The court ruled the necessity of proper notice in Foreigners' Tribunal proceedings to secure fair representation, deeming the order ex parte due to inadequate service.

Judgment & Order :

(S.K. Medhi , J.)

Heard Shri A.R. Sikdar, learned counsel for the petitioners. Also heard Ms. A. Verma, learned Standing Counsel, NRC & Home Department; Shri P. Sarma, learned State Counsel and Shri H. Kuli, learned counsel appearing on behalf of Shri A.I. Ali, learned Standing Counsel, ECI.

2. In this writ petition instituted under Article 226 of the Constitution of India, a challenge has been made to an order dated 19.11.2013 passed by the st learned Foreigners' Tribunal (1), Morigaon, Assam in F.T(C) Case No. 162/2008 [Police Reference IM(D)T Case No. 107/01] declaring the petitioners as foreigners post 25.03.1971. It has been projected that the order impugned is an ex parte one.

3. Shri Sikdar, learned counsel for the petitioners, by drawing the attention of this Court to the impugned order dated 19.11.2013, has submitted that the requirement of serving notice upon the petitioners was not fulfilled in accordance with law. In this regard, he has referred to the Foreigners' Tribunal Order 1964, more particularly, Order 3(5)(f). He has also referred to the report of the Process Server dated 16.08.2013, and has contended that a bare perusal of the report would show that though the notice was affixed, as the residence of the petitioners could not be ascertained, there is no clarity as to where such notice was affixed. He has also submitted that the requirement in such a situation is to affix the notice on the outer door of the residence or any other conspicuous part of the house in which the proceedee had last resided.

4. The learned counsel for the petitioners has also urged that the initial reference by the Superintendent of Police (B) was not against the petitioners but their mother, who in the meantime, had passed away. He has therefore assailed the entire reference as such. In this regard, he has relied upon judgment of a Coordinate Bench of this Court reported in 2019 (2) GLT 61 (Sudhir Roy & Ors. Vs. Union of India & Ors.)

5. Per contra, Ms. Verma, learned Standing Counsel, Home Department and NRC has submitted that the plea taken in the writ petition is that the petitioners were not aware of the proceeding is not believable inasmuch as, they were aware of the proceeding ever since the reference was made. She has submitted that the notice by the Tribunal is sent after the initial inquiry of which the petitioners were aware. She has also submitted that the report of the Process Server is clear that the notice was affixed upon finding that the petitioners had left their place of stay. On the aspect of there being no reference against the petitioners, the learned Standing Counsel has submitted that the records would reveal that the initial communication dated 22.02.2001 issued by the Superintendent of Police (Border), Morigaon had mentioned the name of the mother of the petitioner along with other family members. She has accordingly submitted that there is no violation of the principles laid down in the case of Sudhir Roy (supra).

6. The learned counsel for the other respondents have endorsed the submission of Ms. Verma, learned Standing Counsel and have prayed for dismissal of the petition.

7. The rival submissions advanced by the learned counsel for the parties have been duly considered and the materials placed before this Court, including records of the learned Tribunal have been carefully perused.

8. The aspect of service of notice has been laid down in the Orders of 1964, the relevant aspect of which is extracted hereinbelow-

“3(5)(f) - if the proceedee h