Md. Khamal Azad @ Kalam Azad @ A Kalam Azad @ A Kalam v. The Union of India and 6 Ors

PageoNo.#o1/4 GAHC010062932024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/1857/2024o MD.oKHAMALoAZADo@oKALAMoAZADo@oAoKALAMoAZADo@oAoKALAMo S/O-oLATEoMD.oKAMARo@MD.oKAMARUDDIN@oKUMURUDDINo@KUMARo UDDINoMIAo@KUMARoUDDINoSHEIKH,o R/O-oVILLAGEoNARAYANGURI,o P.S-oGOBARDHANA,o DIST-oBAKSA,ASSAM VERSUSo THEoUNIONoOFoINDIAoANDo6oORSo REP.oBYoTHEoSECRETARYoTOoTHEoGOVT.oOFoINDIA,oMINISTRYoOFoHOMEo AFFAIRS,oNORTHoBLOCK,oNEWoDELHI-o110001. 2:THEoSTATEoOFoASSAM oREP.oBYoTHEoSECRETARYoTOoTHEoGOVT.oOFoASSAM oHOMEoDEPARTMENT oDISPUR oGUWAHATI-6 3:THEoELECTIONoCOMMISSIONERoOFoINDIA oREP.oBYoTHEoCOMMISSIONERoOFoINDIA oNIRVACHANoSADAN oASHOKAoROAD NEWoDELHI-110001 4:THEoSTATEoCOORDINATOR oOFoNATIONALoREGISTERoOFoCITIZENS oO/OoTHEoSTATEoCOORDINATORoNRCoASSAM o ASSAM o1SToFLOOR oACHYUToPLAZA Page No.# 2/4 G.S ROAD. BHANGAGARH GUWAHATI-05 DIST-KAMRUP (M) 5:THE DEPUTY COMMISSIONER BAKSA ASSAM 6:THE SUPERINTENDENT OF POLICE (B) BAKSA ASSAM 7:OFFICER IN CHARGE GOBARDHANA POLICE STATION DIST-BAKSA ASSA Advocate for the Petitioner : MS N DEKA Advocate for the Respondent : DY.S.G.I.

BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

04/04/2024 (M.R. Pathak, J) Heard Ms. H Betala, learned counsel for the petitioner. Also heard Mr. A Kalita, learned Standing counsel, Home Department, Assam for the respondent Nos. 2, 6 & 7; Mr. H Kuli, learned counsel appearing on behalf of Mr. A I Ali, learned Standing counsel, Election Commission of India for the respondent No. 3 and Mr. P Sharma, learned Additional Senior Government Advocate, Assam for the respondent No. 5.

¶2In a reference being made by the Superintendent of Police (Border), Barpeta as to whether the petitioner is a foreigner or not, a proceeding being F.T. 9th (BPT) Case No. 764/2018 was initiated against him before the learned Member, Foreigners Tribunal 9th Barpeta, Assam under the Foreigners Act, 1946. Page No.# 3/4

¶3The said Tribunal by an ex-parte order dated 29.10.2019 opined the petitioner to be a foreigner under the said 1964 Act of post 1971 stream.

¶4Dissatisfied with the same, the petitioner has filed this writ petition on 21.03.2024 stating that notice was not duly served upon him pertaining to the said F.T. 9th (BPT) Case No. 764/2018 for which the said ex-parte order was passed.

¶5It is also submitted on behalf of the petitioner that had the notice of the said case been served upon him, he would have appeared before the Tribunal to prove his nationality.

¶6We have gone through the ex-parte order dated 29.10.2019 passed by the learned Member, Foreigners Tribunal 9th Barpeta in F.T. 9th (BPT) Case No. 764/2018 impugned in this writ petition.

¶7On perusal of the same, we have seen that the Tribunal itself in the said impugned ex-parte order dated 29.10.2019 observed that the report of the process server reveals that notice could not be served as the proceedee was not found in the locality which was supported by a certificate of the concerned Gaonburha, wherein the concerned Gaonburha noted that though the proceedee was an inhabitant of the locality he was not found available.

¶8Considering the said report of the Gaonburha and the report on the notice that was issued by it, the Tribunal came to the conclusion that the proceedee had left the place without intimation to the concerned authority. As such, on the basis of the report of the process server and the said certificate of the Gaonburha concerned, the Tribunal proceeded with the case and passed the impugned ex-parte order dated 29.10.2019.

¶9The petitioner has now become aware of the said F.T. 9th (BPT) Case No. 764/2018, wherein though notice was issued to the petitioner by the Foreigners Tribunal 9th Barpeta but it was not duly served for which he could not appear in the matter, as noted above.

¶10After hearing the learned counsels for the parties, we are of the view that the notice of the said case was not served as specified under Order 3 (5) of the Foreigners (Tribunal) Order, 1964 and therefore, we set aside the impugned ex-parte order dated 29.10.2019 passed by the learned Member, Foreigners Tribunal 9th Barpeta in F.T. 9th (BPT) Case No. 764/2018 directing the petitioner to appear before the Foreigners Tribunal 9th Barpeta in said F.T. 9th (BPT) Case No. 764/2018 on Page No.# 4/4

01.05.2024 along with the certified copy of this order.

¶11However, it is made clear that on the said date, i.e., 01.05.2024, the petitioner, namely, Md. Khamal Azad @ Kalam Azad @ A Kalam Azad @ A Kalam in said F.T. 9th (BPT) Case No. 764/2018 shall file his written reply and evidence on affidavit along with the relevant documents to prove his nationality as required under the Foreigners Act, 1946 as well as the Citizenship Act, 1955.

¶12Failure on the part of the petitioner to appear before the said Tribunal in said F.T. 9th (BPT) Case No. 764/2018 on 01.05.2024 and to file his written reply as well as evidence on affidavit and documents that he relies on to prove his nationality by the said date, the Foreigners Tribunal 9th Barpeta shall be at liberty to proceed in accordance with law.

¶13With the above observation and direction, this writ petition stands disposed of.

JUDGE JUDGE Comparing Assistant