ABDUL SALAM SHEK v. THE UNION OF INDIA & Ors.

:: BEFORE :: HON’BLE MR. JUSTICE MANASH RANJAN PATHAK HON’BLE MR. JUSTICE PARTHIVJYOTI SAIKIA O R D E R

18.07.2022 (Parthivjyoti Saikia, J) Heard the learned counsel Mr. N. Haque appearing for the petitioner. Also heard Ms. K. Phukan, learned Government Advocate; Ms. L. Devi, learned Standing Counsel, NRC; Mr. B. Chakraborti, learned Central Government Counsel; Mr. A.I. Ali, learned Standing Counsel, Election Commission of India and Mr. G. Sarma, learned Standing Counsel, Foreigners’ Tribunal, Assam.

2. This is an application under Article 226 of the Constitution of Indian whereby the ex parte order dated 12.05.2022 passed by the Foreigners’ Tribunal-III, Barpeta in F.T. Case No.3232(III)/2016 is put to challenge.

3. The impugned order reads as under: “Upon receiving of the reference by the Tribunal, registering a F.T. Case no.3232/2016, notice was served upon the proceedee Md. Abdul Salim @ Abdul Salam S/o- Lt. Sayed Ali SK Vill- Chaparbari, P.S.- Sarthebari, Dist- Barpeta. The notice was served to proceedee but not found. The police submitted a report that the proceedee has not found after searching. The Gaongurah also issued a certificate stating that the proceedee is not available in the said village. During the enquiry by the Police in the year 2001 the proceedee found in the said village. The proceedee also not produced documents in support of the bonafide citizen of India. It also reveals in the case record sufficient prima facie material against proceedee. The proceedee has left the village without prior intimation to the investigating agency. Under the Foreigners Act, 1946, the burden of proof lies upon the proceedee. As such, the Tribunal have no alternative way except declaring the proceedee to be an illegal migrant, the Tribunal declared the proceedee as a foreigner under the provisions of Foreigners Act, 1946. The referral authority may take necessary action against the proceedee after tracing out.”

4. We have given our anxious considerations to the submissions made by the learned counsel for both sides.

5. The Foreigners (Tribunals) Order, 1964, which was promulgated under Order 3 of the Foreigners Act 1946, prescribes the procedure to be followed by the Foreigners’ Tribunals. Order 3 of the Order of 1964 is relevant at this stage. The mode of service of notice, when the proceedee is not available, as provided under Order 3(5) of the Foreigners' (Tribunals) Order, 1964, reads as follows:- "3. Procedure for disposal of questions - (1) … … … … … … ... ... ... ... ... ... (5)(a) The notice shall be served at the address where the proceedee last resided or reportedly resides or works for gain, and in case of change of place of residence, which has been duly intimated in writing to the investigating agency by the alleged person, it shall be served at such changed address by the Foreigners Tribunal; (b) 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; (c) where the notice is served on the adult member of the family of the proceedee, the process server shall obtain the signature or thumb-impression of the adult member on the duplicate of the notice as a token of proof of the service; (d) if the adult member of the family of the proceedee refuses to put a signature or the thumb-impression, as the case may be, the process server shall report the same to the Foreigners Tribunal; (e) if the proceedee or an available adult member of his or family refuses to accept the notice, the process server shall give a report to the Foreigners Tribunal in that regard along with the name and address of a person of the locality, who was present at the time of making such an effort to get the notices served, provided such person is available and willing to be a witness to such service and the process server shall obtain the signature or thumb impression of such witness, if he or she is present and willing to sign or put his or her thumb-impression, as the case may be; (f) if the proceedee has changed the 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 or personally worked for gain or carries on business, and shall return the original to the Foreigners Tribunal from which it was issued with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did do, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed; (g) where the proceedee or any adult member of his or her family or her is not found at the residence, a copy of the notice shall be pasted in a conspicuous place of his or her residence, witnessed by one respectable person of the locality, subject to his or her availability and willingness to be a witness in that regard and the process server shall obtain the signature or the thumb-impression of that person in the manner in which such service is affected; (h) where the proceedee resides outside the jurisdiction of the Foreigners Tribunal, the notice shall be sent for service to the officer in-charge of the police station within whose jurisdiction the proceedee resides or last resided or is last known to have resided or worked for gain and the process server shall then cause the service of notice in the manner as provided hereinabove; (i) if no person is available or willing to be the witness of service of notice or refuses to put his or her signature or thumb-impression the process server shall file a signed certificate or verification to that effect, which shall be sufficient proof of such non-availability, unwillingness and refusal; (j) on receipt of the signed certificate or verification referred to in clause (i) the Foreigners Tribunal shall return such reference with such directions as it thinks fit to the competent authority for tracing out the proceedee and produce before the said Tribunal."

6. On a plain reading of the impugned order, it is clear that the Tribunal did not follow the law as laid down in Order 3(5) of the Foreigners (Tribunals) Order, 1964. The impugned order states that the proceedee was not found in his given address. In the year 2001, the proceedee lived in the village Chaparbari, P.S. Sarthebari, Dist- Barpeta, and the notice was issued in that address. This time he was not found in that address. Therefore, Order 3(5) of the Order of 1964 should have been complied with by the Tribunal. This was not done by the Tribunal. Therefore, the impugned order is bad in law. For this reason, the impugned ex parte order dated 12.05.2022 noted above is set aside.

7. The petitioner expressed his intention to contest the proceeding before the Tribunal. The prayer of the petitioner is allowed. The petitioner is directed to appear before the Foreigners’ Tribunal-III, Barpeta in F.T. Case No.3232(III)/2016 on or before 18th of August, 2022 along with his written statement and the evidence(s) of his witness(es). The petitioner shall produce a certified copy of this order in the Tribunal.

8. With the aforesaid direction the present writ petition stands disposed of. Comparing Assistant JUDGE JUDGE