Allowed

Asad Ali and 4 Ors. v. the Union of India and 5 Ors.

Gauhati HC6 Dec 2019WP(C)/6423/2019

Case brief

AI extract

What is this about?

The Gauhati High Court set aside an ex-parte order by the Foreigner's Tribunal declaring the petitioner a foreigner. The Court held that service of notice by pasting it on a tree in a public place did not comply with Order 3(5)(g) of the Foreigners (Tribunal) Order, 1964, which requires pasting in a conspicuous place within the residence. The matter was remanded for a fresh decision after proper s

What did the court decide?

Impugned order dated 28/02/2018 set aside; matter remanded to the Foreigner's Tribunal for a fresh decision after proper service of notice and opportunity of being heard.

Asad Ali and 4 Ors. Vs the Union of… — Constitutional and Fundamental Rights | Gauhati HC (2019)

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Page No.# 1/4

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GAHC010205772019

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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) 6423/2019

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1:ASAD ALI AND 4 ORS.

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S/O LT. HANIF ALI, R/O VILL. DAKHIN CHENIMARI, P.S. LAHARIGHAT, DIST. MORIGAON, ASSAM, PIN-782127

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2: DILDAR HUSSAIN @ DIDARUL HOQUE S/O LT. HANIF ALI R/O VILL. DAKHIN CHENIMARI P.S. LAHARIGHAT DIST. MORIGAON ASSAM PIN-782127

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3: HAMIDA KHATUN D/O LT. HANIF ALI R/O VILL. DAKHIN CHENIMARI P.S. LAHARIGHAT DIST. MORIGAON ASSAM PIN-782127

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4: TASLIMA KHATUN D/O LT. HANIF ALI R/O VILL. DAKHIN CHENIMARI P.S. LAHARIGHAT DIST. MORIGAON ASSAM PIN-782127

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5: ANOWARA KHATUN D/O LT. HASEN ALI W/O LT. HANIF ALI

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Page No.# 2/4

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R/O VILL. DAKHIN CHENIMARI P.S. LAHARIGHAT DIST. MORIGAON ASSAM PIN-78212

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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, NEW DELHI-110001

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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 GUWAHATI-6

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3:THE DEPUTY COMMISSIONER MORIGAON PIN-782105

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4:THE ELECTION COMMISSION OF INDIA NEW DELHI-11001

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5:THE STATE COORDINATOR NATIONAL REGISTER OF CITIZENS ASSAM GUWAHATI-781005

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6:THE SUPERINTENDENT OF POLICE (B) MORIGAON DIST. MORIGAON PIN-78210

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Advocate for the Petitioner : MR F U BARBHUIYA

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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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Page No.# 3/4

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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. F.U. Barbhuiya, 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 28/02/2018 passed by the learned Member, Foreigner’s Tribunal (2^nd ), Morigaon in connection with FT case No, 55/2012, declaring the petitioner to be a foreigner who had entered into Assam after the midnight of 25/03/1971.

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By referring to the impugned order, Mr. Barbhuiya submits that no notice was ever served upon his client. Moreover, submits Mr. Barbhuiya, the procedure adopted in this case for service of notice is 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 in this case when the Process Server did not find the petitioner in his address, the notice was apparently served by substituted method by pasting the same on a “tree” in a public place in presence of the local Gaonburah. When the petitioner failed to appear before the learned Tribunal pursuant to such substituted service, the matter was proceeded ex-parte and he was declared to be a foreigner by the impugned order dated 28/02/2018.

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Order 3(5)(g) of the Foreigners (Tribunal) Order, 1964 lays down the procedure to be followed when the proceedee or any adult member of his or her family is not found to be present in the residence. According to Order 3(5)(g), the notice is required to be pasted in a conspicuous place in the residence. But in this case notice was hung by pasting on a tree. There is nothing in the order to indicate that the notice was hung in a conspicuous place in the residence of the proceedee. 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 28/02/2018.

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The matter is remanded back to the Foreigner’s Tribunal for a fresh decision of the reference

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Page No.# 4/4

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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

Asad Ali and 4 Ors. v. the Union of India and 5 Ors.

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Asad Ali and 4 Ors. v. the Union of India and 5 Ors.

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