WP(C) 1173/2011 BEFORE THE HON’BLE MR JUSTICE B.P. KATAKEY The petitioner, who has been declared as foreign national coming to Indi a after 25.3.1971 by the learned Member, Foreigners Tribunal, Nalbari vide order dated 26.10.2010 passed in FT (Nal) Case No. N.01/2007, corresponding to SP.Ref .No. 03/2006, has filed the present petition challenging the said judgment and o rder passed by the learned Member. I have heard Mr. Singh, learned counsel for the petitioner, Ms Sarma, le arned State counsel appearing for the respondent Nos. 1, 2 and 3 and Mr. Saikia, learned CGC appearing for the respondent No. 4. Referring to the order sheets maintained by the learned Tribunal in FT ( Nal) Case No. N.01/2007, Mr. Singh learned counsel for the petitioner has submit ted that on 26.4.2010 when the case was taken up for consideration by the learne d Tribunal no effective order could be passed due to the absence of the learned Member and since on that date no next date was fixed, the petitioner could not p articipate in the further proceeding of the said case, for which the matter proc eeded ex parte against the petitioner and the aforesaid decision was given by th e learned Member declaring the petitioner to be a foreign national coming to Ind ia after 25.3.1971. Referring to the reference dated 3.10.2006 made by the Super intendent of Police, Nalbari it has also been submitted by Mr. Singh that the le arned Tribunal cannot declare the petitioner to have come to India after 25.3.19 71 since in the reference it has been specifically mentioned by the Superintende nt of Police that the petitioner entered into Assam after 1.1.1966 and before 25 .3.1971. The learned counsel further submits that because of non intimation of t he date after 26.4.2010 the petitioner could not adduce any evidence to demonstr ate that he is an Indian national by proving necessary documents, for which he f iled the written statements and also the documents. Ms Sarma, learned State counsel appearing for the respondent Nos. 1 to 3 supporting the judgment and order passed by the learned Tribunal has submitted that no wrong can be found in the order passed by the learned Tribunal as the pe titioner has defaulted in appearing before the learned Tribunal for which number of adjournments were in fact granted. The learned State counsel further submits that since the petitioner has been declared as foreigner coming to India after 25.3.1971 he has to be deported from India. Mr. Saikia, learned CGC appearing for the respondent No. 4 supporting th e judgment and order passed by the learned Tribunal has also contended that desp ite various opportunities given the petitioner choose not to adduce any evidence to demonstrate that he is an India national as Section 9 of the Foreigners Act, 1946 puts the burden on the petitioner to prove that he is not a foreigner, whi ch according to Mr. Saikia, the petitioner has failed to discharge. To appreciate the rival contention I have perused the records of FT (Nal ) Case No. N.01/2007 wherefrom it appears that the said proceeding has been regi stered on the basis of the reference made by the Superintendent of Police (B) Na lbari dated 3.10.2006 under Clause 2(1A) of the Foreigners (Tribunal) Order, 196 4, alleging that the petitioner entered into Assam after 1.1.1966 and before 25. 3.1971. On the basis of such allegation against the petitioner the notice was is sued and the petitioner entered appearance and after obtaining several adjournme nts ultimately filed the written statements on 2.2.2009 along with certain docum ents. On the subsequent dates, thereafter, several further adjournments were obt ained by the petitioner and the case was ultimately fixed for hearing of both th e parties on 30.12.2009 on which date since the learned Member was absent the ca se was directed to be placed on 26.4.2010 for necessary orders. On 26.4.2010 tho ugh the case was taken up no effective order could be passed due to the absence of the learned Member. The case was, thereafter, directed to be put up in presen ce of the Member for necessary orders without however, fixing any date. The case was, thereafter, placed before the learned Member on 11.5.2010, though no date was fixed, on which date 9.7.2010 was the next date fixed for recording the evid ence of the parties. From that stage the petitioner did not participate in the p roceeding. As noticed above on 26.4.2010 though the case was taken up no effective order could be passed because of the absence of the learned Member, on which dat e, however, no next date was fixed and the case was taken up on 11.5.2010. Since on 26.4.2010 no next date was fixed it was incumbent upon the learned Tribunal to inform all the parties concerned about the next date fixed. While in the reco rds there is indication about intimation of the date fixed to the Assistant Govt . pleader who was present on 11.5.2010, there is no indication intimating the pe titioner about of the date fixed subsequent to 26.4.2010. The learned Tribunal t hereafter proceeded to record the evidence of witnesses examined by the State on 9.7.2010 and passed the impugned judgment and order dated 26.10.2010 observing that the petitioner did not participate in the proceeding. When the Court or Tribunal in the order passed fixes the next date, it i s presumed that the parties who have entered appearance know about the next date fixed and in the event they fail to appear on the next date fixed the court is at liberty to proceed ex parte and in that event no further notice is required t o be issued. But in the instant case, as noticed above, though on 26.4.2010 no n ext date was fixed, the case was taken up on 11.5.2010 when the learned Member w as present and thereafter the learned Member proceeded ex parte against the peti tioner without intimating the date fixed, for which reason the petitioner natura lly could not adduce any evidence. It also appears that though reference under Clause 2(1A) of the Foreigne rs (Tribunal) Orders, 1964 was to the effect that the petitioner came into Assam after 1.1.1966 and before 25.3.1971, the learned Member has lost sight of such reference and proceeded to declare the petitioner as a foreigner coming into Ass am after 25.3.1971. That being the position, the impugned judgment and order 26.10.2010 passed by th e learned Member, Foreigners Tribunal, Nalbari is set aside. The matter is remit ted to the learned Tribunal for deciding the proceeding afresh. The petitioner who is stated to be in custody be released from custody f orthwith if he is not wanted in any other case. The petitioner, however, once in a week from the date of his release from custody appear before the Officer-in-C harge, Nalbari Police Station and shall not leave the district of Nalbari withou t any order from the learned Member, Foreigners Tribunal, Nalbari. The parties are directed to appear before the learned Tribunal on 13.6.2011 for taking necessary orders. Since the proceeding before the learned Tribunal was instituted on the b asis of the reference made in the year 2006 the learned Member, Foreigners Tribu nal shall make an endeavour to decide the said proceeding within two months from the date of appearance of the parties as directed by the this order. It is need less to say that if the petitioner wishes to cross examine the witnesses examine d by the State, apart from examining his own witness, he may file appropriate ap plication before the learned Tribunal. The Registry is directed to inform all concerned telegraphically immedia tely. The writ petition is accordingly allowed to the extent indicated above. No cost. The Registry is directed to send down the records to the learned Tribuna l forthwith so as to reach the Tribunal by 8.6.2011.