Lack of valid service of notice renders an ex-parte proceeding unsustainable in law.

ORDER :

1. Heard Mr. F. Khan, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K.D. Choudhury, learned ASGI for respondent No. 1; Ms. Devi for respondent No. 4 as the learned Standing Counsel, NRC; Mr. A. Bhuyan, learned Standing Counsel, ECI for respondent No. 2; Ms. A. Verma, learned Special Counsel, Foreigners Tribunal for respondent Nos. 3 & 6 and Ms. K. Phukan, learned Govt. Advocate, Assam for respondent No. 5.

2. In this petition, the petitioner has challenged the ex-parte order dated 15.06.2013 passed by the learned Foreigners Tribunal, Dibrugarh in F.T. Case No. 150/DBR/2012 (RE. No. 131/2012] by which the petitioner was declared a foreigner under Sec. 2(a) of the Foreigners Act 1946 who had illegally entered into India (Assam) after 25.03.1971.

3. The grievance of the petitioner is that petitioner was not aware of the said proceeding.

4. Learned counsel for the petitioner has been submitted that the petitioner, who is a resident of Chirang district and had gone to Dibrugarh for work under a contractor. However, after the work, the petitioner came back to his native place in Chirang district. In the meantime, the aforesaid proceeding was initiated before the learned Foreigners Tribunal, Dibrugarh of which he was not aware of as he was not served with notice for the said proceeding before the Foreigners Tribunal.

5. In support of the petitioner's claim, the learned counsel for the petitioner has referred to the report prepared by the Process Server, a copy of which has been annexed as Annexure 2 to the writ petition. The relevant portion of the report of the Process Server reads as follows, With due respect I beg to state that according to the deployment mentioned in the notice when I went to the place and interrogated the locals living there then I came to know that there was no one named as above mentioned person therefore notice could not be served. Hence a copy of notice is affixed on a tree in a populous area in front of two witnesses and another copy is dispatched to the Hon'ble Court.

6. We are of the view that the manner in which the process was sought to be served as mentioned above by affixing on a tree in the village is not contemplated under the law.

7. As regards this defect in the service of summons, Ms. Verma, learned Special Counsel, Foreigners Tribunal also fairly admits that the manner in which the process was sought to be served as reflected in the Process Server's report is not in accordance with law.

8. Learned counsel for the petitioner further submits that the petitioner came to know about the aforesaid ex-parte order only in the month of November, 2021 as mentioned in Para No. 3 of the writ petition.

9. Under the circumstances, this Court is of the view that since there was no valid service of notice upon the petitioner, the ex-parte proceeding cannot be sustained in law even if the said opinion was rendered on 15.06.2013.

10. Accordingly, the present petition is allowed by setting aside the impugned ex-parte order dated 15.06.2013 passed by learned Foreigners Tribunal, Dibrugarh in FT. Case No. 150/DBR/2012 [RE. No. 131/2021].

11. Petitioner is, accordingly, directed to appear before the Foreigners Tribunal, Dibrugarh on or before 10.02.2022 and will file his written statement and necessary documents in support of his claim that he is an Indian citizen, not a foreigner. The learned Tribunal after hearing the petitioner and on the basis of appreciation of the evidence that may be adduced by the petitioner will render a fresh opinion as regards the citizenship of the petitioner.

12. Since the citizenship of the petitioner is under cloud, he will appear before the Superintendent of Police (Border), Dibrugarh within 15 (fifteen) days and furnish a bail bond of Rs. 5,000/- (Rupees five thousand) with one local surety of the like amount to the satisfaction of the said authority where after he shall be allowed to remain on bail. On such appearance, the Super