Mustt. Fulbanu Nessa @ Fulbanu Begum v. Union of India, WP(C)/725/2021

Read the judgement here. 

Date of decision: 28.01.2022

Court: Gauhati High Court

Judges: Justices N. Kotiswar Singh and Malasri Nandi

Summary: The Foreigners’ Tribunal reviewed its earlier order which declared the Petitioner as not a foreigner without giving a notice to the Petitioner. The High Court set aside this order as being impermissible in law because of the want of notice. 

Facts: The Petitioner had been proceeded against by the Foreigners’ Tribunal, Diphu, (‘FT’) which passed an order dated 04.03.2015 ascertaining that the Petitioner was an Indian citizen by birth and not a foreigner. On 16.03.2020, following a letter received by the Superintendent of Police (Border), the FT reviewed its earlier order without giving notice to the Petitioner. Following this, the Petitioner was taken into custody. The Petitioner argued before the Gauhati High Court that this review was ex facie illegal and also violated the principle of res judicata.

Holding: The High Court held that the review was impermissible in law and set aside the impugned order by the FT. Not giving notice to the Petitioner amounted to the FT changing its opinion behind the Petitioner’s back. However, the court did not go into the question of whether such a review by the FT was legally permissible  in the first place or not. 

Significance: The High Court affirms that the necessity of proper notice in a proceedings before the FTs applies equally to review of a previous order by the FT, even if such review is sought by the State. But the court remains silent on whether or not a review of an FT order can be sought by the State before the FT itself, as opposed to appealing to the High Court. Several Supreme Court judgments have held that tribunals cannot review their own orders unless such a power is provided to them in a statute and any such review order is ultra vires. One can locate such statutory power in Order 3C of the Foreigners’ (Tribunal) Order, 1964. This wording of this provision is such that such a review can only be sought in case of an ex-parte order against the procedee within thirty days of the impugned order. While the provision has been used in reviewing non ex-parte orders as well, such review can be sought by the proceedee, and a review after thirty days of the order may only take place in case of grave injustice. It is then unclear whether the State could seek a review in the present case. The High Court sidesteps this question explicitly, making no attempt to quash the review order on this ground and leaving the law on this point unclear. 

Table of Authorities:

1. Mustt. Fulbanu Nessa @ Fulbanu Begum v. Union of India, WP(C)/725/2021

Resources:

1. Harbajan Singh v. Karam Singh, (1966) 1 SCR 817
2. Kalabharati Advertising v. Hemant Vimalnath Narichania, (2010) 9 SCC 437
3. Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and Weaving Mill Ltd. (2005) 13 SCC 777
4. Abdul Salam v. Union of India and Ors WP(C) 1505/2020
5. Kulsum Bibi v. Union of India and Ors WP(C) 5632/2016

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.

Idrish Ali @Idris Ali v. Union of India, WP(C)/7349/2021

Read the judgment here.

Date of the decision: 03.01.2022

Court: High Court of Gauhati

Judges: Justice N Kotiswar Singh and Justice Malasari Nandi

Summary: The High Court of Gauhati set aside the ex-parte order passed by the Foreigner’s Tribunal declaring the Petitioner as a foreigner. The High Court decided to give the Petitioner another opportunity to make his case as the Petitioner was unable to attend the proceedings because he could not collect necessary documents in time to contest the reference. 

Facts: The Petitioner had appeared before the learned Tribunal after receipt of the notice and sought time to collect documents and to file the written statement. Later the Petitioner failed to appear before the Tribunal on three occasions and file the written statement as he could not collect the necessary documents to file the statement in time. Consequently, the Tribunal, being of the opinion that a reasonable opportunity has been given to the Petitioner, passed an ex-parte order declaring him as a foreigner on 06.10.2018. Pursuant to the order, the Petitioner was arrested on 12.03.2021 and remains in detention. 

Holding: The Court set aside the impugned order passed by the Foreigner’s Tribunal deciding to give the Petitioner another opportunity to make his case before the Tribunal. The Court noted “it is not the case of total absence of the petitioner to appear before the Tribunal. Rather, it appears that the inability of the petitioner to appear before the tribunal stems from the fact that he could not collect the necessary documents and file the written statement in time to contest the reference.” (Para 5) The Court clarified that the ex-parte order was not valid as the Petitioner was not completely absent from the entire proceedings and has a reasonable cause justifying his inability to appear before the Tribunal. 

The Court allowed the Petitioner to be released on bail  on furnishing a bail bond of Rs.5,000/- with two local sureties of the equal amount and imposed a fine of Rs. 2,000/- on the Petitioner.

Significance: This decision is significant because this is possibly the first time when the High Court has set aside an FT ex-parte order where the inability of the petitioner to appear before the Tribunal stemmed from time taken to collect necessary documents. It reaffirms the importance of giving sufficient opportunity to the respondent to make their representation before the FT passes an ex-parte order. This decision also highlights the problem of routine ex parte orders passed in cases due to complexity of proceedings. The decision means that a ‘reasonable opportunity’ given to the Petitioner cannot disregard the difficulties faced by the respondents in making a representation and sufficient time should be given to do so. 

Another significant element is the bail condition and the fine imposed by the High Court akin to previous orders of the court. In this case,  the court fails to consider that the Petitioner has had to remain in detention for almost a year before he could even make a fair representation and the amount may not be affordable for the Petitioner. 

Table of authorities:

1. Rahima Khatun v. Union of India WP(C)/8284/2019.   
2. Dharmananda Deb, Foreigners Tribunals In Assam : Practice Lamp; Procedure, Live Law, 13 June 2019
3. In Re The Union of India and Ors. 

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 Dewangi Sharma.