Allowed

Hanufa Bibi v. the Union of India and 5 Ors.

Gauhati HC6 Dec 2019WP(C)/6411/2019

Case brief

AI extract

What is this about?

The Gauchati High Court set aside an ex-parte order of the Foreigner's Tribunal declaring the petitioner a foreigner. The court found that the notice was not properly served at the petitioner's last known residence as required by statutory procedure, violating the principles of natural justice. The matter was remanded for a fresh hearing.

What did the court decide?

The impugned order dated 25/03/2019 was set aside and the matter was remanded to the Foreigner's Tribunal for a fresh decision on merit.

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

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GAHC010202242019

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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) 6411/2019

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1:HANUFA BIBI

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W/O- JAMAL SK, D/O- LT. MAZIBAR RAHMAN, VILL- BOIJERALGA RIVER BLOCK, P.S. FAKIRGANJ, DIST. DHUBRI (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, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, TRILOK MARG, NEW DELHI- 110001.

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2:THE ELECTION COMMISSION OF INDIA REP. BY THE CHIEF ELECTION COMMISSIONER NEW DELHI- 110001.

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3:THE STATE OF ASSAM

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

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4:THE STATE COORDINATOR OF NATIONAL REGISTER OF CITIZENS ASSAM 1ST FLOOR ACHYUT PLAZA G.S. ROAD BHANGAGARH GUWAHATI ASSAM. PIN- 781005.

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5:THE DEPUTY COMMISSIONER OF DHUBRI DISTRICT P.O. AND DIST.- DHUBRI

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ASSAM PIN- 783301.

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6:THE SUPERINTENDENT OF POLICE DHUBRI DISTRICT DHUBRI P.O. AND P.S. AND DIST.- DHUBRI ASSAM. PIN- 783301

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Advocate for the Petitioner : MR. A T SARKAR

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

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

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ORDER

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Date : 06-12-2019

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Suman Shyam, J

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Heard Mr. A.T. Sarkar, learned counsel for the petitioner. We have also heard Mr. A. Kalita, learned Standing Counsel, FT, Ms. A. Verma, learned Standing Counsel, NRC Coordinator, Ms. G. Hazarika, learned CGC and Mr. A. Ali, learned Standing Counsel, ECI, appearing for the official respondents.

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This writ petition is directed against the ex-parte order dated 25/03/2019 passed by the learned Member, Foreigner’s Tribunal No. 7, Dhubri, Bilasipara in FT Case No. 155/BBR/18, declaring the petitioner to be a foreigner who had entered into Assam after the midnight of 24/03/1971. By referring to the impugned order, Mr. Sarkar submits that no notice was ever served upon his client. Moreover, submits Mr. Sarkar, the procedure adopted in this case for service of notice is also in contravention of the procedure laid down under the Foreigners (Tribunal)Order , 1964. The learned counsel, therefore, submits that the impugned order is liable to be set aside on such count alone. We find from the record that notice was issued to the proceedee in this case on 08/01/2019 but when she was found to be absent, notice was returned with a report that it was served by hanging in the Anganwadi centre by obtaining the signature of witnesses, as the proceedee had left her place of residence. Based on such report, the matter was fixed for exparte proceeding where-after, the

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impugned order has been passed.

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Order 3(5)(f) of the Foreigners (Tribunal) Order, 1964 lays down the procedure to be followed while service of notice when the proceedee is found to have changed her place of residence or place of work, without intimation to the investigating agency. According to Order 3(5)(f) in such cases, notice is required to be affixed, inter-alia, on the outer door or some other conspicuous place of the house in which the proceedee had last resided. However, from the impugned order, we find that no such notice had been affixed in the last known residence of the petitioner.

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After a careful scrutiny of the materials on record, we are of the view that there was no proper service of notice on the proceedee in this case. If that be so, the impugned order cannot be sustained in the eye of law.

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Mr. Kalita has also submitted in his usual fairness that in this case, there was no proper service of notice upon the proceedee.

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Such being the position, we set aside the impugned order dated 25/03/2019.

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The matter is remanded back to the Foreigner’s Tribunal for a fresh decision of the reference on merit after giving an opportunity of being heard to the proceedee.

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Facilitating the above, the petitioner shall appear before the learned Tribunal on or before 22/01/2020 by producing a certified copy of this order.

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It is made clear that if for any reason, the petitioner fails to appear before the learned Tribunal in compliance of this order, the order of this Court shall stand discharged without any further reference to this Court.

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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

Hanufa Bibi v. the Union of India and 5 Ors.

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Hanufa Bibi v. the Union of India and 5 Ors.

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