Swapan Chakraborty v. Union of India, WP(C) 1346/2018

Read the order here. 

Date of the decision: 27.01.22

Court: Gauhati High Court

Judges: Justice N. Kotiswar Singh and Justice Malasri Nandi

Summary: The Petitioner was declared as a foreigner by an ex-parte order of the Foreigners’ Tribunal (FT). In its order rejecting the review application filed by the Petitioner, the FT decided the case on merits without giving the Petitioner an opportunity to place his evidence on record. The Gauhati High Court set aside the ex-parte order and remanded the case to the FT for fresh consideration of the case on merits.

Facts: The Petitioner failed to appear before the FT on account of non-receipt of the summons notice issued to him. Subsequently, the FT proceeded ex-parte against the Petitioner and passed an opinion declaring him to be a foreigner who entered India after 1971. Thereafter, the  Petitioner filed an application before the FT for setting aside the ex-parte opinion. However, the FT rejected the application filed by the Petitioner for the setting aside of the ex-parte order against him. In the same proceeding, the FT heard the matter on merits, on the basis of the documents relied upon by the Petitioner even though the Petitioner could not adduce evidence as it was not the stage for adducing evidence. Hence, the Petitioner filed the present petition before the High Court of Gauhati, challenging the ex-parte opinion passed by the FT against the Petitioner.

Holding: The Gauhati High Court allowed the petition. In its order, the Court observed that the FT passed an order on the review application filed by the Petitioner “on merits” without even allowing the Petitioner to adduce evidence to prove his nationality. The Court noted: “The learned Tribunal also heard the matter also on merit on the basis of documents which were relied upon by the petitioner, though the petitioner could not adduce evidence as it was not the stage for adducing of evidence” (paragraph 5). The High Court, while ruling that the Petitioner should be given another opportunity to prove his case, set aside the ex-parte opinion passed by the FT and remanded the case for fresh consideration on merits. 

Significance: This case is significant as it affirms the importance of deciding the case on merits only after offering the Petitioner an opportunity to place his evidence on record. In addition, this case reiterates that an ex-parte order must be set-aside in the case of non-receipt of summons.  

First, this order is correct in distinguishing between a case on merits. For example, Order 3C provides for the  procedure to be followed by an FT for setting aside an ex-parte order  that it has passed. Order 3C(2) states that after finding that the ex-parte opinion passed by it is liable to be set aside, the FT may proceed to decide the case on merits. This makes it clear that the stage of deciding the case on merits is after that of setting aside an application. This is also made clear through a reading of the general provision of Order IX, Rule 13 of the Civil Procedure Code.

State of Assam Vs. Moslem Mondal, the Full Bench of this Court had held that the Tribunal can entertain application for setting aside ex parte opinion provided the proceedee could demonstrate the existence of the “special/ exceptional circumstances” to entertain the same by way of pleadings in the application filed for setting aside the ex-parte opinion, otherwise the very purpose of enacting the Foreigners Act, 1946 and the 1964 Order would be frustrated.

According to the provision, once a court decides to set aside an ex-parte order passed against a defendant it is required to “appoint a day for proceeding with the suit”. The meaning of a case on merits is also clear from a reading of M/S. International Woolen Mills vs M/S. Standard Wool (U.K.) Limited. In this case, the Supreme Court held that a case on merits is one in which rival contentions are examined by the adjudicatory forum on the basis of the evidence adduced by them, the justness of their claims, and through the application of mind by the forum. Further, a case on merits is arrived at after a proper trial of the case and not hastily.  

Second, this an important rule since it upholds the principle of natural justice. For example, the Supreme Court held in Sangram Singh v. Election Tribunal and Bachhaj Nahar v. Nilima Mandal (paragraph 7) that natural justice forms the backbone of the Code of Civil Procedure. Thus, this describes the rationale behind Order IX, Rule 13, i.e. to provide an opportunity to the defendant to prepare their case and present it before the court on the appointed day. The High Court of Gauhati has also held that the principle of natural justice must be followed in FT cases. For example, in Nijam Uddin vs Union of India, the FT passed an opinion solely on the basis of the documents adduced by the Petitioner. The Petitioner did not get an opportunity of being cross-examined by the State’s advocate. The Gauhati High Court while remanding the case to the FT for the cross-examination of the Petitioner, held that: “a proceeding before a Foreigners Tribunal is also guided by the tenets of natural justice. We find that the petitioner has got some documents and he deserves a proper hearing for these reasons and for the ends of justice we set aside the impugned opinion.” (paragraph 6)

In summation, this is a welcome order. It clarifies the importance of deciding the case on merits after ensuring that a reasonable opportunity to be heard has been presented to the Petitioner. This decision affirms the importance of adhering to the principle of natural justice in FT proceedings. 

