IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP(C) 1576 of 2013

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1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP(C) 1576 of Sri Krishna Deb Nath, S/o. Late Ramani Deb 2. Smti. Maloti Deb Nath,W/o. Sri Krishna Deb 3. Sri Arjun Deb Nath, S/o. Sri Krishna Deb 4. Sri Nakul Deb Nath, S/o. Sri Krishna Deb 5. Smti. Madhabi Devi, D/o. sri Krishna Deb Petitiones No. 3 and 4 being the minors, they are represented by their natural Guardian i.e. father. All are residents of Vill- Khutradal Jungle Bosti, P.O.- Dongabori, PS-Jagiroad, Mouza Gova, Dist.- Morigaon (Assam) Pin Petitioners. -Vs- 1. The Union of India, represented by the Secretary to the Government of India, Ministry of Home Affairs, New Delhi. 2. The State of Assam, represented by the Commissioner and Secretary to the Govt. of Assam, Home Affairs, Dispur, Guwahati The Director General of Police, Assam, Ulubari, Guwahati The Superintendent of Police (B), PO & PS- Morigaon, Dist.- Morigaon, Assam. WP(C) 1576/ CAV Page 1 of 5

2 5. The Officer-in-Charge, Jagiroad Police Station, Dist.- Morigaon (Assam). Respondents. BEFORE THE HON BLE MR. JUSTICE B.K. SHARMA For the petitioners : For the respondents : Mr. M. H. Ahmed, Adv. Mrs. H.M. Phukan, GA, Assam. Mr. M. Bhagabati, CGC. Date of hearing : 25/07/2013. Date of judgement : 13 /09/2013. JUDGEMENT AND ORDER (CAV) This writ petition is directed against the exparte judgment and order 02/07/2012 passed by the learned Foreigners Tribunal (1 st ) Morigaon in Case No. FT(C) 108/2007, by which the petitioners have been declared to be foreign nationals who illegally entered into Assam after the cut off date I have heard Mr. M.H. Ahmed, learned counsel for the petitioners. Also heard Mr. M. Bhagabati, learned CGC and Mrs. H.M. Phukan, learned State Counsel. I have also perused the entire materials on record including the records received from the Tribunal. Although, in the impugned order, there is no mention of examining the State witness but on perusal of the records, it is found that one Shri Prabin Deka, Government Gaonbura, was examined by the State on He in his deposition, interi alia, stated that he had accompanied the police team who had conducted the enquiry and WP(C) 1576/ CAV Page 2 of 5

3 visited the residence of the petitioner and that on being asked, the petitioner could not produce any documents to prove his Indian citizenship. 3. It appears that the petitioner on receipt of notice from the Tribunal, appeared on and and on both the occasions prayed for time to file written statement and the same was allowed. However, thereafter the petitioner remained absent on several dates, such as, , , , , , , , , , , , , , , , , , , and finally on when the impugned exparte judgement was passed. 4. In the writ petition, the petitioner has assigned the following grounds for their non-appearance :- 4. That, the petitioners beg to state that since they could not arranged money to meet expenses for filing the W.S. on the date fixed , prayer was made on behalf of the petitioner to fixed another date for filing W.S. Thereafter the petitioner No.1 fail seriously ill and as such there was communication gapes with their reengaged advocate who did not take necessary steps in the case in their absence. In fact the petitioners because of their poverty failed to pay necessary legal fees to their engaged advocate and as such their engaged advocate also loss interest to the necessary steps in the case. 6. That the petitioners submit that their absence from the Hon ble Tribunal were not intentional rather the poverty and illiteracy are the main factors which compelled them to be away from the proceedings of the F.T. Case. 9. That the petitioners submit that they pray for apology from this Hon ble Court for not filing their W.S. as well as their absence from the proceedings of the Tribunal. The financial crises that has been faced by the petitioners as well as their lack of knowledge place them in that position for which the WP(C) 1576/ CAV Page 3 of 5

4 impugned ex-parte order has been passed by the Member, Foreigners Tribunal (1 st ), Morigaon. Therefore, an opportunity may be given by this Hon ble court to the petitioners to defend their case as a fresh, otherwise great injustice will be caused to the petitioners. 5. In terms of the Full Bench decision of this Court reported in 2013 (1) GLT 809 (State of Assam Vs. Moslem Mondal), the Tribunal can set aside the ex-parte order provided sufficient cause from appearing in the proceeding, reason for which was beyond his control. In this connection, paragraph-92 of the judgment is quoted below: 92. As discussed above, the Tribunals constituted under the Foreigners Act read with the 1964 Order have to regulate their own procedure and they have also the quasi-judicial function to discharge and hence in a given case the Tribunal has jurisdiction to entertain and pass necessary order on an application to set aside an ex-parte opinion, provided it is proved to the satisfaction of the Tribunal that the proceedee was not served with the notice in the reference proceeding or that he was prevented by sufficient cause from appearing in the proceeding, reason for which was beyond his control. Such application, however, should not be entertained in a routine manner. The Tribunal can entertain such application provided the proceedee could demonstrate the existence of the special/exceptional circumstances to entertain the same by way of pleadings in the application filed for setting aside the ex-parte opinion, otherwise the very purpose of enacting the 1946 Act and the 1964 Order would be frustrated. The Tribunal, therefore, would have the jurisdiction to reject such application at the threshold, if no ground is made out. 6. In view of the above, while not interfering with the impugned judgment and order, this writ petition is disposed of granting liberty to the petitioners to approach the Tribunal for setting aside the exparte order, if so advised, within 3 (three) weeks from today. However, this order shall not be construed to mean that there is any direction to the Tribunal to set aside the ex-parte order. What has been provided is that in the event of approach being made by the petitioners for setting aside the ex-parte order, the Tribunal shall consider the same in terms of the observations made above and in WP(C) 1576/ CAV Page 4 of 5

5 reference to the aforesaid Full Bench decision of this Court. In the meantime, the name of the petitioners shall be deleted from the voter list, if any. If the petitioners do not approach the Tribunal within the stipulated period of 3 (three) weeks, the SP(B), Morigaon shall implement the impugned order of the Tribunal. 7. Let a copy of the order be furnished to Mrs. H.M. Phukan, learned State Counsel for his necessary follow up action. A copy of this judgement and order may also be sent to the Deputy Commissioner and Superintendent of Police (B), Morigaon, for their information and necessary follow up action. 8. The Registry shall send down the LCR to the Tribunal below immediately. JUDGE Sukhamay WP(C) 1576/ CAV Page 5 of 5