Allowed

Hachna Bibi @ Hasna Bibi v. the Union of India and 5 Ors.

Gauhati HC4 Nov 2019WP(C)/3971/2018

Case brief

AI extract

What is this about?

This writ petition challenged an ex-parte order declaring the petitioner a foreigner. The High Court set aside the order, holding that substituted service of notice was not legally valid and the petitioner was denied a fair hearing opportunity.

What did the court decide?

The impugned order dated 08.12.2016 was set aside, and the petitioner was directed to appear before the Tribunal and file a written statement on 25.11.2019.

Hachna Bibi @ Hasna Bibi Vs the Union… — Constitutional and Fundamental Rights | Gauhati HC (2019)

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GAHC010130072018

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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) 3971/2018

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1:HACHNA BIBI @ HASNA BIBI

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D/O- SOLEMAN SK, W/O- ABDUS SUPUR, R/O- VILL- MADHUSOULMARI PART-II, NAIADARAGAON, P.O- MADHUSOULMARI, P.S- GAURIPUR, DISTDHUBRI, ASSAM, PIN- 783331

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VERSUS

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1:THE UNION OF INDIA AND 5 ORS.

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REP. BY THE SECRETARY TO THE MIN OF HOME AFFAIRS, GOVT OF INDIA, MIN OF HOME AFFAIRS, SHASTRI BHAWAN, TILOK MARG, NEW DELHI- 01

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2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM DEPTT OF HOME DISPUR GUWAHATI- 06

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3:THE DEPUTY COMMISSIONER DHUBRI P.O P.S AND DIST- DHUBRI ASSAM PIN- 783339 4:THE SUPERINTENDENT OF POLICE(B) DHUBRI P.O P.S AND DIST- DHUBRI ASSAM PIN- 783339

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5:THE ELECTION COMMISSIONER OF INDIA THROUGH ITS SECRETARY NIRVACHAN BHAWAN NEW DELHI- 01

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6:THE STATE COORDINATOR NATIONAL REGISTER OF CITIZENS ASSAM BHANGAGARH GUWAHATI-

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Advocate for the Petitioner : MR. A R SIKDAR

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Advocate for the Respondent : ASSTT.S.G.I.

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BEFORE

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HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE AJIT BORTHAKUR

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order

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Date : 04-11-2019

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(Manojit Bhuyan, J)

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Heard Mr. A. R. Sikdar, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no. 1. Mr. J. Payeng, learned counsel represents respondent nos. 2,3 and 4. Ms. B. Das, learned counsel represents respondent no. 5 whereas Ms. U. Das, learned counsel appears for respondent no. 6.

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Petitioner assails ex-parte order/opinion dated 08.12.2016 passed by the Foreigners Tribunal-4^th , Dhubri, Assam, in Case No. FT-4/193/GPR/2016, declaring her to be a foreigner, having illegally entered into India (Assam) after 25.03.1971.

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Mr. Sikdar 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 under Section 9 of the Foreigners’ Act 1946. It is stated that no

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notice, whatsoever, was served upon the petitioner. It is also submitted that the petitioner came to learn about the impugned opinion only when the Police personnel visited her house in connection with the reference case.

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To test the arguments so advanced we have perused the materials available on record. From the Service Report, at page 12 of the case records, it is seen that steps on the petitioner was taken in the substituted manner. The Report discloses that as the petitioner was not to be found in the address mentioned, the Process Server had affixed the notice on a wall of the house of the petitioner, as pointed out by one Moinal Haque, after getting information from the local people that the petitioner had left the abode without informing anyone. However, the Report makes no mention of the address of Moinal Haque by whom the last resided house was identified.

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Having regard to the manner of service, we are of the considered view that substituted service of notice, as required to be done under paragraph 3(5)(f) of the Foreigners (Tribunals) Order, 1964, was not complied with in letter and spirit. We are also of the view that the petitioner was denied opportunity of hearing to contest the case on merits.

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In view of the above, we set aside the impugned order dated 08.12.2016 with direction to the petitioner to appear before the Foreigners Tribunal-4^th , Dhubri, Assam, on 25.11.2019, on which date she shall file her written statement without fail. No fresh Notice is required to be issued by the Tribunal, either for her appearance or for filing written statement. The Tribunal shall proceed accordingly and conclude the proceeding within 60(sixty) days from 25.11.2019. We make it clear that if the petitioner defaults in appearing before the Tribunal and to file written statement on 25.11.2019 and/or defaults in participating in 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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For the purpose of concluding the reference case within the period specified

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above, the Tribunal shall act upon the certified copy of this order, which the petitioner is permitted to furnish before the Tribunal on the date of appearance i.e. 25.11.2019.

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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

Hachna Bibi @ Hasna Bibi v. the Union of India and 5 Ors.

Case brief

What is this about?

What did the court decide?

Hachna Bibi @ Hasna Bibi v. the Union of India and 5 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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