WP(C)/5332/2019 of BIDUR DAS Vs THE UNION OF INDIA AND 5 ORS on 24 May 2026

ORDER

Date : 25-05-2026 (S.K Medhi, J)

Heard Shri. B. Chanda, learned counsel for the petitioner. Also heard Shri. G. Sarma, learned Standing Counsel, Home Deptt., and NRC for the respondent nos. 2, 3 & 5; Shri. A.I Ali, learned Standing Counsel, ECI for the respondent no. 6; and Shri. P. Sarma, learned State counsel for the respondent No.4.

2. The instant petition under Article 226 of the Constitution of India has been filed challenging an ex-parte Order dated 29/01/2018, passed by the learned Member, Foreigners Tribunal, Baksa at Tamulpur in F.T Case No. 714/BAKSA/2016, arising out of S.P(Border) Reference Case No. PNB/B/6/2003/347 dated 19/01/2004, whereby the petitioner has been declared a foreigner post-1971.

3. The primary ground of challenge is that the impugned opinion has been passed without giving the petitioner an adequate opportunity to defend himself.

4. Shri. B. Chanda, the learned counsel for the petitioner has drawn the attention of this Court to the specific pleadings made in paragraph-7 of the writ petition and has contended that at no point of time, any notice of the proceeding was served upon him. He has also referred to the observation made by the learned Tribunal that notice was served upon him in the manner provided under the Foreigners (Tribunals) Order 1964. He submits that such observation is perverse and accordingly not sustainable. He has also submitted that the records would also fortify his submission.

5. Shri G. Sharma, learned Standing Counsel for the Home Deptt., and NRC has fairly submitted that from a perusal of the records of the Tribunal, it will not appear that the notices were served in the manner prescribed by law. He submits that there is a report of the Jarikarak that the notice was served near a tree in front of a temple.

6. The aspect of service of notice is clearly laid down in the Foreigners (Tribunals) Order 1964 and the relevant provisions are extracted herein below; [3- C). Procedure for disposal of questions.-

(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 any available adult member of his or her 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 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 so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed; (g) Where the proceedee or any adult member of his or her family is not found at the residence, a copy of the notice shall be pasted in a conspicuous place of his or her residence, witnessed by one respectable person of the locality, subject to his or her availability and willingness to be a witness in that regard and the process server shall obtain the signature or the thumb impression of that person in the manner in which such service is affected;

(h) Where the proceedee resides outside the jurisdiction of the Foreigners Tribunal. the notice shall be sent for service to the officer-in-charge of the police station within whose jurisdiction the proceedee resides or last resided or is last known to have resided or worked for gain and the process server shall then cause the service of notice in the manner as provided herein above;

(i) If no person is available or willing to be the witness of service of notice or refuses to put his or her signature or thumb impression the process server shall file a signed certificate or verification to that effect, which shall be sufficient proof of such non-availability, unwillingness and refusal; (j) On receipt of the signed certificate or verification referred to in Cl. (i) the Foreigners Tribunals shall return such references with such directions as it thinks fit to the competent authority for tracing out the proceedee and produce before the said Tribunal.”

7. The aforesaid provisions have contemplated all situations how notices are to be served which also includes a situation where a proceedee is not found in the last known address. The mode of service of notice in the instant case does not appear to be in consonance with the prescription of law.

8. In view of the above, a case for interference is made out and accordingly, the impugned opinion is set aside.

9. The matter is accordingly remanded back to the learned Tribunal fixing the date as 15.06.2026, on which date, the petitioner is required to appear and file the written statement along with all the evidence-in-chief.

10. The learned Tribunal would accept the same and take charge of the proceedings from that date.

11. The learned Tribunal would also endeavour to complete the proceedings in accordance with law and as per Order 3(14) of the aforesaid Foreigners (Tribunal) Order, 1964.

12. Records be sent back forthwith.

JUDGE JUDGE Comparing Assistant