Gauhati High Court
Hameda Begum @ Harala Begum vs The Union Of India And 6 Ors on 10 December, 2018
Author: Manojit Bhuyan
Bench: Manojit Bhuyan, Nani Tagia
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GAHC010214512018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 6940/2018
1:HAMEDA BEGUM @ HARALA BEGUM
D/O- LT DARAG ALI, W/O- LT AINAL HOQUE, VILL- BHAIRAGHOL, P.S.
MUKALMUA, DIST- NALBARI, ASSAM, PIN- 781126
VERSUS
1:THE UNION OF INDIA AND 6 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NEW DELHI-1
2:THE ELECTION COMMISSIONER OF INDIA
NEW DELHI-1
3:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-6
4:THE ASSAM CO-ORDINATOR OF NRC
BHANGAGARH
ASSAM
GHY-5
5:THE DY. COMMISSIONER
NALBARI
ASSAM
PIN- 781335
6:THE SUPERINTENDENT OF POLICE (B)
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NALBARI
ASSAM
PIN- 781335
7:THE OFFICER-IN-CHARGE
BHANGNAMARI P.S.
DIST- NALBARI
ASSAM
PIN- 78112
Advocate for the Petitioner : MR. M U MAHMUD
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HON'BLE MR. JUSTICE MANOJIT BHUYAN
HON'BLE MR. JUSTICE NANI TAGIA
ORDER
10.12.2018 (Manojit Bhuyan, J) Heard Mr. M.U. Mahmud, learned counsel for the petitioner as well as Ms. G. Sarmah, learned counsel for respondent no. 1; Ms. N. Upadhyay, learned Counsel for respondent no.2; Mr. J. Payeng, learned counsel for respondent nos. 3, 5, 6 and 7 and Ms. A. Verma, learned counsel for respondent no.4.
2. Petitioner assails order/opinion dated 25.07.2018 passed by the Foreigners' Tribunal No.2, Nalbari in F.T.(Nal-2) Case No.139/2016, declaring the petitioner to be a foreigner who illegally entered into the territory of India after 25.03.1971.
3. On merits, petitioner claims linkage to her projected father i.e. Darag Ali, whose name appeared in the Voter List of 1966, through the Exhibit-1 Certificate Page No.# 3/5 issued by the Secretary of Dagapara Gaon Panchayat. From the records received in original, the contents of the said Certificate did not stand proved through the legal testimony of the issuing authority.
4. Mr. Mahmud, without challenging the opinion/order on merits, makes first an alternative vociferous argument to say that this is a fit case demonstrating abject denial of fair and reasonable opportunity to the petitioner. It is submitted that vide Petition No.594/2017 dated 10.8.2017 under Clause 4(a) of the Foreigners (Tribunals) Order 1964 (page-72 of the writ petition) prayer was made for allowing the petitioner to examine the concerned village Headman and the Secretary of the Panchayat in order that she can discharge her statutory burden. Argument made is that the said petition was totally ignored from consideration. In this regard, a categorical statement is made on oath at paragraph 8 of the writ petition in the following manner:
"The petitioner filed a petition on 10-08-2017 to allow the petitioner to examine the concern village headman and panchayat secretary to submit their evidences but the same was not considered by the Ld. Tribunal."
5. The argument, so strenuously advanced, made us to make a close scrutiny of the records received in original. What was shocking to find is that the said Petition No. 594/2017 dated 10.08.2017 received full attention and consideration of the Tribunal. We find that an order was passed on 10.08.2017 recording receipt of the petition under clause 4(a), fixing 24.08.2017 for hearing of the petition. On the next dated i.e. 28.4.2017, the petitioner was present and was heard, fixing 18.09.2017 for order on the said Petition No.594/2017. On the date so fixed i.e. 18.09.2017, the Tribunal passed the following order:
"Proceedee is present along with her engaged counsel. Today is fixed for passing Order on petition No.571/17 filed by the proceedee under section 4(a) of the Foreigners (Tribunal) Orders. According to the proceedee, She has already been filed a written statement and evidence on affidavit along with relevant documents further, mistakenly proceedee did not examine the village Headman and Secretary of Gaon Panchayat. Now it is necessary to examine both the person to discharge the Page No.# 4/5 burden allies been here.
I have heard learned counsel for the proceedee. Learned counsel for the proceedee submits that due to some mistakes, proceedee unable examine the village Headman and Secretary of the Gaon Panchayat who had issued their respective certificate in favour of the proceedee. Learned counsel further submits that if both the person shall not examine then proceedee shall suffer loss and injury. Accordingly, learned Counsel prays for allowing the petition.
I have gone through the record and the Orders passed by my predecessor. On perusal of the Order passed by my predecessor it is found that on 20/01/17, proceedee filed evidence on affidavit along with relevant documents. On 8/3/17 proceedee was examined by the court. Thereafter, argument was heard and case was fixed for Judgment and Order on 29/6/17. But proceedee did not come up with such type of petition despite of receipt of adequate opportunity. Accordingly, I do not find any merit in the petition file filed by the proceedee. Hence petition No.571/17 is rejected without any Order of cost. Fix 21/10/17 for rehearing/argument. No further times shall be allowed after the next date "
6. From the above it is absolutely clear that the submissions made on alleged denial of opportunity do not find any support from the records of the case. There is no statement made in the writ petition nor any of the orders passed by the Tribunal on the said petition has been enclosed to the present writ petition. Rather, the petitioner has taken a stand with categorical statements made in the writ petition that the petition under clause 4(a) had never stood for consideration before the Tribunal. This stand, according to our considered opinion, amounts to wilful suppression of material facts. This not only amounts to misleading the Court but is also an abuse of the process of the Court. Very clearly, the petitioner herself had appeared on 10.08.2017 and 24.08.2017 and the order of 18.09.2017 was passed only after hearing the petitioner on 24.08.2017.
7. The petitioner cannot be allowed to take undue advantage by projecting that she was not granted fair and reasonable opportunity to defend her case. In this respect we may place on record that it was precisely by projecting false and misleading facts that interim protection was obtained. It was only upon receipt and perusal of the records in original that laid bare vital facts suppressed in the writ petition and the bad intention on the part of the petitioner.
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8. For the act of the petitioner in misleading this Court by suppressing material facts, there can be no other option but to dismiss this writ petition summarily by imposing a cost of Rs.15,000/- (Rupees fifteen thousand) only on the petitioner. Cost be deposited before the Legal Aid Cell of the Gauhati High Court. Ordered accordingly.
Office to send the case records to the Tribunal forthwith.
JUDGE JUDGE Comparing Assistant