ORDER

06.10.2021 [N. Kotiswar Singh, J.]

Heard Mr. M. Hoque, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K. Dev Choudhury, learned Asstt. Solicitor General of India, for respondent No.1 as well as appearing as standing counsel, NRC, for respondent No.4; Ms. A. Verma, learned Special Counsel, FT, appearing for respondent Nos.3 and 6 and Mr. A. Bhuyan, learned standing counsel, ECI, appearing for respondent No.2.

2. In this petition, the petitioner has challenged the ex-parte order dated 24.09.2019 passed in F.T.4th Case No.405/SPR/2017 by the Foreigners' Tribunal (4th), Darrang, Mangaldai, Assam, whereby the petitioner was declared as foreigner within the meantime of the Foreigners Act, 1946, who entered into Assam (India) after 25.03.1971 under Section 6A of the Citizenship Act, 1955. The grievance of the petitioner is that the petitioner was proceeded ex-parte without properly serving notice upon him though he was very much available in the village and he did not go out contrary to what has been mentioned in the report of the process server.

3. Learned counsel for the petitioner submits that the petitioner otherwise has all the necessary documents to prove that he is an Indian citizen. However, as he had been proceeded ex-parte vide order dated 24.09.2019 passed by the Foreigners Tribunal (4th), Darrang, Mangaldai, Assam, in F.T.4th Case No.405/SPR/2017 in the aforesaid manner, he did not have the opportunity to prove himself as Indian and accordingly, he has been greatly prejudiced.

4. We have perused the record requisitioned earlier. Perusal of the record shows that the process server had made a report that as the proceedee could not be found, a copy of the said summon was pasted on the wall of the office of the Gaon Panchayat. Accordingly, we are of the view that aforesaid procedure adopted for the purpose of notice is not in accordance with the provisions of the Foreigners' (Tribunals) Order, 1964. The manner of service of notice when the proceedee is not available, as provided under Order 3(5) of the Foreigners'

(Tribunals) Order, 1964, reads as follows:-

“3. Procedure for disposal of questions -

(1) …........................

… … … … … ...

(5)(a) The notice shall be served at the address where the proceedee last resided or reportedly resides or works for gain, and in case of change of place of residence, which has been duly intimated in writing to the investigating agency by the alleged person, it shall be served at such changed address by the Foreigners Tribunal;

(b) if the proceedee is not found at the address at the time of service of notice, the notice may be served on any adult member of the family of the proceedee and it shall be deemed to be served on the proceedee;

(c) where the notice is served on the adult member of the family of the proceedee, the process server shall obtain the signature or thumb-impression of the adult member on the duplicate of the notice as a token of proof of the service;

(d) if the adult member of the family of the proceedee refuses to put a signature or the thumb-impression, as the case may be, the process server shall report the same to the Foreigners Tribunal;

(e) if the proceedee or an available adult member of his or family refuses to accept the notice, the process server shall give a report to the Foreigners Tribunal in that regard along with the name and address of a person of the locality, who was present at the time of making such an effort to get the notices served, provided such person is available and willing to be a witness to such service and the process server shall obtain the signature or thumb impression of such witness, if he or she is present and willing to sign or put his or her thumb-impression, as the case may be;

(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 cons