Gauhati High Court
Kamala Das vs The Union Of India And 5 Ors on 5 February, 2024
Author: M.R.Pathak
Bench: Manash Ranjan Pathak, Sanjay Kumar Medhi
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GAHC010226892019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7090/2019
KAMALA DAS
W/O NITAI DAS, R/O VILL. PACHIM HAHINI, UNDER THE HARISINGHA
REVENUE CIRCLE, P.O. TANGLA, DIST. UDALGURI, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, SHASTRI BHAWAN, NEW DELHI-01
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT.OF ASSAM
HOME DEPTT. DISPUR
GUWAHATI-6
3:THE DEPUTY COMMISSIONER
UDALGURI
BTAD
P.O. AND DIST. UDALGURI
ASSAM
PIN-784509
4:THE SUPERINTENDENT OF POLICE (B)
UDALGURI
P.O.AND DIST. UDALGURI
BTAD
ASSAM
PIN-784509
5:THE ELECTION COMMISSION OF INDIA
NEW DELHI
TO BE REP. BY CHIEF ELECTION COMMISSIONER OF INDIA
NEW DELHI-01
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6:THE STATE COORDINATOR OF NATIONAL REGISTRAR OF CITIZEN
ASSAM
BHANGAGARH
LACHIT NAGAR
GUWAHATI-
Advocate for the Petitioner : DR. B AHMED
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
ORDER
05-02-2024 (M.R.Pathak, J) Heard Mr. A. U. Ahmed, learned counsel for the petitioner and Mr. A. Kalita, learned Standing Counsel, Home Department, Assam for the respondent Nos. 2 and 4. Also heard Mr. P. Sharma, learned Additional Senior Government Advocate, Assam for the respondent No. 3 as well as Mr. A. I. Ali, learned Standing Counsel, Election Commission of India for the respondent No.5.
2) On being referred by the Superintendent of Police (Border), Udalguri, the learned Member, Foreigners' Tribunal, Udalguri, BTAD, Assam in FT (DV) Case No. UDL/FT/1768/2015 vide the impugned ex-parte final order dated 06.07.2019 declared the petitioner to be a foreigner under the Foreigners Act, 1946, who had illegally entered into India (Assam) on or after 25.03.1971 from Page No.# 3/6 the specified territory of Bangladesh.
3) Dissatisfied with the said impugned ex-parte final order dated 06.07.2019, the petitioner has filed this writ petition on 13.09.2019 stating that she was not aware of the said ex-parte final order, as the notice of said FT (DV) Case No. UDL/FT/1768/2015 was not served upon her.
4) It is also contended by the petitioner that the notice was not served at the proper address, wherein, the petitioner is presently residing.
5) Perused the record of said FT (DV) Case No. UDL/FT/1768/2015 in original, that was called for vide order dated 16.10.2023.
6) On perusal of the record, we have seen that the notice of said FT (DV) Case No. UDL/FT/1768/2015 was issued to its proceedee (the present petitioner) on 07.03.2018 vide issue No. UDL/FT/2018/3013 in the address -- Kamala Das, wife of Nitai Das, Village - Kowlibhanga, P.S. - Tangla, District - Udalguri and on his visit to the village mentioned in the notice, the concerned process server did not find the proceedee and the villagers of the said village as well as the Secretary of the Village Defence Council (VDC, in short) of the said village could not provide him with any clue of the noticee, the said notice could not be served. As such, the said process server serving a copy of the said notice dated 07.03.2018 on the Secretary of the VDC of Village - Kowlibhanga, returned the said notice to the Tribunal as "un-served".
7) Thereafter, the Tribunal on 25.01.2019 vide No. UDL/FT/2019/034 issued a fresh notice of the said case to the proceedee, but in the same address and the process server on visiting the said village on 07.03.2019 enquired about the proceedee from the Gaonburha (Village Headman) of Village - Kowlibhanga, who, in turn, informed the process server that no person by the said name Page No.# 4/6 mentioned in the notice resides in his village. As the notice could not be served on the proceedee, the said process server by way of latkai-jari, i.e., hanging the said notice, in a public place of the said village obtaining the signature of its Government Gaonburha with his seal, signature and date returned those notice to the Tribunal concerned with his report in that regard.
8) However, the Tribunal after considering the said report of the process server dated 07.03.2019 regarding such service of notice on the petitioner came to the conclusion that notice was duly served upon the proceedee through latkai-jari, i.e., in the hanging mode and in spite of that the proceedee failed to take step in the case and as such the learned Tribunal by its order dated 17.06.2019 fixed the said case on 06.07.2019 for ex-parte hearing and final order.
9) The said Foreigners' Tribunal, Udalguri on 06.07.2019 finding the petitioner absent passed the impugned ex-parte final order.
10) Order 3(5) of the Foreigners (Tribunals) Orders, 1964 relates to service of notice to a proceedee in a case relating to the Foreigners' Act, 1946. The Full Bench of this Court in the case of State of Assam and other Vs. Moslem Mondal and others, reported in 2013 (1) GLT 809, decided on 03.01.2023, at para 102 also laid down the procedure regarding service of notice on a proceedee/opposite party in a Foreigners' Tribunal Case applicable to all the proceedings pending before such Tribunal where notices are either yet to be issued or issued but not yet served.
11) On perusal of the said report of the concerned process server dated 07.03.2019, we found that the notice of the said FT (DV) Case No. UDL/FT/1768/2015 issued by the Foreigners' Tribunal, Udalguri, was not duly Page No.# 5/6 served on its/opposite party proceedee, i.e., the petitioner herein in terms of the provisions as specified under Order 3(5) of the Foreigners (Tribunals) Orders, 1964 as well as decision of the Full Bench of this Court in the case of Moslem Mondal (supra).
12) Accordingly, we set aside the impugned ex-parte Final Order dated 06.07.2019 passed by the learned Member, Foreigners' Tribunal, Udalguri, Assam in FT (DV) Case No. UDL/FT/1768/2015.
13) Since the petitioner has now come to know about the proceeding of said FT (DV) Case No. UDL/FT/1768/2015 pending against her, she shall now appear before the learned Member, Foreigners' Tribunal, Udalguri, BTAD, Assam in said FT (DV) Case No. UDL/FT/1768/2015 on 23.02.2024 along with a certified copy of this order. On her such appearance, as directed above, the petitioner shall file her Written Statement along with the Evidence-in-Affidavit in said FT (DV) Case on the said date i.e., on 23.02.2024. Thereafter, the petitioner shall regularly appear in the said FT (DV) Case No. UDL/FT/1768/2015 on the dates so fixed by the learned Member, Foreigners' Tribunal, Udalguri till its disposal.
14) On such appearance of the petitioner, as directed above, the Foreigners' Tribunal, Udalguri shall dispose of the said FT (DV) Case No. UDL/FT/1768/2015 within the time as prescribed under the Foreigners' Act, 1946.
15) However, we make it clear that failure on the part of the petitioner to appear before the Foreigners' Tribunal, Udalguri in said FT (DV) Case as directed above, the said Foreigners' Tribunal concerned shall be at liberty to dispose of the said FT (DV) Case No.UDL/FT/1768/2015 in accordance with law.
16) With the above observations and directions, this writ petition stands disposed of.
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17) Registry shall send back the record of said FT (DV) Case No. UDL/FT/1768/2015 forthwith to the Foreigners' Tribunal, Udalguri, BTAD, Assam, along with a copy of this order.
JUDGE JUDGE Comparing Assistant