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Judgment
Heard Mr. S. Nath, learned counsel for the petitioner. Also heard Mr. S. C. Keyal, learned standing counsel for the respondent No. 1, Mr. A.
Bhuyan, learned standing counsel for the respondent No. 2 and Ms. L. Devi, learned counsel appearing for the respondent Nos. 3 to 6.
This writ petition is directed against the Order dated 08.03.2021, passed by the learned Members, Foreigners Tribunal, Dibrugarh, II, Dibrugarh in
F.T.C. Case No. 1799/2006, whereby the Foreigners Tribunal rejected the application seeking recall of the ex-parte order dated 29.12.2016 passed
against one- Subhash Bardhan, who is the father of the petitioner, declaring him to be an illegal migrant, who was entered into India (Assam) after
25.03.1971 from the specified territory. And, accordingly, answered the reference of the State in affirmative.
The case projected by the writ petitioner is that by reference PE/IM(D)TE. No. 885/01, the IM(D)TE case was registered on the basis of a
reference made by the State suspecting him to be a foreigner, who came from Bangladesh and was suspected to have entered into India after
25.03.1971. The IM(D)TE case was subsequently re-numbered as F.T. Case No. 1799/2006 and was taken up before the Foreigners Tribunal,
Dibrugarh (2nd) at Naharkatia, Dibrugarh.
From the order dated 29.12.2016 passed by the Foreigners Tribunal, Dibrugarh (2nd) in F.T. Case No. 1799/2006, it is seen that the Tribunal
recorded a finding that in spite of notice being served upon the proceedee, namely, Subhash Bardhan (father of the present petitioner), the proceedee
did not appear before the Foreigners Tribunal to contest the reference. The Tribunal recorded that the notice on the proceedee, namely, Subhash
Bardhan, was served through substituted manner as he was not found at the address and which was confirmed by the process server and deposing
oath as Court witness. Accordingly, the Foreigners Tribunal proceeded for ex-parte hearing.
The Tribunal, on the materials available, returned on a finding that the proceedee, namely, Subhash Bardhan to be a foreigner under Section 2A of
the Foreigners Act, 1946, who had entered into India(Assam) after 25.03.1971 as alleged by the State in the reference. The Tribunal also directed the
State authorities to consider the case of the proceedee in terms of the Notification dated 7th September, 2015 issued by the Government of India,
Ministry of Home Affairs by which certain amendments were brought into the provisions of Passport (Entry into India) Rules, 1950) as also to the
Foreigners' Order 1948. With the above observation, the Tribunal directed the authority to take appropriate measures in terms of the order passed.
Subsequently, the proceedee expired and his son, namely, the present petitioner filed an application before the Foreigners Tribunal seeking vacation
of the ex-parte order dated 29.12.2016 passed by the Foreigners Tribunal declaring his late father to be an illegal migrant. The present writ petitioner,
namely, Ajoy Bardhan is the son of the proceedee, namely, Late Subhash Bardhan. The petitioner by way of the said application seeking vacating or
recalling of the ex-parte order submitted that since the notice was not properly served on his father, namely, Late Subhash Bardhan, that consequently
he was not aware of the proceedings initiated before the Foreigners Tribunal, Dibrugarh (2nd), Dibrugarh and accordingly he could not take steps to
contest the matter. The present petitioner submitted that subsequently he became aware of the order of the Foreigners Tribunal after publication of
the NRC final list on 26th June, 2019, wherein the name of the petitioner's father, namely, Subhash Bardhan was declared to be a foreigner, in the
final NRC list. The present petitioner thereafter made necessary inquiries and took steps and has approached the Tribunal by filing his application
seeking to vacate/recall upon ex-parte order. The said application was registered as petition No. 2446/2019.
The Foreigners Tribunal, Dibrugarh (2nd), vide order dated 08.03.2021 rejected or dismissed the application filed by the present petitioner seeking to
vacate/recall of ex-parte order dated 29.12.2016 passed by the Foreigners Tribunal, whereby the father of the petitioner, namely, Subhash Bardhan
declared as an illegal migrant from Bangladesh.
Being aggrieved, the present writ petition has been filed the petitioner who is the son of the proceedee, namely, late Subhash Bardhan, challenging
the ex-parte order dated
29.12.2016 as well as the order dated 08.03.2021 of Foreigners Tribunal, Dibrugarh (2nd) rejecting the application for vacating/recalling the ex-parte
order.
We have heard the learned counsels for the parties and also perused the pleadings on record.
