Allowed

Dipa Saha v. the Union of India and 5 Ors.

Gauhati HC18 Nov 2019WP(C)/5015/2019

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a writ petition challenging an ex-parte order of a Foreigners Tribunal. The Court found that substituted service of notice was not in compliance with the Foreigners (Tribunals) Order, 1964, denying the petitioner a hearing. The order was set aside with directions.

What did the court decide?

The impugned order dated 14.09.2018 was set aside. The petitioner was directed to appear before the Foreigners' Tribunal on 06.12.2019 and file a written statement.

Dipa Saha Vs the Union of India and 5… — Constitutional and Fundamental Rights | Gauhati HC (2019)

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GAHC010155232019

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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) 5015/2019

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1:DIPA SAHA

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D/O- LATE GOPAL CHANDRA SAHA @ GOPAL SAHA, W/O- SRI KAMAL KUMAR SAHA, R/O- H NO.5, (KHA) RAMNAGAR, P.O- UDALBAKRA, P.SFATASHIL AMBARI, GUWAHATI- 781034, DIST- KAMRUP (M), ASSAM

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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 GOVT OF INDIA, MIN OF HOME AFFAIRS, NEW DELHI- 110001

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2:THE ELECTION COMMISSION OF INDIA REP. BY THE CHIEF ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI-

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3:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM HOME DEPTT DISPUR GUWAHATI- 781006

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4:THE DEPUTY COMMISSIONER KAMRUP (M) DIST- KAMRUP(M) ASSAM

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5:THE SUPERINTENDENT OF POLICE (B) KAMRUP (M) P.O AND P.S- PANBAZAR

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GUWAHATI- 781001 DIST- KAMRUP(M) ASSAM

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6:THE COORDINATOR NRC REP. BY THE STATE COORDINATOR ACHYUT PLAZA BHANGAGARH GUWAHATI- 781005 DIST- KAMRUP(M) ASSA

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Advocate for the Petitioner : MR. S NATH

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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 : 18-11-2019

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(Manojit Bhuyan, J)

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

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Petitioner assails ex-parte order/opinion dated 14.09.2018 passed by the Foreigners’ Tribunal No.-5, Kamrup (M), Assam at Guwahati, in DV Case No. 775/2015, declaring her to be a foreigner of post 1971 stream.

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Mr. Nath 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 notice,

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whatsoever, was served upon the petitioner. It is also submitted that the petitioner came to learn about the impugned opinion only when she received notice from the NRC Authority on 30.05.2019 for hearing.

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To test the arguments so advanced we have perused the materials available on record. From the Service Report available at page 23 of the case records, it is seen that as the petitioner was not to be found in the address mentioned, therefore, service was effected by affixing a copy of the summon on the wall near the Ganesh stone located at Kalapahar.

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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. 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 on the outer door or some other conspicuous part of the house in which the petitioner ordinarily resides or last resided or reportedly resided or personally worked for gain or carries on business.

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In view of the above, we set aside the impugned order dated 14.09.2018 with direction to the petitioner to appear before the Foreigners’ Tribunal No.-5, Kamrup (M), Assam at Guwahati on 06.12.2019, 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 06.12.2019. We make it clear that if the petitioner defaults in appearing before the Tribunal and to file written statement on 06.12.2019 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. 06.12.2019.

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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

Dipa Saha v. the Union of India and 5 Ors.

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Dipa Saha v. the Union of India and 5 Ors.

Case brief

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