IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP (C) No. 2306 of 2014 1. Md. Sirajul Hoque @ Sirajul Islam, S/o. Lt. Abdul Karim. 2. Musstt. Nurjahan Khatun @ Nurjahan Begum, D/o. Samar Ali, S/o. Md. Sirajul Hoque @ Sirajul Islam. 3. Jakir Hussain, S/o. Md. Md. Sirajul Hoque @ Sirajul Islam. 4. Magbul Hussain @ Makbul Islam, S/o. Md. Sirajul Hoque @ Sirajul Islam. 5. Nur Hussain @ Nurul Islam @ Nur Islam, S/o. Md. Sirajul Hoque @ Sirajul Islam. 6. Md. Babul Islam, S/o. Md. Sirajul Hoque @ Sirajul Islam. 7. Miss. Majeda Khatun @ Mafia Khatun, D/o. Md. Sirajul Hoque @ Sirajul Islam. All are residents of village Silbheta, PO- Dharamtul, PS- Jagiroad, Dist.- Morigaon...Petitioners -Versus- 1. The Union of India, represented by the Secretary to the Govt. 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 Department, Dispur, Guwahati-6. 3. The Superintendent of Police (B), Morigaon, Assam. WP(C) 2306/2014 oral dated 18/09/15 Page 1 of 13
4. The Officer-in-Charge, Jagiroad Police Station, District- Morigaon. 5. The Director of Health Services, Assam, Hengrabari, Guwahati..Respondents For the petitioners : Mr. A. Matin. Adv. For the Respondents : Mr. Noor Mohammad, GA, Assam. Ms. G. Sarma, Counsel for UOI. BEFORE THE HON BLE MR. JUSTICE B.K. SHARMA Date of hearing & Judgement: 18/09/2015 JUDGEMENT AND ORDER (ORAL) 1. The petitioners, namely, Md. Sirajul Hoque @ Sirajul Islam, Musstt. Nurjahan Khatun @ Nurjahan Begum, Jakir Hussain, Magbul Hussain @ Makbul Islam, Nur Hussain @ Nurul Islam @ Nur Islam, Md. Babul Islam, Miss. Majeda Khatun @ Mafia Khatun, are aggrieved by the Annexure-17 exparte judgement dated 09/12-03-2012, by which all of them have been declared to be foreigners of post 25/03/1971. The petitioners are also aggrieved by the Annexure-26 order dated 24/01/2014 by which the learned Tribunal rejected the prayer for setting aside the exparte order. 2. After passing of the impugned exparte order dated 09/12-03-2012, the petitioners had approached this Court by filing a writ petition being W P(C) No. WP(C) 2306/2014 oral dated 18/09/15 Page 2 of 13
1924/2013. The writ petition was disposed of on 09/04/2013 allowing the petitioners to approach the learned Tribunal for setting aside the exparte order. It was provided that in the event of filing an application for setting aside the exparte order, the same should be considered in accordance with law and also9 taking into account the Full Bench decision in State of Assam Vs. Moslem Mondal and others reported in 2013 (1) GLT (FB) 809. 3. Armed with the above order, the petitioners filed an application before the learned Tribunal (Annexure-19) with the prayer for setting aside the exparte order. The application was registered and numbered as Misc. Case No.03/2013. For a ready reference, the said application is quoted below :- BFORE THE MEMBER OF THE F.T. NO-1 ST, MORIGAON FT(C) No. 174/07 State -Vs- Sirajul Haque @ Sirajul Islam Petition under Order 9, Rule 13 & section 151 CPC Your Honour, The applicant respectfully begs before this Hon ble Court is that : 1. The opposite party had submitted written statement after receiving note and the Hon ble Court fixed a date for witnesses. But due to death of a family member of opposite parties, the opposite party could not appear before the Hon ble Court which was intimated by filing petitioner no-87 through Advocate. The Hon ble Court allowed the application by fixing next date on 3-3-12 for witnesses. 2. Due to religious rituals of deceased person the opposite party could not appear before the Hon ble Court which was intimated by Application No. 110 through Advocate and the Hon ble Court rejected the application by fixing 7-3-12 for argument. 3. The Opposite Party could not appear before the Hon ble Court on 7-3-12 due to illness and the Hon ble Court declared the opposite parties as foreigners vide ex-parte order dated 12-3-12 without hearing argument of the opposite party. 4. The Opposite Party approached the Hon ble High Court by filing writ petition being WP(C) No. 1924/2013 praying for setting aside the ex-parte order and the Hon ble Court was WP(C) 2306/2014 oral dated 18/09/15 Page 3 of 13
