ABDUL KALAM @ ABUL KALAM S/O LATE GOPAL SEIKH, VILL. SAKLEKURA (LEFT), P.S. BAGHBAR, DIT Vs. THE STATE OF ASSAM AND ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, HOME DEPARTMENT, DISPUR, GHY

JUDGEMENT

(1.) Mr. M.U. Mahmud, learned counsel for the petitioner by referring to the Foreigners (Tribunal) for Assam Order, 2006 submits that the Tribunal having not followed the provisions of the said Order, the impugned judgment and order came to be passed erroneously. Such a submission made by the learned counsel for the petitioner is not sustainable misleading inasmuch as the Apex Court in the decision reported in (2007) 1 SCC 474 (Sarbananda Sonowal (II) Vs. Union of India) has set aside and quashed the said Order of 2006 as unconstitutional and contrary to its earlier decision in Sarbananda Sonowal (I) Vs. Union of India reported in AIR 2005 SC 2920.

(2.) Be that as it may, Mr. Mahmud, learned counsel for the petitioner being confronted with the above submits that what he wanted to refer is the Foreigners (Tribunal) Order, 1964 (as amended). He, by producing the Foreigners (Tribunals) Amendment Order, 2013 submits that as per the amended provision, the Foreigners Tribunal has the power of a Civil Court, which include issuance of warrant of arrest against the proceedee, if he/she fails to appear before the Tribunal. According to him, whenever the proceedee does not appear in response to the notice, the Tribunal should not pass any ex-parte order deciding the reference, but should first issue warrant of arrest against the proceedee.

(3.) I am afraid, the above submission is absolutely misplaced. If the proceedee even after receipt of the notice does not appear, the Tribunal is very much empowered to proceed ex-parte. The provision referred to above is only by way of enlarging the power of the Foreigners Tribunal and does not necessarily mean that in each and every case, where the proceedee does not appear, the Tribunal is bound to issue warrant of arrest against the proceedee to respond to the proceeding and cannot pass ex-parte order.