Challenging Ex Parte Orders on the Ground of Improper Service of Notice

  1. Relevant Statutes/Rules/Orders:

Paragraph 3C of the Foreigners (Tribunals) Order, 1964 provides for applying before the FT for setting aside an ex parte order within thirty (30) days from the date of the said FT Opinion in the following words:

“3C. Procedure for setting aside ex parte order:

  1. Where the Foreigners’ Tribunal has passed an ex parte order for non-appearance of the proceedee and he or she has sufficient cause for not appearing before the Foreigners’ Tribunal, it may, on the application of the proceedee, if filed within thirty days of the said order, set aside its ex parte order and decide the case accordingly.
    • The Proceedee may file an application to the Foreigner Tribunal within thirty days to review the decision of the Foreigners’ Tribunal claiming that he/she is not a foreigner and the Foreigners’ Tribunal may review its decision within thirty days of the receipt of such application and decide the case on merits.
    • Subject to the provisions of this Order, the Foreigners Tribunal shall have the powers to regulate its own procedure for disposal of the cases expeditiously in a time bound manner.”

  2. Full Bench Decision in State of Assam v. Moslem Mondal, 2013 (1) GLT 809:

Important Extracts on the Issue of Service:

[80] The procedure laid down in the Code of Civil Procedure as such is not applicable in a proceeding before the Tribunal, except in relation to the matter stipulated in clause 4 of the said Order.

[99] One of the most important stages is, apart from serving the main grounds on which the proceedee is alleged to be a foreigner, just and proper service of notice. The 1964 Order also envisage giving a reasonable opportunity to the proceedee to demonstrate that he is not a foreigner. Unless the Tribunal ensures just and proper service of notice, the requirement of giving reasonable opportunity would be defeated. The same would also then violate the basic principles of natural justice.

[100] Though the Tribunals under the 1964 Order, as amended by the 2012 Order, can regulate its own procedure for disposal of the reference proceeding, it is seen from various cases that no uniform procedure is adopted by the Tribunals in the matter of service of notice. Unless there is proper service of notice it cannot be said that the person against whom such notice is issued is treated fairly and he has been given a fair trial.

[101] The proceeding before the Tribunal being quasi-judicial and in the nature of civil proceeding, in our considered opinion, the procedure for service of notice has to be evolved in the light of the procedure laid down in the Code of Civil Procedure for service of summons on the defendants in a civil suit. The proper service of notice also assumes importance as the Tribunal has to render its opinion also in an ex-parte proceeding, on the question referred to it, even in the absence of any evidence on record and solely on the basis of materials initially submitted by the referral authority before the Tribunal and at the time of making the reference, as the referral authority is not required to adduce any evidence to substantiate that the proceedee is not a foreigner, which burden, in view of Section 9 of the 1946 Act, lies on the proceedee.

[102] The procedure laid down herein below shall apply to all the proceedings pending before the Tribunal where the notices are either yet to be issued or issued but not yet served:

  • The proceedee shall be served with the notice, together with the main grounds on which he is suspected to be a foreigner, as far as practicable, personally, whose signature/thumb impression, as proof of service, is to be obtained.
  • Such notice shall be issued in the address where the proceedee last resided or reportedly resides or works for gain. In case of change of place of residence, which has been duly intimated in writing to the investigating agency by the proceedee, the Tribunal shall issue a notice in such changed address.
  • The notice shall be issued by the Tribunal in the official language of the State also indicating that the burden is on the proceedee to prove that he is an Indian citizen and not a foreigner.
  • The service of notice on any adult member of the family of the proceedee, in case he is found to be not present at the time of service, shall constitute the service on the proceedee. In token of such service, the name and signature/thumb impression of such adult member shall be obtained. In case such adult member refuses to put the signature or thumb impression, a report in that regard shall be submitted.
  • If the proceedee or any available adult member of his family refuses to accept the notice, the process server has to give a report in that regard along with the name and address of a person of the locality, who was present at the time of making such an effort to get the notices served, provided such person is available and willing to be a witness to such service. The signature/thumb impression of such witness, if present and willing, must be obtained.
  • In case the proceedee has changed the place of residence or place of work, without intimation to the investigating agency, a report in that regard shall be submitted by the process server. A copy of the notice shall then be affixed in a conspicuous place where the proceedee last resided or reportedly resided or worked for gain, containing the name and address of a respectable person of the locality, if available and willing to be a witness for that purpose. The signature/thumb impression of such person, in that case, shall also be obtained in the said report.
  • Where the proceedee or any adult member of his family are not found in the residence, a copy of the notice shall be pasted in a conspicuous place of his residence, witnessed by 1(one) respectable person of the locality, subject to his availability and willingness to be a witness in that regard. In that case, the signature or thumb impression of that person shall also be obtained in proof of the manner in which such service is effected.
  • Where the proceedee resides outside the jurisdiction of the Tribunal, the notice has to be sent for service to the officer-in-charge of the police station within whose jurisdiction the proceedee resides or last resided or last known to have been resided or works for gain. The process server shall then cause the service of notice in the manner as provided hereinabove.
  • In case no person is available or willing to be the witness of service of notice, as mentioned above, or refused to put his signature or thumb impression, a signed certificate/verification is to be filed by the process server to that effect, which shall be sufficient proof of such non-availability, unwillingness and refusal.”

    3. Amendment to the Foreigners (Tribunals) Order 1964:

Pursuant to the guidelines in State of Assam v. Moslem Mondal (supra), paragraph 3(5) of Foreigners’ (Tribunals) Order, 1964, was amended by way of the Foreigners’ (Tribunals) Amendment Order, 2013, vide Order No. GSR 770(E) dated 10.12.2013 to include the said guidelines.

