WP(C) 1484/2010 BEFORE THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGEMENT AND ORDER Heard Mr. R Ali, learned counsel appearing for the petitioner. Also hear d Ms. D Sinha, learned CGC appearing for respondent No.1 and Mr. JUNM Laskar, le arned State counsel appearing for respondent Nos.2, 3 and 4. 2. The petitioner, namely, Rahmat Ullah @ Rakmat Ullah, by the instant peti tion has challenged the judgment and order dated 30.5.2008 passed by the learned Member, Foreigners Tribunal (2nd Tribunal), Barpeta in FT (2nd Tribunal) Case N o.45/2006, whereby and whereunder the petitioner has been declared as a foreigne r within the meaning of Section 2 (a) of the Foreigner’s Act, 1946 (’the Act’ fo r short). The ground on which the said order has been challenged is that the pet itioner was not served with any notice from the Tribunal and as such, he remaine d absent in the said proceedings, thereby depriving him from contesting the proc eeding so as to enable him to prove that the petitioner is an Indian National. 3. The petitioner’s case, in brief, is that the petitioner is a citizen of India by birth and permanent resident of Uttar Safakamar, PO- Gobardhana, PS- Ba rpeta Road, District- Barpeta, Assam. He was born and brought up in that village and his father’s name is Saher Uddin Mia and his mother’s name is Taiman Nessa. He is the only son of his parents and he has one sister. His parents name were enrolled in the voter list of 1965 at serial No.138 and 139 under 47 No. Sarbho g Assembly Constituency. In the subsequent voter list of 1970 also his parents’ name appeared at serial No.135 and 136 from the same Assembly Constituency. The name of the petitioner was enrolled in the voter list alongwith his parents in t he year 1989. The petitioner is a daily wage labourer and therefore he is workin g in various places of Assam, Nagaland, Meghalaya (Shillong) etc. Although all h is family members are the citizen of India, a reference case being Ref. No.9191/ 98 was made by the Superintendent of Police, Barpeta under the Illegal Migrants (Determination by Tribunal) Act, 1983. In the said proceeding, the petitioner ha s submitted his written statements. However, as per judgment of the Hon’ble Supr eme Court rendered in Sarbananda Sonowal -vs-Union of India and others reported in AIR 2005 SC 2920, the cases pending before the Illegal Migrants Determination Tribunal were transferred to Foreigners Tribunal (2nd Tribunal) Barpeta for di sposal under the Foreigners Act. After the transfer of the case, the petitioner did not receive any notice from the aforesaid Tribunal and as such, he had no kn owledge about restarting of the proceeding. The petitioner, therefore, could not attend the court proceeding and in his absence, the learned Tribunal passed the ex-parte judgment and order on 30.5.2008 declaring the petitioner as foreigner on the basis of the report of the Local Verification Officer (LVO). The petition er came to know about the ex-parte judgment and order in the month of October, 2 009 from the police of Barpeta Road Police Station and after obtaining the copy of the judgment and order, he came to know that he has been declared as foreigne r by the Tribunal by an ex-parte judgment and order wherein it has been recorded that the notice was duly served upon the petitioner, despite the fact that no n otice was served upon the petitioner and he was completely unaware about the cou rt proceeding. Had there been any knowledge regarding restarting of the proceedi ng by the Tribunal, the petitioner would have appeared before the Tribunal and c ontest the case and in that event the impugned order might not have been passed and hence, the instant writ petition with the prayer for setting aside and quash ing the impugned judgment and order and remanding the matter to the Tribunal for fresh disposal, giving him a chance to contest in the proceeding. 4. Mr. Ali, learned counsel for the petitioner referring to the copy of the notice available on the record of Foreigners Tribunal (2nd Tribunal) Barpeta, c ase No.45/2006 has submitted that it is evident there from that proper service o f notice has not been effected on the petitioner, inasmuch as, as per report of the process server, the notice was served upon one Md. Nurul Islam stated to be the uncle of the petitioner, whereas the petitioner has stated on oath that no n otice of the proceeding before the Tribunal has been served upon him. Mr. Ali ha s further submitted that Clause 3 of the Foreigner’s (Tribunal for Assam) Order, 2006 (for short, ’2006, order’) made in exercise of the power conferred by Sect ion 3 of the Act requires service of notice on the person, against whom the ques tion relates to the citizenship arises giving him a reasonable opportunity of ma king the representation and producing evidence in support of his case. Sub claus e 1 and 2 of clause 3 being relevant are quoted hereunder: 3. Procedure for disposal of questions.-(1), The Tribunal, upon receipt of a re ference under sub-clause (1) of Cl.2, shall consider whether there is sufficient ground for proceeding and if the Tribunal is satisfied that basic facts are pri ma facie established, it shall serve on the person to whom the question relates, a copy of the main grounds on which he is alleged to be a foreigner and give hi m a reasonable opportunity of making a representation and producing evidence in support of his case and after considering such evidence as may be produced and after hearing such person as may desire to be heard, the Tribunal shall submit i ts opinion to the officer or authority specified in this behalf in the order of reference. (2) The Tribunal shall, before giving its opinion on the question referred to in sub-clause. (2), of Cl. 2, give the person in respect of whom the opinion is so ught, a reasonable opportunity to represent his case. 5. A bare perusal of the above provision would show that the aforesaid prov ision has been violated in the instant case, as the petitioner has been denied t he reasonable opportunity of being heard because of non service of notice. The l earned counsel for the petitioner, therefore, submits that the order dated 30.5. 