Read the judgment here.
Date of the decision: 03.01.2022
Court: High Court of Gauhati
Judges: Justice N Kotiswar Singh and Justice Malasari Nandi
Summary: The High Court of Gauhati set aside the ex-parte order passed by the Foreigner’s Tribunal declaring the Petitioner as a foreigner. The High Court decided to give the Petitioner another opportunity to make his case as the Petitioner was unable to attend the proceedings because he could not collect necessary documents in time to contest the reference.
Facts: The Petitioner had appeared before the learned Tribunal after receipt of the notice and sought time to collect documents and to file the written statement. Later the Petitioner failed to appear before the Tribunal on three occasions and file the written statement as he could not collect the necessary documents to file the statement in time. Consequently, the Tribunal, being of the opinion that a reasonable opportunity has been given to the Petitioner, passed an ex-parte order declaring him as a foreigner on 06.10.2018. Pursuant to the order, the Petitioner was arrested on 12.03.2021 and remains in detention.
Holding: The Court set aside the impugned order passed by the Foreigner’s Tribunal deciding to give the Petitioner another opportunity to make his case before the Tribunal. The Court noted “it is not the case of total absence of the petitioner to appear before the Tribunal. Rather, it appears that the inability of the petitioner to appear before the tribunal stems from the fact that he could not collect the necessary documents and file the written statement in time to contest the reference.” (Para 5) The Court clarified that the ex-parte order was not valid as the Petitioner was not completely absent from the entire proceedings and has a reasonable cause justifying his inability to appear before the Tribunal.
The Court allowed the Petitioner to be released on bail on furnishing a bail bond of Rs.5,000/- with two local sureties of the equal amount and imposed a fine of Rs. 2,000/- on the Petitioner.
Significance: This decision is significant because this is possibly the first time when the High Court has set aside an FT ex-parte order where the inability of the petitioner to appear before the Tribunal stemmed from time taken to collect necessary documents. It reaffirms the importance of giving sufficient opportunity to the respondent to make their representation before the FT passes an ex-parte order. This decision also highlights the problem of routine ex parte orders passed in cases due to complexity of proceedings. The decision means that a ‘reasonable opportunity’ given to the Petitioner cannot disregard the difficulties faced by the respondents in making a representation and sufficient time should be given to do so.
Another significant element is the bail condition and the fine imposed by the High Court akin to previous orders of the court. In this case, the court fails to consider that the Petitioner has had to remain in detention for almost a year before he could even make a fair representation and the amount may not be affordable for the Petitioner.
Table of authorities:
- Rahima Khatun v. Union of India WP(C)/8284/2019.
- Dharmananda Deb, Foreigners Tribunals In Assam : Practice Lamp; Procedure, Live Law, 13 June 2019
- In Re The Union of India and Ors.
This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India.This note was prepared by Dewangi Sharma.