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2019 DIGILAW 80 (GAU)

ATABUR RAHMAN v. UNION OF INDIA

2019-01-23

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

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JUDGMENT : A.M. BUJOR BARUA, J. 1. Heard Mr. A.R. Sikdar, learned counsel for the petitioners. Also heard Mr. A.I. Ali, learned counsel for the Election Commission of India, 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 a reference being made by the Superintendent of Police, Border of Morigaon, F.T. Case No.134/2016 was registered against the petitioners in the Foreigners’ Tribunal No.3 Morigaon. 3. The petitioners being aggrieved by the order dated 31.08.2017 of the Foreigners Tribunal, No.3 Morigaon, Assam in F.T. Case No.134/2016 has approached this court by way of this writ petition. By the order dated 31.08.2017, the Tribunal arrived at a conclusion that as the petitioners did not appear on the date fixed for their appearance nor did they adduce any evidence to discharge their burden of proof, therefore, they be declared to be foreigners. 4. As the order 31.08.2017 was passed ex-parte, it is the claim of the petitioners that they had no knowledge of the order passed against them and in the circumstance, this writ petition has been preferred on the grievance that the ex-parte order dated 31.08.2017 declaring the petitioners as foreigners be set aside. 5. In the judgment and order dated 31.08.2017, it is discernible that when the petitioner was not found in the address given in the notice, the notice was hanged on a tree in a public place. Paragraph-2 of the said judgment is as follows:- “The process Servers namely C/n (B) Dipak Kr. Patarand C/n (B) Dina Borah asper their service report dated 16.05.2016 went to the given address of the Opposite Parties to serve the sum on but the Opposite Parties could not be found at the said given address and when inquired by the process server the Gaonbura said that there is no such person and is not known to them and as such the said Summon/Notice has hanged upon a tree of the public place, in presence of local government Gaonbura and local witness.” 6. In this regard, we have taken note of the provisions of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964 which, interalia, 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 petitioners 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. 7. Considering the above, we are of the view that the order dated 31.08.2017 of the learned Foreigners’ Tribunal No.3 Morigaon in F.T. Case No.134/2016 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 No.3 Morigaon for an appropriate adjudication of the claim of the petitioners. For the purpose, the petitioners shall appear before the Foreigners Tribunal No.3 Morigaon, Assam on 21.02.2019 along with the written statement. It is further provided that in the event, the petitioners fail to appear before the Foreigners Tribunal No.3, Morigaon on the aforementioned date, the Tribunal may proceed against the petitioners as per law. 8. It is also provided that the Tribunal shall give its opinion on the claim of the petitioners within a period of 60(sixty) days thereafter. 9. Writ petition stands allowed to the extent indicated here in above.