2008 passed by the learned Tribunal may be set aside and the proceeding may be r emitted to the learned Tribunal for deciding the same afresh. 6. Per contra, Ms. Sinha, learned Central Govt. Counsel as well as Mr. Lask ar, learned State counsel supporting the order dated 30.5.2008 have submitted th at the petitioner has been declared as foreigner after due service of notice and as such, the petitioner could not make out a case for interference by this Cour t and the writ petition is accordingly liable to be dismissed. 7. The question, which arises for consideration, in the case in hand, is wh ether the petitioner has been served with the notice before passing the impugned ex-parte order. Clause 2 of the 2006, order empowers the Central Govt. or any a uthority specified in this regard to refer the question, by order as to whether a person is or is not a foreigner within the meaning of the Act, to a Tribunal t o be constituted for this purpose, for is opinion. Sub clause (1) of clause 3 as quoted hereinabove provides that the Tribunal, upon receipt of the reference un der sub clause (1) of clause 2 shall consider whether there is sufficient ground for proceeding and if the Tribunal is satisfied that basic facts are prima faci e established, it shall serve on the person to whom the question relates, a copy of the main grounds on which he is alleged to be a foreigner and give him a rea sonable opportunity of making a representation and producing evidence in support of his case. The Tribunal thereafter, is required to submit its opinion to the officer or authority specified in this behalf in the order of reference, after c onsidering such evidence as may be produced and after hearing such person as may be desired to be heard. 8. The records maintained by the learned Tribunal in the present case in ha nd reveal issuance of the notice(s) by the learned Member addressed to the petit ioner forwarding the same to the Officer-in-Charge, Barpeta Road Police Station, district Barpeta to cause service of the same and also to submit the report bef ore the date fixed. It appears from the report of the process server on the reve rse page of the said notice that the notice was served upon Md. Nurul Isslam sta ted to be the uncle of the petitioner. It has been clearly stated in sub clause (1) of clause 3 of the 2006 order that if the Tribunal is satisfied that the bas ic facts are prima facie established, it shall serve upon the person to whom th e question relates a copy of the main grounds , whereas in the present case in h and, the record would reveal that the process server had served the copy of the notice to a person who is stated to be the uncle of the petitioner. As the provi sion is mandatory, the Tribunal could have passed an order in absence of the pet itioner to serve notice in a substituted manner or in a given case, the Tribunal can also direct service of notice by an advertisement in a newspaper. Consideri ng the manner of service of notice in the instant case, the notice, therefore, c annot be said to have been properly served upon the petitioner, so as to enable him to contest the proceeding as required by clause 3 of the 2006 order. 9. As noticed above, no opinion could have been expressed by the Tribunal w ithout serving a copy of the notice together with the main grounds on which the petitioner is alleged to be a foreigner, which is the requirement of sub clause (1) of clause 3 of the 2006 order, thereby the petitioner has been declared as f oreigner without giving him the reasonable opportunity of being heard and to pro ve that he is not a foreign national but an Indian national. 10. That being the position, without going to the merit of the case the orde r dated 30.5.2008 passed by the learned Member, Foreigners Tribunal (2nd Tribuna l, Barpeta in FT (2nd Tribunal) Case No. 45/2006 is set aside. The matter is rem itted to the learned Member, Foreigners Tribunal (2nd Tribunal) Barpeta for deci ding the said proceeding afresh. The parties are directed to appear before the l earned Tribunal on 10th March, 2012 for obtaining further order from the said Tr ibunal. The learned Tribunal shall decide the proceeding within a period of 3 (t hree) months from the date of appearance of the petitioner as fixed hereinabove. It is needless to say that no further notice is required to be issued by the le arned Tribunal, as the petitioner is directed to appear before the learned Tribu nal on 10th March, 2012 and he also knows the ground on which the proceeding has been initiated. 11. Mr. Ali, learned counsel appearing for the petitioner has submitted that the petitioner has been taken into custody and presently he is in the detention camp at Barpeta. The Superintendent of Police, Barpeta as well as the Officer-i n-Charge of the detention camp, Barpeta, are, therefore, directed to release the petitioner from the custody forthwith, making it clear that during the pendency of the proceeding before the learned Tribunal, the petitioner shall not leave t he State of Assam without the written permission from the learned Member, Foreig ners Tribunal (2nd Tribunal) Barpeta. 12. The writ petition is accordingly allowed to the extent as indicated here inabove. No costs. 13. The Registry is directed to send down the records to the learned Tribuna l forthwith, so as to reach the office of the learned Tribunal on or before 29th February, 2012.