Table of Cases

S. No.CASE NAME  FACTS  DECISION  
 Abdul Barek vs Union of India WP(C) No. 2989 of 2018Upon being approached for receiving the notice, the petitioner refused to accept the same. Accordingly, notice put up on the wall of the house of the petitioner[5] Refusal of notice cannot be construed to be a service of the notice under Rule 3(5)(f) of the Foreigners (Tribunals) Order. 1964. [6] As the notice was not served on the petitioners, we, therefore, set aside the order. But at the same time, we also cannot be oblivious to the fact as per the report of the process server the petitioner had refused to accept the notice. Although in the course of the present proceeding, the petitioner seeks to justify the same by stating that her name was incorrectly written in the notice of the Tribunal but incorrect spelling of the name cannot be the basis for a proceedee to refuse to accept the notice. If there is any doubt on the mind of the proceedee that the notice may actually have been meant for some other person, it is for the proceedee to appear before the Tribunal and bring to its notice for verification as to whether the person appearing before the Tribunal was itself the person upon whom the notice was intended. [7] As the petitioners are declared to be foreigners without appropriate materials on record for adjudication on merit, we are of the view that the petitioners deserve another opportunity. But at the same time as the petitioners had refused to accept the notice, from that point of view, there cannot be any infirmity in the order dated 28.9.2016. (Costs imposed on the petitioners and case sent to FT for hearing)
 Abdus Salam vs Union of India   WP(C) 1357/2019Petitioner could not be traced out at   the   appropriate place; the signature of the house owner was taken as a witness. The Report also doesn’t indicate where the notice was kept hangingThe manner in which the notice was deemed to be served was in violation of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Abul Hussain vs Union of India   WP(C) 44/2019Petitioner could not be traced, after taking signature in the main copy, the duplicate was hung. The report silent on whose signature was taken & where the notice was hung.The manner in which the notice was deemed to be served was in violation of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Ahmed Darbesh vs Union of India   WP(C) 354/2019Petitioner not found in the given address; notice served on another person who according to the process server was the maternal uncle of the petitioner.We are of the view that in the manner, the notice was served as indicated by the process server, the same is not in conformity with the requirement of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Atabur Rahman Vs Union of India   WP(C) 45/2019Petitioner not found in the address; notice was hanged on a tree in a public place.We are of the view that in the manner, the notice was served as indicated by the process server, the same is not in conformity with the requirement of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Babul Hussain vs  Union of India   WP(C) 60/2019Petitioner couldn’t be located meaning thereby that the notice remained unserved.In view of the procedural aberration of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964, we are of the view that the manner in which the notice was deemed to be served was in violation of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Benu Bhowmick vs Union of India   WP(C) 4974/2018The notice in a substituted manner was served as the petitioner was not found at her address. The Tribunal relied upon the pronouncement by the Supreme Court in CIT vs. Daulat A. 1967 SC 1952 which was as follows: “Substitute service is a valid service even through no copy is affixed in the court. House, affixing in the last residence is sufficient.” The said pronouncement of the Supreme Court was in a proceeding under the Income Tax Act, 1961 which has its own prescribed procedure for service of notice.[7] We have perused the report of the process server which provides that as the petitioner was not found in the address given, therefore, a copy of the same was hung. But the report of the process server does not state as to where the notice was hung. [8] In view of the above, we are of the view that the manner in which the notice was served is at variance from the procedure prescribed under Rule 3(5)(F) of Foreigners (Tribunal) Order 1964. [9] In view of the procedural aberration of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964, we are of the view that the manner in which the notice was deemed to be served was in violation of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Farida Begam Vs Union of India   WA 333/2015Notices of the proceeding issued by the Tribunal were served thrice, on the first two occasions on her husband and on the third occasion on her brother.[11] The Foreigners’ (Tribunals) Order, 1964, as amended, makes it abundantly clear that in the absence of the proceedee, notice can be validly served on any adult member of the family. Therefore, a plea of the appellant regarding nonreceipt of notice is untenable and cannot be accepted. (Writ petition dismissed)
 Fazina Khatun vs Union of India   WP(C) 7454/2018Petitioner had changed her place of residence without intimation, a copy of the Notice affixed/pasted on the wall where the petitioner last resided. The fact of service of Notice in the substituted manner, as above, is also recorded by the Tribunal.[5] Having regard to the above, we find that there was due compliance of service of Notice in substituted manner, as required to be done under Clause 3(5)(f) of the Foreigners (Tribunals) Order, 1964. From the Service Report, it clearly transpires that copy of the Notice was affixed on the outer wall of the house in which the petitioner last resided. In this connection, we may also place on record that according to the petitioner she is still living in the same village. [6] Despite Service of Notice in substituted manner in accordance with law, the petitioner neglected to appear before the Tribunal and/or to file written statement. [7] grant of fair and reasonable opportunity cannot be enlarged to an endless exercise. A person who is not diligent and/or is unmindful in taking steps to safeguard his/her interest, he/she does so at his/her own risk and peril. In a situation where no evidence is adduced or the burden is not discharged, the only option left to the Tribunal would be to declare the proceedee to be a foreigner, based on the grounds of reference upon which appropriate proceeding was initiated, notice was duly issued and duly served upon the proceedee in accordance with law (Writ petition was dismissed)
 Malekjan Bibi vs Union of India   WP(C) 1142/2019Petitioner not found at her place of residence, notice hung at a conspicuous place of the village in presence of a witness and submitted report.”Hanging of the notice at a conspicuous place of the village in presence of witnesses is contrary to the requirement of Rule 3(5)(f) of the Foreigners Tribunal Order, 1964. It is taken note that the report of the process server does not even indicate as to where the notice of the petitioner was kept hanging. The manner in which the notice was deemed to be served was in violation of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Monir Uddin vs Union of India W.P.(C) No. 219 of 2019Non-availability of the proceedees at their given address. The process server thus served notice by hanging. The order does not clearly show as to in what manner the hanging was made.In view of the procedural aberration of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964, we are of the view that the manner in which the notice was deemed to be served was in violation of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Muzibur Rahman vs Union of India   WP(C) 6404/2019As the petitioner could not be found, a copy of the notice was affixed on the notice board of the office of the Gaonburah.[6] Having regard to the manner of service, as above, we are of the considered view that substituted service of notice, as required to be done under 3(5)(g) of the Foreigners (Tribunals) Order, 1964, was not complied with. We are also of the view that the petitioner was denied the opportunity of hearing to contest the case on merits. It clearly appears that no notice was served on the petitioner by affixing a copy of the notice pasted in a conspicuous place of his residence, witnessed by one respectable person of the locality who has given his signature or thumb impression and has agreed to be available and stand as a witness with regard to such service of notice. (Order of FT set aside)
 Sahinur Islam vs Union of India WP(C) 7818/2019As the petitioner was not available in the given address, notice was returned unserved.[5] Having regard to the admitted fact that service of notice was not effected in any manner on the petitioner, as required to be done under Paragraph 3(5) of the Foreigners (Tribunals) Order, 1964, we are of the view that the petitioner was denied the opportunity of hearing to contest the case on merits. (Order of FT set aside)

