Allowed

Sahera Bhanu @ Sahera Khatun v. the Union of India and 5 Ors.

Gauhati HC2 Dec 2019WP(C)/6309/2019

Case brief

AI extract

What is this about?

The Gauhati High Court set aside an ex-parte order declaring the petitioner a foreigner due to improper service of notice. The court held that hanging a notice in a public place violated Order 3(5)(f) of the Foreigners (Tribunal) Order, 1964, which requires affixing it on the outer door. The petition was allowed, and the petitioner was directed to be released from detention, with instructions to a

What did the court decide?

Ex-parte order declared illegal and set aside; petitioner released from detention; directed to appear before Tribunal within a week.

Sahera Bhanu @ Sahera Khatun Vs the… — Constitutional and Fundamental Rights | Gauhati HC (2019)

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Page No.# 1/3

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GAHC010204992019

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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) 6309/2019

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1:SAHERA BHANU @ SAHERA KHATUN D/O- LT LOKMAN ALI, W/O- JAKIR HUSSAIN, R/O- VILL- KANDULIMARI, P.S. CHAYGAON, DIST- KAMRUP (R), 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 SECY. TO THE GOVT. OF INDIA, HOME DEPTT., NEW DELHI-1

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2:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-06

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3:THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOK ROAD NEW DELHI- 110001

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4:THE DY. COMMISSIONER KAMRUP DIST- KAMRUP ASSAM PIN- 781039

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5:THE SUPERINTENDENT OF POLICE (B) KAMRUP DIST- KAMRUP ASSAM

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Page No.# 2/3

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PIN- 781039

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6:THE STATE COORDINATOR NATIONAL REGISTRATION OF CITIZEN ASSAM BHANGAGARH GHY-0

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Advocate for the Petitioner : MR. M U MAHMUD

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

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BEFORE

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HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

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ORDER

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Date : 02-12-2019

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Suman Shyam, J

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Heard Mr. M.U. Mahmud, learned counsel for the petitioner. We have also heard Mr. A. Kalita, learned Standing Counsel, Foreigner’s Tribunal appearing for the respondent nos. 2, 4 and 5, Ms. A. Verma, learned Standing Counsel, NRC for the respondent no. 6, Mr. A. Ali, learned Standing Counsel, Election Commission of India representing the respondent no. 3 and Ms. G. Hazarika, learned CGC, appearing for the respondent no. 1.

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This writ petition is directed against the ex-parte order dated 12/03/2018 passed by the learned Member, Foreigner’s Tribunal No.2, Kamrup (Metro), in B.F.T. Case No. 3552/2016 declaring the petitioner as a foreigner.

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A perusal of the order dated 12/03/2018 goes to show that the Process Server could not find the petitioner in her permanent address and, therefore, served the notice on the Gaon Burah in presence of three other witnesses by hanging the same in a public place. The said fact is also confirmed from the report of the Process Server wherein, it has been clearly mentioned that no notice could be served upon the petitioner. As such, there is no doubt in this case that the petitioner did not even receive the notice in connection with the proceeding initiated before the Foreigner’s Tribunal. Therefore, the question that would arise in this case is as to whether there was proper service of notice on the petitioner within the meaning

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of Order 3(5)(f) of the Foreigner’s (Tribunal) Order, 1964.

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The report of the Process Server merely mention that the same was hung in public place whereas the law requires that the notice is to be prefixed on the outer door or some other conspicuous place of the house in which the proceedee ordinarily resides.

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From the materials available on record, we find that the procedure mentioned in Order 3(5)(f) of the Order of 1964 has evidently not been followed in this case. If that be so, the impugned order dated 12/03/2018 is unsustainable on account for violation of the principles of natural justice. We, therefore, set aside the order dated 14/03/2018

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At this stage, Mr. Mahmud submits that his client has been arrested and since then she is housed in a detention centre at Kokrajhar.

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Since the order dated 12/03/2018 has been set aside today, we direct that the petitioner be forthwith released from the detention centre.

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A copy of the order be forwarded to the Superintendent of Police (Border), Kamrup, so as to do the needful.

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Upon her release, the petitioner shall appear before the learned Tribunal within a week and produce a certified copy of this order.

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On such appearance, the learned Tribunal may proceed with the matter in accordance with law and render a fresh opinion answering the reference made by the Superintendent of Police (Border), after giving proper opportunity of being heard to the petitioner.

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With the above observation, the writ petition stands disposed of.

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JUDGE JUDGE

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Sukhamay

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Comparing Assistant

Sahera Bhanu @ Sahera Khatun v. the Union of India and 5 Ors.

Case brief

What is this about?

What did the court decide?

Sahera Bhanu @ Sahera Khatun v. the Union of India and 5 Ors.

Case brief

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What the court decided

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