pleased to direct to approach the Trial Court (FT No-1, Morigaon) for setting aside ex-parte order in the light of Judgement and Order passed in State of Assam & Ors. Vs. Moslem Mondal & Ors. Reported in 2013 (1) GLT 809. Therefore this application. 5. The Opposite Parties have suffered irreparable loss due exparte order without hearing the opposite parties. Therefore it is required to set aside the ex-parte order. Therefore it is prayed that Your Honour would be kind enough to set aside the ex-parte order and decide the matter after hearing opposite party in the interest of justice. Regards. OATH Applicant namely Md. Sirajul Haque @ SirajulIslam, son of Abdul Karim, R/ o. Shilbheta, P.S.- Jagiraod, District- Morigaon (Assam) do hereby swear in the name of religion that all paragraphs of this application are true to the best of my knowledge and belief and I signed this oath. Sd/- Md. Sirajul Haque Alias Md. Sirajul Islam. Regards Note : Order of the Hon ble High Court is appended with the main application. 4. Opposing the aforesaid prayer, the State filed written objection and contended that the grounds assigned in the application were not sufficient to set aside the exparte order. The application was rejected by order dated 26/06/2013 (annexure-22) holding that the petitioners failed to prove that they were prevented from appearing in the Tribunal and / or they could demonstrate sufficient ground as required under Order IX Rule XIII of the C.P.C. The learned Tribunal also found the application to be barred by limitation. 5. Being aggrieved by the order so passed, the petitioners once again approached this Court by filing a writ petition being WP(C) No. 6759/2013. This writ petition was also disposed of on 27/11/2013 granting another opportunity to the petitioners to file appropriate application furnishing all necessary facts and particulars, so as to justify their stand regarding failure to WP(C) 2306/2014 oral dated 18/09/15 Page 4 of 13
appear before the Tribunal. Again armed with the said order, the petitioners filed another application for setting aside the exparte order. Along with the application, the petitioners enclosed Annexure-24 Death Certificate dated 08/12/2013 showing the death of Rupjan Bibi (said to be mother of the petitioner No.1 on 22/02/2012). 6. The learned Tribunal considered the application filed by the petitioners which was registered and numbered as Petition No. 996 dated 16/12/2013. The application was dismissed by the impugned Annexure-26 order dated 24/01/2014 holding that the petitioners failed to show good and sufficient ground for setting aside the exparte order dated 09/12-03-2012 passed in FT(C) 174/2007. In the detailed order, the Tribunal has discussed the entire facts and circumstances including the evidence adduced by the petitioner No. 1 as PW-1. As recorded in the impugned order, in cross examination, he admitted that although all the proceedees involved in the reference were major but none of them appeared before the tribunal. He also could not say the date of treatment at Dharamtul Hospital for his fever and cough. He also could not say whether the name of his father was mentioned in the medical certificate. He also stated that he had no documents showing his name Sirajul Haque/Sirajul Islam son of Abdul Karim. 7. As recorded in the impugned order, the petitioners were absent in the proceeding before the Tribunal for about 3 years since 26/07/2007 till 27/01/2010. Due to such non-appearance, the case was fixed for exparte hearing on 15/05/2009 fixing the mater on 13/08/2009. On that date also the petitioners were absent without steps but on 14/08/2009, the petitioners appeared and filed written statement with petition No. 671 praying for vacating the order for exparte, which was allowed for ends of justice imposing a cost of Rs. 2,000/-. However, the petitioners never paid the costs imposed and thereby disobeyed the order of the Tribunal. At this stage, Mr. A. Matin, learned counsel for the petitioner submits that later on the amount was deposited. WP(C) 2306/2014 oral dated 18/09/15 Page 5 of 13