Challenging Ex Parte Orders on the Ground of Non-Availability of Legal Aid

We have seen how Foreigners’ Tribunals have repeatedly passed  ex parte orders declaring persons to be foreigners, and how such orders can be set aside. This research note will look into the challenging of ex parte orders on the ground that legal aid was not provided to the petitioners. This is especially relevant for the NRC process, where multiple individuals belonging to impoverished and marginalized sections of society have been left out of the NRC, and would have to challenge their exclusion. To do so, one would have to rely on legal services, which might not always be within the reach of those belonging to the aforementioned sections of society. This research note delves into the issue of legal aid, and looks at the intersection of legal aid and ex parte orders by FTs. Over the years, thousands of people in Assam have been declared as ‘foreigners’ through ex parte orders. Therefore, this research note will look into the setting aside of ex parte orders on the ground that legal aid was not provided to petitioners.

1. What is legal aid?

Legal aid means the provision of free legal services to any persons, who by virtue of some marginalization or disability, are unable to access legal services to carry on legal proceedings before courts and tribunals.

2. Legal Aid under the Indian Constitution

Article 39A of the Indian Constitution, a Directive Principle of State Policy (‘DPSP’), requires the state to:

…secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Article 39A has been read along with Article 21 of the Indian Constitution to hold that the right to legal aid is a necessary part of a just, fair, and reasonable procedure under Article 21 of the Constitution. (Hussainara Khatoon v Home Secretary, State of Bihar (1980 (1) SCC 98), and Khatri and Others v State of Bihar and Others (AIR 1981 SC 928)).

2.1 Important Cases

A. In Hussainara Khatoon v State of Bihar (AIR 1979 SC 1360), the right to free legal services was held to be a part of every accused person’s fundamental right under Article 21 and Article 39A. A procedure which does not make available legal services to an accused person, who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as reasonable, fair, and just. It was held that:

Article 39A emphasizes that free legal service is an inalienable element of ‘reasonable, fair and just’ procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice. The right to free legal service is therefore, clearly an essential ingredient of ‘reasonable, fair and just’ procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services, on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.

B. In Madhav Hayawadanrao Hoskot v State of Maharashtra (1978 AIR 1548),the Supreme Court, speaking through J Krishna Iyer, held that the right to legal representation would apply to all cases, from the lowest to the highest court, where deprivation of life and personal liberty is in substantial peril.

 C. In Khatri and Others v State of Bihar and Others (AIR 1981 SC 928), the Supreme Court held that, “the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the magistrate as also when he is remanded from time to time.”Further, the Supreme Court held that the judicial officer has the obligation of informing the person that she is entitled to legal aid. It also held that: 

…it would make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services… The magistrate or the sessions judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State.

D. In Superintendent of Legal Affairs v Home Secretary, State of Bihar (1979 AIR 1369), the Supreme Court held that it is always the duty of the court to see and inform the accused that she has a right to legal service, even if she does not ask for the same.

E. In Sukh Das v Union Territory of Arunachal Pradesh ((1986) 2 SCC 401), the Supreme Court held that the absence of legal awareness must be taken into consideration and that the onus is on the state to pro-actively inform the person facing deprivation of liberty that she has a right to free legal aid. It was observed:

It is this absence of legal awareness which is responsible for the deception, exploitation and deprivation of rights and benefits from which the poor suffer in this land. Their legal needs always stand to become crisis-oriented because their ignorance prevents them from anticipating legal troubles and approaching a lawyer for consultation and advice in time and their poverty magnifies the impact of the legal troubles and difficulties when they come. Moreover, because of their ignorance and illiteracy, they cannot become self-reliant: they cannot even help themselves…. The result is that poverty becomes with them a condition of total helplessness. This miserable condition in which the poor find themselves can be alleviated to some extent by creating legal awareness amongst the poor… It would in these circumstances make a mockery of legal aid if it were to be left to a poor, ignorant and illiterate accused to ask for free legal services. Legal aid would become merely a paper promise and it would fail of its purpose.

F. In Gopalanachari v State of Kerala (AIR 1981 SC 674), it was held that it is well established that the state is under a constitutional mandate under Article 21 and Article 39A to provide a lawyer to an accused person if the circumstances of the case and needs of justice so requires, provided of course that the accused person does not object to the provision of such a lawyer.