From perusal of the pleadings on record, it is seen that a certificate of registration dated 22nd September, 1966 was issued in the name of one-
Naresh Bardhan who is stated to be the father of the proceedee, namely, Late Subhash Bardhan and grandfather of the present petitioner. By the said
certificate, enclosed to the writ petition at Annexure- 8 page-17, it is seen that the Registration Officer in the Sadar Area of Tripura has certified that
the person named in the certificate, namely, Sri Naresh Bardhan has been registered as the citizen of India under the provisions of Section 5(1)(a) of
the Citizenship Act, 1955. A school certificate in the name of the proceedee, namely, Subhash Bardhan is also enclosed at page-19, annexure-B to the
writ petition showing the father of the proceedee as Naresh Bardhan, who was a citizen of India under the Citizenship Act vide the certificate of
registration dated 22.09.1966.
The learned counsel for the petitioner submits that the petitioner's father owned a Cycle repairing shop and in support of which he has referred to
the license issued by the Dibrugarh Mahakuma Parishad for running a Cycle repairing shop, at Annexure- C to the writ petition. A registration under
the Shop and Establishment Act is also relied upon in support of his contentions at Annexure- D to the writ petition. That apart, the Electoral Rolls of
1997 and 1989 for Naharkatia Legislative Assembly are also enclosed showing the name of Subhash Bardhan whose father is shown to be one-
Naresh Bardhan. A death certificate of the proceedee, namely, Subhash Bardhan is also enclosed as Annexure- J, Page- 32 of the writ petition,
whereby the Competent Authority had issued the certificate on 21.08.2017 to certify that Subhash Bardhan expired on 24.07.2017. An extract of the
NRC draft copy is also enclosed to show the name of the proceedee Subhash Bardhan with the ARN number wherein the name of the parents of
Subhash Bardhan are also reflected showing Naresh Bardhan and Prabha Bardhan as his father and mother respectively.
It is seen that the ex-parte order dated 29.12.2016 has been passed by the Tribunal wherein reference was answered in affirmative and against
the proceedee on the ground of non-appearance of the petitioner in spite of notice stated to have been served by substituted manner. The recital of the
order does not reflect any discussion on the merits as the proceedee did not appear before the Tribunal at the time of hearing. The subsequent order
dated 08.03.2021 rejecting the application seeking vacation of the ex-parte order also does not dwell upon the merits of the case in spite of documents
stated to have been placed before the Tribunal. It is evident from the order dated 08.03.2021 passed by the Tribunal rejecting the application for
vacating the earlier ex-parte order, that there was no discussion on the merits of the case, particularly, in respect of the certificate dated 22.09.1966
issued by the Registration Officer, Sadar Aear, Tripura, whereby Sri Naresh Bardhan stated to be the father of the deceased proceedee who was
registered as a citizen of India under the provisions of 5(1)(a) of the Citizenship Act, 1955. Ordinarily, considering the totality of the matter as well as
in the interest of justice, the matter could have been remitted back to the Tribunal to re-decide the reference made after affording due opportunity to
the petitioner. However, in the facts of the present case, it is stated and the same is accepted by the Tribunal that the proceedee had expired on
24.07.2017. There is also no reference in the order dated 08.03.2021 that any other reference or references pertaining to the family members of the
deceased proceedee, namely, Subhash Bardhan are presently pending.
Accordingly, this Court is of the view that the interest of justice will be served, if it is directed that the findings in the ex-parte order dated
29.12.2016 passed in F.T. Case No. 1799/2006 in respect of Subhash Bardhan (now deceased) will not have any bearing upon any such references
that may be made in respect of the present petitioner or any other family members of the deceased, namely, Subhash Bardhan. The findings of the
Tribunal by the ex-parte order dated 29.12.2016 passed in F.T Case No. 1799/2006, will not be applicable to any such references as may be made in
the case of the present petitioner. Any such references that may be made by the State against the petitioner or any of his family member(s) will be
decided by the Foreigners Tribunal concerned as the case may, on its own merit without any reference to the findings of the Foreigners Tribunal,
Dibrugarh (2nd) remanded in its opinion dated 29.12.2016.
In view of the above, it is also ordered that the impugned order dated 08.03.2021 passed in Misc. Case No. 2446 and amended petition No. 2570
seeking vacating of the ex-parte order dated 29.12.2016 shall also have no bearing in respect of the petitioner or any other family members unless a
specific and afresh reference is made by the State and consequential findings is accorded by the Tribunal, if so required.
In view of the above, this Writ Petition is disposed of in terms of the above. No order as to costs.