Proper procedure for notice service must be strictly followed; deviations are not permissible as established by the Foreigners (Tribunals) Order, 1964.

JUDGEMENT AND ORDER (ORAL)

(S.K. Medhi, J)

Heard Shri G. Jalan, learned counsel for the petitioner. Also heard Shri A.K.Dutta, learned CGC; Shri J. Payeng, learned Standing Counsel, Home Department and NRC; Shri A.I. Ali, learned Standing Counsel, Election Commission of India and Shri P. Sarmah, learned Additional Senior Government Advocate for the State respondent.

2. By means of this petition instituted under Article 226 of the Constitution of India, the petitioner has put to challenge an opinion dated 06.07.2017 passed by the Foreigner’s Tribunal No. 8^TH, Barpeta, Assam, in F.T. Case No. 46/2016 arising out of IM(D)T Reference Case No. 5093(A)/98. By the impugned opinion, the petitioner has been declared a foreigner post 1971.

3. Shri Jalan, the learned counsel for the petitioner has submitted that the principal ground of challenge is that the opinion in question has been passed without giving any reasonable opportunity to the petitioner. He has submitted that admittedly the opinion is an ex-parte one and it proceeded without coming to a conclusion as to whether the notice was indeed served upon the petitioner. He has submitted that the petitioner has been residing in the locality since the year 1985 after her marriage, and also presently staying there. However, neither at any point of time any notice of the proceeding was served upon her nor she was made aware of the same. He has submitted that only recently, in the year 2024, some information was received regarding the impugned opinion whereafter, the petitioner had collected the necessary documents and thereafter, had instituted the present challenge.

4. The learned counsel has submitted that there are adequate evidence to prove her citizenship, if a proper chance is granted to her. He accordingly prays for setting aside the impugned judgment and to remand the same to the learned Tribunal.

5. On the other hand, Shri Payeng, learned Standing Counsel, Home Department and NRC, has submitted that attempts were made to serve notice upon the petitioner and not finding her to the residing in the last known place, the notice was furnished to the concerned Gaonburah and in this connection, a report was given by the Process Server. He has also added that subsequently, warrant of arrest was issued and only thereafter, the present application had been filed. He denies that the petitioner has been able to make out a case that she was wholly unaware of the proceeding and had actually evaded the process.

He therefore prays for dismissal of the writ petition.

6. The learned counsel for the other respondents have endorsed the submissions of the learned Standing Counsel for the Home Department and NRC and reiterated the prayer for dismissal of the writ petition.

7. The contentions advanced by the learned counsel for the rival parties have been duly considered. We have also perused the original records which were requisitioned by this Court vide its order dated 06.12.2024.

8. Without going into the merits of the case with regard to the aspect whether the petitioner is a foreigner or not, we have examined the records on the aspect of service of notice. We have noted that the Process Server had submitted a report on the reverse side of the notice dated 07.03.2016, whereby it has been stated that the proceedee was not found at the last known place of her residence. He has also stated that the Gaonburah of the concerned village, was consulted in this regard.

9. The aspect of service of notice has been laid down in the Foreigners (Tribunals) Order, 1964 [Order of 1964, for short] and the relevant part of the said orde