Allowed

Asma Khatun @ Asia Khatun v. the Union of India and 5 Ors.

Gauhati HC2 Jun 2022WP(C)/8250/2019

Case brief

AI extract

What is this about?

In this writ petition, the Gauhati High Court held that service of notice by pasting it on a shop door is not valid under Rule 3 of the Foreigners (Tribunals) Order 1964. The Court set aside the ex-parte order passed by the Foreigners Tribunal and remanded the matter for fresh reconsideration while granting bail to the petitioner.

What did the court decide?

Petitioner's petition allowed; ex-parte order of Foreigners Tribunal set aside; matter remanded for fresh hearing; bail granted.

Asma Khatun @ Asia Khatun Vs the Union… — Constitutional and Fundamental Rights | Gauhati HC (2022)

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GAHC010271642019

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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)/8250/2019

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ASMA KHATUN @ ASIA KHATUN D/O- JAMAL UDDIN @ JAMAL ALI, W/O- ABDUL KALAM, VILL. RAMHARIR CHAR, P.O. JOYPUR BAZAR, P.S. PANCHARATATNA, DISTGOALPARA, ASSAM. PIN- 783129.

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VERSUS

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THE UNION OF INDIA AND 5 ORS.

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REP. BY THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI110001.

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2:THE ELECTION COMMISSION OF INDIA REP. BY THE CHIEF ELECTION COMMISSIONER INDIA

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NEW DELHI-110001.

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3:THE STATE OF ASSAM REP. BY THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY.-06.

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4:THE STATE COORDINATOR ASSAM NATIONAL REGISTER OF CITIZENS BHANGAGARH GHY.-05.

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5:THE SUPDT. OF POLICE (B) GOALPARA DIST.- GOALPARA ASSAM. PIN- 783101.

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6:THE DY. COMMISSIONER GOALPARA DIST.- GOALPARA ASSAM. PIN- 783101

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Advocate for the Petitioner : MD A HUSSAIN

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

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BEFORE HON'BLE THE CHIEF JUSTICE (ACTING) MR. N. KOTISWAR SINGH HON'BLE MR. JUSTICE NANI TAGIA

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ORDER

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02.06.2022

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[ N. Kotiswar Singh, CJ(Acting) ]

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Heard Mr. A. Hussain, learned counsel for the petitioner. Also heard Mr. K.K. Parasar,

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learned CGC appearing for respondent No.1 as well as appearing on behalf of standing counsel, NRC, for respondent No.4; Mr. J. Payeng, learned Special Counsel, FT, appearing for respondent Nos.3 and 5; Mr. A.I. Ali, learned standing counsel, ECI, appearing for respondent No.2 and Ms. U. Das, learned Additional Senior Government Advocate, Assam, appearing for respondent No.6.

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2. In this petition, the petitioner has challenged the ex-parte order dated 01.08.2017 passed in Case No.F.T.(8^th )-GLP/487/16 by the Foreigners' Tribunal No.8^th at Goalpara, Assam and the subsequent order dated 29.08.2019 passed by the same Tribunal in Misc. Case No.02/2019 for recalling the aforesaid ex-parte order dated 01.08.2017.

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3. The petitioner submits that the petitioner never received any copy of the summon as can be seen from the order itself. As reflected in the order, what the process server did was

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to merely hang the copy of the summon in a shop without mentioning as to whether the said shop belongs to the petitioner or not. In fact, the petitioner submits that she does not own any shop in the village and as such, hanging a copy of the notice in a shop does not meet the requirements of law and as such the ex-parte proceeding against the petitioner is vitiated as the petitioner was not validly served any notice.

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4. We have also heard the learned counsel for the petitioner as well as respondents. We have gone through the ex-parte order dated 01.08.2017 in which the learned Tribunal as regards the service of notice made the following observation:

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“...................................

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That the process server H/C(B) Rabin Ch. Ray and C/47 Dibakar Kalita reported through the Office-In-Charge of Pancharatna R.P.S. and reported that such named proceedee is not available in the vill-Ramharir Char. On next time notice was issued on 10/07/2017 to the proceedee and directed the process server to hang the notice in conspicuous part being a shop, accordingly notice was hanged by the process server H/C(B) Rabin Ch. Ray and C/47 Dibakar Kalita. After execution hangs the notice, the original copy of notice returned to this Tribunal through the H/C(B) Rabin Ch. Ray and C/47 Dibakar Kalita of Pancharatna R.P.S., with two witnesses namely Akbar Ali (V.D.P. Secy.) S/O Romjan Ali and Abu Bakkar Sidique S/O Lt. Khosmamud of vill-Ramharir Char, which is counter signed by Office In-Charge of Pancharatna R.P.S. Proceedee was absent on fixed date on 2/7/16, 10/8/16, 23/9/16, 23/05/17 and 07/07/17, accordingly the reference is represented by Govt. Pleader, the notice has returned served in manner as provided under 3 of the order 1964. The proceedee is not present on date fixed and also has not engaged any council. Hence the reference case is declared Ex-Parte against the proceedee.

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..........................”

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5. We are of the view that the aforesaid methodology adopted in serving notice upon the proceedee cannot be said to be in accordance with law. Rule 3 of the Foreigners (Tribunals)

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Order 1964 provides the manner in which the notice has to be served upon a proceedee. Nowhere in the aforesaid rule it is provided that the notice can be served by pasting a copy of the notice on a shop. Under the circumstances, we are satisfied that the procedure adopted to serve notice upon the petitioner, which was accepted by the Tribunal cannot be said to be in accordance with law and as such, we hold that no notice/summon was served upon the petitioner validly and accordingly, the aforesaid ex-parte order cannot be sustained.

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6. In view of the above, we are of the view that the reasons assigned by the learned Tribunal in rejecting the application for recalling the ex-parte order cannot be also sustained in law. Accordingly, we allow this petition by setting aside the ex-parte order dated 01.08.2017 passed in Case No.F.T.(8^th )-GLP/487/16 by the Foreigners' Tribunal No.8^th at Goalpara, Assam and also the subsequent order dated 29.08.2019 passed by the same Tribunal in Misc. Case No.02/2019 rejecting the prayer of the petitioner for recalling the aforesaid ex-parte order and as such, the matter is remanded to the learned Tribunal for fresh reconsideration. Since the petitioner has appeared before this Court, the petitioner will appear before learned Tribunal on or before 18.07.2022 and file her written statement as well as necessary documents to prove that she is an Indian and not a foreigner. The learned Tribunal after hearing the petitioner will pass appropriate order in accordance with law.

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7. However, since citizenship of the petitioner has come under cloud, she will remain on bail during the proceeding for which she will appear before the Superintendent of Police (B), Goalpara within 15(fifteen) days from today by furnishing a bail bond of ` 5,000/- with one local surety of the like amount to the satisfaction of the said authority. The concerned Superintendent of Police (B) shall also take necessary steps for capturing the fingerprints and

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biometrics of the iris of the petitioner. It is also made clear that the petitioners shall not leave

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the jurisdiction of the Goalpara district without obtaining permission from the Superintendent of Police (B), Goalpara.

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8. LCR be remitted to the concerned Foreigners' Tribunal immediately.

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Sd/- Nani Tagia Sd/- N. Kotiswar Singh JUDGE CHIEF JUSTICE (ACTING)

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Comparing Assistant

Asma Khatun @ Asia Khatun v. the Union of India and 5 Ors.

Case brief

What is this about?

What did the court decide?

Asma Khatun @ Asia Khatun v. the Union of India and 5 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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