Gauhati High Court
WP(C)/4683/2018 on 13 June, 2024
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
GAHC010152982018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Case No. : WP (C) 4683/2018
1. ... Abdul Mutalib @ Abul Matalib,
D S/O Late Rajab Ali,
R R/O. Vill-Khalapia, P.S.-Mikirbheta,
S Dist. Morigaon, Assam. PIN-782105.
Petitioner
-Versus-
1. The State of Assam,
Rep. by the Commissioner and Secretary,
Govt. of Assam, Home Deptt.,
Dispur, Guwahati-6.
2. The Deputy Commissioner,
Dist.Morigaon,
Assam, PIN-782105.
3. The Superintendent of Police,
Dist.Morigaon, Assam, PIN-782105.
4. The Superintendent of Police (Border),
Dist. Nagaon, Assam, PIN-782001.
5. The Electoral Registration Officer,
Batadrava LAC,
Dist. Morigaon, Assam.
6. The Union of India,
WP(C) No. 4683/2018 Page 1 of 16
Rep. by the Secretary,
Min. of Home Affairs,
New Delhi-110001,
7. The State Coordinator NRC,
P.O. and P.S.-Bhangagarh,
Dist.Kamrup (M),
Guwahati-781005 Assam.
Respondents
Advocate for the Petitioner : 1. Mr. P.N. Sharma.
Advocates for the for Respondent(s): 1. Ms. A, Verma, (SC, Home
Deptt.)
: 2. Mr. P. Sarma, (Sr. GA, Assam)
: 3. Mr. H. Kuli, on behalf of Mr.
A.I. Ali (SC, Election Commission)
Date of judgment : 13.06.2024
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT & ORDER
(Mridul Kumar Kalita, J)
1. Heard Mr. P.N. Sharma, learned counsel appearing for the
petitioner. Also heard Ms. A. Verma, learned Standing Counsel,
Home Department, Assam appearing for the respondent Nos. 1,
3 and 4, as well as Mr. P. Sarma, learned Additional Senior
Government Advocate, Assam for the respondent No. 2 and Mr.
H. Kuli, learned counsel appearing on behalf of Mr. A.I. Ali,
learned Standing Counsel, Election Commission of India
appearing for the respondent No. 5.
2. This writ petition has been filed by the petitioner, namely,
Md. Abdul Mutalib, @ Abul Matalib impugning the ex parte
opinion/order, dated 29.02.2016, passed by the learned
Foreigners Tribunal No. 3rd, Morigaon in F.T. Case No. 19/2016,
whereby, the above-named petitioner was declared as a
Foreigner, under the Foreigners Act, 1946 who had illegally
entered into India (Assam) on or after 25.03.1971.
3. Notice in this case was issued on 23.07.2018 and the
case record, in original, of F.T. Case No. 19/2016 was called for
from the learned Foreigners Tribunal No. 3rd, Morigaon. The
said case record has been received.
4. The facts, which transpires on perusal of the case record
of F.T. Case No. 19/2016, relevant for consideration of the
instant writ petition, in brief, are as follows:-
i. Suspecting the petitioner, namely, Md. Abdul
Mutalib, @ Abul Matalib, son of late Rajab Ali to be
a Foreigner, who had illegally entered into India
(Assam) from Bangladesh after 01.01.1966, the
Superintendent of Police (Border), Morigaon had
directed to conduct an enquiry in F.T. Case No.
78/2004 dated 28.07.2004 and on the basis of the
enquiry report submitted by the Enquiry Officer, a
reference under the provisions of Foreigners
(Tribunals) Order, 1964 was made to the learned
Foreigners Tribunal, Nagaon by the Superintendent
of Police (Border), Morigaon for determining the
nationality of above-named petitioner as per the
provisions of the Foreigners Act, 1946.
ii. No records are available before us regarding receipt
of the aforesaid reference by the learned Foreigners
Tribunal, Nagaon. However, from the available
records, it transpires that on 09.06.2015, the
aforesaid case was received by learned Foreigners
Tribunal No. 2nd, Morigaon, wherein the reference
was registered as F.T. Case No. 622/2012.
iii. Thereafter, by order dated 09.06.2015, notice was
issued by the learned Foreigners Tribunal No. 2nd,
Morigaon to the petitioner by fixing 17.07.2015 for
his appearance before the said Tribunal and for
filing the written statement in support of his claim
of nationality.
iv. On 17.07.2015, the notice issued to the petitioner
was returned without service and same was again
re-issued by fixing 28.08.2015 for appearance and
filing of written statement.
v. However, by order dated 28.08.2015, the
Foreigners Tribunal Case No. 622/2012 was
transferred from the learned Foreigners Tribunal
No.2nd, Morigaon to the learned Foreigners Tribunal
No. 3rd, Morigaon for disposal.
vi. On perusal of the available records, it appears that
in paragraph No. 5 of the impugned opinion, it has
been mentioned that on transfer, the case record of
F.T. Case No. 19/2016 was put up on 03.01.2016,
and 29.02.2016 was fixed for necessary orders.
