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2018 DIGILAW 233 (GAU)

Harun Rashid v. Union of India

2018-02-07

NELSON SAILO, UJJAL BHUYAN

body2018
JUDGMENT & ORDER : UJJAL BHUYAN, J. 1. Heard Mr. N Hoque, learned counsel for the petitioner and Mr. HK Hazarika, learned Government Advocate, Assam. We have also heard Ms. P Baruah, learned Central Government Counsel. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 19.8.2016 passed by the Foreigners Tribunal, Jorhat in FT/SVR No.3789 declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.3.1971. 3. A perusal of the order dated 19.8.2016 would go to show that notice sent to the petitioner in his Sivasagar address could not be personally served as he had left the address about 3 years back, and therefore, the notice was served by way of hanging before the Member of the Gaon Panchayat. Notice issued to the petitioner in his Morigaon address could not be served upon the petitioner personally as he refused to accept the same for which notice was hanged before two persons. 4. Learned counsel for the petitioner submits that petitioner is a permanent resident of Laharighat area in the district of Morigaon and for the purpose of his livelihood, he had gone to Sivasagar district where he was suspected to be a foreigner. He submits that no notice was served upon the petitioner and, therefore, he was not aware of the same. 5. On the other hand, Mr. H.K. Hazarika, learned Government Advocate submits that notice issued to the petitioner in his Laharighat address had to be served in a substituted manner as the petitioner refused to accept the notice. 6. Submissions made by the learned counsel for the parties have been considered. 7. We find from the order dated 19.8.2016 that notice was issued to the petitioner in his Sivasagar address as well as in his Laharighat address. In so far Sivasagar address is concerned, it was stated that notice was served by hanging before the Gaon Panchayat Member. Regarding service of notice in Laharighat, it is mentioned that petitioner had refused to accept notice and therefore the notice was hanged before two persons. In both the instances Tribunal had not disclosed as to where the notice was hanged. If proceedee was not available, the notice could have been served by pasting the same in a conspicuous place in residence where the petitioner had last resided. In both the instances Tribunal had not disclosed as to where the notice was hanged. If proceedee was not available, the notice could have been served by pasting the same in a conspicuous place in residence where the petitioner had last resided. In case of refusal to accept notice either similar procedure could have been adopted or report of the process server could have been considered, which is not discernable from the order dated 19.8.2016. 8. In such circumstances, we are of the view that notice was not properly served upon the petitioner. 9. Consequently, order dated 19.8.2016 is hereby set aside. Petitioner shall now appear before the Foreigners Tribunal, Jorhat in connection with FT/SVR No.3789 along with his written statement on 5.3.2018 at 10.30. am where after Tribunal shall proceed with the reference in accordance with law and conclude the same within a period of 60 days from the date of appearance. 10. Needless to say, if there is any default on the part of the petitioner henceforth, Tribunal would be at liberty to pass such order as may be deemed fit and proper. 11. Before parting with the record, we make it clear that we have not expressed any opinion on the merit of the case. 12. Writ petition is disposed of. 13. Registry to inform the concerned Foreigners Tribunal, Deputy Commissioner and Superintendent of Police (Border) for doing the needful. 14. A copy of this order may be furnished to learned Standing Counsel, Election Commission of India and the State Coordinator, NRC.