Mazibur Rahman vs Union Of India And 5 Ors

Hitesh Kumar Sarma, J

We have heard Mr. M. Alamgeer, learned counsel for the petitioner. We have also heard Mr. J. Payeng, learned Standing Counsel, Foreigners

Tribunal, Ms. G. Hazarika, learned counsel for NRC Coordinator and Union of India and Mr. U.K. Nair, learned counsel for respondent No. 4,

Superintendent of Police (Border), Darrang, Mangaldai.

This writ petition, under Article 226 of the Constitution of India, has been filed praying for setting aside and quashing the impugned ex-parte order,

dated 15-10-2018, passed by the learned Member, 5th Foreigners’ Tribunal, Darrang, Mangaldai, in F.T(V) Case No. 590/2016 (S.P. Enquiry No.

739/16, dated 30-04-2016).

We have perused the impugned order declaring the petitioner to be a foreigner of post 1971 stream. On perusal of the impugned order it is found that

on receipt of the notice from the learned Tribunal, the petitioner had appeared and filed written statement along with documents. Thereafter, inspite of

several dates fixed for evidence, the petitioner did not adduce evidence. Therefore, the learned Tribunal held that inspite of reasonable opportunities

given, the petitioner did not prove his claim of nationality by adducing necessary evidence. It has also come out from the impugned order that the

petitioner had filed his written statement on 01-10-2016 and thereafter, he was absent before the learned Tribunal on several dates with effect from

11-11-2016 to 28-08-2018 with steps through his learned counsel. However, the petitioner remained absent before the Tribunal on 14-09-2018, 24-09-

2018 and 04-10-2018 without any steps although last chance was given to him to adduce evidence. Therefore, the impugned order was passed on 15-

10-2018 by the learned Tribunal.

In his petition the petitioner has admitted that he could not appear before the learned Tribunal at the stage of evidence due to his illness. He has also

cited the ground of his poverty. During the period of his absence, as averred, the petitioner has left for Arunachal Pradesh to earn his livelihood as he

was a daily labourer requiring to maintain a family of 12 members.

It appears from the impugned order as well as from the submission made by the learned counsel for the petitioner that the petitioner had filed his

written statement along with documents before the learned Tribunal and he remained absent thereafter with steps through his learned counsel, except

for the last four dates, before the impugned order was passed. On the last four dates, he was not even represented by his learned counsel resulting,

ultimately, in the impugned order.

Considering the fact that the written statement with documents were filed by the petitioner to establish his nationality although he did not adduce

evidence to substantiate the same for the reasons indicated in his petition, as mentioned above, this Court is of the view that the ends of justice will be

met if the reference is answered on merit giving one last chance to the petitioner to adduce evidence, if any, subject to his deposit of a cost of

Rs.1,000/-. Accordingly, the impugned order is set aside.

In view of above, the petitioner is directed to appear before the learned Tribunal within six weeks from today with a copy of this order and to lead

evidence in support of his nationality on a date to be fixed by the learned Tribunal subject to deposit of the cost aforesaid. However, it is made clear

that the petitioner be given only one chance by the learned Tribunal and in the event he fails to lead evidence, on the date fixed, no further opportunity

shall be given to him.

Since the impugned order is set aside, the petitioner be released from custody forthwith.

The Superintendent of Police (Border), Darrang, Mangaldai, shall take necessary steps for implementation of this order on receipt of a copy to be

produced before him by the petitioner. With the above direction, this writ petition stands disposed of.

Send down the LCR with a copy of this order.