Akabbar Ali Vs the Union of India and Othrs

Heard Mr. M. Rana, learned counsel for the petitioner. Also heard Mr. K. Gogoi, learned CGC; Mr. G. Sarma, learned Standing Counsel for the FT matters and NRC; Ms. S. Katakey, learned Standing Counsel for the ECI; and Mr. P. Sarmah, learned Additional Senior Govt. Advocate for the State respondent.

¶27

By filing this writ petition under Article 226 of the Constitution of India, the petitioner namely, Akabbar Ali, has assailed the impugned ex parte opinion dated 01.10.2022, passed by the learned Member, Foreigners’ Tribunal No. 1, Bongaigaon, Assam, in Case No. BNGN/FT/749/2010, arising out Ref. IM(D)T No. 850/2002, thereby declaring the petitioner to be a foreigner of post of 25^th March, 1971.

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Page No.# 3/5

¶29

From the documents appended to the writ petition, it is reflected from the notice of the learned Tribunal that the address of the proceedee is disclosed in the notice as village – Barbakra in the district of Bongaigaon and the said notice contains a directive that in the presence of two witnesses, the notice should be hanged at the last known address of the proceedee. However, as per the Process Server’s report, which is a part of Annexure-B to the writ petition, the report of the Process Server states that the notice was pasted in the premises of Nowapara Gaon Panchayat and returned.

¶30

However, the learned Tribunal in paragraph 5 of the impugned opinion, has recorded that the notice was hanged at the last residence of the proceedee. The said observation of the learned Tribunal of the notice being hanged at the last residence of the petitioner appears to be contrary to the Process Server’s report dated 22.06.2022.

¶31

We also take note of the fact that the learned Tribunal had examined the Process Server on 22.08.2022 and the person serving the process namely S.I.(B) Anjen Brahma has stated as follows :-

¶32

“ I have been authorized to adduce my evidence in this case. Presently I am serving as S/I (B) of Manikpur P.S. The above mentioned Information which I have provided is true and correct. On 03.06.2022, our border staff C/N(B) Bijit Mushahary & C/N (B) Biraj Ch. Rajbongshi took the notice for serving and they went to village Barbakra under Manikpur P.S. upon Md. Ekabbar Ali, S/O. Lt. Sabar All. They came to know from the locality that Md. Ekabbar Ali is not traced out at the concerned address. The retuned the notice with report. On 22.06.2022 again the process server C/N(B) Prabin Kr. Ray & C/N (B) Bijit Mushahary went to served the notice and hanged at the last residence of proceedee/O.P. in present of local VDP Secretary. On 16.07.2022 as per order of the Hon, ble Tribunal, again tried to traced out the proceedee/O.P. but could not found and traced out at

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Page No.# 4/5

¶34

the concerned address. Hence, submitted report before the Hon'ble F.T. No. 1 Bongaigaon.”

¶35

At this juncture, the Court is inclined to record the English translation note of the Process Server dated 22.08.2022 which is extracted hereinbelow :-

¶36

“ As per direction the Hon’ble Tribunal went to the village and took signature two witness on the original copy of the notice and hang the duplicate copy in the campus of the Nowapara Gaon Panchayat and return the original copy to return to the Hon’ble Tribunal.”

¶37

Therefore, the ex facie appears that the evidence of the Process Server is contrary to the Process Server’s report extracted hereinabove.

¶38

Resultantly, the Court is inclined to hold that the process is not duly held as per the provisions of Order 3(5)(f) of the Foreigners (Tribunal) Order, 1964, which requires that in the absence of the proceedee, the notice be hanged at the last known residence of the proceedee.

¶39

Resultantly, the ex parte opinion dated 01.10.2022, impugned in this writ petition stands vitiated owing to the non-adherence to the provisions of Order 3(5)(f) of the Foreigners (Tribunal) Order, 1964, as the process is found to have been served not in the last known address of the petitioner provided in the notice issued by the learned Tribunal.

¶40

Resultantly, the said ex parte opinion dated 01.10.2022, passed by the by the learned Member, Foreigners’ Tribunal No. 1, Bongaigaon, Assam, in Case No. BNGN/FT/749/2010 arising out Ref. IM(D)T No. 850/2002, is hereby set aside.

¶41

The petitioner, namely, Akabbar Ali, who is duly represented by his learned counsel is directed to appear before the learned Foreigners’ Tribunal No.

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Page No.# 5/5

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1, Bongaigaon, on or before 12.02.2026, and by producing a certified copy of this order and also file his written statement of defence. It is clarified that, in the event the petitioner fails to appear before the learned Tribunal within the time allowed, it would be open to the said learned Tribunal to treat the petitioner as absent on call and proceed in accordance with law.

¶44

Accordingly, petition is allowed at the motion stage without issuance of notice on the respondents.

¶45

JUDGE JUDGE

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Akabbar Ali v. the Union of India and Othrs

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Akabbar Ali v. the Union of India and Othrs

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