G. In State of Maharashtra v Manubhai Pragaji Vashi and Ors (1995 SCC (5) 730), the Supreme Court held that the combined effect of Article 21 and Article 39A of the Constitution of India mandates that the state shall provide free legal aid by suitable legislation or schemes, or in any other way,to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. It was further held that the duty cast on the state to provide free legal representation under Article 21, read with Article 39A, cannot be whittled down in any manner, either by pleading paucity of funds or otherwise.

H. In Mohd. Hussain @ Julfikar Ali v NCT of Delhi ((2012) 9 SCC 408),and Ajmal Kasab v State of Maharashtra ((2012) 9 SCC 1), the Supreme Court applied the right of free legal aid to foreign nationals.

3. Claiming a right to legal aid before the Foreigner’s Tribunals

3.1. Legal entitlement under the Legal Services Authority Act, 1878

A notification dated 28 December 2018, bearing No. LGL 165/2018/7, issued by the Legislative Department, Government of Assam, stipulated that only a person with an annual income below three lakhs would be eligible for legal aid under Section 12(h) of the Legal Services Authority Act, 1987. Therefore, the FT members must inform any person who appears before the tribunal about their entitlement under this notification to receive free legal aid, prior to the initiation of any proceedings.

3.2. Failure to provide free legal aid renders the proceedings unjust, unfair, and unreasonable

The provision of legal aid is mandatory for any proceeding that has an impact on the life or personal liberty of any person, to qualify as a fair, just, and reasonable procedure, under Article 21. Therefore, proceedings before the FTs are equally bound by this obligation.

Proceedings before the FTs have been held to be sui generis,being neither civil suits nor criminal trials [Shariful Islam v Union of India, (2019) 8 Gau LR 322]. The FT is empowered to exercise the powers of a civil court under the Civil Procedure Code, 1908, as well as the powers of a Judicial Magistrate First Class under the Code of Criminal Procedure, 1973, in accordance with Paragraph 4 of the Foreigners (Tribunals) Order, 1964. Hence, it cannot be said that proceedings before the FTs are purely civil proceedings, where principles applicable to criminal justice are inapplicable altogether. The observations made in the cases which recognized the fundamental right to free legal aid must necessarily be extended to the process of citizenship determination. This is because, the finding that a person is not an Indian citizen results in restrictions upon a person’s right to life and personal liberty, given that such persons are to be detained or deported [See Paragraph 3(13) of the Foreigners (Tribunals) Order, 1964]. Further, even in rendering a quasi-judicial order, such as those rendered by the FTs, there must be compliance with principles of natural justice and fair trial under Article 21 of the Indian Constitution.

Additionally, those who are declared as foreigners under the reference procedure do not have access to an appellate mechanism. Instead, they may only approach the High Court in exercise of writ jurisdiction under Article 226, which has a limited scope of review. Thus effectively, there is no appeal from findings of facts from the FT. In this scenario, the failure of the state to extend free legal aid to persons at the FT stage would further violate the standards of fair trial under Article 21 of the Indian Constitution.

In Shariful Islam v Union of India ((2019) 8 Gau LR 322), a Division Bench of the Gauhati High Court observed that access to justice was a fundamental right of the persons against whom reference was made to the FTs.

3.3. Failure to provide free legal aid results in a denial of a ‘reasonable opportunity’

Paragraph 3(1) of the Foreigners (Tribunals) Order, 1964, requires that, “reasonable opportunity of making a representation and producing evidence in support of his case”, must be given to any person in proceedings before the FT. In Kanachur Islamic Education Trust v Union of India ((2017) 15 SCC 702), the Supreme Court had defined reasonable opportunity as being “synonymous to ‘fair hearing’, it is no longer res integra and is an important ingredient of the audi alteram partem rule and embraces almost every facet of fair procedure.”The failure to provide free legal aid and to inform the opposite party that she is entitled to free legal aid would result in the denial of fair hearing and thus, a denial of ‘reasonable opportunity’ required under Paragraph 3(1) of the Foreigners (Tribunal) Order, 1964.

3.4. Proceedings are vitiated in the absence of availability of free legal aid

The Supreme Court and various High Courts have repeatedly set aside criminal proceedings where legal aid was not pro-actively provided to the accused facing deprivation of her liberty. In Suk Das v Union Territory of Arunachal Pradesh ((1986) 2 SCC 401),the trial was held to be vitiated on account of a fatal constitutional infirmity (failure to provide free legal aid), and the conviction and sentence were set aside. Similarly, in Rajoo @ Ramakant v State of MP ((2012) 8 SCC 553), the Supreme Court set aside the High Court judgment upholding the conviction and remanded the case for re-hearing by the High Court after providing the accused an opportunity of obtaining free legal representation.

In Arjun Karmakar v State of Assam ((1986) 2 Gau LR 287),a Division Bench of the Gauhati High Court held that the appointment of a fresh lawyer on the date of trial was mere fulfilment of formality and no legal aid was actually provided. The High Court set aside the conviction and sentence, and directed a retrial in the case, while observing:

There is a marked tendency to take very lightly the procedure for providing legal aid to the poor. The poor are mute. They have no media, no means to express their pangs and agonies and therefore, with impunity they are provided with assistance but perhaps “no legal assistance by competent lawyer.” If it is the constitutional right of the poor to be provided with legal assistance, the assistance must be genuine, real and the best lawyers should be engaged, otherwise it might be said in the future that their constitutional rights were trampled by the judiciary. We say “caveat actor”. Let not posterity say that the poor were provided lip service or we shed crocodile tears in the name of legal aid.

