Gauhati High Court
Md. Jafar Ali @ Zafar Ali vs The Union Of India And 5 Ors on 19 February, 2025
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/19
GAHC010153692024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3913/2024
MD. JAFAR ALI @ ZAFAR ALI
SON OF RAJAB ALI,
PERMANENT RESIDENT OF VILLAGE- MOHANPUR PART-I,
P.S.- JOGIGHOPA,
DISTRICT- BONGAIGAON.
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA,
MINISTRY OF HOME AFFAIRS,
NEW DELHI. PIN- 110001.
2:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTION COMMISSIONER
NEW DELHI- 110001.
3:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI- 781006.
4:THE DISTRICT COMMISSIONER
BONGAIGAON
PIN- 783380.
5:THE SUPERINTENDENT OF POLICE (B)
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BONGAIGAON
PIN- 783380
ASSAM.
6:THE CO-ORDINATOR
NATIONAL REGISTER OF CITIZENS
BHANGAGARH
GUWAHATI-4
Advocate for the Petitioner : MR A W AMAN, MS SURAYA RAHMAN,SAMIM RAHMAN,MR
S A BARBHUYAN,MR SARFRAZ NAWAZ
Advocate for the Respondent : DY.S.G.I., SC, F.T,SC, ECI,GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
JUDGMENT
This application under Section 226 of the Constitution of India read with
Article 227 has been filed challenging the order dated 26.09.2016 passed by the
learned Foreigners' TribunalBongaigaon No. 2, Abhayapuri in connection with
Case No. BNGN/F.T.Case No. 3189/2007 arising out of F.T. Reference Case No. :
FT 362/2007.
2. Md. Jafar Ali @ Zafar Ali will hereinafter be referred to as the
petitioner.The Union of India, the Election Commission of India, the State of
Assam, represented by the Commissioner & Secretary to the Government of
Assam, Home Department, the District Commissioner-Bongaigaon, the
Superintendent of Police (B)-Bongaigaon[SP(B)in short], the Co-ordinator,
National Register of Citizens, Bhangaghar, Guwahati, are arrayed as respondent
Nos. 1, 2, 3, 4, 5 and 6 respectively.
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3. It is submitted that despite the fact that the petitioner's father and uncle
being citizens of India, the petitioner was declared a foreigner, who entered into
India from Bangladesh illegally after 25.03.1971. His father and uncle had
contested a proceeding initiated by the IM(D)T, Goalpara and an order dated
12.03.2001 was passed and the petitioner's father and uncle were held to be
Indian citizens. The petitioner is an Indian citizen by birth. It is submitted that a
reference was forwarded by the SP(B), Bongaigaon, doubting the nationality of
the petitioner. It is submitted that it has been alleged through the enquiry report
that the address in the country of origin of the petitioner is shown as :
Village - Dampara,
Police Station - Kishanganj,
District - Mymensing of Bangladesh.
4. It was concluded by the Inquiry Officer that ' during investigation, it
appears in a prima facie manner that the suspect Md. Jafar Ali, S/O Lt. Rajab Ali
is an illegal foreigner who has entered India after 25.03.1971.' It is contended
that the petitioner was never approached by any Inquiry Officer or any other
authority to enquire about his citizenship. His father who is still alive has been
mistakenly reported as deceased in the inquiry report and his father's name is
written as Late Rajob Ali. After initiation of the reference by the SP(B),
Bongaigaon to the Foreigners Tribunal, Bongaigaon, the same was registered by
the Foreigner's TribunalBongaigaon No. 2, Abhyapurias BNGN/FT Case No.
3189/2007. It is contended that the grounds were not mentioned when notice
was issued as mandated by paragraph 3(1) of the Foreigners (Tribunals) Order,
1964 (Order of 1964 for short), rendering the notice to be a vague document.
5. The notice reflects that "as the Superintendent of Police of
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Bongaigaon/Chirang District as per Foreigners Tribunal Order (1964) has
suspectedyou/your family to be foreigner of entering Assam from East Pakistan/
Bangladesh..."
