WA 11/2010 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI. THE HON’BLE MR. JUSTICE HRISHIKESH ROY JUDGMENT & ORDER (oral) Ranjan Gogoi, J. 1. Heard Mr. A. M. Mazumdar, learned Senior Counsel appearing for the appel lant and Mr. S. Chakraborty, learned Central Govt. Counsel. Also heard Ms. B. Go yal, learned Government Advocate, Assam. 2. This appeal is directed against the judgment and order dated 08.01.2010 passed by a learned Single Judge of this Court in WP(C) No.4674 of 2009. By the aforesaid order the learned Single Judge had thought it fit to dismiss the writ petition filed by the appellant challenging the order dated 17.8.2009 passed by the learned Foreigners Tribunal, Dhubri in F.T. Case No.63/BPL/06 by which the a ppellant/writ petitioner has been declared as a foreigner of the post 1971 strea m. The order of the learned Tribunal, it may be noticed, is an exparte order. 3. Before the learned Single Judge the appellant-writ petitioner had conten ded that on receipt of notice from the learned Foreigners Tribunal he had entrus ted the matter to his Advocate who, however, did not file any written statement and also did not appear before the learned Tribunal on 17.8.2009 leading to the exparte order passed on the said date. The appellant-writ petitioner had also br ought on the record of the writ petition several documents to contend that the f inding that he is a foreigner of post 1971 stream is incorrect. On the said basi s the interference was prayed for in respect of the order dated 17.8.2009 passed by the learned Tribunal. 4. The learned Single Judge hearing the writ petition thought it proper to hold that in view of the several dates to which the case had been repeatedly adj ourned by the learned Tribunal, on the prayer of the learned counsel engaged by the appellant-writ petitioner, it cannot be said that there is any infirmity in the exparte order dated 17.8.2009. Insofar as the documents and materials placed before the Court along with the writ petition is concerned, the learned Single Judge took the view that all such materials do not, even, prima facie, indicate that the writ petitioner is a citizen of India. Accordingly, the learned Single Judge had thought it appropriate to dismiss the writ petition. Aggrieved, this a ppeal has been filed. 5. Insofar as the conduct of the proceedings before the learned Tribunal is concerned, we have noticed that the appellant-writ petitioner was represented b y a counsel who repeatedly sought for time to file written statement. No written statement, however, was filed and no evidence was also led leading to the expar te order dated 17.8.2009. As the appellant-writ petitioner had entrusted the mat ter to his engaged learned counsel we are of the view that he was entitled to as sume that all that is required to be done would be done by his engaged counsel. Consequently, we take the view that the appellant-writ petitioner ought not to b e made to suffer on account of the conduct of the case by his engaged counsel. 6. Insofar as the documents placed by the appellant-writ petitioner before the learned Single Judge is concerned, which documents have also been placed bef ore us in the appeal, we have noticed that apart from copy of the electoral roll and the proceedings of enumeration, the appellant-writ petitioner has brought o n record the certified copy of an electoral roll of voters list of No.36 Bilasip ara Constituency of the year 1966 wherein one Sachindra Chandra Saha is recorded as a voter under Serial No.376 of Village Bilasipara Ward No.3. From the electo ral roll of the year 2008 showing the name of the appellant-writ petitioner it a ppears that the name of his father is also Sachindra. All these, according to us , are matters that would require a correct determination of the basic facts. It is the learned Tribunal which is vested by law the duty to determine such questi ons of fact. In addition to the above, we have also noticed that in the summons issued by the learned Foreigners Tribunal on the basis of which the proceedings before it had commenced it is mentioned that the petitioner had entered India on or after 1.1.1966 whereas in the order of the learned Tribunal he has been held to be a foreigner of the post 1971 stream. A foreigner entering India after 1.1 .96 but before 25.3.1971 and a foreigner entering India after the said date i.e. 25.3.1971 entails different legal consequences under the Citizenship Act. In th e first situation i.e. entering after 1.1.1966, a foreigner is entitled to remai n in India subject to his being registered with the competent authority. It woul d, therefore, appear from the above that there is a fundamental difference betwe en what was eventually found by the learned Tribunal and what was alleged again st the appellant-writ petitioner. The aforesaid aspect of the case does not appe ar to have been placed before the learned Single Judge. 7. For all the aforesaid reasons we are of the view that this appeal should be allowed and the order dated 08.01.2010 passed by the learned Single Judge in WP(C) No.4674 of 2009 should be interfered with. 8. Accordingly, the appeal is allowed and the matter is remanded to the lea rned Tribunal for a fresh consideration which will be completed within a period of three months from the date of receipt of this order. As the appellant-writ pe titioner, Sri Barun Saha is before this Court and in view of the time schedule f ramed by this Court for disposal of the proceedings it is directed that the appe llant-writ petitioner, Sri Barun Saha, will appear before the learned Foreigners Tribunal, Dhubri on or before 17th February 2010. It is made clear that no orde r is being passed with regard to the custody/detention of the appellant/writ pet itioner who is presently stated to be detained in Jail. 9. The writ appeal shall stand allowed as indicated above.