is able to prove the documents and explain the alleged discrepancies, perhaps, she may be able to make out a case in her favour. However, we are not entering the aforesaid issue of merit as the same had been not argued before the learned Foreigners Tribunal and the learned Foreigners Tribunal proceeded to give the opinion in absence of the petitioner.

11. In this regard, we may notice Order 3A of the Foreigners (Tribunals) Order, 1964 which provides that where the Foreigners Tribunal has passed an ex parte order for non-appearance of the proceedee and he or she has sufficient cause for not appearing before the Foreigners Tribunal, it may on the application of the proceedee, if filed within thirty days of the said order, set aside its ex parte order and decide the case accordingly.

It is also further mentioned that the proceedee may file an application to the Foreigners Tribunal within thirty days to review the decision of the Foreigners Tribunal claiming that he is not a foreigner and Foreigners Tribunal may review its decision within Page No.# 5/6

thirty days of the receipt of such application and decide the case on merits.

12. Under the circumstances, since we have treated the judgment and order dated

31.10.2017 passed by the learned Member, Foreigners Tribunal, Nagaon Court No.7 th at Lanka, Nagaon in F.T./L/ Case No. 569/2016 to be an ex parte order being passed without hearing the petitioner as the petitioner remained absent on the dates fixed for hearing, the

petitioner may approach the Foreigners Tribunal, Nagaon Court No.7 th at Lanka, Nagaon for setting aside the order dated 31.10.2017 and deciding the matter afresh under Order 3A of the Foreigners (Tribunals) Order, 1964.

13. As mentioned above, for seeking setting aside the ex parte order, the proceedee has to file an application within 30 days to review the decision.

14. In the present case, though the opinion was rendered on 31.10.2017, the petitioner had approached this Court challenging the said order by filing this writ petition, which was registered on 16.12.2017. However, the matter could not be taken up earlier and the matter is being disposed of by this Court only today and as such, we are of the view that there had been no undue delay on the part of the petitioner to approach this Court in challenging the said order and consequently, this delay which has occurred in pursuing the case before this Court may not be taken into consideration by the Tribunal at the time of consideration of the application under Order 3A.

15. In view of above, we also direct that, even if, the petitioner/proceedee has not filed an application to the Foreigners Tribunal within thirty days to review its decision as provided under Order 3A(2) of the Foreigners (Tribunals) Order, 1964, the said thirty days limitation may not come in the way of the petitioner in filing an application for setting aside the ex parte order.

In other words, the application that may be filed by the petitioner may not be rejected merely on the ground of delay for not filing within thirty days. However, the application as and when filed may be decided by the Foreigners Tribunal on merit after hearing the parties of the reasons which may be assigned by the petitioner for not being able to show sufficient causes and for not appearing before the Foreigners Tribunal before the said opinion was rendered on 31.10.2017.

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16. The petitioner shall accordingly, file an application for review and for setting aside the ex parte order dated 31.10.2017 under Order 3A of the Foreigners (Tribunals) Order, 1964 within a period of 1(one) month from today.

Thereafter, the learned Foreigners Tribunal will proceed with the matter in accordance with law.

However, it is also directed that till any such fresh order is passed on the application that may be filed by the petitioner under Order 3A of the Foreigners (Tribunals) Order, 1964 by the Foreigners Tribunal, the impugned judgment and order dated 31.10.2017 passed in F.T./L/Case No. 569/2016 [arising out of SP's Case No. 135/2016] by the learned Member,

Foreigners Tribunal, Nagaon Court No.7th at Lanka, Nagaon will be not given effect to.

17. It is also made clear that the petitioner will be at liberty to approach this Court again if aggrieved by any order that may be passed by the Foreigners Tribunal in the application that may be filed by the petitioner under Order 3A of the Foreigners (Tribunals) Order, 1964 as mentioned above and also as regards the opinion dated 31.10.2017.

18. It is expected that such application that may be filed by the petitioner will be disposed of, preferably, within a period of thirty days on receipt of the application by the Foreigners

Tribunal, Nagaon Court No.7th at Lanka, Nagaon as mentioned under Order 3A(2) of Foreigners (Tribunals) Order, 1964.

19. With the above observations and directions, the present petition stands disposed of.

20. Case records of the Foreigners Tribunal in respect of F.T/L/Case No.569/2016 be remitted forthwith to the concerned Foreigners Tribunal.

                                  JUDGE                                         JUDGE




Comparing Assistant