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2019 DIGILAW 367 (GAU)

SABURAN BEWA v. UNION OF INDIA

2019-03-20

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

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JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. A. Ali, learned counsel for the petitioner. Also heard Mr. A Ali, learned counsel for the Election Commission of India, Mr. J. Payeng, learned standing counsel for the State of Assam appearing for the Foreigners Tribunal and Border matters 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 (Border) Jorhat, JFT Case No.1876/2006 was registered against the petitioner before the Foreigners Tribunal, Jorhat. The petitioner being aggrieved by the ex-parte order dated 05.05.2010 of the Foreigners Tribunal, Jorhat, has approached this court by way of this writ petition. By the order dated 05.05.2010, the Foreigner Tribunal at Jorhat arrived at a conclusion that as the petitioner did not appear before the Tribunal on the date fixed for her appearance, therefore, the burden of proof of the petitioner remained un-discharged. Accordingly, the Tribunal had declared the petitioner to be a foreigner who entered India after 25.03.1971. 3. We have perused the records before the learned Tribunal and from the report of the process server dated 20.02.2010, it is seen that the petitioner could not be traced out at the appropriate place for the purpose of service of notice and, therefore, the notice could not be served upon the petitioner. 4. 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. 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. 5. Considering the above, we are of the view that the order dated 05.05.2010 of the Foreigners Tribunal, Jorhat in Case No JFT.1876/2006 is not sustainable and the same is accordingly set aside. Upon the order of the Tribunal being set aside, the matter now stands remanded to the Foreigners Tribunal, Jorhat for an appropriate adjudication of the claim of the petitioner. For the purpose, the petitioner shall appear before the Foreigners Tribunal, Jorhat on 10.04.2019 along with the written statement to be submitted. It is further provided that in the event, the petitioner fails to appear before the Foreigners Tribunal on the aforementioned date or does not cooperate with the Tribunal in any manner, the Tribunal would be at liberty to pass any order against the petitioner as per law. 6. It is also provided that the Tribunal shall give its opinion on the claim of the petitioner within a period of 60(sixty) days thereafter. 7. Writ petition stands allowed to the extent indicated hereinabove.