Allowed

Maleka Begum @ Maleka Khatun v. the Union of India and 5 Ors.

Gauhati HC9 Jun 2022WP(C)/3862/2022

Case brief

AI extract

What is this about?

Writ petition challenging an ex parte order declaring the petitioner a foreigner. The Court held that pasting notices on the Panchayat does not constitute proper service under relevant rules. The impugned order was set aside without analyzing merits, and the petitioner was released on bail.

What did the court decide?

Impugned order setting aside and Writ Petition allowed. Petitioner released on bail of Rs.5,000/- with one local surety.

Maleka Begum @ Maleka Khatun Vs the… — Constitutional and Fundamental Rights | Gauhati HC (2022)

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GAHC010112042022

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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)/3862/2022

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MALEKA BEGUM @ MALEKA KHATUN DAUGHTER OF LATE JALAL MANDAL @ JALAL UDDIN, WIFE OF UCHMAN ALI @ UCHMAN GONI, PERMANENT RESIDENT OF VILLAGENO. 3 DHALPUR, POST OFFICE- BAZANAPATHAR, POLICE STATIONSIPAJHAR, MOUZA- SIPAJHAR, CIRCLE- SIPAJHAR, DISTRICT- DARRANG (ASSAM), PIN- 784145.

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VERSUS

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THE UNION OF INDIA AND 5 ORS REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI, PIN- 110001.

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

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3:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI- 781006.

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4:THE COORDINATOR NATIONAL REGISTER OF CITIZENS BHANGAGARH GUWAHATI-5.

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5:THE DEPUTY COMMISSIONER DARRANG PIN-784127.

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6:THE SUPERINTENDENT OF POLICE (B) DARRANG

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784127 ASSAM

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Advocate for the Petitioner : MR SARFRAZ NAWAZ

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

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B E F O R E

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HON’BLE THE CHIEF JUSTICE (ACTING) MR. N. KOTISWAR SINGH HON’BLE MR. JUSTICE NANI TAGIA O R D E R

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09.06.2022

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[N. Kotiswar Singh, (C.J. (Acting)]

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Heard Mr. J. Abbas, learned counsel for the petitioner. Also heard Mr. K.K. Parashar, learned Central Government Counsel; Mr. N. Pathak, learned Special Counsel, FT; Mr. A. I. Ali, learned Standing Counsel, Election Commission of India; Ms. U. Das, learned Government Advocate, Assam and Mr. K.K. Parashar, learned counsel, who also appears on behalf of State Coordinator, NRC.

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2 . In this petition, the petitioner has challenged the impugned ex parte order dated 02.04.2019 passed by the Foreigners Tribunal (1^st ), Mangaldai in FT Case No.16/2016 by which the petitioner was declared to be a foreigner of post 1971 stream.

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3 . Learned counsel for the petitioner submits that the petitioner never received the copy of the summons and, as such, the petitioner did not appear before the Tribunal. However, the petitioner came to know about the proceeding only after she was arrested pursuant to the aforesaid opinion on 06.05.2022.

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4. It has been submitted that the note of the Process Server would clearly indicate that the notice was not served properly. In fact, in the note of the Process Server, it is mentioned that on failure to trace out the proceedee, a copy of the notice was pasted on the Panchayat office. Learned counsel for the petitioner submits that there is no such provision for pasting the copy of the

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notice on Panchayat office and it cannot be considered to be an effective service of notice.

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5. As regards the issue as to whether notice can be deemed to have been served by pasting a copy of it on the Panchayat office, learned counsel for the State also submits that there is no such provision under the Rules.

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6. We are of the view that pasting a copy of the notice on Panchayat office cannot tantamount to proper service of notice on the proceedee. If a proceedee was not available, various other options are available before the Tribunal as mentioned under Order 3 of the Foreigners (Tribunals) Order, 1964. However, there is no provision for pasting a copy of the notice on the Panchayat office or for that matter, any public office.

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7 . Under the circumstances, without going into the merit of the case, we are inclined to allow this petition by setting aside the impugned order dated 02.04.2019 passed by the Foreigners Tribunal (1^st ), Mangaldai in FT Case No.16/2016.

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8. The petitioner will appear before the Tribunal on or before 27.07.2022 and file her written statement and other documents in support her claim that she is a citizen of India and not a foreigner. Thereafter, the learned Tribunal will render a fresh opinion as regards the citizenship status of the petitioner.

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9. It has been submitted that the petitioner is in detention since 06.05.2022 and presently lodged in Tezpur Detention Center.

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10. In that view of the matter, we direct release of the petitioner from detention on furnishing bail bond of Rs.5,000/- with one local surety of the like amount to the satisfaction of the Superintendent of Police (Border), Darrang. The concerned Superintendent of Police (Border) shall also take steps for capturing the fingerprints and biometrics of the iris of the petitioner, if so advised.

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11. The petitioner shall not leave the jurisdiction of Darrang district without giving details of the place of destination and her place of stay to the Superintendent of Police (Border), Darrang.

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12. The writ petition is, accordingly, disposed of.

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JUDGE CHIEF JUSTICE (ACTING)

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Comparing Assistant

Maleka Begum @ Maleka Khatun v. the Union of India and 5 Ors.

Case brief

What is this about?

What did the court decide?

Maleka Begum @ Maleka Khatun v. the Union of India and 5 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

Parties & counsel

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