Gauhati High Court
Purnima Dey vs The Union Of India And 7 Ors on 1 October, 2019
Author: Manojit Bhuyan
Bench: Manojit Bhuyan, Kalyan Rai Surana
Page No.# 1/4
GAHC010152782019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 5260/2019
1:PURNIMA DEY
W/O- LATE SAMBHU DEY, R/O- VILL- BAGHERBHITA, BONGAIGAON
TOWN, WARD NO. 19, P.S- BONGAIGAON, DIST- BONGAIGAON, ASSAM
VERSUS
1:THE UNION OF INDIA AND 7 ORS
REP. BY THE SECRETARY OF THE MIN OF HOME AFFAIRS, NEW DELHI- 01,
INDIA
2:THE ELECTION COMMISSION OF INDIA
NEW DELHI
3:THE STATE OF ASSAM
REP. BY ITS COMMISSIONER AND SECRETARY
HOME DEPTT TO THE GOVT OF ASSAM
HOME DEPTT
DISPUR
GUWAHATI- 781006
4:THE STATE COORDINATOR
NRC
BHANGAGARH
GUWAHATI- 781005
5:THE DEPUTY COMMISSIONER
BONGAIGAON TOWN
P.O- BONGAIGAON
DIST- BONGAIGAON
ASSAM
Page No.# 2/4
PIN- 783380
6:THE FOREIGNERS REGIONAL REGISTRATION OFFICER
BONGAIGAON
ASSAM
PIN-
7:THE SUPERINTENDENT OF POLICE (B)
BONGAIGAON TOWN
P.S- BONGAIGAON
DIST- BONGAIGAON
ASSAM
PIN- 783380
8:THE OFFICER IN CHARGE
BONGAIGAON TOWN POLICE STATION
DIST- BONGAIGAON
ASSA
Advocate for the Petitioner : MR. N N JHA
Advocate for the Respondent : ASSTT.S.G.I.
:: BEFORE ::
HON'BLE MR. JUSTICE MANOJIT BHUYAN
HON'BLE MR. JUSTICE KALYAN RAI SURANA
O R D E R
01.10.2019 (Manojit Bhuyan, J) Heard Mr. N.N. Jha, 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 whereas Mr. A. Kalita, learned counsel represents respondent nos.3, 5, 6, 7 and 8. Ms. U. Das, learned counsel appears for respondent no.4.
Petitioner assails ex-parte order/opinion dated 14.07.2016 passed by the Foreigners' Page No.# 3/4 Tribunal No.1, Bongaigaon in BNGN/FT/Case No.2384/07, declaring her to be a foreigner of post 25.03.1971 stream.
Mr. Jha submits that the order of the Tribunal was passed without granting opportunity to the petitioner to contest the case and/or opportunity to discharge the burden as required of her under Section 9 of the Foreigners' Act, 1946.
It appears from the materials available on record that consequent upon due service of notice, on 02.06.2007, one Shambhu Dey the husband of the petitioner appeared before the Tribunal and filed petition praying for another date for appearance and for filing written statement, which was allowed, fixing 24.07.2007 as the next date. Thereafter, the petitioner did not appear to contest the case and remained absent till 10.05.2012, for which fresh notice was issued. The petitioner did appear but again filed petition praying for time to file written statement, which prayer was granted. Eventually, written statement was filed on 23.09.2013 and the next date was fixed for evidence. On the dates, so fixed, the petitioner again took adjournments but failed to lead evidence in support of her case. On 14.07.2016, the case proceeded ex parte and the Tribunal rendered opinion declaring her to be a foreigner of post 25.03.1971 stream.
It is stated that although the petitioner received notice in respect of BNGN/FT/Case No.2384/07, there was default on her part on account of serious illness of her husband starting from October, 2013, ending with the demise of her husband on 20.02.2014. Again she lost her grandson Kunal Das, who was suffering from severe health problem and had to be moved to Delhi for treatment. Unfortunately her grandson expired on 21.01.2015. Again on 22.09.2016 the petitioner's daughter Rama Das died and she got involved in rituals for performing the last rites, as a result of which she could not appear to contest the case and/or adduce evidence. Petitioner states that she came to learn about the reference case from her son who informed her that police personnel came to her house to arrest her on being declared as a foreigner.
Mr. Jha submits that having regard to the fact that the petitioner could not appear before the Tribunal for valid reasons on certain dates, the reference case ought not to have been decided against the petitioner without granting adequate opportunity to defend the Page No.# 4/4 case. It is submitted that it not a case where the petitioner had absolutely refrained from contesting the case. Rather, that the petitioner had appeared on several dates and had also filed written statement. She could not contest the case and/or adduce evidence on account of demise of her family members i.e. her husband, grandson and daughter. It is further stated that the petitioner has a good case on merits and, given one more opportunity, she can successfully discharge the burden as required of her under section 9 of the Foreigners Act, 1946. It is further stated that since the petitioner has already filed written statement, an opportunity requires to be afforded, although such opportunity cannot be relegated to an endless exercise.
We have heard the learned counsels for the parties and have also perused the materials on record. Apparently, the petitioner has already filed written statement. 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 order/opinion dated 14.07.2016, with direction to the petitioner to appear before the Foreigners' Tribunal No.1, Bongaigaon on 25.10.2019 at 10.30 AM, on which date she shall adduce evidence in support of her case without fail. In this regard, no fresh notice is required to be issued by the Tribunal for her appearance. The Tribunal shall proceed accordingly and conclude the proceeding within 45 (forty five) days from 25.10.2019. We make it clear that if the petitioner defaults in appearing before the Tribunal on 25.10.2019 and/or evades appearance on dates to be fixed, 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.
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. 25.10.2019.
To the extent above, the writ petition stands allowed.
JUDGE JUDGE Comparing Assistant