Failure to properly serve notice under the Foreigners (Tribunals) Order, 1964 renders Tribunal opinions invalid, requiring adherence to legal service protocols.

JUDGMENT :

SANJAY KUMAR MEDHI, J.

1. Heard Shri S. Islam, learned counsel for the petitioner. Also heard Shri G. Sarma, learned Standing counsel, Home Dept. and NRC, Shri M.R. Adhikari, learned CGC, Shri P. Sharma, learned Addl. Senior Government Advocate and Ms. S. Katakey, learned Standing Counsel, ECI.

2. Considering the subject matter involved and as agreed to by the learned counsel for the parties, the instant writ petition is taken up for disposal at the motion stage itself.

3. The instant petition under Article 226 of the Constitution of India has been filed challenging an opinion dated 28.08.2024 passed by the learned Foreigners Tribunal No. 7th, Barpeta in F.T. Case No. 384/2019 (reference F.T. Case No. 1036/04). By the aforesaid opinion, the petitioner has been declared an illegal migrant post 1971 stream.

4. Shri Islam, the learned counsel for the petitioner has primarily based the present challenge on the contention that the impugned order has been passed ex parte against the petitioner without giving any reasonable opportunity.

5. By drawing the attention of this Court to the impugned opinion, the learned counsel has submitted that though there is an observation that notice was deemed to be served as per the provisions of Order 3 (5)(f) of the Foreigners (Tribunals) Order, 1964, (hereinafter, the Order of 1964) there was no fulfilment of the aforesaid provision of law. He has submitted that as per the impugned opinion itself, the copy of the notice was affixed in the Office of the Gaonburah which is not one of the prescription of the law relating to service of notice. He has submitted that due to the lack of information regarding the proceeding, the petitioner could not contest the same resulting in the impugned opinion.

6. Shri G. Sarma, the learned Standing Counsel has fairly submitted that though certain observations have been made in the impugned opinion regarding service of notice upon the petitioner proceedee, the same does not appear to be in strict conformity of the requirement of Order 3 (5) (f) of the Order of 1964. He submits that in case the proceedee changes the place of residence or place of work, notice has to be affixed on the outer door or some other conspicuous part of the house where the proceedee ordinarily resides.

7. The learned counsel for the other respondents have also endorsed the aforesaid position of law:

Order 3 (5) (f) of the Foreigners (Tribunals) Order, 1964 reads as follows.

3. Procedure for disposal of questions.

(1) ……

(5) (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.

8. The said order is in connection with service of notice to a proceedee in a situation where the proceedee changes his place of residence or place of work without intimation. The requirement is to affix a copy of such notice on the outer door or some other conspicuous part of the house where the proceedee ordinarily or last resided.

9. In the instant case, it is not in dispute that the notice was affixed on the Office of the Gaonburah which