Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 279 (GAU)

Ramjan Ali Sheikh @ Ramjan Ali v. Union of India

2019-03-01

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

body2019
JUDGMENT : A.M. BUJOR BARUA, J. 1. Heard Mr. A. A. Dewan, learned counsel for the petitioner. Also heard Mr. A I Ali, learned counsel for the Election Commission of India and Mr. A. Kalita, learned counsel for the State of Assam appearing for the Foreigners' Tribunal and Border Areas, Ms. A Verma, learned standing counsel for the authorities under the NRC as well as Ms. G Sarma, learned counsel for the authorities under the Union of India. 2. On being referred by the Superintendent of Police (B), Jorhat, JFT Case No. 156/06 was registered against the petitioner in the Foreigners Tribunal, Jorhat. 3. As the petitioner did not appear before the Tribunal, by the ex-parte order dated 15.10.2007, he was declared to be a foreigner, who entered India after 25.03.1971. 4. Being aggrieved, this writ petition is preferred under the ground that the notice as required under the law was not duly served on the petitioner. We have perused the report of the process server which is annexed as Annexure-1 (A) of the writ petition. The report states that when the petitioner was not found in the given address, the owner of the House and the Govt. Gaonburah had informed that the petitioner was earlier temporarily residing in that place but in the mean time had left. Consequently the process server took the signature of the owner of the House and the Govt. Gaonburah. 5. It is taken note of that the report of the process server does not even indicate as to where the notice of the petitioner was kept hanging. We have taken note of the provisions of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964 which, inter alia, provides the procedure as to how the notice has to be served on the proceedee. The provisions of Rule 3(5)(f) specifically provides that if the proceedee has changed the place of residence or place of work, without intimation to the investigating agency, the process server shall affix a copy of the notice on the outer door or some other conspicuous part of the house in which the proceedee ordinarily resides or last resided or reportedly resided or personally worked for gain or carries on business, and, shall return the original to the Foreigners Tribunal from which it was issued. As already indicated, the report of the process server does not indicate that upon the petitioner not being found at the required address, the notice thereof had been affixed on the outer door or some conspicuous place of the house where the proceedee resides or last resided. In view of the procedural aberration of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964, we are of the view that the manner in which the notice was deemed to be served was in violation of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. 6. The manner in which the notice is stated to be served is not in accordance with the requirement of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. Accordingly, the order dated 15.10.2007 of the Foreigners Tribunal, Jorhat in JFT Case No. 156/06 is set aside. 7. The petitioner shall appear before the Tribunal on 29.03.2019 along with a copy of the written statement to be filed and upon such appearance, the Tribunal shall adjudicate the reference within a period of 60 days there from. 8. In the event, the petitioner does not appear or fails to cooperate, the Tribunal further shall be at liberty to pass any order under the law. 9. In terms of the above, the writ petition stands allowed to the extent indicated above.