6. It is contended that the option Bangladesh was also not highlighted to the
detriment of the petitioner because migration from East Pakistan is prima facie
protected by Section 6-A of the Citizenship Act, 1955 (the Act of 1955 for short).
Nonetheless the petitioner appeared before the Tribunal on 19.08.2013 and filed
a written statement along with relevant documents (Annexure-3).
7. The petitioner was unable to appear before the Tribunal on subsequent
dates as he was suffering from serious skin disease. However, the petitioner
finally appeared before the Tribunal on 09.06.2015, but as his skin disease
aggravated from 07.09.2015 up-to 05.01.2016, the petitioner was unable to
appear before the Tribunal.Finally, the petitioner appeared before the Tribunal
on 22.01.2016 but the learned Member of the Tribunal was on leave. Then the
petitioner's engaged counsel advised him not to attend the Court and assured
that the petitioner would be represented as the petitioner was still suffering
from skin disease. The petitioner was assured by his engaged counsel that as
his father is declared to be an Indian citizen, the petitioner would also be
declared an Indian citizen by the Tribunal. As the petitioner is a poor, naïve and
illiterate person, completely oblivious to the nitty-grittiesof the legal process, the
petitioner relied on the assurance of his engaged counsel.
8. It is contended that after his arrest, the petitioner learnt that he has been
declared a foreigner who has illegally entered India from Bangladesh after
25.03.1971. It is earnestly submitted by the petitioner that as he is a bonafide
Indian citizen and due to circumstances beyond his control, he was unable to
adduce evidence in the proceeding. It is thus submitted by the petitioner that
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he is being highly prejudiced as he has been declared to be a foreign national
despite the fact that he is an Indian citizen.
7. It is further submitted that the petitioner's grandfather Taher Sheikh was a
landholder in the year 1959.
The petitioner has submitted a revenue receipt of 1959 and 1964 of the
Revenue Estate acquired under the Assam State Acquisition of Jamindaries Act,
1951.
Taher Sheikh was the son of Joman, a resident of Bilasipara village (Annexure-
6).
The NRC details of 1951 wherein the petitioner's grandfather's name has
been recorded as Taher Sheikh, son of Jaman Sheikh of Village: Suapata (279),
House No. 30, Thana Town: Bilasipara of Dhubri district is marked as Annexure
- 7.
The petitioner's grandfather passed away in the year 1964 and his
grandmother's name was recorded in the legacy data details of 1966 as
KorfulNessaBibi - which is an extract of 1966 voters list (Annexure - 8).
His grandmother's name is also recorded in the voters' list of 1970 (Annexure-
9).
8. It is further submitted that the petitioner could not provide the copy of the
NRC of 1951 and the Legacy data of 1966 along with the voters' list of 1970
before the learned Tribunal but the petitioner provided the voters' list of 1989 as
Annexure - II before the Tribunal. He also provided the voters' list of 1997
along with his written statement.
9. It is further submitted that following river erosion, the petitioner and his
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family lost their land, house and other valuables in Suwapata, Bilasipara, Dhubri
and the petitioner and his family had to relocate at Mohanpur village under
Jogighopa Police Station in the Bongaigaon district for a better livelihood. The
petitioner has further submitted that his father's name is recorded in the voters'
list of 2008 (Annexure-12).
His name was first recorded in the voters' list of 2010 (Annexure-13).
The petitioner's name along with his father's name also appeared in the voters'
list of 2011 (Annexure-14).
The petitioner has submitted a certificate issued by the Secretary of
PanchaniaKhoragaonGaonPanchayat on 23.03.2015 (Annexure-15).
10. Annexure-16 is the order dated 12.03.2001 passed by the learned
Chairman of Illegal Migrants (Determination) Tribunal, Goalpara declaring the
petitioner's father and uncle as Indian citizens and not as illegal migrants within
the meaning of Clause (c), Sub-Section (I) of Section 3 of the I.M.(D) T Act,
1983.
