Not properly served notice': Gauhati HC sets aside Ex-Parte Foreigners' Tribunal's order declaring man as Foreigner

  

The Gauhati High Court recently comprising of a Bench of Justices Kotiswar Singh and Malashri Nandi set aside an ex-parte order by a foreigners' tribunal declaring a Silchar resident as a foreigner after noting that the tribunal had failed to properly serve notice thus rendering the proceedings illegal. (Jantu Das v. Union of India)

The bench observed, "We have found that the petitioner was not properly served notice before the Tribunal proceeded with the matter ex-parte, we are of the opinion that the petitioner may be afforded another opportunity to appear before the learned Foreigners Tribunal to prove his case."

Facts of the case

The Court was adjudicating upon a plea moved by one Jantu Das challenging an ex-parte order passed by the foreigners Ex-Parte  tribunal-4th, Cachar at Silchar on September 18, 2017. The impugned order stated that notice had been served to the petitioner however no representation had been made on behalf of the petitioner subsequently. Furthermore, the impugned order asserted that since written statement had not been filed by the petitioner, ex-parte proceedings had been initiated against him.

Contention of the Parties

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The counsel appearing for the petitioner contended that the petitioner had never received any notice from the Foreigners Tribunal and accordingly the ex-parte order is liable to be set aside. He further argued that there exists sufficient evidence on record which would show that he is an Indian citizen and not a foreigner.

Courts Observation and Judgment

The Bench observed that pursuant to a perusal of the copy of summons, it is evident that the summons had been received by one Sukesh Das C/o Srikrishna Das. However, the Bench noted that the counsel appearing for the petitioner had submitted that though Srikrishna Das is the name of the petitioner's father but there is no relative in name of the Sukesh Das who had apparently put his signature on the summons.

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The Court remarked, "From the records, it is clearly seen that since the petitioner Jantu Das himself did not receive summons but by somebody who put his signature as Sukesh Das, it is incumbent upon the Process Server to indicate the relationship of the said Sukesh Das who had put the signature on the notice".

During the proceedings, the counsel for the State had failed to apprise the Bench about the identity of Sukesh Das and accordingly, the Court ruled that notice had not been properly served to the petitioner thus rendering subsequent proceedings illegal.

Furthermore, the Court observed that a copy of the identity card of the petitioner issued by the competent authority on August 3, 1964 shows that the name of his father is Srikrishna Das which appears along with his grandfather's name Jaduram Das who had been recorded to have migrated to India on August 1, 1964 and registered on August 3, 1964. Subsequently, they had been issued Camp Registration No. 1522 by the competent authority. It was also noted that the petitioner had submitted a copy of the voters list of 1989 and the voters list of 2016 which shows that name of his father is Srikrishna Das.

The Court noting that the impugned order must be set aside accordingly observed, "We are also of the view that if the petitioner is able to prove the aforesaid documents in accordance with law, he can certainly make a legitimate claim that he is an Indian citizen, not a foreigner. Be that as it may, as we have found that the petitioner was not properly served notice before the Tribunal proceeded with the matter ex-parte, we are of the opinion that the petitioner may be afforded another opportunity to appear before the learned Foreigners Tribunal to prove his case"

The court disposing of the petition noted, "Petitioner will appear before the aforesaid Foreigners Tribunal on or before 17.01.2022 and may file his written statement and relevant documents and also adduce evidences in support of his claim that he is an Indian, not a foreigner.

Thereafter, the learned Foreigners Tribunal will proceed with the matter in accordance with law and pass appropriate opinion in that regard."

Read Order  

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(With input from news agency language)

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