Abul Kashem @ Md Kasem Ali v. The Union of India and 6 Ors

ORDER Page No.# 3/5

21.06.2023 (AM Bujor Barua, J)

Heard Ms. D Ghosh, learned counsel for the petitioner. Also heard Ms. L Devi, learned CGC for the respondents in the Union of India as well as for the authorities under the NRC, Mr. AI Ali, learned counsel for the authorities under the Election Commission of India, Ms. A Verma, learned Special Standing Counsel, Foreigners Tribunal for the Home Department, Government of Assam, the Superintendent of Police (B) Barpeta as well as the Officer-in-Charge of Barpeta Police Station and Ms. K Phukan, learned counsel for the Deputy Commissioner Barpeta.

¶2The petitioner Abul Kashem @ Md. Kasem Ali was referred to the Foreigners Tribunal (2nd Tribunal) Barpeta for rendering an opinion as to whether he is a foreigner within the meaning of Foreigners' Act, 1946 resulting in the registration of Case No.283/06 (F.T. 2nd) Barpeta. The Tribunal rendered an ex-parte opinion dated 12.05.2008 declaring the petitioner to be a foreigner.

¶3The petitioner received notice from the Tribunal and initially appeared, but thereafter on the subsequent dates had refrained from appearing before the Tribunal on his own volition and without any acceptable cause which resulted in the ex-parte opinion dated 12.05.2008 in Case No.283/06 (F.T. 2nd) Barpeta by declaring the petitioner to be a foreigner.

¶4Being aggrieved, this writ petition is instituted. Page No.# 4/5

¶5In the facts of the case, we do not find any infirmity in the ex-parte opinion dated 12.05.2008 in Case No.283/06 (F.T. 2nd) Barpeta, but, however, for the interest of justice, as the opinion is rendered ex-parte, we allow the petitioner another opportunity to appear before the Tribunal and present his case on merit. Accordingly, the ex-parte opinion dated 12.05.2008 in Case No.283/06 (F.T. 2nd) Barpeta is set aside and the matter is remanded back to the Foreigners Tribunal (2nd Tribunal) Barpeta for an adjudication on its own merit.

¶6The petitioner to appear before the Tribunal on 26.07.2023.

¶7It is stated that the petitioner is presently suffering from cancer and, therefore, a prayer is made that the cost to be paid by the petitioner for his earlier non-appearances before the Tribunal be reduced to some extent.

¶8In view of the same, for the conduct of the petitioner in not appearing before the Tribunal without any acceptable reason, instead of paying a cost of Rs.5000/-, the petitioner to pay a cost of Rs.2000/- to be paid in the account of Gauhati High Court Bar Association Welfare Fund and the petitioner would be allowed to appear before the Tribunal on the aforesaid date only upon showing the proof of payment of the cost.

¶9Writ petition stands disposed of in the above terms.

Page No.# 5/5

JUDGE JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010134682023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/3585/2023o ABULoKASHEMo@oMDoKASEMoALIo SONoOFoKALAoMIYAoSHEIKH,o RESIDENToOFoVILLAGE-oNIMUA,o POLICEoSTATION-oBARPETA,o DISTRICT-oBARPETA,oASSAM. VERSUSo THEoUNIONoOFoINDIAoANDo6oORSo REPRESENTEDoBYoTHEoSECRETARY,o MINISTRYoOFoHOMEoAFFAIRS,o GOVERNMENToOFoINDIA,o SHASTRIoBHAWAN,oNEWoDELHI-o110001. 2:THEoSTATEoOFoASSAM oREPRESENTEDoBYoTHEoSECRETARYoTOoTHEoGOVERNMENToOFoASSAM o HOMEoDEPARTMENT oDISPUR o GUWAHATI-o781006. 3:THEoELECTIONoCOMMISSIONoOFoINDIA oREPRESENTEDoBYoTHEoCHIEFoELECTIONoCOMMISSION oNIRVACHANoSADAN oASHOKAoROAD oNEWoDELHI-o110001. 4:THEoSTATEoCOORDINATOR oNATIONALoREGISTRATIONoOFoCITIZENS oASSAM o1SToFLOOR Page No.# 2/5 ACHYUT PLAZA G.S. ROAD BHANGAGARH GUWAHATI ASSAM PIN- 781005. 5:THE DEPUTY COMMISSIONER BARPETA POST OFFICE- BARPETA DISTRICT- BARPETA ASSAM PIN- 781301. 6:THE SUPERINTENDENT OF POLICE (BORDER) BARPETA POST OFFICE- BARPETA DISTRICT- BARPETA ASSAM PIN- 781301. 7:THE OFFICER-IN-CHARGE OF BARPETA POLICE STATION POST OFFICE- BARPETA DISTRICT- BARPETA ASSAM PIN- 781301 Advocate for the Petitioner : MS. D GHOSH Advocate for the Respondent : DY.S.G.I. BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HONOURABLE MR. JUSTICE ROBIN PHUKAN