11. Learned Standing Counsel for FT matters/respondentshas submitted
that the opinion dated26.09.2016 requires no interference as the order has
been correctly passed. It has been held by the learned Tribunal that the
petitioner/opposite party submitted photocopies of some documents along with
the written statement which are not admissible in the eye of law. The complaint
of the Inquiry Officer reveals that the petitioner is a foreigner who entered India
from Bangladesh illegally after 25.03.1971 and he has failed to prove to be an
Indian citizen, which is his bounden duty under Section 9 of the Foreigners Act,
1946 (Act of 1946 for short) and thus, the petitioner has miserably failed to
discharge his burden.
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12. Heard Mr. A.W. Aman, learned counsel for the petitioner. Also heard Ms. N.
Bedi, learned counsel appearing on behalf of Mr. P. Barua, learned Standing
Counsel for the Election Commission of India, respondent No. 2, Ms. A. Verma,
learned Standing Counsel for the FT matters, respondent No. 3 and 5, Mr. P.
Sharma, learned Additional Senior Government, Assam appearing for the District
Commissioner, respondent No. 4 and Mr. G. Sarma, learned Standing Counsel for
the NRC, respondent No. 6.
13. We have given our thoughtful consideration to the submissions at the Bar.
14. Learned counsel for the petitioner has laid stress in his argument that the petitioner
could not contest the proceeding due to skin disease. The impugned order dated
25.09.2016, passed in BNGN FT Case No. 3189 of 2007, vis-à-vis, the trial Court record
clearly depicts that the petitioner/opposite party was continuously absent on 07.09.2015,
05.10.2015, 05.11.2015, 05.12.2015 and 05.01.2016. On 22.01.2016, the opposite party
appeared, but again from 25.02.2016 up to 22.06.2016, the opposite party was absent
without steps.
15. Learned counsel for the petitioner has submitted that the naïve opposite party
believed that his engaged counsel could be relied upon. It has been ardently argued that
the petitioner was suffering from skin disease and this led to his default in appearing
before the learned Tribunal. However, it is reflected by the order of the learned Tribunal
that photocopies were submitted along with written statements and thus, the petitioner's
case was dismissed and he was declared to be a foreigner.
16. Learned counsel for the petitioner has drawn the attention of this Court to the
written statement of the petitioner, which clearly reflects that-
i) the grandfather's name has been recorded in the form and
receipt of the revenue estate acquired under the Assam State
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Acquisition of Zamindaris Act, 1951,
ii) the petitioner's father's name appears in the Voters' List of
1999 under-
27-No.Bilasipara East LAC,
Sl. No. 1383,
House No. 423,
Village-282 Suwapata,
Part-V, District-Dhubri.
iii) the petitioner's father name appears in the Voters' List of
1997, under-
27-No.Bilasipara East LAC,
Sl. No. 1711,
House No. 654,
Village-282 Suwapata,
Part-V, District-Dhubri.
iv) the petitioner's father name appears in the Voters' List of
2008, under-
35-No.Abhayapuri (SC) LAC,
Sl. No. 24,
House No. 11,
Village-Mohanpur,
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Part-I, District-Bongaigaon
-It is further submitted that the petitioner's name appears in the Voters' List of 2010,
under-
Sl. No. 32, House No. 11,
Village No. 239, Mohanpur Part-I,
North Salmara Sub-Division,
District- Bongaigaon
His name also appears in the Voters' List of 2011, under-
Sl No. 36, House No. 11,
Village - 239, Mohanpur Part-I,
North Salmara Sub-Division,
District-Bongaigaon.
17. All the copies of the Voters' Lists were submitted along with the written statements
and, thereafter, the petitioner failed to appear before the Tribunal. The petitioner had the
original documents and the petitioner could have easily proved the photocopies by
producing the original documents at the stage of evidence.
18. A major discrepancy in the inquiry is clearly reflected by identifying the petitioner
as son of Late Rajab Ali, while the petitioner's father Rajab Ali was alive at the time
when the petitioner was declared a foreign national. The petitioner's father is alive, even
today. The petitioner has prayed for one last opportunity to prove that he is an Indian by
birth. He is in detention for 7 years. The Bangladesh address of the petitioner as shown
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in Inquiry Report is not a correct address. The petitioner has relied on the decision of the
Hon'ble Supreme Court in Union of India and Others -Vs- R Gandhi & Others;
reported in (2010) 11 SCC 1.
