Gauhati High Court
Md. Sukur Ali vs The Union Of India And 5 Ors on 11 February, 2021
Bench: N. Kotiswar Singh, Soumitra Saikia
Page No.# 1/4
GAHC010010852021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/488/2021
MD. SUKUR ALI
S/O LATE ASSAR UDDIN
RESIDENT OF VILLAGE NO. 1 KAPLABARI, PS MUKALMUWA, DIST
NALBARI, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE MINISTRY OF HOME AFFAIRS, NEW DELHI 1
2:STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI
3:DEPUTY COMMISSIONER
NALBARI
4:SUPERINTENDENT OF POLICE (B)
NALBARI
5:ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTION COMMISSIONER
NEW DELHI
6:THE STATE CO ORDINATOR
Page No.# 2/4
NATIONAL REGISTER OF CITIZENS (NRC) BHANGAGARH
GUWAHATI 78100
Advocate for the Petitioner : MR. D P CHALIHA
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
:: O R D E R ::
11.02.2021 [N. Kotiswar Singh, J] Heard Mr. D. P. Chaliha, learned senior counsel assisted by Ms. M. Roy, learned counsel for the petitioner. Also heard Mr. B. Deka, learned Central Government Counsel appearing for respondent No. 1; Mr. J. Payeng, learned Special Counsel, FT for respondent Nos.2, 3 and 4;
Ms. B. Das, learned Standing Counsel, ECI for respondent No.5 and Ms. L. Devi, learned Standing Counsel, NRC for respondent No.6.
2. The present petition has been filed by the petitioner being aggrieved by the order dated 25.06.2019 passed by the learned Member, Foreigners Tribunal No.3, Nalbari in F.T. (Nal.)-3 Case No. 692/2018, by which the matter has been proceeded ex-parte against the petitioner on the ground that the petitioner did not appear inspite of service of notice.
3. After the petitioner came to know about the adverse opinion of the Member, Foreigners Tribunal No.3, Nalbari, the petitioner approached the Tribunal by filing Misc. Case, being Misc. Case No.04/2020 urging the Tribunal to re-hear on the ground that notice had not really served upon him.
4. Learned Tribunal, however, after going through the records was not convinced of the same and rejected the Misc. Case, compelling the petitioner to approach this Court by filing this writ petition.
5. Though we are yet to issue notice and records which are yet to be requisitioned, Page No.# 3/4 learned senior counsel for the petitioner has produced a certified copy of the record relating to service of notice, which indicates that the notice could not be served to the petitioner on various occasions by the process server because of which the process server fixed the notice on a tree in the village junction.
6. The said certified copy of the record has also been shown to Mr. J. Payeng, learned Special Counsel, FT.
7. As to how process and notice is to be served upon a proceedee is provided under Order 3 of the Foreigners (Tribunals) Orders, 1964.
Order 3(5) provides, amongst others, that if the proceedee is not found at the address at the time of service of notice, the notice may be served on any adult member of the family of the proceedee and it shall be deemed to be served on the proceedee. Further, it also provides if the proceedee has changed 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.
Thus, it was incumbent upon the authorities to ensure that notice was properly served in the manner stipulated under the Order.
There is no such provision for affixing the notice on a tree in the village. Affixing can be done only on the outer door or the conspicuous part of the house. Had the tree on which the notice was affixed been inside the compound of the petitioner, the matter could have been otherwise.
8. Accordingly, we are of the opinion that notice had not been properly served upon the petitioner as contemplated under the Rules.
9. In that view of the matter, we have no other alternative but to set aside the impugned orders dated 21.11.2020 passed in Misc. Case No. 04/2020 as well as the order dated 25.06.2019 passed in F.T. (Nal)3 Case No. 692/2018 passed by the learned Member, F.T.(Nal) No.3, Nalbari.
10. The matter is, accordingly, remanded to the learned Foreigners Tribunal No.3, Nalbari Page No.# 4/4 for fresh consideration for which the petitioner will appear before the Foreigners Tribunal No.3, Nalbari on or before 26.02.2021 for filing his written statement and other documents in support of his claim.
11. With the above observation and direction, the present petition is allowed.
JUDGE JUDGE Comparing Assistant