Gauhati High Court
Shri Abu Bokkor Siddique vs The Union Of India Represented By The ... on 7 March, 2019
Author: A.K. Goswami
Bench: Arup Kumar Goswami, Manash Ranjan Pathak
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GAHC010242712018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review Petition No.193/2018
1:SHRI ABU BOKKOR SIDDIQUE
S/O ABDUL MAKIT SEIKH, R/O VILL. BORO BAGJAPA,
P.S. SUKCHAR, DIST. SOUTH SALMARA, MANKACHAR, ASSAM.
VERSUS
1:THE UNION OF INDIA REPRESENTED BY THE SECY., MINISTRY OF
HOME AFFAIRS, GOVT. OF INDIA, SHASTRI BHAWAN, NEW DELHI 110001
2:THE STATE OF ASSAM THROUGH THE SECY. TO THE GOVT. OF ASSAM
HOME DEPTT. DISPUR GUWAHATI 781006
3:THE DEPUTY COMMISSIONER OF POLICE (BORDER)
PANBAZAR GUWAHATI KAMRUP (M) ASSAM 781001
4:THE DEPUTY COMMISSIONER
DEPUTY COMMISSIONER OFFICE
PANBAZAR GUWAHATI KAMRUP (M) ASSAM 781001
5:THE OFFICER IN CHARGE
BHANGAGARH P.S. GMCH CAMPUS BHANGAGARH
KAMRUP (M) ASSAM 781005
6:COORDINATOR NRC ASSAM
1ST FLOOR ACHYUT PLAZA GUWAHATI SHILLONG ROAD
BHANGAGARH GUWAHATI ASSAM 781005
7:ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN ASHOKA ROAD NEW DELHI 110001 INDIA
Advocate for the Petitioner : MS. D GHOSH
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE ARUP KUMAR GOSWAMI
HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
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ORDER
Date : 07-03-2019 (A.K. Goswami, J.) Heard Ms. D. Ghosh, learned counsel for the petitioner. Also heard Mr. J. Payeng, learned standing counsel, Foreigners Tribunal, appearing for the respondent Nos.2, 3, 4 & 5, Ms. U. Das, learned standing counsel, NRC, appearing for the respondent No.6 and Mr. A.I. Ali, learned standing counsel, Election Commission of India, appearing for the respondent No.7. None appears for the respondent No.1 Union of India.
By this review application, the petitioner, who was the writ petitioner in WP(C) No.5062/2018, seeks review of the judgment & order dated 28.08.2018 passed in the said writ petition. In WP(C) No.5062/2018, challenge was to an ex-parte judgment & order dated 25.06.2018 passed by the Foreigners Tribunal, Kamrup (Metro) No.2 at Guwahati, whereby the petitioner was held to be a foreigner, who entered Assam (India) from Bangladesh illegally without any valid documents after 25.03.1971.
In Paragraphs 4, 5, 6 & 8 of the judgment under review, it was recorded as follows:-
"4. On the basis of submission made by Ms. D Ghosh, as recorded in the order dated 2.8.2018, that notice was not served upon the petitioner but was served upon his mother who could not contact him as he was away, we thought it appropriate to examine the records of the Tribunal at the motion stage itself. The records were received by this Court on 10.8.2018.
5. The affidavit of this writ petition was sworn by one Esmail Alom who stated that he is a cousin of the writ petitioner. In paragraph 5 of the writ petition, the petitioner stated as follows:
'That the petitioner remained absent without steps because he did not receive any notice or a copy of summon issued by the Learned Foreigners Tribunal No.2, Kamrup (M), Assam personally instead the copy of notice was served to the mother of the petitioner. The petitioner beg to state that at the time when the notice of summon was handed over to his mother he was not in his native village but was engaged for work as a painter at Bagmara, Garo Hills, Meghalaya, one of the remotest area without proper mobile network. Thereafter when he Page No.# 3/5 returned to his native village in the month of June, 2018, he was informed about the notice and immediately he came down to Guwahati, he tried his level best to engage a lawyer but because of the high fees, he was unable to afford and engage any counsel to represent him before the Learned Tribunal. Consequently, on the basis of the report of the enquiring officer the Learned Tribunal opined that the petitioner is a foreigner post 1971 stream and have entered into India after 25.03.1971. Thus, the case was decided and proceeds ex-parte order and the petitioners were declared as foreigners and that he should be immediately deported from India to Bangladesh."