19. Relying on the judgment, it is further submitted that the Evidence Act is not
required to be strictly followed in cases under the Foreigners' Act.
20 On the contrary, Ms A Verma, learned Standing Counsel, Home and Political
Department has submitted that- "Para-4 of the Foreigners (Tribunals) Order 1964"
reads-
"[4. Powers of Foreigners Tribunals-- The Foreigners Tribunals shall have the
powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 (5
of 1908), and the powers of Judicial Magistrate first class under the Code of Criminal
Procedure, 1973 (2 of 1974) in respect of the following matters, namely, -
(a) summoning and enforcing the attendance of any person and
examining him or her on oath;
(b) requiring the discovery and production of any document,
(c) issuing commissions for the examination of any witness;
(d) directing the proceedee to appear before it in person;
(e) issuing a warrant of arrest against the proceedee if he or she fails
to appear before it.]"
21. In R Gandhi's case (supra), it was observed that :-
"45......
(iii) While courts are governed by detailed statutory procedural rules, in
particular the Code of Civil Procedure and the Evidence Act, requiring an elaborate
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procedure in decision making, tribunals generally regulate their own procedure
applying the provisions of the Code of Civil Procedure only where it is required, and
without being restricted by the strict rules of the Evidence Act."
22. Ms. A Verma, learned counsel for the Home Department has submitted
that according to Section 9 of the Act of 1946, the onus lies on the
petitioner/proceedee to prove his pleadings. In this case, the petitioner has
failed and has totally neglected to discharge his burden to prove that he is a
citizen of India.
23. It is further argued by Ms. A. Verma, learned Standing Counsel for the
Home Department that this Court has limited jurisdiction while considering a
petition for issuance of writ of certiorari as has been held by the Hon'ble
Supreme Court in Central Council for Research in Ayurvedic Sciences &Anr. Vs.
Bikartan Das &Ors.reported in (2023) 6 Supreme 141 wherein it has been
observed that :
"51. The second cardinal principle of exercise of extraordinary jurisdiction under Article 226 of the
Constitution is that in a given case, even if some action or order challenged in the writ petition is found
to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can
refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the
Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on
legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as
public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the
realities of the fact situation of the case. While administering law, it is to be tempered with equity and if
the equitable situation demands after setting right the legal formulations, not to take it to the logical
end, the High Court would be failing in its duty if it does not notice equitable consideration and mould
the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High
Court a normal court of appeal which it is not.
52. The essential features of a writ of certiorari, including a brief history, have been very exhaustively
explained by B.K. Mukherjea, J. in T.C. Basappa v. T. Nagappa and Another, reported in AIR 1954 SC
440. The Court held that a writ in the nature of certiorari could be issued in 'all appropriate cases and
in appropriate manner' so long as the broad and fundamental principles were kept in mind. Those
principles were delineated as follows:
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"7.... In granting a writ of 'certiorari', the superior court does not exercise the powers of
an appellate tribunal. It does not review or reweigh the evidence upon which the
determination of the inferior tribunal purports to be based. It demolishes the order
which it considers to be without jurisdiction or palpably erroneous, but does not
substitute its own views for those of the inferior tribunal.....
8. The supervision of the superior court exercised through writs of certiorari goes on
two points, as has been expressed by Lord Summer in King v. Nat Bell Liquors Limited
[(1922) 2 AC 128, 156]. One is the area of inferior jurisdiction and the qualifications
and conditions of its exercise; the other is the observance of law in the course of its
exercise.
9. Certiorari may lie and is generally granted when a court has acted without or in
excess of its jurisdiction."
53. Relying on T.C. Basappa (supra), the Constitution Bench of this Court in the case of Hari Vishnu
Kamath (supra), laid down the following propositions as well established:
"(1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior
court or tribunal acts without jurisdiction or in excess of it, or fails to exercise it.
(2) Certiorari will also be issued when the court or tribunal acts illegally in the exercise
of its undoubted jurisdiction, as when it decides without giving an opportunity to the
parties to be heard, or violates the principles of natural justice.
(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not
appellate jurisdiction. One consequence of this is that the court will not review findings
of fact reached by the inferior court or tribunal, even if they be erroneous."
