Judgment · High Court

The petitioner has challenged the final order dated 22.3.2004 pa ssed in F.T.Case No.1127/2002 by the Foreigners Tribunal, Dibrugarh mainly on t he ground that the Tribunal proceeded ex-parte against the petitioner without p roper service of notice upon the petitioner. The impugned order dated 22.3.2004 held that a substituted service under order 5 rule 20 of the C.P.C. was served on the petitioner as he was found untraceable at the address and since he has re mained absent during the proceeding and failed to discharge his onus to prove th at he is not a foreigner, the Tribunal declared the petitioner to be a foreigner . I have seen the records. Reference was received by the Foreigners Tribunal, Dibrugarh o n 26.2.2004 and notice was issued by the Tribunal returnable on 16.3.2004. On the next date fixed on 16.3.2004, it was observed by the Tribunal that (cid:28) Substi tuted notice served as O.P. was not found. O.P. absent. Fix 22.3.2004.3.2004 for ex-parte order. (cid:29) From the above proceeding, it is clear that the Tribunal issued notice upon the O.P. i.e. the petitioner only on 26.2.2004 and it was proceeded ex-parte on 16.3.2004. In other words, notice was issued to the petitioner only once. Substituted service can be affected only when the Court is satis fied that there is a reason to believe that the O.P. party had been keeping out of the way for the purpose of avoiding service or for any other reason grounds cannot be served in the ordinary way. In the present case, notice was issued only on 26.2.2004 for the first time and on the next date on 16.3.2004, the Tribunal decided to proceed e x-parte on 22.3.2004. Therefore, the finding by the Tribunal that the O.P. party was avoiding notice does not seem to be warranted. In view of the above, this Court is of the opinion that this is a fit case for remand to the Tribunal to consider the matter afresh. Accordingl y, the impugned order dated 22.3.2004 is set aside and the Foreigners Tribunal, Dibrugarh is directed to take a fresh decision as regards the reference made a gainst the petitioner as to whether he is a citizen of India under the provision s of Citizenship Act, 1955. Petitioner is directed to be present on 21.01.2013 before the Fo reigners Tribunal, Dibrugarh for further proceeding. Send back the LC records. With the above observation and direction, this petition stands d isposed of.