30 Days Period To Challenge Foreigner Tribunal's Ex-Parte Declaration As 'Illegal Immigrant' To Be Attracted Only When Notice Is Duly Served Notice: SC
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"Paragraph 3A of the Foreigners (Tribunal) Order, 1964, in so far as it contemplates a period of 30 days to apply to the Tribunal to set aside an ex parte order, would be attracted only where the service of notice was duly effected and the proceedee still failed to appear", clarified the Supreme Court on Wednesday.Paragraph 3A of Foreigners (Tribunal) Order, 1964 specifically empowers...
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"Paragraph 3A of the Foreigners (Tribunal) Order, 1964, in so far as it contemplates a period of 30 days to apply to the Tribunal to set aside an ex parte order, would be attracted only where the service of notice was duly effected and the proceedee still failed to appear", clarified the Supreme Court on Wednesday.
Paragraph 3A of Foreigners (Tribunal) Order, 1964 specifically empowers the Tribunal to set aside the ex parte order on an application of the proceedee, if filed within thirty days of the said order, and if sufficient cause for non-appearance is shown.
The bench of Justices DY Chandrachud, MR Shah and Sanjiv Khanna was hearing an appeal against a Gauhati High Court decision dismissing the petition of the appellant challenging a March 2018 order of the Foreigners Tribunal by virtue of which he had come to be declared an illegal immigrant.
The bench noted that it was alleged by the Superintendent of Police before the Tribunal that the appellant is an illegal migrant from Bangladesh who has entered India without the requisite documents after March 24, 1971. Admittedly, a notice was sought to be served on the appellant by hanging the same outside the last known place of his residence. The bench recorded the appellant's claim that the said address had been his temporary address prior to shifting to his present permanent place of residence. Consequently, he failed to appear before the FT and the Tribunal declared him a foreigner who had illegally entered into India. The appellant instituted an Article 226 petition before the High Court. The High Court held that the notice had been duly pasted in a conspicuous place outside his last known address, and that the burden to prove his citizenship was to lie on the appellant who, in neglecting to pursue the proceedings, had failed to discharge the burden.
The basis of the submissions of Advocate Fuzail Ahmad Ayyubi was that the order of the Tribunal was in breach of the principles of natural justice and that a remand of the matter back to the FT was warranted. The bench noted that though the order of the FT indicates the permanent place of residence of the appellant, the service had come to be effected at the last reported/known place of his residence and the petitioner was deemed to have been duly served as per paragraph 3(5)(f) of the 1964 Order. Further, no effort has been made to effect the service at his permanent place of residence despite awareness about the same.
The provision of Paragraph 3(5)(f) specifically provides that 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.
On behalf of the state of Assam, it was advanced that the appellant had failed to avail the opportunity envisaged in Paragraph 3A of the 1964 Order within the stipulated 30 days.
"At the outset, it is material to advert to paragraph 1 of the order of the FT which indicates that the tribunal was apprised that while the address of the appellant is shown as (...), at the same time, his permanent residential address at (...) is also indicated. This is further fortified by the statement of the appellant recorded by the Senior Inspector of Police which indicates that the address of the appellant corresponds to the permanent residential address noted in the paragraph 1 of the Tribunal's order. Besides, the interrogation report before the Inspector of Police also refers to the same address of the appellant in India. Evidently, there was no effort made to serve the appellant at his permanent address", recorded the bench.
"Paragraph 3(5)(f) deals with the situation where a proceedee changed his residence or his place of work without intimation to the investigating agency. In the facts of the case, the said provision is not attracted as the investigating officer knew of his permanent address. We are not impressed with the submission that the appellant has not availed of Paragraph 3A. Paragraph 3A contemplates a period of 30 days within which application may be made to the tribunal for setting aside an ex parte order passed on account of non-appearance. The provision has no application here as the service of the notice itself was not properly effected. 3A would apply where the service was duly effected and the person still failed to appear", stated the bench.
The bench allowed the appeal, setting aside the order passed by the Gauhati High Court on the writ petition and in review and the order of the FT. The bench also remanded the matter back to the FT for fresh consideration.
"Please appreciate the sensitivity of the matter. People are coming in illegally from Bangladesh. These matters need to be disposed off in a time bound manner so that there are no dilatory tactics", ASG RS Suri, for the Union of India, had submitted at the outset.
"The difficulty in these matters is that most of the orders are ex parte as nobody appears", Justice Khanna had said at the outset. On behalf of the appellant, it was urged that he is a labourer and that both his and family members' names have been included in the NRC. "That is not relevant. The state is saying that the documents of parentage/lineage are forged? An appeal lies before the FT and the Tribunal's decision will be final", said Justice Khanna.
For the state of Assam, it was advanced that in foreigners' matters, it is "always seen" that as soon as proceedings are initiated against the "impostors", they "flee their place of residence and change their address". "There is no requirement to serve at the permanent address but wherever they were last known to have resided", it was submitted.
"What if one has genuinely changed their address? This is a very serious matter! Opportunity has to be given to them to present their case! And when you were aware of the permanent address, what prevented you from serving the notice there? ", asked Justice Shah.
"Yes, the opportunity must be given. Whether one is a bona fide Indian or not is to be decided by the FT after this opportunity is given", concurred Justice Chandrachud.
As the counsel for the state stressed that in the instant case, recourse was not taken to Paragraph 3A of the 1964 order, Justice Chandrachud noted that if the proceedee is not aware of the order, they cannot be expected to file an application within 30 days for setting aside the same. "That provision is applicable where they were duly served and still did not appear. Here, they were not served at all ", agreed Justice Shah.
'This is not a 302 case!'- The Court sets the appellant at liberty
On May 10, 2019, insofar as the release of detenues who have served long period of detention in the detention centres awaiting their deportation is concerned, the Supreme Court had directed that detenues who have completed more than three years may be released, subject to certain conditions.
In April last year, a bench led by CJ S. A. Bobde had noted that "the said order dated 10.05.2019 was passed when there was no danger of any pandemic like the present one". Having regard to the present circumstances prevailing in the country and having regard to the fact that the court has already permitted the release of prisoners and people under detention in general, and such detenues who have completed three years upon their declaration as foreigners, the court had been of the view that there is no reason why the period should not be reduced from three years to two years, that is to say, the prisoners or detenues who have been under detention for two years shall be entitled to be released on the same terms and conditions as those laid down in the aforesaid order dated 10.05.2019.
On Wednesday, the counsel for the state further argued that the appellant has not even been in the detention centre for two years, even though the court has observed that a detenue must complete atleast 2 years to qualify for release.
"What do you mean 'at least two years detention' has to be there? This is not a 302 case! This is not a case where somebody was convicted by the Sessions Court and by the High Court and while the appeal is pending, no bail may be given because it is a 302 case...", commented Justice Chandrachud.
"This is not a case of chargesheet and then bail", agreed Justice Khanna. Noting that the appellant has been in custody since May 15, 2019, the bench set him at liberty. However, the bench intimated to the appellant that it is he who will have to prove his parentage/lineage as the same is to be in his knowledge and the state's knowledge in this regard is impossible.
Case: Md Misher Ali @ Meser Ali vs. Union of India [CA 1058-1059 of 2021]
Coram: Justices DY Chandrachud, MR Shah and Sanjiv Khanna
Citation: LL 2021 SC 192
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