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

"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...

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

Mehal Jain

Tags