Gauhati High Court
Abdul Baten @ Abul Baten vs The Union Of India And 5 Ors on 18 May, 2020
Equivalent citations: AIRONLINE 2020 GAU 135
Author: Suman Shyam
Bench: Suman Shyam, Parthivjyoti Saikia
Page No.# 1/5
GAHC010227052019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 7047/2019
1:ABDUL BATEN @ ABUL BATEN
S/O- LT WAZ ALI @ UWAZ ALI, R/O- VILL- BALICHAPORI, MORABHARALI,
MOUZA- MAHABHAIRAB, P.S. TEZPUR, DIST- SONITPUR, ASSAM
VERSUS
1:THE UNION OF INDIA AND 5 ORS.
THROUGH THE SECY., TO THE GOVT. OF INDIA, THE MINISTRY OF HOME
AFFAIRS, GRIHA MANTRALAYA, SHASTRI BHAWAN, TILAK MARG, NEW
DELHI- 110001
2:THE STATE OF ASSAM
THROUGH THE COMM. AND SECY.
TO THE GOVT. OF ASSAM
HOME AND POLITICAL DEPTT.
DISPUR
GHY-06
3:THE ELECTION COMMISSION OF INDIA
REP. BY THE CHIEF ELECTION COMMISSIONER OF INDIA
NIRVACHAN SADAN ASHOKA ROAD
NEW DELHI- 110001
4:THE STATE CO-ORDINATOR
NATIONAL REGISTRATION OF CITIZEN
ASSAM
BHANGAGARH
GHY-5
5:THE DY. COMMISSIONER
SONITPUR
Page No.# 2/5
P.O. TEZPUR
DIST- SONITPUR
ASSAM
PIN- 784001
6:THE SUPERINTENDENT OF POLICE (B)
SONITPUR
P.O. TEZPUR
DIST- SONITPUR
ASSAM
PIN- 78400
Advocate for the Petitioner : MD. I HUSSAIN
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
ORDER
Date : 18-05-2020 Suman Shyam, J Heard Mr. I. Hussain, learned counsel for the petitioner. Also heard Ms. G. Hazarika, learned counsel appearing for the Union of India and NRC Coordinator, Mr. A. Kalita, learned standing counsel representing Foreigners' Tribunal and Border Police, Assam and Ms. B. Das, learned counsel for the Election Commission of India. This writ petition is directed against the ex-parte opinion dated 16-10-2017 rendered by the Foreigners Tribunal, Sonitpur, Tezpur in connection with F.T. Case No. 771/2012 whereby the petitioner has been declared to be a foreigner who has entered India (Assam) from the specified territory of Bangladesh after 25-03-1971.
Page No.# 3/5 It appears from the record that upon service of notice in connection with the reference case, the petitioner had entered appearance in the reference case and had also filed his written statement but thereafter, the petitioner had remained absent on successive occasions thereby prompting the learned Tribunal to close the proceeding by rendering the aforesaid ex-parte opinion against the writ petitioner. By referring to the documents available on record, Mr. Hussain submits that the names of the petitioner's grandparents were enrolled in the Voters List of 1966 and thereafter, the names of the petitioner's parents were also included in the Voters List of 1970. However, the petitioner did not get an opportunity to produce those documents due to his ill health condition and in view of the fact that during that period, the petitioner had to spend a substantial period of time at the West Kameng district of Arunachal Pradesh in connection with his employment. The learned counsel for the applicant further submits that the name of the petitioner has also been included in the Voters List of 2005 along with his parents and therefore, if he is denied of an opportunity to contest the reference case on merit, then in that event, the same would lead to serious miscarriage of justice. Mr. Kalita, learned standing counsel, Foreigners Tribunal has, however, opposed the prayer made by the learned counsel, inter alia, contending that the petitioner has deliberately defaulted in contesting the reference case and therefore, he does not deserves any equitable consideration from this Court.
We have considered the submission made by the learned counsel for both the parties and have also carefully gone through the LCR. It is evident from the record that notice in the reference case was duly served upon the petitioner and he had also entered appearance Page No.# 4/5 in the reference case and filed his written statement. However, the petitioner had failed to take steps in the matter on several dates thereafter, as a result of which, the learned Tribunal was left with no other option but to render its ex-parte opinion against the petitioner due to want of proof of his citizenship. From a cursory look of the LCR, it is evident that the petitioner has been negligent in defending his interest in the matter and therefore, ordinarily this Court would not condone such conduct on his part. However, considering the consequences that would ensue upon the petitioner, who is already in the detention centre since his arrest in the month of May, 2019 and having regard to the bulk of documents brought on record by the petitioner in support of his claim of citizenship, we are of the considered opinion that for ends of justice, one final opportunity should be granted to the petitioner to appear before the learned Tribunal and contest the case on merit. We, accordingly, set aside the impugned ex-parte order dated 16-10-2017.
Since the petitioner is presently in the detention centre at Tezpur, the concerned Superintendent of Police (Boarder) is directed to take immediate steps for his release. Petitioner is granted 04 weeks time from today to appear before the learned Tribunal and produce the certified copy of this order. Upon such appearance, the petitioner shall be granted 15 (fifteen) days time to produce documentary evidence in support of his claim. The learned Tribunal may thereafter, proceed with the matter in accordance with law and dispose of the reference case on merit by a reasoned order.
It is, however, made clear that if for any reason, the petitioner fails to comply with the Page No.# 5/5 order of this Court, the ex-parte order dated 16-10-2017 shall become executable in the eye of law and it will be open for the authorities to once again arrest the petitioner and put him in the detention centre.
With the above observation, this writ petition stands disposed of. Send back the LCR as expeditiously as possible.
JUDGE JUDGE GS Comparing Assistant