However, the only order sheet of F.T. Case No.
19/2016, which is available on record, is of
29.02.2016 and nothing could be discernible from
the case record as to when and how the case was
re-registered as F.T. Case No. 19/2016 from F.T.
Case No. 622/2012.
vii. By order dated 29.02.2016, passed in F.T. Case No.
19/2016, the learned Foreigners Tribunal No. 3rd,
Morigaon, on consideration of report of the process
server dated 24.08.2015, held that the notice issued
to the petitioner is deemed to be served and
decided to proceed ex parte against the petitioner
and ultimately, the said Tribunal gave an ex parte
opinion declaring the petitioner to be a Foreigner
under the Foreigners Act, 1946, who had illegally
entered into India (Assam) after 25.03.1971.
viii. It also transpires from record that the above-named
petitioner after coming to know about the aforesaid
ex parte order filed an application under Order
3A(1) of the Foreigners (Tribunals) Order, 1964 for
setting aside the said ex parte dated 29.02.2016.
On the basis of the said application Misc. Case No.
09/2017 was registered.
ix. However, by order dated 09.08.2017, passed in
Misc. Case No. 09/2017, learned Foreigners
Tribunal No. 3rd, Morigaon, rejected the prayer of
the petitioner and dismissed the said Misc. Case.
5. Mr. P.N. Sharma, learned counsel for the petitioner has
submitted that the petitioner was not aware about the
pendency of F.T. Case No. 19/2016, against him, before the
learned Foreigners Tribunal No. 3rd, Morigaon. It is only when
one Abdul Hakim of his village was arrested by police and when
the petitioner made an enquiry, he came to know that an ex
parte order dated 29.02.2016 has been passed against him
declaring him to be a Foreigner. Immediately, thereafter, he
applied for certified copy of the said order and filed an
application for setting aside the ex parte order, the said
application was registered as Misc. Case No. 09/2017.
6. Learned counsel for the petitioner has submitted that the
petitioner is a citizen of India by birth and he was born and
brought up at village-Amlokhi under Dhing Police Station in
Nagaon District of Assam and later on, he shifted to village-
Khalapia under Mikirbheta Police Station in the District of
Morigaon, Assam and his name has also been enlisted in the
voter-list of 1971.
7. Learned counsel for the petitioner has also submitted that
as the above-named petitioner had never received any notice in
F.T. Case No. 19/2016 from the learned Foreigners Tribunal No.
3rd, Morigaon, he was not afforded reasonable opportunity of
showing that he is not a Foreigner and hence, it is prayed that
the ex parte order dated 29.02.2016, passed in F.T. Case
No.19/2016, as well as order dated 09.08.2017, passed in Misc.
Case No. 09/2017 may be set aside and he may be afforded a
reasonable opportunity of showing his nationality before the
learned Foreigners Tribunal No. 3rd, Morigaon.
8. On the other hand, Ms. A. Verma, learned Standing
Counsel, Home Department, Assam has submitted that the
petitioner had refused to accept the notice from the process
server on three occasions, i.e. 25.07.2015, 10.08.2015 and
20.08.2015 and therefore, the notice was hanged on his
dwelling house in presence of local witnesses namely, Abdul
Barak and Md. Rafiqul. She has also submitted that the
Government Gaon Burah of Kahuaati/Khalapia had also certified
that the petitioner had refused to accept notice on several
occasions. She has further submitted that as the notice was
duly served on the petitioner and as he failed to appear before
the learned Foreigners Tribunal No. 3rd, Morigaon in spite of
due service of notice, the Tribunal was right in proceeding ex
parte against the petitioner and opining him to be a Foreigner,
who had entered into India (Assam) after 25.03.1971.
9. Ms. A. Verma, learned Standing Counsel, Home
Department, Assam has also submitted that the learned
Foreigners Tribunal No. 3rd, Morigaon has correctly dismissed
the Misc. Case No. 09/2017 and not vacated the ex parte order
dated 29.02.2016 passed in F.T. Case No. 19/2016. She has
submitted that learned Foreigners Tribunal No. 3rd, Morigaon
has dismissed the Misc. Case No. 09/2017 after examining the
process server namely, 1. Chandra Kanta Nath, 2. Indra Mohan
Nath, 3. Pulendra Nath, 4. Dino Borah, as well as 5. the V.D.P.
Secretary, Abdul Barik on 24.07.2017, and after such
interaction, the Tribunal was fully convinced about the false
allegation made by the petitioner against the process server as
well as his improper conduct of refusing to accept notice when
the same was given to him by the process server.