8. After the aforesaid development the petitioners again remained absent on 16/08/2010, 19/11/2010, 02/02/2011, 01/04/2011 and 21/06/2011. On 16/08/2011, the engaged counsel for the petitioners filed petition No. 564/2011 without any Vakalatnama, praying for time on the ground of illness of petitioner No. 1. However, the petition was not supported by any medical certificate. The learned Tribunal allowed the prayer for ends of justice. 9. On 14/11/2011 a further adjournment petition No. 888/2011 was filed on the ground of non-availability of necessary documents. Such adjournment prayer was also allowed for ends of justice imposing a cost of Rs. 200.00 fixing the matter on 22/02/2012. On the next date i.e. 14/11/2011, the engaged counsel of the petitioner filed another petition No. 885/2011 for withdrawal of his name/engagement from the case. On that date i.e. 22/02/2012 also the engaged counsel for the petitioner filed adjournment petition No. 87 showing the purported death of one of the members of the petitioners. The petition was not specific as to the date of death and name of the person died. However, on that occasion also, the petition was allowed for ends of justice giving a last chance fixing the matter on 03/03/2012 for evidence. On that date also, another counsel representing the petitioners filed petition No. 110 at 1-30 p.m. seeking adjournment on the ground that there was death ceremony in the family of the petitioners. However, there was none to press the petition and accordingly the same was rejected fixing the matter for argument on 07/03/2012. 10. On the date of argument also i.e. on 07/03/2012, the petitioners were absent and consequently, the reference was disposed of exparte on 12/03/2012. As to what happened thereafter has been noted above. On two occasions, the petitioners approached this Court and on each occasion, they were granted liberty to approach the Tribunal praying for setting aside of the exparte order. WP(C) 2306/2014 oral dated 18/09/15 Page 6 of 13
After the second liberty granted to the petitioners, the petitioners filed Petition No. 996/2013 which was registered and numbered as MC No. 19/2013. 11. The learned Tribunal rejected the said application on the following ground :- i) The medical certificates submitted by Medical & Health Officer, Dharamtul SHC did not identify the person attended by him. ii) The name of the father of the patient attended to and treated by him and address are not given in the medical certificate. iii) Although the patient was purportedly treated in the hospital, the medical certificate did not bore any registration No. of of the Doctor and any Hospital Number. iv) The Medical certificate also do not bear any date of issue. v) As per Medical Certificate (not exhibited), the patient is Sirajul Haque but the petitioner preferred WP(C) No. 1924/2013 and WP(C) No. 6759/2013 showing the petitioner No. 1 as Sirajul Haque @ Sirajul Islam. vi) Although the patient was purportedly examined and treated at Dharamtul SHC, the prescription submitted along with the petition bore no hospital Number and or Registration Number. vii) The petitioner while examined himself as PW-1 disclosed in crossexamination that there could be some other Sirajul Islam in the same village. viii) The death certificate containing the name of Amena Khatun was not acceptable to the learned Tribunal as there was no record to show that the said Amena Khatun is the mother of the petitioner No. 1. ix) There was no mention in the petition No. 87 dated 22/02/2012 as to who died and when. x) The petitioners did not come with clean hand to demand justice. WP(C) 2306/2014 oral dated 18/09/15 Page 7 of 13
12. In the present proceeding before this Court, a doubt arose in respect of issuance of Annexure-24 Death Certificate dated 08/12/2013 and so also the Annexure-25 Medical Certificate. The learned Standing Counsel, Health Department was directed to apprise the Court as to the veracity or otherwise of the said two certificates. The matter was further taken up on 13/08/2015 and on the basis of the written instructions furnished to the learned Standing Counsel, Health, it was submitted that the Annexure-24 and Annexure-25 certificates were genuine. Along with the written instruction dated 10/08/2015, the purported recommendation of the Additional Deputy Commissioner, Morigaon vide order dated 25/11/2013, for issuance of the Anenxure-24 Death Certificate was also enclosed. 13. When a doubt arose in respect of the said order dated 25/11/2013 issued by the Additional Deputy Commissioner, Morigaon, further direction was issued to obtain instruction from the Deputy Commissioner, Morigaon. The matter was again taken up on 25/08/2013 and Mr. Noor Mohammad, learned State Counsel produced the letter dated 21/08/2015 addressed to him by the Deputy Commissioner certifying that the purported letter of the Additional Deputy Commissioner dated 25/11/2013 was never issued from the office of the Deputy Commissioner. Situated thus, Dr. Niranjan Konwar, Medical and Health Officer-I, in-charge, Dharamtul SHC was directed to appear in person along with entire records pertaining to Annexure-24 Death Certificate dated 08/12/2013 including the original copy of the order dated 25/11/2013. He appeared on 08/09/2015. Prior to that the Deputy Commissioner was directed to cause an enquiry vide order dated 25/08/2015. For a ready reference, the order dated 08/09/2015 is quoted below :- 08-09-2015 In terms of the orders passed on 25/08/2015, Dr. Niranjan Knowar, Medical and Health Officer -1, I/ C. Dharamtul SHC in the district of Morigaon is personally present. He has produced the purported records on the basis WP(C) 2306/2014 oral dated 18/09/15 Page 8 of 13
