MD MISHER ALI @ MESER ALI versus THE UNION OF INDIA AND OTHERS on 24 March 2021

1. Leave granted.

2. The Guwahati High Court dismissed a petition filed by theappellant to challenge an order dated 22 March 2018 of the Foreigner’sTribunal, Jorhat, Assam in FT Case No SVR/310/2010. A review petitionhas since been dismissed by the High Court on 6 December 2019.

3. A reference was made by the Superintendent of Police (Border)Sivsagar district before the Foreigner’s Tribunal, alleging that the appellantis an illegal migrant who had entered into India without valid documentsfrom Bangladesh after 24 March 1971. The record before this Courtindicates that the notice to the respondent was sought to be served “byhanging” in the presence of Shri Prabhat Gogoi, the Government GaonBurha of Bengali Gari Gaon and Shri Nivas Paul, the landlord of theappellant. The appellant is alleged to have left his place of residence. Anorder was passed by the Foreigner’s Tribunal on 22 March 2018 declaringthe appellant to be a foreigner who had illegally entered into India fromBangladesh after 24 March 1971.

4. Aggrieved by the order of the Tribunal, the appellant instituteda writ petition under Article 226 of the Constitution before the HighCourt. The High Court held that the notice was pasted in a conspicuousplace of the last reported/known place of residence and that it wasproperly served under paragraph 3(5)(f) of the Foreigners (Tribunals)Order 1964. The High Court has also held that the burden to prove hiscitizenship lies on the appellant since the facts are within his knowledgeand by neglecting to pursue the proceedings, the appellant has failed todischarge the burden. The review petition was dismissed on the groundthat the parameters of review under Order 47 of the Code of CivilProcedure were not established.

5. Notice was issued in these proceedings on 21 August 2020. Inpursuance of the order issuing notice, both the Union of India and theState of Assam have entered appearance and filed their counter affidavits.

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A6. The basic submission of the appellant, urged before the Courtby Mr Fuzail Ahmad Ayyubi, learned counsel is that the order declaringthe appellant to be a foreigner was passed in breach of the principles ofnatural justice and hence, a remand to the Tribunal would be warranted.In this context, it has been submitted that the order of the Foreigner’sTribunal indicates that the permanent place of residence of the appellantBis in district Dhubri in Assam, whereas service was sought to be effectedat his temporary address in the district of Sivasagar. Learned counselsubmitted that since the authorities had knowledge of the fact that thepermanent place of residence of the appellant was in district Dhubri, thefact that no effort was made to serve him at this address would beCsufficient to indicate that the order has been passed in violation of theprinciples of natural justice.

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7. On the other hand, Mr Shuvodeep Roy, learned counselappearing on behalf of the State of Assam has adverted to paragraph3A of the Foreigners (Tribunals) Order 1964. It has been submitted thatDthe appellant failed to avail of the opportunity under paragraph 3A ofmoving a proceeding within 30 days before the Foreigner’s Tribunal forsetting aside the ex-parte order. That apart, it has been submitted thatunder paragraph 3(5)(f), if there is a change in the place of residence orof work without intimation to the investigating agency, the process serveris authorized to serve the notice at the place where the individual ordinarilyEresides or last resided or reportedly resided or personally worked forgain or carried on business. Hence, it has been submitted that thisprocedure was complied with and consequently, the order of the Tribunalwhich has been affirmed by the High Court does not warrant interference.

8. At the outset, it would be material to advert to paragraph 1 ofFthe order dated 22 March 2018 of the Foreigner’s Tribunal, which isextracted below:

“Originally this case was referred by the Superintendent of Police(B) Sivasagar District, under Foreigners Act 1946 vide PoliceEnquiry No.135/10 expressing doubt about the nationality of theGproceedee namely Md. Misher Ali, S/o Md. Dasher Ali C/o SriNivas Paul, Village Haluating Bazar, P.S. Haluating, Dist. Sivasagarand Permanent residence of Vill. Ballabil, P.S. Mankachar, Dist.Dhuburi, Assam, with a prayer to decide as to whether theproceedee is a citizen of India or a foreigner. Subsequently this H

case was transferred to this Tribunal for decision as per provisionof Foreigner’s Act 1946.”