The Gauhati High Court has also set aside proceedings under special legislations for the failure to provide legal aid. In Anurag Saxena v Ct S Damodaran, where the accused, a constable, was charged under section 10(n) of the Central Reserve Police Force Act, 1949, and sentenced to six months of rigorous imprisonment, the Gauhati High Court observed that:

Since the constitutional right of the accused has been deprived, it is necessary that free legal assistance should be provided to make the trial reasonable, fair and just. I am, therefore, of the view that in the instant case the accused is entitled to get legal assistance, if necessary, at State expense during the trial. Since no such assistance was given during his trial by the Magistrate-cum-Assistant Commandant, the denial of the same would render the trial non est in the eye of law as it was not reasonable, fair and just, and was hit by Art. 21. On this ground also, the judgment and Order of the learned trial Court cannot stand. However, I want to make it clear that each and every trial cannot be held bad for want of legal service and the Court may-judge and consider the case from all angles before arriving at any decision.

Therefore, in the absence of free legal aid, the High Court should set aside the ex parte order and remand the case to the FT for a re-hearing.

4. Plea for setting aside an ex parte order on the ground of absence of proper legal representation – Index of cases

4.1. Relevant Statutes/Rules/Orders

Paragraph 3C of the Foreigners (Tribunals) Order, 1964, provides for filing an application before the FT for setting aside an ex parte order within a period of thirty (30) days from the date of the said FT Opinion. The relevant extract is as follows:

“3C. Procedure for setting aside ex parte order.–

(1) Where the Foreigners Tribunal has passed an ex-parte order for non-appearance of the proceedee and he or she has sufficient cause for not appearing before the Foreigners Tribunal, it may on the application of the proceedee, if filed within thirty days of the said order, set aside its ex parte order and decide the case accordingly.

(2) The Proceedee may file an application to the Foreigner Tribunal within thirty days to review the decision of the Foreigners Tribunal claiming that he is not a foreigner and the Foreigners Tribunals may review its decision within thirty days of the receipt of such application and decide the case on merits.

(3) Subject to the provisions of this Order, the Foreigners Tribunal shall have the powers to regulate its own procedure for disposal of the cases expeditiously in a time bound manner.”

4.2. Special/Exceptional Circumstances

The Tribunal can entertain an application for setting aside an ex parte opinion if it is satisfied as to the existence of special/exceptional circumstances for the non-appearance of the person. See the ratio in State of Assam v Moslem Mandal((2013) 3 GLR 402). It was stated in Para 91:

The Tribunals constituted under the Foreigners Act read with the 1964 Order have to regulate their own procedure and they have also the quasi-judicial function to discharge and hence in a given case the Tribunal has the jurisdiction to entertain and pass the necessary order on an application to set aside an ex-parte opinion, provided it is proved to the satisfaction of the Tribunal that the proceedee was not served with the notice in the reference proceeding or that he was prevented by sufficient cause from appearing in the proceeding, reason for which was beyond his control. Such application, however, should not be entertained in a routine manner. The Tribunal can entertain such application provided the proceedee could demonstrate the existence of special/exceptional circumstances to entertain the same by way of pleadings in the application filed for setting aside the ex-parte opinion, otherwise the very purpose of enacting the 1946 Act and the 1964 Order would be frustrated. The Tribunal, therefore, would have the jurisdiction to reject such an application at the threshold, if no ground is made out.

4.3. Table of Cases

S NoCase NameCitationOutcomeReasoning
  1.  Huran Nessa v Union of India  MANU/GH/0792/2018  Allowed  The proceedee was not aware that she was required to register herself with the FRRO in the stipulated time as her husband/father had passed away before conveying such important information. This constituted an exceptional circumstance.
  2.  Samad Ali v Union of India  2012 (5) GLT 162, MANU/GH/0614/2012  Allowed  The proceedee being an illiterate and poor man submitted the requisite documents to the clerk, who assured him that they will be admitted. He was of the bona fide beliefthat there was no need for him to attend the proceedings after that. The ex parte order was set aside.
  3.  Narayan Das v State of Assam  MANU/GH/1139/2017  Dismissed  The proceedee being wholly dependent on his lawyer and that being the reason for his non-attendance was not considered a special circumstance.
  4.  Anowara Begum v State of Assam and Ors.  2017 (3) GLT 104, MANU/GH/0350/2017  Dismissed  The appellant was an illiterate person and suffered from acute poverty. After submission of the written statement, she was told by her lawyer that she would be informed as and when her presence was required. Along with the written statement, the lawyer did not enclose the relevant documents handed over to him by the appellant. The written statement also did not disclose the case of the appellant and no steps were taken by the lawyer to produce her witnesses. But these contentions were held to be contradictory and untenable. It was held that FT proceedings are not to be taken so lightly.  
  5.  Jakir Hussain v Union of India  2016 (5) GLT 319, MANU/GH/0612/2016  Dismissed  Being misled by people due to illiteracy and ignorance as grounds for non-appearance were rejected.  
  6.  Asmul Khatun v The Union of India and Ors.  MANU/GH/0794/2016  Dismissed  The petitioner was an illiterate lady and was not well-versed with court procedures. Due to wrong advice given by people, she did not attend the proceedings. This reason was not accepted.  
  7.  Idrish Ali (Md.) and Ors. v Union of India and Ors  2016(3) GLT 886, MANU/GH/0360/2016  Dismissed  The petitioners being illiterate and ignorant about the court procedure relied upon the engaged counsel, and as he did not provide proper guidance to the petitioners about the procedure of the case, they could not appear, and the case was decided ex-parte. The High Court held that it was not the case of the petitioners that they approached their engaged counsel after filing of the case and he suppressed the result of the case etc. Such a casual approach by the petitioners cannot be held as an exceptional circumstance which prevented them from appearing before the Tribunal.