25. Further, learned Departmental Counsel Ms. A. Verma has relied on the
decision of this Court in Ayub Ali (Md.) &ors. vs. Union of India &ors. reported
in 2016 (1) GLT 273 wherein it has been held that :-
"14.....
15. That the petitioners did not adduce any evidence is not in dispute. The thrust of the argument
of the learned counsel for the petitioners is that the petitioners have been denied reasonable
opportunity to enable them to discharge the burden cast upon them by Section 9 of the Act of 1946 and
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one more opportunity should be granted to them.
16. Principles of natural justice cannot be put into a strait-jacket formula. It is more than three
decades that the issue of influx of foreign nationals has been in public domain in the State of Assam.
Process of determination of question of citizenship cannot be a one-way traffic, leaning only in favour
of a person whose citizenship is doubted. Interest of the State is also of paramount importance in that
unabated influx has the potential to affect the integrity and sovereignty of the country. Citizenship of a
person, no doubt, is a very valuable right and should be zealously guarded. However, if a person does
not take steps for safeguarding his interest, he does so at his own peril. Right to a fair hearing or
principles of natural justice cannot be permitted to lead to a farcical situation and to be an engine for
defeating the very object of identification and deportation of foreigners. The petitioners had known
about the allegations against them that they are foreigners entering India with any valid documents, at
least from 2007, even ignoring the earlier part under the IMDT Act from 1997. The petitioners, all
these years, apparently, did not the any step to defend their rights in the Court proceedings. In the
circumstances, I am not inclined to grant any further opportunity to the petitioners as any such course
of action, according to the perception to the Court, would be self-defeating"
15. On considering the matter in its entirety, we have found no infirmity in the judgment under
challenge since it was found well evident that appellants had been granted sufficient opportunity to
show that they are citizens of India but they fail to utilize all those opportunities.
16. Being so, we have found that the judgments under challenge does not suffer from any infirmity and
as such, the present appeal is liable to be dismissed. Resultantly, the present appeal is dismissed."
26. Learned Standing Counsel for the Home Department Ms. A. Verma has
also relied on the decision of this Court in Jonali Das vs. Union of India &ors.
reported in 2018 (5) GLT 492 wherein it has been observed that :-
"9. In Azmat Ali @ Amzad Ali Vs. Union of India: 2018 (4) GLT 623 : [WP(C)
No.4971/2018] disposed of on 01.08.2018, this Court had observed as follows :-
"It is more than three decades that the issue of influx of foreign nationals has
been in public domain in the State of Assam and has engaged the attention of
the people. Interest of the State is of paramount importance in that unabated
influx has the potential to affect the integrity and
sovereignty of the country. Citizenship of a person, no doubt, is a very valuable
right and should be zealously guarded. There is no gainsaying the fact that a
person who is alleged to be a foreigner must be given due andreasonable
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opportunity to establish that he is a citizen of India. However, ifa person does
not take steps for safeguarding his interest, he does so athis own risk and peril
as grant of opportunity cannot be an endlessexercise. Right to a fair hearing or
principles of natural justice cannot bepermitted to lead to a farcical situation and
to be an engine for defeatingthe very object of identification and deportation of
foreigners."
27. Learned counsel for the Home Department has also relied on the decision
of this Court in Baharul Islam vs. The Union of India and others in connection
with WP(C)/291/2024 wherein vide order dated 23.02.2024 this Court has
observed that :-
"25. As regards the case of AsorUddin (supra) and Rajendra Das (supra) cited on behalf
of the petitioner, this Court had noticed that the ex-parte orders were set aside in those
cases which were based on the facts and circumstances. In the case of AsorUddin
(supra), there is a specific finding in paragraph 9 that there were sufficient reasons for
the petitioner in that case for not being able to appear before the Tribunal. As regard,
the cases of DhaniramLuhar and KalikaKuer, the Hon'ble Supreme Court laid down the
requirement of judicial discipline in respect of precedents. There is absolutely no dispute
to the
aforesaid proposition and this Court is in humble agreement with such proposition.