(i) (ii) of which the Annexure-24 death certificate dated 08/12/2013 was issued. The Certificate bears Registration No. 75/ 13. In the name of records, Dr. Knowar has produced three documents, which are :- A certificate dated 03/12/2013 purportedly issued by one Surya Kanta Doloi, Gaonbura, Dhakin Dharamtul/Silbheta, Mouza- Uttarkhola, P.S. Jagiroad, district Morigaon making hand written insertion certifying death of the particular person, although the format is meant for issuance of residency certificate ; Death report in the particular format, most of the columns of which are unfilled including the column relating to place of death, address, permanent address, etc. Even the informant s full name is not indicated, not to speak of his address. Surprisingly, on the basis of such death report registration was done on the same date and the death certificate in question was also issued on the same day ; (iii) Original order dated 25/ 11/2013 purportedly issued by the Addl. Deputy Commissioner, Morigaon, Assam under Memo No. D/C No. 163/13 containing the seal of the Deputy Commissioner, Morigaon. On a bare perusal of the order, it appears that the same is a fake one. As in the case of death report, the said order also does not indicate the address of the applicant. Significantly, the applicant is one Abdul Karim. As per the affidavit filed by the petitioner, Abdul Karim was his father who expired in 1988. As in the death report, in the said order also, no address in respect of the deceased was furnished. As recorded in the earlier order, as per the report of the Deputy Commissioner, Morigaon, the third document i.e. the aforesaid order of the Additional Deputy Commissioner dated 25/11/2013 is the product of forgery. The petitioner has filed an affidavit, inter alia, stating that he had obtained the aforesaid certificate from the Government Gaonbura on 03/12/2013 and the same was handed over to one Shri Khirod Medhi, S/o. Late Deoram Medhi of Pub Dharamtul village under Jagiroad Police Station, who is a Stamp Vendor and known to the petitioner for obtaining the death certificate for his mother. Thereafter, the said Khirod Medhi handed over the death certificate dated 08/12/2013 (Annexure-24) to the petitioner. Thus, the petitioner has sought to blame his engaged Stamp Vendor as in the case of decisions by the Foreigners tribunals, more particularly, in respect of exparte orders, in which the declared foreigners normally blame their engaged counsels for allegedly not WP(C) 2306/2014 oral dated 18/09/15 Page 9 of 13
taking steps in the matter. According to the said affidavit of the petitioner, his father Abdul Karim died in 1988 and thus could not have been shown as the applicant in the ADC s order. The entire episode towards issuance of Annexure-24 death certificate being based on misrepresentation, misdeeds and manipulation, such explanation on the part of the petitioner is totally unacceptable. He being the beneficiary of the Annexure-24 death certificate dated 08/12/2013, cannot disown the actions undertaken towards procurement of the said certificate. By the last order passed in this proceeding on 25/08/2015, the Deputy Commissioner, Morigaon was directed to cause an enquiry into the entire episode so as to stop the racket which might be operating towards issuance of such fake certificates. Mr. B.J. Ghosh, learned State Counsel submits that perhaps the said order dated 25/08/2015 was not communicated to the Deputy Commissioner, but for which he would have surely submitted the report. He prays for a week s time. While allowing the prayer, the Deputy Commissioner, Morigaon is directed to apprise the Court along with the report to be submitted, the procedure to be followed towards issuance of the death/birth certificates, more particularly, when