Dismissed

Md. Mazid Ali v. the Union of India and 3 Ors.

Gauhati HC7 Nov 2019WP(C)/7894/2017

Case brief

AI extract

What is this about?

This writ petition assails impugned orders declaring the petitioner a foreigner due to an ex-parte proceeding. The court held that the notice was not duly served under Rule 3(5)(f) of the Foreigners (Tribunal) Order, 1964, despite the petitioner claiming literate status and contradictions in signature styles across documents.

What did the court decide?

Impugned orders dated 20.01.2016 and 02.07.2008 set aside; petitioner to appear before Tribunal on 28.11.2019; Tribunal to dispose within 45 days.

Md. Mazid Ali Vs the Union of India… — Constitutional and Fundamental Rights | Gauhati HC (2019)

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Page No.# 1/3

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GAHC010153962017

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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) 7894/2017

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1:MD. MAZID ALI

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S/O. SUKUR ALI, PERMANENT RESIDENT OF VILL. DOLAGAON, P.S. BOKO, DIST. KAMRUP R, ASSAM. PRESENTLY/ TEMPORARILY RESIDING AT VILL. DHEKANABARI, P.S. CHHAYGAON, DIST. KAMRUPR, ASSAM, PIN-781124.

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VERSUS

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1:THE UNION OF INDIA and 3 ORS.

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REPRESENTED BY THE SECRETARY, GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI, PIN-110001.

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2:THE STATE OF ASSAM REPRESENTED BY THE SECRETARY GOVT. OF ASSAM MINISTRY OF HOME AFFAIRS DISPUR GUWAHATI-781006. 3:THE DEPUTY COMMISSIONER DIST. KAMRUPRURAL PIN-781039 ASSAM. 4:SUPERINTENDENT OF POLICE DIST. KAMRUP RURAL PIN-781031 ASSAM

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Advocate for the Petitioner : MR.S CHOUDHURY

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Advocate for the Respondent : GA, ASSAM

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Page No.# 2/3

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BEFORE HON’BLE MR. JUSTICE MANOJIT BHUYAN HON’BLE MR. JUSTICE AJIT BORTHAKUR

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07.11.2019

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(Ajit Borthakur, J)

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Heard Mr. S. Choudhury, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent No. 1 whereas Mr. J. Payeng, learned counsel represents respondent Nos. 2 to 4. By this petition under Article 226 of the Constitution of India, the petitioner assails the order, dated 20.01.2016, passed by the Foreigners’ Tribunal No. 2, Boko, Kamrup in Misc. Case No. 01/2015 arising out of Case No. BFT 289/2015 (Corresponding to GFT (R) No. 295/07) and the order, dated 02.07.2008, passed in F.T.(R) case No. 295/2007 passed by the aforesaid Tribunal.

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Be it mentioned that based on a reference made by the Superintendent of Police (Border), Kamrup, Guwahati against the petitioner for opinion as to whether he is a foreign national or not, the GFT(R) Case No. 295/2007 was registered in the Foreigners’ Tribunal, Kamrup (R) at Guwahati.

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On receipt of the reference, notice was issued to the petitioner, which returned after service, but as the petitioner did not appear, the case proceeded exparte against him and accordingly, after examination of the Enquiry Officer and on being satisfied that the petitioner failed to produce any documentary evidence in support of his Indian Citizenship during enquiry, declared him to be a foreigner vide the opinion, dated 02.07.2008, passed in GFT Case No. 295/2007.

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The petitioner has stated that he was not aware of pendency of the proceeding against him as no notice was served upon him. According to the petitioner, he is a literate person, who read upto class VI in Hekra Higher Secondary School, Hekra, Dolagaon, Kamrup(Assam) and left the school in the year 1985. The petitioner further stated that in the year 2015, he could learn about the said exparte order passed by the Tribunal and that the case was transferred to Boko Foreigners’ Tribunal. He filed a petition on 24.09.2015 for setting aside/vacating/modifying the said exparte order, dated 02.07.2008, passed in F.T.(R) Case No. 295/2007, whereupon, the learned Tribunal registered Misc. Case No. 01/2015 (Corresponding to IMDT Case No. 198/03 and BFT Case No. 289/2015), which was dismissed vide order, dated 20.01.2016.

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In the said petition, dated 24.09.2015, the petitioner vehemently stated to have not received any notice in connection with the case and as such, did not get any opportunity to defend his case. The petitioner took the stand that he is not a foreigner, but an Indian citizen by birth.

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On perusal of the report of the process serving Police Constable (B), it appears to us that he reported to the effect that as per the notice, he went to village Dhekenabari under Chaygaon P.S. to serve the notice on the petitioner and having found him in the market, he delivered the notice obtaining his left hand thumb impression.

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Page No.# 3/3

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On scrutiny of the instant record, it is noticed that the petitioner had put thumb impression on the notice allegedly acknowledging receipt of the notice in F.T.(R) Case No. 295/2007, whereas on the notice issued by the Tribunal in BFT Case No. 289/2015, the petitioner put his full signature in vernacular acknowledging its receipt on 01.11.2015. Similarly on the affidavit, dated 11.12.2017, sworn in support of the averments made in the instant writ petition as well as in the Vakalatnama, the petitioner has put his full signature. The petitioner has also annexed a certificate issued by the Principal, Hekra Higher Secondary School, Kamrup(Assam) certifying that he read upto class VI in the year 1985.

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For the above stated reasons, we are constrained to hold that the notice was not duly served on the petitioner in accordance with the provisions of Rule 3(5)(f) of the Foreigners (Tribunal) Order, 1964.

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Therefore, the impugned orders, dated 20.01.2016 and 02.07.2008, are set aside.

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The petitioner shall appear before the Boko Foreigners’ Tribunal, Kamrup on 28.11.2019 along with file his written statement and the Tribunal shall dispose of the proceeding within a period of 45 days therefrom. With the above directions, the writ petition stands disposed of.

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JUDGE JUDGE

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Comparing Assistant

Md. Mazid Ali v. the Union of India and 3 Ors.

Case brief

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Md. Mazid Ali v. the Union of India and 3 Ors.

Case brief

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