Challenging Ex Parte Orders – Special Circumstances

Ex parte orders are delivered without the presence of the accused in the Court/Tribunal. Ex parte orders are extremely significant in the context of Foreigners’ Tribunal (‘FT’) proceedings in Assam. It has been reported that since 1985, nearly 64,000 people in Assam have been declared as ‘foreigners’ through ex parte orders. They often become aware of the ex parte orders against them only when they are apprehended by the border police to be sent to detention centres. However, the Foreigners (Tribunals) Order, 1964, provides for a mechanism to set aside an ex parte order. Additionally, Tribunals can also accept applications to set aside ex parte orders in case they are of the opinion that certain special/exceptional circumstances led to the applicant being unaware of the proceedings. This research note studies the mechanism for setting aside an ex parte order and mentions the relevant cases where ex parte orders were set aside due to special/exceptional circumstances.  

I. Relevant Statutes/Rules/Orders

Paragraph 3C of the Foreigners (Tribunals) Order, 1964 provides for filing of an application before the FT for setting aside an ex parte order within a period of 30 days from the date of the said FT Opinion. Rule 3C of the Foreigners (Tribunals) Order, 1964, is as follows:

“3C. Procedure for setting aside ex parte order.–

(1) Where the Foreigners Tribunal has passed an ex-parte order for non-appearance of the proceedee and he or she has sufficient cause for not appearing before the Foreigners Tribunal, it may on the application of the proceedee, if filed within thirty days of the said order, set aside its ex parte order and decide the case accordingly.

(2) The proceedee may file an application to the Foreigners Tribunal within thirty days to review the decision of the Foreigners Tribunal claiming that he is not a foreigner and the Foreigners Tribunals may review its decision within thirty days of the receipt of such application and decide the case on merits.

(3) Subject to the provisions of this Order, the Foreigners Tribunal shall have the powers to regulate its own procedure for disposal of the cases expeditiously in a time bound manner.”

II. Special/Exceptional Circumstances

The Tribunal can entertain an application for setting aside an ex parte opinion if it is satisfied as to the existence of special/exceptional circumstances for the non-appearance of a person. State of Assam v. Moslem Mandal [(2013)3 GLR 402 at para 91 [Full Bench]] dealt with such special/exceptional circumstances:

“The Tribunals constituted under the Foreigners Act read with the 1964 Order have to regulate their own procedure and they have also the quasi-judicial function to discharge and hence in a given case the Tribunal has jurisdiction to entertain and pass necessary orders on an application to set aside an ex-parte opinion, provided it is proved to the satisfaction of the Tribunal that the proceedee was not served with the notice in the reference proceeding or that he was prevented by sufficient cause from appearing in the proceeding, reason for which was beyond his control. Such application, however, should not be entertained in a routine manner. The Tribunal can entertain such application provided the proceedee could demonstrate the existence of the special/exception circumstances to entertain the same by way of pleadings in the application filed for setting aside the ex-parte opinion, otherwise the very purpose of enacting the 1946 Act and the 1964 Order would be frustrated. The Tribunal, therefore, would have the jurisdiction to reject such application at the threshold, if no ground is made out.”

III. Cases Dealing With Special/Exceptional Circumstances

S NoCase NameCitationOutcomeReasoning
1.Taher Ali v. Union of IndiaWP(C) 5608/2019AllowedMissing a single hearing cannot be grounds for an ex parte order.
2.Habibur Rahman v. Union of IndiaWP(C) 8564/2019AllowedWife’s death constitutes exceptional circumstance to set aside an ex parte order.
3.Samsul    Hoque    v. Union of IndiaAIR 2018 Gau 157 MANU/GH/ 0778/2018AllowedRiots in Mizoram (which was the appellant’s place of work) prevented him from attending court proceedings.
4.Huran    Nessa    v. Union of IndiaMANU/GH/0 792/2018AllowedThe proceedee was not aware that she was required to register herself with the FRRO within the stipulated time, as her husband/father had passed away before conveying this important information to her. This constituted an exceptional circumstance.
5.Bahej Ali v. Union of India2018(2) GLT 837 MANU/GH/ 1032/2017AllowedDue to the long pendency of reference (23 years), and the wife of the proceedee having passed away, the ex parte order was set aside.
6.Samad Ali v. Union of India2012(5) GLT 162 MANU/GH/ 0614/2012AllowedThe proceedee being an illiterate and poor man, submitted the requisite documents to the clerk who assured him that they would be admitted. He was of the bona fide belief that there was no need for him to attend the proceedings after that. The ex parte order was set aside.

This research note was edited by Sreedevi Nair.

Proving Documents When the Original Author Is Not Available

Bureaucratic exercises to determine citizenship are usually heavily reliant on documentation. The process to prepare the National Register of Citizens (‘NRC’) has been no different. For a person’s name to be included within the NRC, the applicant would have to submit documents such as land and tenancy records, board/university education documents, citizenship certificate, amongst others. Applicants would also be required to prove the validity and veracity of the documents they submit. This has to be done by examining the author or the issuing authority of the document, who would have to testify as to the veracity of the documents. However, often, the author of the document is not available for examination, for a variety of reasons. Problems could also arise in a situation where the documents are quite dated. Issues such as these could lead to dire consequences, such as the particular documents being rendered inadmissible as evidence, thereby jeopardizing the applicant’s claim of citizenship. In an analysis of 787 orders and judgments of the Gauhati High Court, it was found that one in two people were declared to be foreigners because the issuing authority/author of the document failed to appear before the Foreigners’ Tribunal and testify that the documents were genuine. Considering these severe consequences, it becomes important to analyse the legal provisions that can be used to prove a document when its author is not available to testify to its genuineness. This research note analyses the legal provisions which might help in proving documents whose author isn’t present. It also looks at the presumption for documents which are over 30 years old and objections regarding the mode and manner of proof of documents.

A. Proof of execution/genuineness of a document

Section 67 of the Evidence Act read with Section 45 and 47 talk about the proof of execution or genuineness of a document. This requires the identification of the handwriting/signature of the author of the document. This can be done by bringing the author of the document or any other person who witnessed the author signing/writing out the document, or who is generally familiar with the author’s signature/writing.

