Gauhati High Court
Golak Mondal vs The Union Of India And 5 Ors on 24 February, 2020
Author: Manojit Bhuyan
Bench: Manojit Bhuyan, Parthivjyoti Saikia
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GAHC010226672019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 7043/2019
1:GOLAK MONDAL
S/O- LT KHUSI MONDAL, R/O- VILL- KAHIBARI, P.O. AND P.S. BOKO, DIST-
KAMRUP, ASSAM
VERSUS
1:THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME DEPTT.,
NEW DELHI- 110001
2:THE ELECTION COMMISSION OF INDIA
REP. BY THE CHIEF ELECTION COMMISSION OF INDIA
ASHOKA ROAD
NEW DELHI- 110001
3:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-06
4:THE DY. COMMISSIONER
KAMRUP
P.O. AND P.S. AMINGAON
DIST- KAMRUP
ASSAM
5:THE SUPERINTENDENT OF POLICE (B)
KAMRUP
P.O. AND P.S. AMINGAON
DIST- KAMRUP
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ASSAM
6:THE NATIONAL REGISTER OF CITIZEN
REP. BY THE STATE COORDINATOR
ASYUT PLAZA
BHANGAGARH
GHY-5
DIST- KAMRUP (M)
ASSA
Advocate for the Petitioner : MR. S NATH
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
O R D E R
24.02.2020 (Manojit Bhuyan, J) Heard Mr. S. Nath, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no. 1. Ms. B. Das, learned counsel represents respondent no. 2. Mr. J. Payeng, learned counsel represents respondent nos. 3, 4 and 5 whereas Ms. A. Verma, learned counsel appears for respondent no. 6.
Petitioner assails the order/opinion dated 04.12.2017 passed by the Foreigners' Tribunal No. 2, Kamrup (Rural) at Boko, Assam, in BFT Case No. 1024/2016 , declaring him to be a foreigner. Petitioner also assails the order dated 20.06.2019 passed by the Tribunal dismissing the petition for setting aside the order dated 04.12.2017 in BFT Case No. 1024/2016.
Challenge to the orders are made on ground that the impugned opinion was rendered without granting opportunity to the petitioner to contest the case and/or opportunity to discharge the burden, as required of him under Section 9 of the Foreigners' Act, 1946.
It appears from the materials available on record that consequent upon due service of notice the petitioner appeared before the Tribunal on 05.08.2017 and prayed for time to file Page No.# 3/4 written statement. Such prayer was allowed by the Tribunal and fixed the case next on 07.09.2017. On 07.09.2017 the petitioner appeared and again prayed for time to file written statement, which was also allowed, fixing the case on 05.10.2017. On 05.10.2017 as well as on 02.11.2017 the petitioner was absent, however, with steps. The Tribunal fixed the case on 04.12.2017 as last chance for filing written statement. But on 04.12.2017 the petitioner remained absent without steps and in such a situation an adverse view was taken by the Tribunal and the impugned order/opinion dated 04.12.2017 was rendered . The Tribunal recorded that the petitioner had failed to submit his written statement within the stipulated period.
Mr. Nath submits that having regard to the fact that the petitioner could not appear before the Tribunal for valid reasons only on one date i.e. 04.12.2017, the reference case ought not to have been decided against the petitioner without granting adequate opportunity to defend the case. He submits that it is not a case where the petitioner remained absent and evaded to contest the case. It is submitted that remaining absent on only one date should not have been adversely viewed to compel the Tribunal to render the impugned opinion. It is further stated that the petitioner has a good case on merits and, given an opportunity, he can successfully discharge the burden as required of him under section 9 of the Foreigners' Act, 1946. It is further stated that citizenship being a valuable right, fair and reasonable opportunity requires to be afforded.
We have heard the learned counsels for the parties and have also perused the materials on record. We are of the opinion that on the facts emerging and for the ends of justice at least one more opportunity should be afforded to the petitioner to contest the police reference on merits.
In this view of the matter, we set aside the impugned orders dated 04.12.2017 and 20.06.2019, with direction to the petitioner to appear before the Foreigners' Tribunal No. 2, Kamrup (Rural) at Boko, Assam, on 16.03.2020, at 10.30 AM, on which date he shall file his written statement without fail. No fresh Notice is required to be issued by the Tribunal, either for his appearance or for filing written statement. Tribunal shall proceed accordingly and conclude the proceeding within 60(sixty) days from 16.03.2020. We make it clear that if the petitioner defaults in appearing before the Tribunal and to file written statement on 16.03.2020 and/or defaults in participating in the proceeding on the dates to be fixed in the case, it shall be open to the Tribunal to pass such order or orders as may be deemed fit and proper and in accordance with law.
Page No.# 4/4 For the purpose of concluding the reference case within the period specified above, the Tribunal shall act upon the certified copy of this order, which the petitioner is permitted to furnish before the Tribunal on the date of appearance i.e. 16.03.2020.
To the extent above, the writ petition stands allowed.
Office to send back the case records to the Tribunal forthwith.
JUDGE JUDGE Comparing Assistant