Gauhati High Court
Sahjahan Ali @ Md. Shahjahan Ali vs The Union Of India And 4 Ors on 5 February, 2019
Bench: Achintya Malla Bujor Barua, Ajit Borthakur
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GAHC010258532017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 342/2017
1:SAHJAHAN ALI @ MD. SHAHJAHAN ALI
S/O LT. SIRAJUDDIN @ CHIRAJUDDIN @ SIRAJ @ SIRAJ ISLAM @ SIRAJUL
ISLAM VILL- HATIKHULI TEA ESTATE, MOUZA, KAZIRANGA, P.S.
BOKAKHAT, DIST. GOLAGHAT, ASSAM.
VERSUS
1:THE UNION OF INDIA and 4 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF INDIA,
HOME DEPARTMENT, NEW DELHI-1, INDIA.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARMENT
DISPUR
GUWAHATI-6.
3:THE DEPUTY COMMISSIONER
GOLAGHAT
DIST. GOLAGHAT
ASSAM.
4:THE SUPERINTENDENT OF POLICE
B
GOLAGHAT
DIST GOLAGHAT
ASSAM.
5:THE OFFICER IN-CHARGE
BOKAKHAT POLICE STATION
P.S. BOKAKHAT
DIST GOLAGHAT
ASSAM
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Advocate for the Petitioner : MR.Z HAMMAD
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 05-02-2019 Heard Mr. Z. Hammad, learned counsel for the petitioner, Mr. A. Ali, learned counsel for the Election Commission of India, Mr. J. Payeng, learned counsel for the State of Assam, appearing for the Foreigners' Tribunal and Border Affairs, Ms. V. Verma, learned Standing Counsel for the authorities under the NRC, Ms. G. Sarma, learned counsel for the authorities under the Union of India.
2. On being referred by the Superintendent of Police, Border, Golaghat, the FTG(D) Case No. 151/2010 was registered before the Foreigners' Tribunal, Jorhat. The petitioner entered appearance and submitted his written statement and photo copies of certain documents. Subsequent thereto the petitioner failed to appear on 18.11.2015, 30.11.2015, 07.12.2015, 28.12.2015, 05.01.2016, 29.01.2016, 16.02.2016, 01.03.2016, 21.03.2016, 05.04.2016, 22.04.2016, 05.05.2016 and 18.05.2016. In the resultant consequence, the ex-parte order, dated 14.06.2016 was passed declaring the petitioner to be a foreigner who had entered India after 25.03.1971.
3. Being aggrieved by the said order, dated 14.06.2016, present writ petition has been preferred on the ground that during the said period the petitioner was suffering from some disease in his kidneys which prevented him from appearing before the Tribunal.
4. To support his contentions, the petitioner has enclosed a medical illness certificate from the Medical & Health Officer No. 1, Samaguri B.P.H.C. as well as some advice slip for patient from Medical Officer, Mowamari Model Hospital as well as from the Medical & Health Officer, No. 1, Kawaimari F.R.U, Nagaon, Assam. The medical documents enclosed prima facie indicates that the petitioner may had suffered from some kidney diseases.
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5. As the opinion have been rendered against the petitioner ex-parte, in the situation whether he was prevented from appearing due to medical reasons, we are inclined to accept the reasons given by the petitioner for his non-appearance. Accordingly, the order dated 14.06.2016, passed in FTG(D) Case No. 151.2010 by the Foreigners' Tribunal Jorhat is set aside.
6. The petitioner now shall appear before the Foreigners' Tribunal at Jorhat on 25.02.2019 and upon his appearance, the Tribunal shall adjudicate the reference on its merit from the stage wherefrom the petitioner had filed his written statement and also submitted certain photo copies of the documents. The reference be answered within a period of 45 days from the date of appearance of the petitioner.
7. It is stated that the petitioner is presently in detention at Central Jail, Jorhat, In the circumstances, the Superintendent of Police, Border, Jorhat shall make necessary arrangement to enable the petitioner to appear before the Foreigners' Tribunal on 25.02.2019 and on his appearance, the Tribunal by considering the attending facts and circumstances shall decide as to whether the petitioner is required to further continue to remain in detention.
8. In any view of the matter, the Tribunal shall decide the reference within a period of 45 days from the date of appearance of the petitioner.
9. The writ petition is allowed to the extent indicated above.
JUDGE JUDGE Comparing Assistant