This can also be proved by circumstantial evidence, including the form in which the document was prepared and comparing that to other documents prepared by the same author or as a series in a regular correspondence or other internal clues about the genuineness of the document (e.g.: symbols/marks).

The original author of the document is not required to be present in court to prove a document and its contents. The proof of the truth of the contents of a document can be proved by any person who can vouchsafe for the truthfulness of those facts.

The following cases deal with the proof of documents:

  1. Mobarik Ali Ahmed v. State of Bombay, 1958 SCR 328 : AIR 1957 SC 857 : 1957 Cri LJ 1346 [Supreme Court – 4 judge bench]

In this case, the appellant relied upon certain letters, most of which were purported to bear his signature. A few of those signatures were admitted to by the appellant. There were also a few letters without signatures. Both the complainant and Jasawalla (a commission agent who was in correspondence with the appellant) speak to the signatures on the other letters. The objection of the learned counsel for the appellant was that neither of them has actually seen the appellant write any of the letters nor are they shown to have such an intimate acquaintance with his correspondence so as to enable them to speak to the genuineness of these signatures. The learned trial judge, as well as the learned judges of the High Court has found that there were sufficient number of admitted or proved letters which might well enable Jasawalla and the complainant to identify the signatures of the appellant in the disputed letters. They also substantially laid stress on the contents of the various letters, in the context of the other letters and telegrams to which they purport to be replies, and which form the chain of correspondence, as indicating the genuineness of the disputed letters. The learned counsel objected to this approach on a question of proof. However, the Court did not agree to this objection. The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Sections 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document.

This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position, both, with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, as also his knowledge of the subject matter of the chain of correspondence, to speak to its authorship. In an appropriate case the court may also be in a position to judge whether the document constituted a genuine link in the chain of correspondence and thereby determine its authorship.  In this case, the Court refused to hold that the approach adopted by the lower courts in arriving at the conclusion that the letters were genuine, was open to any serious legal objection. The question, if any, can only be as to the adequacy of the material on which the conclusion as to the genuineness of the letters is arrived at. However, the Court did not look into this matter.

  1. Ramji Dayawala & Sons (P) Ltd. v. Invest Import, (1981) 1 SCC 80 [Supreme Court – 2 judge bench]

There existed a dispute between the parties, during the course of which letters and cables were sent. It was urged by the respondents that even if the Court proceeds on the assumption that the letter and the cable were received, it was not open to this Court to look into the contents of the letter and the cable. This was because the contents were not proved, as the Managing Director of the appellant Company who was supposed to have signed the letter and the cable had neither entered the witness-box nor filed his affidavit proving the contents thereof.

Reliance was placed on Judah v. Isolyne Shrojibasini Bose [AIR 1945 PC 174: 1945 MWN 634: 26 PLT 279]. In that case, a letter and two telegrams were tendered in evidence and it was observed that the contents of the letter and the telegram were not the evidence of the facts stated therein. The question in that case was whether the testatrix was so seriously ill as would result in impairment of her testamentary capacity. To substantiate the degree of illness, a letter and two telegrams written by a nurse were tendered in evidence. The question was whether in the absence of any independent evidence about the testamentary capacity of the testatrix, the contents of the letter could be utilised to prove want of testamentary capacity.  The Privy Council observed that the fact that a letter and two telegrams were sent by itself would not prove the truth of the contents of the letter and, therefore, the contents of the letter bearing on the question of lack of testamentary capacity would not be substantive evidence.

Mere proof of the handwriting of a document would not be tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue, mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.

But in this case, Bhikhubhai Gourishankar Joshi, who filed an affidavit on behalf of the appellant, had referred to the averments in the letter and the cable. He was a principal officer and constituted an attorney of the appellant company. The Court established the truth of the averments made in the letter on the basis of the fact that even after the receipt of the letter and the cable were admitted or proved, and the fact that even after the dispute arose, but before the suit was filed, the respondent did not make any overt or covert references to the arbitration agreement, in the correspondence between the parties. The truth of the averments was also established on the basis of the failure of the respondent to reply to the letter and the cable controverting to the averments made therein, in the correspondence that ensued. The Court held that the averments contained in the letter and the cable were satisfactorily proved.

  1. Rami Bai v. Life Insurance Corporation of India, AIR1981MP69, 1981MPLJ192 [Madhya Pradesh High Court – Division Bench]

In this case, it was held that Section 67 of the Indian Evidence Act does not lay down any particular mode of proof for proving that a particular writing or signature is in the hand of a particular person. Thus, the signatures may be proved in any one or more of following modes:

  1. By calling the person who signed or wrote a document;
  2. By calling a person in whose presence the documents are signed or written;
  3. By calling handwriting expert;
  4. By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written;
  5. By comparing in court, the disputed signature or handwriting with some admitted signatures or writing;
  6. By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it;
  7. By the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person. A signature is also proved to have been made, if it is shown to have been made at the request of a person by some other person, e. g. by the scribe who signed on behalf of the executant;
  8. By other circumstantial evidence.
  1. Dhar and Co v. Sib Narayan Singh, 59 Ind. Cas.188; MANU/WB/0195/1920 [Calcutta High Court – Division Bench]

In this case, it was held that where an executant denies that he wrote a document, the ordinary mode of proving the execution is by calling someone who saw such person write, or who knows his handwriting. This is only one of the modes of proving the document.  In this particular case, there were several papers on record which bore the admitted signatures of the respondent  and it was held that the Court could have compared the signature on the letter with those signatures.

B. Presumption for documents over 30 years old

Section 90 of the Indian Evidence Act allows a court to raise a presumption as to the genuineness of a document that is over 30 years old and is produced from the proper custody of the person who would normally be in possession of such a document in the usual course of things. In such a case, the author of the document does not need to come to court and identity the document or his handwriting, etc.

