Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 8 (GAU)

Jahida Khatoon D/o Ainul Haque v. Union of India

2019-01-04

ACHINTYA MALLA BUJOR BARUA, PRASANTA KUMAR DEKA

body2019
JUDGMENT : A.M. BUJOR BARUA, J. 1. Heard Mr. S. Banik, learned counsel for the petitioner. Also heard Mr. A Ali, learned counsel for the Election Commission of India, Mr. A. Kalita, learned standing counsel for the State of Assam appearing for the Foreigners Tribunal and Border matters, Ms. U. Das, 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. The petitioner being aggrieved by the order dated 21.08.2015 of the Foreigners Tribunal, Tinsukia in Case No. F.T.1296(D)/2006 has approached this court by way of this writ petition. By the order dated 21.08.2015, the Foreigner Tribunal at Tinsukia 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 learned Tribunal had declared the petitioner to be a foreigner by providing that she may register her name in the Foreigners Registration Office within a period of two months there from. 3. As the said order was passed ex-parte, it is the claim of the petitioner that she had no knowledge of the order passed against her and as such could not get herself registered with the Foreigners Registration Office. In the circumstance, this writ petition has been preferred on the grievance that as the petitioner had not registered herself with the Foreigners Registration Office, therefore, in the voters’ list the status of the petitioner is indicated as “D”. 4. We have perused the records before the learned Tribunal and from the report of the process server dated 18.08.2014, it is seen that the petitioner could not be found at the given address for the purpose of service of notice and, therefore, the notice was hung. 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. 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. Considering the above, we are of the view that the order dated 21.08.2015 of the Foreigners Tribunal, Tinsukia in Case No. F.T.1296(D)/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, Tinsukia for an appropriate adjudication of the claim of the petitioner. For the purpose, the petitioner shall appear before the Foreigners Tribunal, Tinsukia on 28.01.2019. It is further provided that in the event, the petitioner fails to appear before the Foreigners Tribunal on the aforementioned date, the Tribunal may proceed against the petitioner as per law. 7. 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. 8. Writ petition stands allowed to the extent indicated hereinabove.