Abu Taleb @ Md. Abu Taleb vs. The Union Of India And 3 Ors

WP(C) 4045/2016 BEFORE HON'BLE MR. JUSTICE UJJAL BHUYAN HON'BLE MR. JUSTICE PARAN KUMAR PHUKAN Ujjal Bhuyan, J. Heard Mr. A Dasgupta, learned Senior Counsel assisted by Mr. R Sarkar, learned c ounsel for the petitioner, Ms. P Baruah, learned counsel for the Central Govt. a nd Mr. DK Saikia, learned Addl. Advocate General, Assam. By filing this petition under Article 226 of the Constitution of India, petition er seeks quashing of order dated 29.02.2016, passed by the Foreigners' Tribunal, Bongaigaon No.2, Abhayapuri in Case No.BNGN/FT/2694/2007, declaring the petitio ner to be a foreigner, who had illegally entered into India (Assam) from Banglad esh after 25.03.1971. A perusal of the order dated 29.02.2016 would go to show that petitioner had res ponded to the notice issued by the Tribunal and had filed written statement alon g with certain documents. Documents were examined on 29.06.2013 whereafter, the matter was fixed for hearing, but petitioner did not appear thereafter. Therefor e, Tribunal decided to proceed ex-parte and passed the order dated 29.02.2016, a s above. Aggrieved present writ petition has been filed. It is stated that following order passed by the Tribunal on 29.02.2016, petition er was taken into custody. On 18.08.2016, this Court had issued notice while requisitioning the case record and an interim order was passed to the effect that petitioner should not be dep orted from India. Learned Senior Counsel for the petitioner submits that initially the reference w as conducted by the Foreigners' Tribunal, Bongaigaon where petitioner had appear ed and had filed written statement along with documents. On 29.05.2015, the case was fixed on 26.08.2015 for hearing. Referring to the order sheet, a copy of wh ich has been annexed to the writ petition, he submits that on 05.08.2015 i.e., o n an off date, the case record was withdrawn from the Foreigners' Tribunal, Bong aigaon and transferred to the newly created Foreigners' Tribunal, Bongaigaon No. 2 at Abhayapuri for disposal. On 26.08.2015 Foreigners' Tribunal, Bongaigaon No. 2, Abhayapuri received the case record on transfer, but found the petitioner abs ent. Thereafter, petitioner remained absent as he had no notice of transfer of p roceeding. Therefore, it is evident that neither any notice was issued to the pe titioner prior to or after transfer nor was he informed about transfer of the ca se to Abhayapuri and, as such, petitioner could not appear before the Tribunal a t Abhayapuri. On the other hand, Mr. Saikia, learned Addl. Advocate General submits that on th e next date fixed i.e., on 26.08.2015, if the petitioner had attended the Foreig ners' Tribunal at Bongaigaon, he would have certainly known about transfer of th e case to the newly created Tribunal at Abhayapuri and, therefore, he could have attended the Tribunal at Abhayapuri. It only goes to show that he never attende d the Tribunal at Bongaigaon. Non-receipt of notice or information upon transfer of case is a lame excuse advanced by the petitioner to cover up his default whi ch should be rejected by the Court. We have heard learned counsel for the parties and perused the record of the case . While objection raised by Mr. Saikia, learned Addl. Advocate General may have an element of truth in it but, at the same time, we feel that when the case record was transferred to the newly created Tribunal at Abhayapuri, due intimation oug ht to have been given to the petitioner. Instead of withdrawing the case on an o ff date, it would have been more appropriate and effective if the Tribunal at Bo ngaigaon had waited for the scheduled date i.e., on 26.08.2015, on which date th e case record could have been transferred to the newly created Tribunal at Abhay apuri; in which event, petitioner would have had due intimation of such transfer . Because of transfer of case record on an off date, the present situation had a risen.

It is essential that when a case is transferred to another Tribunal, it has to b

e brought to the notice of the proceedee. Non-intimation of the petitioner prior to transfer of case record to the newly created Tribunal at Abhayapuri had viti ated the order dated 29.02.2016. However, now that petitioner is aware about tra nsfer of case to Abhayapuri, he should appear before the Tribunal at Abhayapuri.

Having regard to the above, order dated 29.02.2016 is set aside. Since the afore said order has been set aside, there would be no justification, at this stage, f or the detention of the petitioner in custody.

Accordingly, Superintendent of Police (B), Bongaigaon shall release the petition er from detention on furnishing adequate surety as may be considered appropriate by the said authority whereafter, petitioner shall appear before the Foreigners ' Tribunal, Bongaigaon No.2, Abhayapuri in connection with Case No.BNGN/FT/2694/ 2007 on 02.05.2017 at 10.30 a.m. whereafter, Tribunal shall proceed with the ref erence in accordance with law.

However, if there is any default on the part of the petitioner, Tribunal would b e at liberty to pass such order as may be deemed fit and proper.

Before parting with the record, we make it clear that we have not expressed any opinion on merit.

Writ petition is accordingly allowed to the extent indicated above.

Registry to send down the LCR forthwith with due intimation to the concerned For eigners' Tribunal, Deputy Commissioner and Superintendent of Police (B) for nece ssary follow-up steps.