However, as observed above, the remand orders in the two cases cited were on the facts
and circumstances of those cases and cannot act as a precedent. The Hon'ble Supreme
Court in the case of
Padma SundaraRaovs State of T.N. reported in (2002) 3 SCC 533 has laid down that a
ratio of the case has to be understood with the facts of that case. For ready reference,
the relevant part is extracted herein below:
"9. Courts should not place reliance on decisions without discussing as to
how the factual situation fits in with the fact situation of the decision on
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which reliance is placed. There is always peril in treating the words of a
speech or judgment as though they are words in a legislative enactment,
and it is to be remembered that judicial utterances are made in the setting
of the facts of a particular case, said Lord Morris in Herrington v. British
Railways Board [(1972) 2 WLR 537]. Circumstantial flexibility, one
additional or different fact may make a word of difference between
conclusions in two cases."
28. It is further submitted by Ms. A Verma that sufficient opportunity was
accorded to the petitioner by the learned Tribunal but the petitioner neglected
to appear.Onus lies on the petitioner to discharge his burden and prove that he
is a citizen of India. This Court has time and again dismissed such petitions
where the apathy of the petitioner was apparent. This is a fit case and this
petition ought to be dismissed with costs.
29. Learned counsel for the petitioner has relied on the decision of this Court
in Abdul Barek and others vs. The State of Assam and others in connection with
WP(C)/2989/2018 wherein vide order dated 05.03.2019 this Court has observed
that :-
"7. As the petitioners are declared to be foreigners without appropriate materials on
record for an adjudication on merit, we are of the view that the petitioners deserve
anotheropportunity. But at the same time as the petitioners had refused to accept the
notice, fromthat point of view, there cannot be any infirmity in the order dated
28.09.2016.
8. Accordingly, for enabling the petitioners to re-appear before the Tribunal, we
imposea cost of Rs.15,000/-to be deposited before the District Legal Services Authority,
Morigaonand upon showing the proof thereof, the petitioners shall appear before the
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Tribunal on01.04.2019. Upon appearance of the petitioner before the Tribunal along
with the writtenstatement to be filed, Tribunal shall decide the matter within a period of
60 days thereafter."
30. Refuting the argument of the learned counsel for the petitioner, it is
argued by the learned counsel for the Home Department that the citations
referred to by the learned counsel for the petitioner are not relevant to this
case, as the decisions referred to by the learned counsel for the petitioner are
relating to the decisions where the merits of the case have not been discussed
unlike this instant case, wherein the learned Tribunal has decided the case on its
merits.
31. Learned counsel for the petitioner has also relied on the decision of this
Court in Birbal Das @ BirbalBiswas vs. Union of India and others in connection
with WP(C)/8647/2018 wherein vide order dated 08.02.2019 it has been
observed that :-
"2. On being referred by the Superintendent of Police, Border, Kamrup (M), Guwahati,
the FT Kamrup (M) Case No.260/2011 was registered against the petitioner before the
Foreigners' Tribunal Kamrup (Metro) at Guwahati. Before the Tribunal, the petitioner
appeared, but in spite of adequate opportunities being given, the petitioner had neither
filed any written statement nor any evidence was led. As the reference is statutorily
required to be adjudicated within a period of 60 days, the Tribunal had no other option
but to declare the petitioner to be a foreigner by the ex-parte order dated 31.10.2011."
**** **** ****
"4. We have heard Mr. R. Hussain, learned counsel for the petitioner and also perused
the writpetition. No legally admissible and acceptable reasons have been forwarded as
to why the petitionerdid not file the written statement and the evidence in spite of
adequate opportunities being given.From the said point of view, we do not find any
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infirmity in the order of the Tribunal dated31.10.2011. But, however, as the order was
passed ex-parte without the relevant materials beingproduced by the petitioner and
taking into consideration the interest of justice, the petitioner isallowed to once again
appear before the Tribunal for an adjudication on merit. But as because thepetitioner
had abandoned the proceeding without any acceptable reason, the ends of justice
would bemade that a cost of Rs. 15000/- is imposed on the petitioner to be deposited
before the District LegalServices Authority, Kamrup (Metro), Guwahati. Upon the proof
of the depositof cost being produced,the petitioner shall appear before the Tribunal on
06.03.2019 along with a copy of the writtenstatement to be filed. Upon such
appearance, the Tribunal shall adjudicate the reference made againstthe petitioner
within a period of 60 days thereof."
