Dilip Kundu vs Union Of India And 6 Ors

Manojit Bhuyan, J

Heard Mr. M.U. Mahmud, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent nos.1 and 4. Ms. B. Das, learned counsel represents respondent no.2 whereas Mr. A. Kalita, learned counsel appears for respondent nos.3, 5, 6 and 7.

Challenge made in the writ petition is to the order dated 28.02.2020 passed by the Foreigners Tribunal (2nd), Morigaon in Case No.F.T.(D) 427/2011.

Short facts of the case are that the petitioner had earlier instituted W.P.(C) No.4281/2018 challenging the ex-parte order dated 17.6.2014 passed by the same Tribunal in the same case, declaring him to be a foreigner for having illegally entered into India after 25.3.1971. For reasons recorded in the order passed by this Court on 28.1.2020, the petitioner was afforded one last chance to appear before the Tribunal for establishing his claim on merit. This Court made it absolutely clear that the petitioner is to appear before the Tribunal on or before 28.2.2020, failing which the ex-parte impugned order dated 17.6.2014 would become absolute and consequences thereof would follow. Apparently, the petitioner failed to appear before the Tribunal within the period stipulated. In fact, the matter was called out on three occasions on 28.2.2020 and on each occasion, the petitioner remained absent without steps. In such a situation, the Tribunal passed the aforesaid impugned order dated 28.2.2020, declaring the petitioner to be a foreigner of post 25.3.1971 by making the ex-parte order absolute.

Mr. Mahmud submits that although the petitioner had made all efforts to appear before the Tribunal in strict compliance to the direction of this Court, however, for reasons beyond control the same could not be done. It is stated that the petitioner was medically indisposed and was advised bed rest from 25.1.2020 to 10.3.2020 and in proof thereof have also enclosed a medical certificate issued under the hand of the Senior Medical & Health Officer, Morigaon Civil Hospital.

We have heard learned counsel for the parties and have also perused the materials on record. Apparently, this Court can never approve the conduct of the petitioner in not abiding with the direction of this Court by making appearance before the Tribunal concerned on or before 28.2.2020. However, as we have been informed that the petitioner could not appear before the Tribunal on medical grounds, which fact has been vindicated by the medical certificate enclosed to the writ petition, we are of the opinion that one final chance be granted to the petitioner to make appearance before the Tribunal and establish his claim on merit, subject to deposit of Rs.5,000/- (Rupees five thousand) to the Gauhati High Court Legal Services Committee.

In view of the above, this writ petition stands disposed of by directing the petitioner to appear before the Foreigners Tribunal (2nd), Morigaon on 1st October, 2020 without fail. On the said date of appearance, the petitioner shall produce proof of deposit of the aforesaid amount of Rs.5,000/- before the Tribunal, failing which this order would be deemed to have been discharged without further reference to this Court. In the event of payment of the cost, the entire proceeding before the Tribunal be disposed of within 60 (sixty) days by affording reasonable opportunity of being heard to the petitioner in accordance with law.