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 Jagriti Pandey.

Rahima Khatun v. Union of India, WP(C)/8284/2019

Read the judgment here

Date of the decision: 08.04.21

Court: Gauhati High Court

Judges: Justice N. Kotiswar Singh  and Justice Soumitra Saikia 

Summary: The Gauhati High Court set aside an ex-parte order passed by the Foreigners Tribunal, which declared the Petitioner to be an illegal migrant, on the ground that the order had been passed without hearing the Petitioner. The Court also remanded the matter back to the FT for reconsideration. 

Facts: The Petitioner, Rahima Khatun, was declared an illegal migrant by the Foreigners Tribunal (FT) in an order dated 09.06.16. It was the case of the Petitioner that on receipt of a notice from the FT, her son appeared on her behalf without her knowledge. However, he failed to appear before the FT for subsequent hearings. This resulted in the passing of an ex-parte order, which declared the Petitioner as an illegal migrant. Accordingly, this petition was filed challenging the impugned order.  

Holding: The High Court, on perusal of the records, noted  that the FT  passed an ex-parte order. The Court set aside the impugned order stating that, “citizenship is one of the most important rights of a person. By virtue of citizenship, one becomes a member of a sovereign country and becomes entitled to various rights and privileges granted by law in the country and, as such, if any question arises about citizenship of a person, in our opinion, the same should be adjudicated as far as possible on the basis of merit and on hearing the person concerned” (paragraph 6). In other words, since citizenship is one of the most important rights of a person, a question of citizenship should be determined only after hearing the person concerned. The Court also remanded the matter back to the FT for reconsideration. At the same time, the Court noted that since the Petitioner’s citizenship was under the cloud, she was required to appear before the Superintendent of Police (Border) within 15 days from the date of the order and furnish a bail bond of Rs. 5000 with a like amount of one surety. 

Significance: This judgment is significant as it is in line with recent High Court judgments (here, here, here, here, here and here) that have set aside ex-parte orders declaring people as foreigners. Such orders are common since in many cases, proceedees do not receive a notice, or discontinue attending the proceedings due to poverty and/or the complexity of the proceedings. This decision reiterates the stance that citizenship matters should be decided upon merit, after hearing the person concerned, instead of ex-parte orders.

Although there is no blanket order against ex-parte decrees, Paragraph 3C of the Foreigners (Tribunals) Order, 1964 states that, “where the Foreigners’ Tribunal has passed an ex parte order for non-appearance of the proceedee and he or she has sufficient cause for not appearing before the Foreigners’ Tribunal, it may, on the application of the proceedee, if filed within thirty days of the said order, set aside its ex parte order and decide the case accordingly.” This was supported by the court in The State of Assam v. Moslem Mandal, in which the court observed that an ex-parte order can be set aside only on the basis of “sufficient cause”. In the instant case, the Court placed emphasis on the principle of natural justice rather than examine the reasons for the non-appearance of the Petitioner. While the court did not expressly invoke the “sufficient cause” standard or the ratio in The State of Assam v. Moslem Mandal, it perhaps can be inferred that the meaning of the expression “sufficient cause” should be interpreted keeping in view the principles of natural justice and in line with the realities of access to justice for poor and marginalized persons. 

Another significant ratio that the HC seems to have relied on is how the improper service of notice and the absence of reasonable procedure results in the violation of the basic principles of natural justice. In The State of Assam v. Moslem Mandal, the Court said, “unless the Tribunal ensures just and proper service of notice, the requirement of giving reasonable opportunity would be defeated. The same would also then be in violation of the basic principles of natural justice.” One of the  questions that arise in the instant case is that the service of notice to the son of the proceedee, would amount to just, proper and reasonable procedure for the purpose of service of a notice? While The State of Assam v. Moslem Mandal clarifies that service of notice on an adult member of the family is permissible when the proceedee is found to be unavailable at the time of service, chances are high that the proceedee may not have been informed or involved in the process. 

Furthermore, the proceedee did not get a reasonable opportunity of being heard before the Tribunal as her son appeared for the proceeding without her knowledge. A family member can only appear in Court on authority of the actual proceedee. In the absence of knowledge by the petitioner as to the proceedings, it cannot be said that her son had any authority to appear and his negligence to appear for the subsequent proceedings cannot be attributed to her. Therefore HC recalled the ex-parte opinion and gave the proceedee the opportunity to discharge the burden of proving that she is not a foreigner. 

Another significant element is bail. The conditions of bail in the present case is akin to the previous orders of Gauhati High Court directing the authorities to release ‘foreigner’ detenues who have completed two years of detention on a personal bond of Rs. 5000 with a like amount of one surety. What the courts time and again fail to consider is that these detainees come from the most marginalized segments of society and may not be able to afford this amount. 

