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THE GAUHATI HIGH COURT, (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
SANJAY KUMAR MEDHI, SUSMITA PHUKAN KHAUND
Lal Bhanu Nessa Daughter Of Lt. Afaj Uddin – Appellant
Versus
Union Of India, Represented By The Secretary, Ministry Of Home Affairs – Respondent
JUDGEMENT
S.K. Medhi, J.
1. 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 TH by the Foreigner’s Tribunal No. 8 , 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 y
The court reaffirmed the necessity of adhering to prescribed legal procedures for notice service, emphasizing the right to contest findings affecting citizenship.
Proper procedure for notice service must be strictly followed; deviations are not permissible as established by the Foreigners (Tribunals) Order, 1964.
Failure to properly serve notice under the Foreigners (Tribunals) Order, 1964 renders Tribunal opinions invalid, requiring adherence to legal service protocols.
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.
The main legal point established in the judgment is that the service of notice must be proper, and the rejection of a prayer for vacating an ex parte order should not be merely on technical grounds.
Lack of valid service of notice renders an ex-parte proceeding unsustainable in law.
The burden of proving citizenship lies with the proceedee under Section 9 of the Foreigners Act, 1946, and failure to participate in proceedings results in the declaration of foreigner status.
The burden of proof for citizenship lies with the proceedee, and failure to contest leads to the presumption of foreign nationality.
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