Allowed

Md. Rahim Uddin v. the Union of India and 6 Ors.

Gauhati HC16 May 2019WP(C)/100/2017

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a writ petition challenging an ex-parte order declaring the petitioner a foreigner. The court held that the Foreigners Tribunal failed to serve proper notice and did not grant an opportunity of hearing. The impugned order dated 31.08.2016 was set aside and the petitioner was directed to appear before the Tribunal on 03.06.2019.

What did the court decide?

The ex-parte order declaring the petitioner a foreigner was set aside; respondent directed to appear before Foreigners Tribunal on 03.06.2019 and file written statement.

Md. Rahim Uddin Vs the Union of India… — Constitutional and Fundamental Rights | Gauhati HC (2019)

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Page No.# 1/3

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GAHC010120242017

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 100/2017

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1:MD. RAHIM UDDIN

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S/O LT. AKADDAS ALI VILL- OKCHEK PATHER, P.S. MURAJHAR, DIST. NAGAON, NOW HOJAI, ASSAM.

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VERSUS

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1:THE UNION OF INDIA and 6 ORS

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TO BE REP. BY SECRETARY TO THE GOVT. OF INDIA, HOME DEPARTMENT, NORTH BLOCK, NEW DELHI.

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2:THE STATE OF ASSAM

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TO BE REP. BY COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-06.

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3:ADDITIONAL DIRECTOR GENERAL OF POLICE

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ASSAM BORDER BHANGAGARH GUWAHATI -5.

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4:DEPUTY COMMISSIONER NAGAON ASSAM

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5:DEPUTY COMMISSIONER HOJAI SHANKARDEVNAGAR ASSAM.

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6:SUPERINTENDENT OF POLICE BORDER NAGAON ASSAM.

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Page No.# 2/3

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7:SUPERINTENDENT OF POLICE BORDER HOJAI ASSAM

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Advocate for the Petitioner : MR.A W AMAN

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Advocate for the Respondent : GA, ASSAM

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BEFORE

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HON’BLE MR. JUSTICE MANOJIT BHUYAN HON’BLE MR. JUSTICE MANISH CHOUDHURY

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O R D E R

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16.05.2019

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(Manojit Bhuyan, J)

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Heard Mr. S.B. Rahman, learned counsel for the petitioner as well as Mr. U.K. Nair, learned Senior Counsel representing respondent nos. 2, 3, 4, 5, 6 and 7. There is none to represent respondent no.1.

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Petitioner assails ex-parte order dated 31.08.2016 passed by the Foreigners’ Tribunal, Nagaon Court No. 7^th at Lanka, in FT(L) Case No.480/2016, declaring him to be a foreigner, having illegally entered into Assam after 25.03.1971.

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Mr. Rahman submits that the order of the Tribunal was passed without granting opportunity to the petitioner to contest the case and/or opportunity to discharge the burden as required of him under Section 9 of the Foreigners’ Act, 1946. It is stated that no notice, whatsoever, was served upon the petitioner.

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To test the argument so advanced, we have perused the materials available on record. It is seen from the Process Server’s Report that the notice is stated to have been served on the father of the petitioner, but the same notice itself described the father of the petitioner as “Late”. In the additional affidavit filed by the petitioner on 04.05.2019 it is stated that his father expired on 15.11.1988 and hence the Process Server’s Report is not a correct rendering of facts. His father could not have accepted the notice. At

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paragraph 5 of the writ petition, it is stated that the petitioner never received any notice in respect of FT(L) Case No.480/2016 for which he could not appear and/or file written statement to contest the case. Mr. Rahman submits that the petitioner came to know about the case only when he went to the Foreigners’ Tribunal Court No.7 at Lanka and found that an ex-parte order was passed declaring him to be a foreigner.

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Having regard to the above, we are of the considered view that notice as required to be effected under Clause 3(5)(b) or 3(5)(f) of the Foreigners (Tribunals) Order, 1964, was not complied with. We are also of the view that the petitioner was denied opportunity of hearing to contest the case. It clearly appears that no notice was served on the petitioner as required under the law.

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Having regard to the facts of the case and considering that no notice was served and for the fact that the petitioner was denied opportunity of hearing to contest the case, we are left with no option but to set aside the aforesaid impugned order dated 31.08.2016. We now direct the petitioner to appear before the Foreigners’ Tribunal, Nagaon Court No. 7^th at Lanka on 03.06.2019 and file his written statement on the same date without fail. In this regard no fresh notice is required to be issued by the Tribunal, either for his appearance or for filing written statement. The Tribunal shall proceed accordingly and conclude the proceeding within 60(sixty) days from 03.06.2019. We make it clear that if the petitioner defaults in appearing before the Tribunal and to file written statement(s) on 03.06.2019 and/or defaults in participating the proceeding on the dates to be fixed in the case, it shall be open to the Tribunal to pass such order or orders as may be deemed fit and proper and in accordance with law.

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To the extent above, the writ petition stands allowed.

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Office to return the case records to the Tribunal forthwith.

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JUDGE JUDGE

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Comparing Assistant

Md. Rahim Uddin v. the Union of India and 6 Ors.

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Md. Rahim Uddin v. the Union of India and 6 Ors.

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