Resources:

1. Dharmananda Deb, Foreigners Tribunals In Assam : Practice & Procedure, Live law, 13 June 2019
2. Assam: Since 1985, Ex-Parte Tribunal Orders Have Declared Almost 64,000 People as Foreigners, The Wire, 02 July 2019 
3. Tora Agarwala, Gauhati HC sets aside Foreigners’ Tribunals order: Citizenship important right, The Indian Express, 14 September 2021
4. Challenging Ex Parte Orders on the Ground of Improper Service of Notice, Parichay – The Blog, 11 February 2021
5. Kailash Ram, Ex-Parte Decree And “Sufficient Cause” For Non-Appearance, Live Law, 13 June 2021

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 Sahla N.

Asor Uddin v. Union of India, WP(C)/6544/2019

Read the judgment here.

Date of decision: 09.09.2021

Court: Gauhati High Court

Justices: Justice N. Kotiswar Singh and Justice Manish Choudhary

Summary: The Gauhati High Court set aside an ex-parte order by the Foreigners’ Tribunal which declared the petitioner a “foreigner” due to his repeated non-appearance before the tribunal. The court reasoned that there were sufficient reasons which made the petitioner unable to present himself before the tribunal. 

Facts: The petitioner was declared a foreigner by the Foreigner’s Tribunal under Section 2(a) of the Foreigners’ Act, 1946, via an ex-parte order. The petitioner was a poor person and had to travel to Kerala for livelihood. Due to this, he had difficulty readily gathering documents containing his father and grandfather’s names, communicating with his counsel, appearing before the tribunal and filing a written statement. 

Due to his repeated non-appearance and non-filing of written statement, the tribunal passed an ex-parte order, declaring him a foreigner who had entered India from Bangladesh after 25.03.1971. The petitioner approached the Gauhati High Court to set aside the ex-parte order on the grounds mentioned above. The counsel for the Foreigners’ Tribunal argued that in the absence of the procedee, the law allows passing an ex-parte order. Since the petitioner had failed to file a written statement despite several dates given by the tribunal, the order was valid and legal. 

Holding: The court set aside the ex-parte order and directed the petitioner to appear before the Foreigners’ Tribunal for fresh proceedings. It was reasoned that “citizenship, being an important right of a person, ordinarily, should be decided on the basis of merit by considering the material evidences that may be adduced by the person concerned and not by way of default as happened in the present case.” [Para 7] 

The court deemed the reasons for the petitioner’s non-appearance sufficient to be considered by the Tribunal on merits. The court recused itself from deciding on the question of whether the petitioner is a foreigner or not, and instead remanded it to the Foreigners’ Tribunal for reconsideration. The petitioner was also directed to be released on a bail bond of Rs. 5000/- and to submit costs worth Rs. 5000/- to the tribunal. 

Significance: The High Court setting aside the ex-parte order is appreciable, considering the history of the large number of ex-parte orders being pronounced by the Foreigners’ Tribunal. Such orders are common since in many cases, procedees do not receive notice, or discontinue attending the proceedings due to poverty and/or the complexity of the proceedings. In a previous case, a similar ex-parte order was passed by the tribunal where the proceedee’s child appeared before the tribunal without her knowledge, and then proceeded to remain absent for subsequent hearings. 

At the same time, however, the judgment problematizes the exact situations in which cases can be remanded back to the Foreigners’ Tribunal by the High Court. Unlike the above-mentioned case, the court has not found any fault by the tribunal in serving notice or hearing a representative without a thorough checking. The reasoning relied upon by the High Court was that the case is a matter of citizenship, which is the case with all the matters heard by the Foreigners’ Tribunal, and that the petitioners’ reasons for non-appearance seemed sufficient to the court. It remains unclear what is the exact parameter that a court can deem reasons “sufficient” to set aside such an ex-parte order and remand the case back to the tribunal. 

Resources

1. Abhishek Saha, Explained: How do Foreigners’ Tribunals work?, Indian Express, 9 July 2019.
2. Gau HC | [Assam NRC] Citizenship is one of the most important rights of a person which shall not be taken away by an ex-parte order; HC remands the matter to the Tribunal for reconsideration, The SCC Online Blog, 22 April 2021.
3. Shrutika Pandey, Citizenship Is An Essential Right: Gauhati High Court Sets Aside Ex-Parte Order Declaring Man As Foreigner, LiveLaw, 13 September 2021.
4. Challenging Ex Parte Orders on the Ground of Improper Service of Notice, Parichay – The Blog, 11 February 2021. 
5. Aman Wadud, Judiciary must re-examine how it has viewed citizenship question in Assam, Indian Express, 24 September 2021. 

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 Farhan Zia.