Allowed

Fatema Bibi @ Fatema Begum v. the Union of India and 5 Ors.

Gauhati HC6 Nov 2019WP(C)/5308/2019

Case brief

AI extract

What is this about?

The Gauhati High Court allowed the writ petition filed by a petitioner declared a foreigner. The court held that the Foreigners Tribunal violated Section 9 of the Foreigners' Act 1946 by passing an ex-parte order without proper opportunity of hearing or valid substituted service. The impugned order was set aside, and the petitioner was directed to appear before the Tribunal.

What did the court decide?

Impugned ex-parte order dated 27.05.2016 was set aside with direction to petitioner to appear before Foreigners Tribunal on 22.11.2019 and file written statement; proceedings to conclude within 60 day

Fatema Bibi @ Fatema Begum Vs the… — Constitutional and Fundamental Rights | Gauhati HC (2019)

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GAHC010171642019

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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) 5308/2019

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1:FATEMA BIBI @ FATEMA BEGUM

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D/O- ABDUL KASEM ALI @ ABDUL KASEM, W/O- ABDUL BADSA, R/OVILL- MELA BAZAR, P.S. TAMULPUR, DIST- BAKSA (BTAD), ASSAM

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VERSUS

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1:THE UNION OF INDIA AND 5 ORS.

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THROUGH THE SECY., TO THE GOVT. OF INDIA, THE MINISTRY OF HOME AFFAIRS, GRIHA MANTRALAYA, SHASTRI BHAWAN, TILAK MARG, NEW DELHI- 110001

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2:THE STATE OF ASSAM

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THROUGH THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME AND POLITICAL DEPTT. DISPUR GHY-6

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3:THE ELECTION COMMISSION OF INDIA REP. BY THE CHIEF ELECTION COMMISSIONER OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI- 110001

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4:THE STATE CO-ORDINATOR NATIONAL REGISTRATION OF CITIZEN ASSAM BHANGAGARH GHY

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5:THE DY. COMMISSIONER BAKSA

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P.O. AND DIST- BAKSA (BTAD)

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ASSAM

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6:THE SUPERINTENDENT OF POLICE (B) P.O. AND DIST- BAKSA (BTAD) ASSA

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Advocate for the Petitioner : MR. B CHOWDHURY

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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 : 06-11-2019

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(Manojit Bhuyan, J)

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Heard Mr. B. Chowdhury, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no. 1. Mr. U.K. Nair, learned senior counsel represents respondent nos. 2,5 and 6. Ms. B. Das, learned counsel represents respondent no. 3 whereas Ms. A. Verma, learned counsel appears for respondent no. 4.

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Petitioner assails ex-parte order/opinion dated 27.05.2016 passed by the Foreigners Tribunal, Baksa, Tamulpur, in FT Case No. 154/BAKSA/2015, declaring her to be a foreigner, having illegally entered into India (Assam) after 25.03.1971.

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Mr. Chowdhury 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

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record. From the Service Report, at page 39 of the writ petition, 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 her isolated house after getting the information from the Gaonburah and other villagers that the petitioner had left abode with her family ten years ago.

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Having regard to the manner of service, we are prima-facie satisfied that substituted service of notice, as required to be done under paragraph 3(5)(f) of the Foreigners (Tribunals) Order, 1964 was complied with. Notwithstanding the same, there is another important aspect of the case. From the Report, the petitioner had left the place of address years ago. The notice so issued, despite affixed on the wall of the residence, could not have been to the knowledge of the petitioner, inasmuch as, it is seen from another document at page 28 of the writ petition, being the Elector Photo Identity Card, issued by the Election Commission of India on 27.11.2015, that the petitioner’s place of address had changed to village Daranga, P.S. Tamulpur from village Mala Bazar, as shown in the Notice.

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On the above we are of the view that the petitioner should be granted an opportunity of hearing to contest the case on merits. We, therefore, set aside the impugned order dated 27.05.2016, with direction to the petitioner to appear before the Foreigners Tribunal, Baksa, Tamulpur, on 22.11.2019, at 10.30 AM, 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 22.11.2019. We make it clear that if the petitioner defaults in appearing before the Tribunal and to file written statement on 22.11.2019 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. 22.11.2019.

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To the extent above, the writ petition stands allowed.

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JUDGE JUDGE

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Comparing Assistant

Fatema Bibi @ Fatema Begum v. the Union of India and 5 Ors.

Case brief

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Fatema Bibi @ Fatema Begum v. the Union of India and 5 Ors.

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