Allowed

Nurjahan Begum v. the Union of India and 7 Ors.

Gauhati HC4 Nov 2019WP(C)/4927/2019

Case brief

AI extract

What is this about?

The High Court set aside an ex parte order by the Foreigners Tribunal due to non-compliance with substituted service of notice under the Foreigners (Tribunal) Order, 1964. The petitioner was denied a hearing opportunity. The court directed the petitioner to appear and file a written statement by November 25, 2019.

What did the court decide?

Impugned order dated 27.02.2017 set aside; petitioner to appear before Foreigners Tribunal on 25.11.2019 and file written statement without fail.

Nurjahan Begum Vs the Union of India… — Constitutional and Fundamental Rights | Gauhati HC (2019)

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GAHC010161942019

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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) 4927/2019

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1:NURJAHAN BEGUM

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W/O- ABDUL ALI, VILL- MODARTOLI MIKIRGAON, P.O AND P.S- DOBOKA, DIST- HOJAI, ASSAM, PIN- 782440

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VERSUS

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1:THE UNION OF INDIA AND 7 ORS

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SECRETARY, MIN OF HOME AFFAIRS, GOVT OF INDIA, NEW DELHI- 01

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2:THE STATE OF ASSAM

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM HOME DEPTT DISPUR GHY- 06

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3:THE FOREIGNERS TRIBUNAL NAGAON COURT NO. 10 AT SANKARDEV NAGAR DIST- HOJAI ASSAM PIN- 782442

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4:THE DEPUTY COMMISSIONER HOJAI SANKARDEV NAGAR DIST- HOJAI ASSAM PIN- 782442

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5:THE SUPERINTENDENT OF POLICE(B) HOJAI SANKARDEVNAGAR ASSAM

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PIN- 782442

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6:THE OFFICER IN CHARGE DOBOKA P.S DIST- HOJAI ASSAM PIN- 782440

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7:THE ELECTION COMMISSIONER OF INDIA NEW DELHI- 110001

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8:THE STATE COORDINATOR NRC BHANGAGARH GUWAHATI- 0

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Advocate for the Petitioner : MS A H ATIA

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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.J. Atia, 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, 4, 5 and 6. Ms. B. Das, learned counsel represents respondent no. 7 whereas Ms. A. Verma, learned counsel appears for respondent no. 8.

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Petitioner assails ex-parte order/opinion dated 27.02.2017 passed by the Foreigners’ Tribunal, Nagaon Court No. 10^th at Sankardev Nagar, Hojai, Assam in FT(D) Case No. 918/2015, declaring her to be a foreigner having illegally entered into the territory of India

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(Assam) after 25.03.1971 without any valid document.

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Mr. Atia 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 her, 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 arguments so advanced, we have perused the materials available on record. It is seen from the order dated 27.02.2017 that notice was deemed to have been served on the petitioner in terms of para 3(5)(g) of the Foreigners (Tribunal) Order, 1964. However, from the Report of the Process Server at page 12 of the case records, it is seen that as the petitioner could not be found, therefore, copy of the notice was affixed at a public place, conspicuous to people and unaffected by rain, of Modartoli village in presence of the Gaonburah.

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At paragraph-5 of the writ petition, the petitioner submits that in the 3^rd week of June, 2019 she came to know about the ex parte order from one of her well-wisher. Petitioner submits that she has a good case on merits and, given one more opportunity, she can successfully discharge the burden, as required of her, under Section 9 of the Foreigners’ Act, 1946.

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Having regard to the manner of service, as above, we are of the considered view that substituted service of notice, as required to be done under 3(5)(g) 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 on merits. It clearly appears that no notice was served on the petitioner by affixing a copy of the notice pasted in a conspicuous place of her residence, witnessed by one respectable person of the locality who has given his signature or thumb impression and has agreed to be available and stand as witness with regard to such service of notice.

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In the above view of the matter, we set aside the impugned order dated 27.02.2017, with direction to the petitioner to appear before the Foreigners’ Tribunal, Nagaon Court No. 10^th at Sankardev Nagar, Hojai, Assam on 25.11.2019, at 10.30 AM, on which date she shall also file her written statement without fail. No fresh Notice is required to be issued by the

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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 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

Nurjahan Begum v. the Union of India and 7 Ors.

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Nurjahan Begum v. the Union of India and 7 Ors.

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