MUSSTT NAJIMA BEGUM ALIAS NAZIMA BEGUM v. THE UNION OF INDIA AND ORS

Advocate for the Petitioner : MR. R ALI, MR H A AHMED,MR. MUSTAFA HUSSAIN Advocate for the Respondent : DY.S.G.I., SC, ECI,SC, NRC,SC, F.T,GA, ASSAM Page No.# 2/7 BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE K. SEMA ORDER Date : 25.06.2025 (K.R. Surana, J) Heard Mr. R. Ali, learned counsel for the petitioner. Also heard Mr. B. Chakraborty, learned CGC, representing respondent no.1; Ms. A. Verma, learned standing counsel for FT matters, representing respondent nos. 2, 4 and 6; Mr. P. Sarmah, learned Addl. Senior Government Advocate, representing respondent no. 3; and Mr. H. Kuli, learned counsel, appearing on behalf of Mr. A.I. Ali, learned standing counsel for respondent no.5. 2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned ex parte opinion dated

06.06.2016, passed by the learned Member, Foreigners Tribunal No.4th, Darrang, Mangaldai in F.T. (4th) Case No. 50/2015 [arising out of S.P. Enquiry No. IM No. 4835/98], by which the petitioner, namely, Musstt. Nazima Begum @ Najima Begum, wife of Faraz Ali of village- Khataniapara, P.S. Dhula, District- Darrang, was declared to be a foreigner of post 25.03.1971. 3) The learned counsel for the petitioner has submitted that the notice issued by the Foreigners Tribunal was not served on the petitioner. It was submitted that in flagrant violation of the provisions of Paragraph 3(5)(a) of the Foreigners (Tribunals) Order, the process server had served it to Sukur Ali, the petitioner’s brother-in-law (i.e. husband’s brother), despite being informed that Page No.# 3/7 the petitioner had shifted from village Khataniapara to village- Downia Gaon. It was further submitted that the petitioner had some marital discord with her husband, forcing her to live separately. Therefore, neither the husband of the petitioner nor her brother-in-law had informed the petitioner about service of notice of the proceedings. Thus, it was submitted that the ex parte opinion was passed due to erroneous service of notice in violation of the procedure prescribed in the Foreigners (Tribunals) Order, 1964 for which the impugned opinion is liable to be set aside and the petitioner be granted a reasonable opportunity to contest the proceeding. 4) Per contra, the learned standing counsel for the FT matters has made his submissions to oppose the challenge and in support of the impugned opinion. 5) Pursuant to the order dated 19.05.2025 and 16.06.2025, the records of F.T. (4th) Case No. 50/2015 has been received. On a perusal of the said record, it is seen that earlier, vide memo no. FT-273/11 dated 03.05.2011, a notice in connection with Case No. 500/11 was issued by the learned Foreigners Tribunal, Darrang, Mangaldai, requiring appearance of the petitioner on 26.05.2011. Two police personnel had visited the address of the petitioner and they were informed by the Gaonburah that the petitioner had severed her relation with her husband and is residing at her parental home. The rough English translation of the note by the Gaonburah is as follows:- “The person named in the notice has separated from her husband and is residing at her father’s house. Father’s house is at Namrup. She is not within his area. Sd/- (illegible) Gaonburah Page No.# 4/7 Vill – Khataniapara P.O. & P.S. Dhula” 6) It appears from the order dated 13.08.2015, passed by the learned Tribunal that the proceeding was received by the learned Foreigners Tribunal (4th), Mangaldai and the case was re-registered as Case No. F.T. (4th) 50/2015. Thereafter, a fresh notice was issued upon the petitioner at her matrimonial home at Village- Khataniapara, vide memo no. FT/4th/50/2015/67 dated 18.08.2015. However, vide process service’s report dated 04.09.2015, it was reported that at present the proceedee has shifted to Vill. Downia Gaon and residing there. Therefore, as her family is residing at Vill. Khataniapara, the notice was served on her brother-in-law. A rough English translation of the process server’s report dated 04.09.2015, is as follows:- “The humble submission is that when I went to village Khataniapara to serve the notice, I came to know that at present they have shifted to Vill- Downia Gaon and residing there. But as her family members are residing at Vill- Khataniapara, therefore, the notice has been served to her brother-in-law as she was not found, and explained the date of notice to him and the copy of service report is submitted before the Court.” 7) Thus, the records reveal that the petitioner has been living separately from her husband at least between March, 2011 to 04.09.2015. 8) The manner in which the process is served is found to be in accordance with law. However, in this case, the two process server’s reports referred above, leads to an acceptable presumption that the petitioner has been living separated from her husband at least between March, 2011 to 04.09.2015. Hence, the Court is of the considered opinion that the petitioner has been able to demonstrate that she may not have actually received the notice of the learned Tribunal. Accordingly, the Court is of the further opinion that the Page No.# 5/7 petitioner is entitled to at least one opportunity to contest the proceeding by submitting her written statement of defence and her evidence in the case. 9) Therefore, without finding any fault whatsoever, in the opinion impugned herein, the impugned opinion dated 06.06.2016, passed by the learned Member, Foreigners Tribunal No.4th, Darrang, Mangaldai in F.T.(4th) Case No. 50/2015 [arising out of S.P. Enquiry No. IM No. 4835/98], by which the petitioner, namely, Musstt. Nazima Begum, wife of Faraz Ali of village- Khataniapara, P.S. Dhula, District- Darrang, was declared to be a foreigner of post 25.03.1971, is conditionally set aside so as to provide one opportunity to the petitioner to file her written statement and contest the proceeding against her. 10) The conditions attached to this conditional order are as follows:- a. That unless a certified copy of this order is produced and filed before the Foreigners Tribunal (4th), Mangaldai, this order shall not become enforceable or effective on the said learned Tribunal. In other words, this order shall come into force as soon as a certified copy of this order is produced before the said learned Tribunal. b. The petitioner shall appear before the said learned Tribunal without any default or fail on or before 16.07.2025, without requiring any notice of appearance and shall submit her written statement of defence together with copies of all documents on which she intends to rely upon. It is clarified that as this order is passed in the presence of the petitioner’s advocate, there would be no requirement of issuance of any notice to the petitioner for appearance and to file her written statement. Page No.# 6/7 c. On failure of the petitioner to appear and file her written statement of defence within the date fixed by this order, the learned Tribunal will be at liberty to treat the petitioner as absent on call and/or in willful default in appearing and/or filing her written statement before the said learned Tribunal. d. Resultantly, it would be permissible for the said learned Tribunal to pass an appropriate order to restore back the opinion dated

06.06.2016. e. On the proceeding being contested by the petitioner, it would be permissible for the said learned Tribunal to fix short dates and curtail unnecessary adjournments as the proceedings before the learned Tribunal was initially registered in the year 2011. f. The petitioner shall also produce a certified copy of this order and certified copy of order that may be passed by the learned Foreigners Tribunal after first appearance of the petitioner, before the Superintendent of Police (Border), Darrang, Mangaldai during office hours. g. On appearance of the petitioner before the Superintendent of Police (Border), Darrang, Mangaldai, the said authority shall obtain the biometrics of the iris of both eyes, the fingerprints of both hands and the photographs of the petitioner. 11) The original records received on requisition from the said learned Tribunal shall be expeditiously returned back along with a copy of this order to be made a part of the record. 12) The parties are left to bear their own cost. 13) The learned standing counsel for the FT matters shall send a downloaded copy of this order to the (i) the Home & Political (B) Department, and to (ii) the Superintendent of Police (Border), Darrang, Mangaldai for information and record. Page No.# 7/7 JUDGE JUDGE Comparing Assistant