ASIA BEGUM @ MUSSTT. AIYSA BEGUM @ ASIA KHATUN v. THE UNION OF INDIA AND 6 ORS.
Court: Gauhati High Court
Bench: HONOURABLE MR. JUSTICE MANOJIT BHUYAN,HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
Judgment date:
Case summary
Gauhati High Court judgment dated 2020-09-29. ASIA BEGUM @ MUSSTT. AIYSA BEGUM @ ASIA KHATUN v. THE UNION OF INDIA AND 6 ORS. Read the judgment and case...
Judgment text
Page No. # 1/4 GAHC010303532019 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 9180/2019 1:ASIA BEGUM @ MUSSTT. AIYSA BEGUM @ ASIA KHATUN D/O- LT. YAKUB HUSSAIN, W/O- HUSSAIN ALI, R/O- VILL. BALIRAM PATHAR, P. S. HOJAI, DIST. HOJAI/ NAGAON, ASSAM, PIN- 782435. VERSUS 1:THE UNION OF INDIA AND 6 ORS. REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI. 2:THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY. -06. 3:THE DY. COMMISSIONER OF HOJAI DIST. - HOJAI (ASSAM) PIN- 782435. 4:THE CHIEF ELECTION OFFICER OF THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI DELHI- 110001. 5:THE OFFICE OF THE STATE COORDINATOR OF NATIONAL REGISTRATION (NRC) ASSAM 1ST FLOOR ACHYUT PLAZA Page No. # 2/4 BHANGAGARH GHY. ASSAM- 781005. 6:THE SUPDT. OF POLICE (B) HOJAI DIST. - HOJAI (ASSAM) PIN- 782435. 7:THE OFFICER-IN-CHARGE HOJAI POLICE STATION DIST.
- HOJAI (ASSAM) PIN- 782435 Advocate for the Petitioner : G UDDIN Advocate for the Respondent : ASSTT. S. G. I. BEFORE HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE SOUMITRA SAIKIA ORDER 29. 09. 2020 (Manojit Bhuyan, J. ) Heard Mr. G. Uddin, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent nos. 1 and 5. Mr. J. Payeng, learned counsel appears for respondent nos. 2, 3, 6 and 7. None appears for the respondent no. 4. The petitioner assails the opinion dated 28. 01. 2019 passed by the Foreigners Tribunal, Hojai, Sankardev Nagar in FT/H/Case No. 162/2015, declaring her to be a foreigner, having illegally entered into India after 25. 03. 1971. This opinion was rendered ex parte on account of the fact that the petitioner after having appeared before the Tribunal through the counsel on 24. 05. 2018, continued to file petitions on each date fixed seeking time for filing written statement.
On the last three consecutive dates, the petitioner also remained absent without taking any steps. Under such circumstances, an adverse view was taken and the impugned opinion was passed ex parte. Page No. # 3/4 It is seen from the records that the petitioner filed a miscellaneous case on 14. 02. 2019 for setting aside the aforesaid ex parte order dated 28. 01. 2019 and the same was registered and numbered as Miscellaneous Case No. FT/H/02/2019. On 04. 04. 2019 the said miscellaneous case was rejected primarily on the ground that the petitioner had filed the application under Order 47 Rule 1, read with Section 114 of the Code of Civil Procedure, whereas the provisions of the Code of Civil Procedure is not applicable and the Tribunal is only guided by the provisions of the Foreigners’ Act, 1946 and the Foreigners’ (Tribunal) Order, 1964. We have perused the materials on record.
There is no dispute to the fact that the submissions and averments made in the miscellaneous case did not stand for consideration. The Tribunal, therefore, did not consider as to whether the petitioner was prevented by sufficient cause or not from appearing before the Tribunal on dates fixed. We are also of the opinion that the rejection of the miscellaneous case on ground that the same was filed under Order 47 Rule 1 whereas the provisions of Code of Civil Procedure is applicable to the proceedings under the Foreigners’ Act, 1946, the said ground cannot find legal justification, inasmuch as Para 3 A of the Foreigners’ (Tribunals) Order, 1964 vests power on the Tribunal to consider application for setting aside ex parte order for non-appearance of the proceedee.
The caveat in Para 3A is that the said application has to be filed within 30 (thirty) days of the opinion aggrieved of and the applicant being able to demonstrate sufficient cause which prevented making appearance before the Tribunal. As indicated above, the miscellaneous case for setting aside the ex parte order was filed on 14. 02. 2019, which is well within the stipulated period provided under Para 3A. It would not justify the Tribunal to reject an application only going by the nomenclature of the application when otherwise power vests with the Tribunal to consider application for setting aside ex parte order under Para 3 A of the Foreigners’ (Tribunals) Order, 1964. On the above, we set aside the order dated 04. 04. 2019 passed in Miscellaneous Case No. FT/H/02/2019 with direction to the petitioner to appear before the Tribunal on 15. 10. 2020. We also direct the Tribunal to consider the Miscellaneous Case No.
FT/H/02/2019 afresh and pass appropriate order thereon after considering the merits of the said application. We make it clear that we are not interfering with the ex parte opinion dated 28. 01. 2019 and Page No. # 4/4 leave it to the Tribunal to pass appropriate order after considering the miscellaneous case. Office to send back the records to the Tribunal forthwith so that it reaches the Tribunal well before 15. 10. 2020. The Tribunal shall hear the petitioner and pass appropriate orders on the miscellaneous case within a period of 30 (thirty) days from 15. 10. 2020. For the purpose of concluding the reference case within the period specified above, the Tribunal shall act upon the certified copy of this order, which the petitioner is permitted to furnish before the Tribunal on the date of appearance i. e. 15. 10. 2020. Writ petition stands accordingly disposed of. JUDGE Judge Comparing Assistant
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