Supreme Court Sets Aside Foreigners Tribunal Order in Citizenship Case from Assam
The Supreme Court of India delivered a landmark judgment in the case of Md Misher Ali @ Meser Ali v. Union of India & Others, setting aside the order of the Foreigner’s Tribunal, Jorhat, Assam, which had declared the appellant as a foreigner who had illegally entered India from Bangladesh after March 24, 1971.
Background of the Case
The case arose when the Superintendent of Police (Border), Sivasagar district, referred the matter to the Foreigner’s Tribunal, alleging that Md Misher Ali had illegally entered India without valid documents. The Tribunal issued a notice, but as per the records, the notice was served by pasting it at a temporary address rather than his permanent residence.
The Tribunal, on March 22, 2018, passed an ex-parte order declaring him a foreigner, and the Guwahati High Court upheld this order, dismissing his writ petition and review petition. The appellant challenged the decision in the Supreme Court.
Petitioner’s Arguments (Md Misher Ali)
The appellant argued:
- The order was passed in violation of natural justice, as he was never given a fair opportunity to present his case.
- The Tribunal failed to serve notice at his permanent residence in Dhubri, Assam, instead attempting service at his temporary address in Sivasagar.
- The High Court ignored crucial evidence that the appellant had a fixed permanent residence and that no genuine effort was made to serve him properly.
- The burden of proof, though placed on the appellant under the Foreigner’s Act, could not be discharged as he was unaware of the proceedings due to improper notice.
Respondent’s Arguments (Union of India & State of Assam)
The respondents countered:
- The Tribunal followed the correct legal procedure by serving the notice as per the Foreigners (Tribunal) Order, 1964.
- The appellant did not avail the remedy under Paragraph 3A of the Foreigners (Tribunal) Order, 1964, which allowed him 30 days to challenge the ex-parte order.
- The appellant failed to inform the authorities about his change of residence, justifying service at his last known address.
Supreme Court’s Observations
The bench comprising Dr. Dhananjaya Y. Chandrachud, M.R. Shah, and Sanjiv Khanna made the following key observations:
1. Improper Service of Notice
“The Tribunal was apprised of the fact that while the address of the appellant is shown as ‘C/o Shri Nivas Paul, Village Haluating Bazar, District Sivasagar,’ his permanent residential address is in Village Ballabil, District Dhubri, Assam. No effort was made to serve notice at his permanent residence.”
The Court found that service at a temporary address was insufficient and unfair.
2. Violation of Natural Justice
“Since the authorities had knowledge of the appellant’s permanent address, their failure to serve him there indicates a violation of the principles of natural justice.”
The Court emphasized that legal proceedings must be conducted fairly and that an individual should not be declared a foreigner without proper service of notice.
3. Inapplicability of Paragraph 3A
“The provision under Paragraph 3A, which allows for a review of ex-parte orders within 30 days, applies only when proper service has been effected. Since service was not properly executed, this provision is inapplicable.”
The Court clarified that a person cannot be expected to challenge an order if they were never properly notified of the proceedings.
Supreme Court’s Verdict
The Supreme Court ruled:
- The orders of the Foreigner’s Tribunal (March 22, 2018) and the Guwahati High Court (December 6, 2019) were set aside.
- The case was remanded to the Foreigner’s Tribunal for fresh adjudication.
- The appellant was ordered to appear before the Tribunal on April 12, 2021, to present his defense.
- Md Misher Ali was to be released from custody immediately.
Conclusion
This judgment reinforces the fundamental principle of natural justice in citizenship cases. It highlights the importance of proper service of notice in Foreigner Tribunal proceedings and ensures that no individual is arbitrarily declared a foreigner without a fair hearing.
Petitioner Name: Md Misher Ali @ Meser Ali.Respondent Name: Union of India & Others.Judgment By: Justice Dhananjaya Y. Chandrachud, Justice M.R. Shah, Justice Sanjiv Khanna.Place Of Incident: Assam, India.Judgment Date: 24-03-2021.
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