Gauhati High Court
Pabitra Bala Roy vs Union Of India And 5 Ors on 13 September, 2019
Bench: Manojit Bhuyan, Kalyan Rai Surana
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GAHC010164332019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 4958/2019
1:PABITRA BALA ROY
W/O- RAJESH KUMAR ROY, R/O- VILL- DHORARGHAT PART-II, P.S-
GOLAKGANJ, DIST- DHUBRI, ASSAM
VERSUS
1:UNION OF INDIA AND 5 ORS
REP. BY THE SECRETARY TO THE GOVT OF INDIA, MIN OF HOME
AFFAIRS, SHASTRI BHAWAN, NEW DELHI- 110001
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
HOME DEPTT
DISPUR
GHY- 06
3:THE DEPUTY COMMISSIONER
DHUBRI
PIN- 783301
4:THE SUPERINTENDENT OF POLICE (B)
KAMRUP(M)
PIN- 788001
5:THE ELECTION COMMISSION OF INDIA
NEW DELHI- 110001
6:THE STATE COORDINATOR
NRC
ASSAM
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PIN- 78100
Advocate for the Petitioner : MS. R CHOUDHURY
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE KALYAN RAI SURANA order Date : 13-09-2019 (Manojit Bhuyan, J) Heard Ms. R. Chouhdury, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no. 1. Mr. A. Kalita, learned counsel represents respondent nos. 2, 3 and 4. Ms. A. Borgohain, learned counsel represents respondent no. 5 whereas Ms. A. Verma, learned counsel appears for respondent no. 6.
Petitioner assails ex parte order/opinion dated 02.06.2018 passed by the Foreigners' Tribunal No-5, Kamrup (Metro), Assam at Guwahati, declaring her to be a foreigner, having illegally entered into India (Assam) after 25.03.1971.
Ms. Choudhury submits that the order of the Tribunal was passed without granting opportunity to the petitioner to contest the case and/or opportunity to discharge the burden as required of her under Section 9 of the Foreigners' Act, 1946. It is stated that no notice, whatsoever, was served upon the petitioner.
To test the argument so advanced, we have perused the materials available on record. The Tribunal has recorded that notice was duly served in a substituted manner in the locality as she was not found at her address. However, from the Service Report, at page 24 of the writ petition, it is seen that as the petitioner was not to be found in the address mentioned, therefore, service was effected by means of hanging a copy of the summons on a wall in that area. Apparently, the area is not specified in the Report.
Page No.# 3/4 Having seen the manner of service as recorded in the Report, we are of the considered view that substituted service of notice, as required to be done under para 3(5)(f) of the Foreigners'(Tribunals) Order, 1964, was not complied with. We are also of the view that the petitioner was denied opportunity of hearing to contest the case. It clearly appears that no notice was served on the petitioner by affixing a copy of the notice on the outer door or some other conspicuous part of the house in which the petitioner ordinarily resides or last resided or reportedly resided or personally worked for gain or carries on business.
In view of the above, we set aside the impugned order dated 02.06.2018 with direction to the petitioner to appear before the Foreigners' Tribunal No. 5, Kamrup (Metro), Assam at Guwahati on 03.10.2019. It is stated that the petitioner was taken into custody on 08.05.2019 and is presently lodged at the Kokrajhar District Jail. In this situation, we direct the Deputy Commissioner of Police (Border), Kamrup (Metro), Guwahati to make arrangement for production of the petitioner before the Foreigners' Tribunal No. 5, Kamrup (Metro), Assam on 03.10.2019. On such production, the petitioner may make application for bail along with documents in her support. If such application is filed, the same shall be considered by the Tribunal and necessary order for bail be passed on terms and conditions that may be set down by the Tribunal. It is expected that the Tribunal will fix the next immediate date within a reasonable time, enabling the petitioner to file written statement and documents. We make it clear that, at any rate, the proceedings before the Tribunal shall be concluded within a period of 60 (sixty) days from 03.10.2019. We also make it clear that in the event bail is granted and the petitioner defaults in appearing before the Tribunal on dates to be fixed in the case and also fails to take the required steps, it shall be open for the Tribunal to pass such order or orders as may be deemed fit and proper and in accordance with law.
For the purpose of concluding the reference case within the period specified above, the Tribunal shall act upon the certified copy of this order, which the petitioner is permitted to furnish before the Tribunal on the date of appearance i.e. on 03.10.2019. Petitioner is also permitted to supply a copy of this order to the Deputy Commissioner of Police (Border), Kamrup (Metro), Guwahati, for his doing the needful in terms of the above.
To the extent above, the writ petition stands allowed.
Page No.# 4/4 JUDGE JUDGE Comparing Assistant