there is long delay in making the prayer for issuance of such certificate. So far as the instant case is concerned, prima facie, the certificate of the Gaonbura dated 03/12/2013 and the death report registered on 08/12/2013, cannot be the basis for issuance of death certificate, inasmuch as, the certificate of the Gaonbura (printed form) is meant for certifying that the particular person is a resident of the particular area and not for certifying death of a person. As regards the death report, as recorded above, important columns are not filled in. As regards the order of the Addl. Deputy Commissioner dated 25/11/2013, the Deputy Commissioner, Morigaon has conveyed that no such order was issued from the office of the Deputy Commissioner, Morigaon. Thus, the said order is a product of forgery requiring the district Administration to bring the culprits to book and for avoidance of issuance of such forged documents towards issuance of important certificates, like birth and death certificates. Mr. B.J. Ghosh, learned State WP(C) 2306/2014 oral dated 18/09/15 Page 10 of 13
Counsel is handed over with the copy of the affidavit filed by the petitioner. Depending upon the outcome of the report of the Deputy Commissioner to be furnished on or before 18/09/2015, personal appearance of Dr. Niranjan Konwar, Medical and Health Officer, Dharamtul SHC stands dispensed with for the present. List on 18/09/2015. Let a copy of this order be furnished to Mr. B.J. Ghosh, learned State Counsel, for his necessary follow up action. 14. Today, Mr. Noor Mohammad, learned State Counsel has produced the copy of the enquiry report dated 14/09/2015 forwarded to him by the Deputy Commissioner, Morigaon vide his letter dated 16/09/2015. The enquiry report has revealed that the aforesaid purported order dated 15/11/2013 of the Additional Deputy Commissioner, Morigaon is a fake one. Although, Mr. A. Matin, learned counsel for the petitioners has submitted that the petitioners are not responsible towards issuance of the fake order of the Additional Deputy Commissioner, but as recorded in the earlier order dated 08/09/2015, they being beneficiary of the Annexure-24 Death Certificate which was issued on the basis of a fake order, they cannot shirk-off their responsibility by simply saying that the task of obtaining the said certificate was entrusted to a third party. 15. Mr. P. Hazarika, learned Standing Counsel, Health, submits that Dr. Niranjan Konwar, Medical and Health Officer, Dharamtul SHC, has lodged an FIR in this regard with the Dharamtul Police Station and a case has been registered vide FIR No. 90/2015 under Section 420/468 IPC. 16. Above being the position, coupled with the position of law that an application for setting aside an exparte order must be supported with not only good and sufficient ground, but also with exceptional ground as per the decision of the Full Bench in State of Assam vs. Moslem Mondal and others reported WP(C) 2306/2014 oral dated 18/09/15 Page 11 of 13
in (2013) 1 (GLT (FB) 809. For a ready reference, para 92 of the said judgement 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. 17. In the instant case, the petitioner not only failed to demonstrate any exceptional circumstances for non-appearance but also took recourse to forgery as discussed above. 18. For all the aforesaid reasons I do not find any merit in the writ petition and accordingly it is dismissed. WP(C) 2306/2014 oral dated 18/09/15 Page 12 of 13
19. Consequent upon dismissal of the writ petition, now the Superintendent of Police (B), Morigaon shall ensure that the petitioners are arrested and detained in the detention camp till their deportation to their country of origin i.e. Bangladesh. The Deputy Commissioner, Morigaon shall ensure deletion of the names of the petitioners from the voter list, if any. 20. Let the matter be listed again after one month so as to submit report by the Superintendent of Police (B) Morigaon about the action taken in the terms of this order. 21. Registry shall send down the case records to the learned court below along with a copy of this judgement and order. A copy of the judgement and order may also be furnished to Mr. Noor Mohammad, learned State Counsel for his immediate necessary follow up action. Copies shall also be sent to the SP(B), Morigaon and Deputy Commissioner, Morigaon, for their immediate follow up action. JUDGE Sukhamay WP(C) 2306/2014 oral dated 18/09/15 Page 13 of 13