The following are some cases dealing with Section 90 of the Indian Evidence Act:

  1. State of A.P. v. Star Bone Mill and Fertiliser Company, (2013) 9 SCC 319 : (2013) 4 SCC (Civ) 444 : 2013 SCC OnLine SC 176 at page 325 [Supreme Court – 2 judge bench]

Section 90 of the Indian Evidence Act is based on the legal maxims: nemo dat qui non habet (no one gives what he has not got); and nemo plus juris tribuit  quam ipse  habet (no one can bestow or grant a greater right, or a better title than he has himself). This section does away with the strict rules, as regards the requirement of proof, which are enforced in the case of private documents, by giving rise to a presumption of genuineness, in respect of certain documents that have reached a certain age. The period is to be reckoned backward from the date of the offering of the document, and not any subsequent date i.e. the date of decision of suit or appeal. Thus, the said section deals with the admissibility of ancient documents, dispensing with proof as would be required, in the usual course of events in a usual manner.

  1. Desh Raj v. Bodh Raj, (2008) 2 SCC 186 : (2008) 1 SCC (Civ) 498 at page 197 [Supreme Court – 2 judge bench]

This case involved a dispute between Desh Raj (appellant) and Bodhi Raj (respondent) as to the respondent’s caste, and whether he was entitled to contest elections from a seat reserved for Scheduled Castes. In this case, the High Court rejected two exhibits, Exts. PW 3-A and PW 3-B, on the ground that the date of Ext. PW 3-A was not clear and could be read as either 22-4-1966 or 23-4-1968. But neither of those dates correlated to Ext. PW 3-B, as that showed that the admission must have been made between 11-9-1967 and 4-4-1968. It is evident from Ext. PW 2-A that Bodh Raj left the primary school on 31-3-1967. The date on which the application for admission was registered was seen as “22.4.196­  ”. The Court had a doubt regarding the last figure in the “year” and had to determine whether it was ‘6’ or ‘7’ or ‘8’ as that would make the year 1966, or 1967, or 1968. Merely because there was difficulty in reading one figure in the date could not be a ground to refuse to accept Ext. PW 3-A. The said application submitted by

Milkhi Ram, containing his thumb mark, being a document more than 30 years old attracted the presumption under Section 90 of the Evidence Act. As Ext. PW 3-A gives the caste as “Tarkhan”, it has to be treated as clinching evidence. Ext. PW 3-B which was also produced from proper custody in pursuance of summons issued from the Court showed that Bodh Raj, son of Milkhi Ram, Tarkhan caste, belonging to Mohtli Village studied up to 8th standard. Here, the Court noticed that the evidence of the witnesses of both, the appellant and the respondent was that there is only one Bodh Raj, son of Milkhi Ram in Mohtli Village. Therefore, the Court held that there was no justification to hold that there were some irreconcilable differences between Ext. PW 3-A and Ext. PW 3-B and rejected both the documents.

  1. Laisangbam Bimol Singh v. Konsam Babulen Singh, 1999 SCC OnLine Gau 159: (2000) 3 Gau LR 389 : (2000) 1 Gau LR 457 at page 394 [Gauhati High Court – Division Bench]

As a general rule if a document is produced before a court its execution must be proved by a witness and if the document is required by law to be attested, its attestation must also be proved by some witness. Only when this formality has been observed can the document form part of the record and be looked into. If the documents produced in court are not proved, they cannot be relied upon. But there may be circumstances when the documents have been produced before the court long after they have been executed. The time elapsed between the execution and the production of document in the court may be so long that all the persons in whose presence the document was executed might have died. If the method of proof mentioned above is strictly to be followed in such cases, it could cause great hardship and a number of genuine documents would remain unproven. Section 90 of the Indian Evidence Act is a provision for this kind of a situation. This section is founded on necessity and convenience. Section 90 gives the court the power to draw a presumption about a document which is 30 years old. The conditions for presumption are as follows:

  1. The document must have been in existence for 30 years or more.
  2. It must be produced in court from proper custody.
  3. The document must be in appearance free from suspicion.
  4. It must purport to be in the handwriting of a person and should not be anonymous.

The period of 30 years is to be reckoned, not from the date upon which the deed is filed in court but on the date on which it has been tendered in evidence, when its genuineness or otherwise becomes the subject of proof. Generally, there is no presumption about the recitals in such a document. But in some circumstances a recital of consideration, legal necessity etc. may be presumed under Section 90. The presumption under Section 90 is rebuttable, but in such a case, the burden will fall on the defendant.

C. No objection as to mode and manner of proof taken at the appropriate stage

Irregularities or errors in the mode or manner of proof of documents must be taken at the stage of tendering the document into evidence and not at a later stage.

In the absence of the objection at the stage of tendering the document into evidence, the document cannot be assailed at a later stage on the ground that the mode or manner of proof was incorrect.

The following cases deal with objections as to the mode and manner of proof:

  1. RVE Venkatachala Gounder v. Arulmigu Visweswaraswami (2003) 8 SCC 752

In this case it was held that, if there is any objection to the evidence, it should be taken before the evidence is tendered.  Once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by this failure, the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence. There are two reasons for this.  Firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there. Secondly, in the event of a finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking the indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties.

  1. Gopal Das v. Sri Thakurji, AIR 1943 PC 83

This case pertained to a scenario where the objection to be taken was not that the document was   in itself inadmissible but that the mode of proof put forward was irregular or insufficient. The Court held that in such a scenario, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. It held that a party cannot lie by until the case comes before a court of appeal and then complain for the first time about the mode of proof.

This note has been edited for clarity by Sreedevi Nair.