32. It is true that the decisions relied upon by the learned counsel for the
petitioner are cases where the petitioners have not filed their written statements
whereas in this case the petitioner appeared before the Tribunal and filed his
written statement. At the same time, this Court cannot be oblivious of the fact
that the written statement was filed by the petitioner along with the
photocopies of documents. Thus, when the petitioner failed to appear, the
learned Tribunal was impelled to pass the order/opinion dated 26.09.2016 and
had to rely on the photocopies of the documents which are indeed inadmissible
in the eye of law. The documents submitted by the petitioner along with this
writ petition also cannot be considered by this Court in the light of decision of
the Hon'ble Supreme Court in connection with the decision of Ayurvedic
Sciences (supra).
33. It is also submitted by the learned counsel for the petitioner that the
petitioner's father is alive.
In the Form - I, enquiry report, petitioner's father is referred to as Late
Rajob Ali. During investigation, the statement of petitioner was also recorded
and he was identified as Md. Mofar Ali, 26 years, S/O Late Rajob Ali, Village --
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MohanparPt - II, Police Station - Jogighopa, District - Bongaigaon, Assam. This
error however appears to be an inadvertent error.
34. Learned counsel for the petitioner has also submitted that the petitioner
has a good case and for the interest of justice he may be allowed to contest the
proceeding. The Court may also consider the fact that the petitioner and his family
had to relocate from Suwapata, Bilasipara to Mohanpur as during erosion they lost
their land and other valuables in Suwapata, Bilasipara.
35. It is also submitted on behalf of the petitioner that his father and uncle have
been declared as Indian citizens vide order dated 12.03.2001 passed by the
learned Illegal Migrants (D), Tribunal, Goalpara in connection with Case No.
361/B/D/98 and 336/B/D/98.
36. The negligent conduct of the petitioner is apparent from the records of the
Tribunal.
37. Learned counsel for the petitioner has earnestly submitted that the petitioner
has been continuously suffering from skin disease and he has not yet recovered.
38. In the wake of the foregoing discussions and for the interest of justice, it
appears that the petitioner may be accorded an opportunity to contest the
proceeding and place the original documents which the petitioner has relied upon
earlier while submitting his written statement as well as to place any other
additional documents through which the petitioner is willing to prove that he is a
citizen of India and not a foreigner. The petitioner is directed to appear before the
learned Tribunal within one month from today without expecting any fresh notice
to be served, and the learned Tribunal is directed to make every endeavor to
dispose of the proceeding preferably within two months from the date of this order.
39. The petitioner is allowed to once again appear before the learned Tribunal for
an adjudication on merits. On failure of the petitioner to appear before the learned
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Tribunal within the time allowed, it would be open to the learned Tribunal to treat
the petitioner absent on call and to proceed ex-parte against the petitioner.
40. The impugned order dated 26.09.2016 is hereby set aside. It is submitted
that at present petitioner is at adetention camp and he shall be released forthwith
subject to submissions of two surety bonds from two prominent persons who shall
stand as surety subject to the satisfaction of the Superintendent of Police (Border)
Bongaigaon and the Superintendent (B) shall verify and satisfy himself as to the
authenticity and acceptability of the two sureties to his satisfaction.
41. Upon appearance of the petitioner before the Tribunal, it shall be open for
the Tribunal to pass further order as to whether the petitioner has to be kept in
detention or not.
42. Petition is partly allowed with cost of Rs.10,000/- (Rupees Ten Thousand) to
be deposited before the District Legal Services Authority, Bongaigaon. The
petitioner shall appear before the Tribunal within 30 (Thirty) days from today. At
the time of appearance before the Tribunal, the petitioner shall submit proof of
deposit of cost of rs.10,000/- (Rupees Ten Thousand) to the District Legal Services
Authority, Bongaigaon.
42. Send back the original records.
JUDGE JUDGE
Comparing Assistant