10. Learned Standing Counsel has also submitted that in the
instant case, the petitioner has refused to accept the notice,
issued to him by the learned Foreigners Tribunal, on three
occasions as aforesaid, at his own risk and peril. She has
further submitted that as the petitioner himself neglected in
accepting the notice and in participating in the proceeding
pending against him before the learned Foreigners Tribunal, he
himself failed to relieve the burden cast on a proceedee by
Section 9 of the Foreigners Act, 1946 of proving his citizenship
and now, no leniency should be shown to the petitioner.
11. She has also submitted that the scope of interference
under Article 226 of the Constitution of India by this Court in a
decision of the Foreigners Tribunal is limited to correcting errors
of jurisdiction or when the decision is made by the Tribunal
without giving an opportunity of hearing or when the opinion is
rendered in violation of the principles of natural justice or
where there appears to be an error on the face of record, and
according to her, none of the aforesaid grounds exists in the
instant case, therefore, she has prayed for dismissing of the
instant writ petition.
12. In support of her submissions, learned Standing Counsel,
Home Department has cited following rulings:-
i. "Ijjat Ali Vs. Union of India & 5 Ors." [order
dated 12.10.2020 of a co-ordinate bench of this
Court in WP (C) No. 8361/2009];
ii. "Sarijan Nessa Vs. Union of India & 5 Ors."
[order dated 05.01.2021 of a co-ordinate bench of
this Court in WP (C) No. 1293/2020];
iii. "Central Counsel for Research in Ayurvedic
Sciences & Another Vs. Bikartan Das &Anr."
reported in- "2023 SCC Online SC 996".
iv. "The State of Assam and others Vs Moslem
Mondal and others" reported in "2013(1) GLT
809".
13. We have considered the submissions made by learned
counsel for both the sides and have perused the materials
available on record, including the original records of F.T. Case
No. 19/2016 which was called for from the learned Foreigners
Tribunal No. 3rd, Morigaon.
14. We are in agreement with the submissions made by the
learned Standing Counsel, Home Department, Assam that the
scope of interference under Article 226 of the Constitution of
India by this Court in a decision of Foreigners Tribunal is limited
to correcting the errors of jurisdiction or when the decision is
made by the Tribunal without giving opportunity of hearing or
when the opinion is rendered in violation of the principles of
natural justice or where there appears to be an error apparent
on the face of record. However, in the instant case, certain
glaring inconsistencies and errors, which are apparent from the
record, have come to our notice, which we shall discuss in the
following paragraphs.
15. Before we discuss, the errors apparent on the face of
record noticed by us, it is pertinent to mention herein that in
the cases cited by learned Standing Counsel, Home
Department, Assam namely, "Ijjat Ali Vs. Union of India & 5
Ors." (supra) and"Sarijan Nessa Vs. Union of India & 5
Ors." (supra), there were sufficient materials on record for the
Court to come to the conclusion that sufficient opportunities
were granted to the petitioners to establish the claim of their
nationality, therefore, the Court refused to interfere with the
orders impugned in those cases. However, same is not the case
in the instant case.
16. We have noticed, on perusal of the case record of the
F.T. Case No. 19/2016, that on 17.07.2015, notice was issued,
to the petitioner, by the learned Foreigners Tribunal No. 2nd,
Morigaon, in F.T. Case No. 622/2012, for appearing before it
and for filing of written statement, on 28.08.2015. It also
appears that, on 28.08.2015, the F.T. Case No. 622/2012 was
transferred from the learned Foreigners Tribunal No. 2nd,
Morigaon to the learned Foreigners Tribunal No. 3rd, Morigaon.
It also appears from record available before us that after
receiving the records of F.T. Case No. 622/2012 on transfer,
and after re-numbering of the said case as F.T. Case No.
19/2016, no fresh notice was issued to the petitioner. Instead
of that, on 29.02.2016, learned Foreigners Tribunal No. 3rd,
Morigaon, on the basis of the report of process server with
regard to notice issued to the petitioner by learned Foreigners
Tribunal No. 2nd, Morigaon in F.T. Case No. 622/2012 had fixed
the F.T. Case No. 19/2016 for ex parte hearing and on the
same day passed the impugned order declaring the petitioner
to be a Foreigner who had entered into India (Assam) after
25.03.1971.
17. On perusal of the copy of the notice which was issued by
the learned Foreigners Tribunal No. 2nd, Morigaon, on
17.07.2015 and which is available in the case record, it appears
that the same was issued in respect of F.T. Case No. 622/2012
and the date for appearance of the petitioner and filling written
statement by him was mentioned in the said notice as
28.08.2015. As on the said date, i.e. on 28.08.2015, the F.T.
Case No. 622/2012 was transferred from the learned Foreigners
Tribunal No. 2nd, Morigaon to learned Foreigners Tribunal No.