9. The above extract indicates that the Tribunal was apprised ofthe fact that while the address of the appellant is shown as “C/o ShriNivas Paul, Village Haluating Bazar, PS Haluating, District Sivasagar”,the permanent residential address of the appellant has been indicated atVillage Ballabil, PS Mankachar, District Dhubri, Assam. This is alsofortified by the statement of the appellant which was recorded by theSenior Inspector of Police on 16 March 2010, a copy of which annexedto the counter filed by the State of Assam. The statement indicates thatthe address of the appellant corresponds to the permanent residentialaddress which is noted in paragraph 1 of the Tribunal’s order as extractedabove. Apart from this, the counter affidavit has also adverted to theinterrogation report before the Inspector of Police dated 22 January2010, which again refers to the “address in India” as village Ballabil, PSMankachar, District Dhuburi, Assam.

10. Evidently, no effort had been made to effect service at thepermanent place of residence. Para 3(5)(f) of the Foreigners (Tribunals)Order 1964 is extracted below:

“3(5)(f) if the proceedee has changed the place of residence orplace of work, without intimation to the investigating agency, theprocess server shall affix a copy of the notice on the outer door orsome other conspicuous part of the house in which the proceedeeordinarily resides or last resided or reportedly resided or personallyworked for gain or carries on business, and shall return the originalto the Foreigners Tribunal from which it was issued with a reportendorsed thereon or annexed thereto stating that he has so affixedthe copy, the circumstances under which he did do, and the nameand address of the person (if any) by whom the house wasidentified and in whose presence the copy was affixed.”

11. The above provision deals with a situation where a “proceedee”has changed the place of residence or place of work without intimationto the investigating agency. The material which has been placed on recordby the State of Assam in the counter affidavit demonstrates that theprovisions of paragraph 3(5)(f) were not attracted ,since it was withinthe knowledge of the investigating officer that the appellant has apermanent place of residence, as reflected in the earlier part of the A

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Aorder. We are not impressed with the submission that the appellant hasnot availed of the remedy under paragraph 3A. This is for the simplereason that paragraph 3A contemplates that where an ex-parte order ispassed for non-appearance, the person who is proceeded against maymove an application within 30 days to set aside the ex-parte order bydemonstrating sufficient cause for not appearing before the Foreigner’sBTribunal. This can have no application on the facts of the present casewhere, as has now been duly established before this Court, service wasnot properly effected. Paragraph 3A which provides a time-limit of thirtydays to file an appeal would undoubtedly apply in a situation where servicehas been duly effected despite which, the person who is proceeded againstChas failed to appear and in which case a remedy is provided underparagraph 3A. This can have no application in the facts of the presentcase.

12. For the reasons which have been indicated above, we are ofthe view that the appeals should succeed. We accordingly allow theDappeals and set aside the impugned judgment of the High Court dated 6December 2019, as well as the order of the Foreigner’s Tribunal dated22 March 2018. We accordingly restore Case No FT/SVR/310/2010(arising out of Police Enquiry No 135/10) to the Foreigner’s Tribunal,Jorhat, Assam.

E13. The appellant has been in custody since 15 May 2019.As aconsequence of the setting aside of the order of the Foreigner’s Tribunal,the appellant shall, in the meantime, be set at liberty.Before his releasefrom custody, the appellant shall provide his address to the authorities.The appellant shall appear before the Foreigner’s Tribunal on 12 April2021 and continue to cooperate by appearing in person until theFproceedings are disposed of. The Tribunal shall allow the appellant asufficient opportunity, consistent with the principles of natural justice, tofile his response and produce documentary and other material. Since adate has been fixed for the appearance of the appellant before theForeigner’s Tribunal, no fresh service of notice would be necessary.G14. Pending applications, if any, stand disposed of.

Devika Gujral

Appeals allowed.

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