(emphasis supplied by us)
6. However, from the records it is seen that notice was duly served upon the petitioner personally on 18.4.2018. A perusal of the records of the Tribunal further goes to show that Esmail Alom himself had received a notice on behalf of the petitioner on 30.11.2017. However, as the service report was not received by the Tribunal before the next date fixed, i.e. 1.12.2017, the Tribunal issued reminder fixing 11.1.2018. On 11.1.2018, the Tribunal directed issuance of fresh notice fixing 2.3.2018. This notice was duly served upon the mother of the petitioner on 15.2.2018. But, as the service report was not before the Tribunal, once again notice was directed to be issued fixing 23.4.2018. As noticed earlier, the petitioner had received this notice on 18.4.2018. Even after receipt of notice by the petitioner himself, he did not appear on 23.4.2018 or in subsequent dates namely, 25.5.2018, 20.6.2018 and therefore, the learned Tribunal rendered the ex parte judgment.
8. An additional affidavit was filed on 16.8.2018 which was sworn by Esmail Alom. Neither in the writ petition nor in the additional affidavit, Esmail Alom has stated that he had also received a notice earlier. It is sought to be explained in the additional affidavit by him that the statements made in paragraph 5 of the writ petition were partially wrong as he was not aware of receipt of notice by the petitioner himself. In paragraph 5 of the writ petition it was also stated by him that on being told in the month of June, 2018 about receipt of notice by his mother, the petitioner had come down to Guwahati and sought to engage a lawyer, thereby Page No.# 4/5 giving an impression that the petitioner had not come to his residence till June, 2018, which is not true, as revealed from the records, inasmuch as, the petitioner was personally served with the notice in the month of April, 2018. It is manifest that false statements have been made before this Court."
Accordingly, the writ petition was dismissed by holding that the petitioner had not availed the opportunity granted to him.
Placing reliance on the averments made in the review application, Ms. Ghosh submits that though the notice was served on the petitioner, there was discrepancy in the details recorded in the report of the Enquiry Officer inasmuch as apart from the name and address of the petitioner, other details do not relate to the petitioner. She points out that even the photograph pasted in the report is not that of the petitioner. The name of the mother of the petitioner was also recorded wrongly and, therefore, it is a fit case for giving an opportunity to the petitioner to contest the case.
Mr. Payeng, on the other hand, has submitted that no explanation has been put forward by the petitioner even in this petition as to why the petitioner did not appear before the learned Tribunal on 3(three) consecutive dates after service of notice. It is contended by him that there is no error apparent on the face of the record inasmuch as the petitioner by chosing not to appear before the learned Tribunal, failed to discharge the burden cast upon him under Section 9 of the Foreigners Act, 1946 to prove that he is not a foreigner.
In Paragraph 4 of the review petition, the petitioner has admitted that he had received the notice dated 03.03.2018 though a contrary stand was taken by him in the writ petition.
In the review petition, a 'Statement' dated 27.01.2017 given by Abu Bokkor Siddique (name of the petitioner is Abu Bokkar Siddique) is enclosed. It is stated therein, amongst others, that the names of his mother, wife and two daughters are Safiana Khatun, Jesmina Khatun, Mofida and Juleka, respectively. It is also stated therein that Bhangagarh Police Station (Border Branch) asked documents from him regarding his Indian Nationality. The petitioner now contends that his mother's name is "Ojuba Bibi" and that his wife's name is "Masuda Khatun". It is also stated that he is not a father of two daughters. The report referred to by Ms. Ghosh is dated 11.05.2017 and personal details as indicated in the "Statement" are incorporated therein. The petitioner has not contended that Bhangagarh Police Station (Border Branch) never recorded his statement. It is also not pleaded that the aforesaid statement is not his statement.
Page No.# 5/5 As the petitioner did not contest the proceedings despite service of notice, this Court had affirmed the order of the learned Tribunal holding that the petitioner had been granted due opportunity. In the review petition, no explanation is provided as to why the petitioner did not or could not appear before the learned Tribunal.
In these circumstances, we are of the considered opinion that no case is made out for review of the judgment & order dated 28.08.2018 passed by this Court in WP(C) No.5062/2018. Accordingly, the review petition is dismissed. No cost.
Sd/- Sd/-
JUDGE JUDGE
M. Sharma
Comparing Assistant