3rd, Morigaon and as it was re-numbered to F.T. Case No.
19/2016, even if the report of the process server dated
24.08.2015, wherein it has been reported that on refusal of the
petitioner to accept the notice, the same was hanged on the
dwelling house of the petitioner, is believed to be true, it is
apparent that without a fresh notice being issued to the
petitioner, he could not have known that the F.T. Case No.
622/2012 has been re-numbered to F.T. Case No. 19/2016 and
same has been transferred to the learned Foreigners Tribunal
No. 3rd, Morigaon from the learned Foreigners Tribunal No. 2nd,
Morigaon. Hence, we are of the considered opinion that under
the peculiar facts and circumstances of this case, the learned
Foreigners Tribunal No. 3rd, Morigaon before deciding to
proceed ex parte against the petitioner, by its order dated
29.02.2016, it ought to have issued fresh notice to the
petitioner, informing him about the new F.T. Case No. 19/2016,
as well as about the Tribunal, i.e. learned Foreigners Tribunal
No. 3rd, Morigaon, before which the petitioner was supposed to
appear and file his written statement.
18. Accordingly, we are of the considered opinion that the
petitioner was not afforded a reasonable opportunity of
showing that he is not a Foreigner. As such, we hold that the
learned Foreigners Tribunal No. 3rd, Morigaon had erred in
passing order dated 29.02.2016 for proceeding ex parte
against the petitioner in F.T. Case No. 19/2016.
19. Similarly, in the impugned order dated 09.08.2017,
passed by the learned Foreigners Tribunal No. 3rd, Morigaon in
Misc. Case No. 09/2017, wherein, the learned Tribunal declined
to set aside the ex parte order dated 29.02.2016 passed in F.T.
Case No. 19/2016, it appears that though the learned Tribunal
had mentioned in the said order that on 24.07.2017, the
process server were examined by the said Tribunal and after
such examination, the Tribunal came to conclusion that the
petitioner has made false allegation against the process server.
However, on perusal of the case record, no statement of such
examination of process server was found in the record. Further,
on perusal of the order sheets available in the case record, it
appears that no order was passed by the learned Foreigners
Tribunal No. 3rd, Morigaon on 24.07.2017 in Misc. Case No.
09/2017. Learned Foreigners Tribunal No. 3rd, Morigaon also
failed to take into consideration the fact that the notice issued
to the petitioner on 17.07.2015 was issued in respect of F.T.
Case No. 622/2012 by the learned Foreigners Tribunal No. 2nd,
Morigaon and not by it and that no fresh notice was issued by it
to the petitioner in F.T. Case No. 19/2016. Hence, we are
constrained to hold that the conclusion arrived at by the
learned Foreigners Tribunal No. 3rd, Morigaon for dismissing the
Misc. Case No. 09/2017 was not based on materials available
before it.
20. For reasons discussed in foregoing paragraphs, the
impugned ex parte order/opinion dated 29.02.2016, passed in
F.T. Case No. 19/2016, as well as the impugned order dated
09.08.2017 passed in Misc. Case No. 09/2017 is hereby set
aside and quashed and the F.T. Case No. 19/2016 is remanded
back to the learned Foreigners Tribunal No. 3rd, Morigaon for
deciding the reference again from the stage of filing of written
statement and written evidence-on-affidavit by the present
petitioner.
21. Since this order has been passed in the presence of
learned counsel for the petitioner, and the petitioner has now
come to know about F.T. Case No. 19/2016, no fresh notice to
the petitioner is required to be issued in the said case by the
Foreigners Tribunal No. 3rd, Morigaon.
22. The above-named petitioner shall appear before the
learned Foreigners Tribunal No. 3rd, Morigaon in F.T. Case No.
19/2016, along with a certified copy of this order, on
28.06.2024 and shall file his written statement with all the
documents, on which he relies to prove his nationality. He shall
also file his written evidence-on-affidavit on the same day, i.e.
on 28.06.2024.
23. However, it is hereby made clear that on failure on the
part of the petitioner to appear before the learned Foreigners
Tribunal No. 3rd, Morigaon on the aforementioned date, i.e. on
28.06.2024 and thereafter, on the dates fixed by it, the said
Tribunal shall be at liberty to proceed against the petitioner in
F.T. Case No. 19/2016 as per provisions of law.
24. The Registry shall return the records of F.T. Case No.
19/2016 to the learned Foreigners Tribunal No. 3rd, Morigaon
forthwith, along with a copy of this order.
25. With the above observations and directions, the said writ
petition is accordingly allowed.
JUDGE JUDGE
Comparing Assistant
