'Not Properly Served Notice':Gauhati High Court Sets Aisde Ex-Parte Foreigners' Tribunal's Order Declaring Man As Foreigner

The Gauhati High Court has recently set aside an ex-parte order by a foreigners' tribunal declaring a Silchar resident as a foreigner after noting that the tribunal had failed to properly serve notice thus rendering the proceedings illegal.

A Bench comprising Justices Kotiswar Singh and Malashri Nandi observed,

"We have found that the petitioner was not properly served notice before the Tribunal proceeded with the matter ex-parte, we are of the opinion that the petitioner may be afforded another opportunity to appear before the learned Foreigners Tribunal to prove his case."

Background

In the instant case, the Court was adjudicating upon a plea moved by one Jantu Das challenging an ex-parte order passed by the foreigners'Ex-Parte  tribunal-4th, Cachar at Silchar on September 18, 2017. The impugned order stated that notice had been served to the petitioner however no representation had been made on behalf of the petitioner subsequently. Furthermore, the impugned order asserted that since written statement had not been filed by the petitioner, ex-parte proceedings had been initiated against him.

However, the counsel appearing for the petitioner contended that the petitioner had never received any notice from the Foreigners Tribunal and accordingly the ex-parte order is liable to be set aside. He further argued that there exists sufficient evidence on record which would show that he is an Indian citizen and not a foreigner.

Observations

The Bench observed that pursuant to a perusal of the copy of summons, it is evident that the summons had been received by one Sukesh Das C/o Srikrishna Das. However, the Bench noted that the counsel appearing for the petitioner had submitted that though Srikrishna Das is the name of the petitioner's father but there is no relative in name of the Sukesh Das who had apparently put his signature on the summons.

"From the records, it is clearly seen that since the petitioner Jantu Das himself did not receive summons but by somebody who put his signature as Sukesh Das, it is incumbent upon the Process Server to indicate the relationship of the said Sukesh Das who had put the signature on the notice", the Court remarked.

During the proceedings, the counsel for the State had failed to apprise the Bench about the identity of Sukesh Das and accordingly, the Court ruled that notice had not been properly served to the petitioner thus rendering subsequent proceedings illegal.

Furthermore, the Court observed that a copy of the identity card of the petitioner issued by the competent authority on August 3, 1964 shows that the name of his father is Srikrishna Das which appears along with his grandfather's name Jaduram Das who had been recorded to have migrated to India on August 1, 1964 and registered on August 3, 1964. Subsequently, they had been issued Camp Registration No. 1522 by the competent authority. It was also noted that the petitioner had submitted a copy of the voters list of 1989 and the voters list of 2016 which shows that name of his father is Srikrishna Das.

Accordingly, the Court observed that the impugned order must be set aside and accordingly opined, 

"We are also of the view that if the petitioner is able to prove the aforesaid documents in accordance with law, he can certainly make a legitimate claim that he is an Indian citizen, not a foreigner. Be that as it may, as we have found that the petitioner was not properly served notice before the Tribunal proceeded with the matter ex-parte, we are of the opinion that the petitioner may be afforded another opportunity to appear before the learned Foreigners Tribunal to prove his case"

The petitioner was further directed to appear before the Foreigners Tribunal on or before January 17, 2022 and thereafter file his written statement and other relevant documents in support of his claim that he is an Indian and not a foreigner.

Case Title: Jantu Das v. Union of India

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