Kabir Uddin v. Union of India, WP(C)/7901/2019

Read the judgment here

Date: 02.09.2021

Court: The Gauhati High Court

Justices: Justice N. Kotiswar Singh and Justice Soumitra Saikia

Summary: The Petitioner had been declared a foreigner through an ex parte order of the Foreigners’ Tribunal. The Gauhati High Court set aside the Tribunal’s order due to the improper procedure followed and remanded the matter to the Foreigner’s Tribunal for fresh consideration.

Facts: The Petitioner had shifted from his village many years ago in search of work and had not been in the State. When his name did not appear in the National Register for Citizens, he came to know from the NRC Seva Kendra in Doboka (Hojai District) that the Foreigners’ Tribunal had declared him a foreigner. He had not been served any notice and the process server had pasted the notice in a public place in the village where it was seen by the Gaonburah and others, none of whom had knowledge of the Petitioner.

Holding: The Court held that Order 3(5) of the Foreigners (Tribunals) Order, 1964 does not permit simply pasting notices in public places as a method of serving notice. While the procedure was unclear on what must be done when a proceedee was not found in the house or village, the Court held that the server ought to submit a report in accordance with Order 3(5)(f) and the Tribunal ought to take necessary steps in accordance with Order 3(5)(j). It was held that the notice could not be deemed to have been served and the ex parte proceeding could not continue. The Tribunal’s order was set aside and the Petitioner was directed to appear before the Tribunal for a fresh hearing of the matter. However, since the nationality of the Petitioner was still uncertain, the Court directed that he would remain on bail upon furnishing a bail bond for Rs. 5,000 with one local surety of the like amount, following the Court’s previous decision. The Court also noted that the Petitioner’s failure to appear before the Tribunal would result in the High Court order being vacated and the revival of the Tribunal order, with the Petitioner being liable for detention and deportation.

Significance: This decision indicates that in the instance that a proceedee’s whereabouts are unknown and their residence is not traceable, the server must report the same to the Tribunal and the onus falls on the Tribunal to take the further steps necessary and that simply pasting notices in public places would not amount to serving notice to the person. In so far as the bail conditions are concerned, the requirement for a local surety within the jurisdiction of the Tribunal in question seems especially problematic in such situations where no one in the village knew the Petitioner and vice versa. Moreover, when the Court speaks about the possibility of the Petitioner’s non-appearance and directs that the High Court order will stand vacated, it is not clear whether the holding regarding pasting of notices in public areas will also stand vacated or not.

Resources:

  1. Parichay Team, Challenging Ex Parte Orders – Special Circumstances, Parichay Blog, 2 November 2020.
  2. Aman Wadud, Judiciary must re-examine how it has viewed citizenship question in Assam, Indian Express, 23 September 2021.

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India. This note was prepared by Aayushmaan Thakur. 

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