Md. Misher Ali @ Meser Ali vs Union Of India

Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal Nos 1058-1059 of 2021 (Arising out of SLP (C) Nos 9972-9973 of 2020)

Md Misher Ali @ Meser Ali Appellant

Versus

The Union of India and Others Respondent(s)

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1 Leave granted.

2 The Guwahati High Court dismissed a petition filed by the appellant to

challenge an order dated 22 March 2018 of the Foreigner’s Tribunal, Jorhat,

Assam in FT Case No SVR/310/2010. A review petition has since been

dismissed by the High Court on 6 December 2019.

3 A reference was made by the Superintendent of Police (Border) Sivsagar

district before the Foreigner’s Tribunal, alleging that the appellant is an illegal Signature Not Verified Digitally signed by Chetan Kumar Date: 2021.03.27 12:26:22 IST Reason: CA 1058-1059/2021 2

migrant who had entered into India without valid documents from

Bangladesh after 24 March 1971. The record before this Court indicates that

the notice to the respondent was sought to be served “by hanging” in the

presence of Shri Prabhat Gogoi, the Government Gaon Burha of Bengali Gari

Gaon and Shri Nivas Paul, the landlord of the appellant. The appellant is

alleged to have left his place of residence. An order was passed by the

Foreigner’s Tribunal on 22 March 2018 declaring the appellant to be a

foreigner who had illegally entered into India from Bangladesh after 24 March

1971.

4 Aggrieved by the order of the Tribunal, the appellant instituted a writ petition

under Article 226 of the Constitution before the High Court. The High Court

held that the notice was pasted in a conspicuous place of the last

reported/known place of residence and that it was properly served under

paragraph 3(5)(f) of the Foreigners (Tribunals) Order 1964. The High Court

has also held that the burden to prove his citizenship lies on the appellant

since the facts are within his knowledge and by neglecting to pursue the

proceedings, the appellant has failed to discharge the burden. The review

petition was dismissed on the ground that the parameters of review under

Order 47 of the Code of Civil Procedure were not established.

5 Notice was issued in these proceedings on 21 August 2020. In pursuance of

the order issuing notice, both the Union of India and the State of Assam have

entered appearance and filed their counter affidavits. CA 1058-1059/2021 3

6 The basic submission of the appellant, urged before the Court by Mr Fuzail

Ahmad Ayyubi, learned counsel is that the order declaring the appellant to be

a foreigner was passed in breach of the principles of natural justice and

hence, a remand to the Tribunal would be warranted. In this context, it has

been submitted that the order of the Foreigner’s Tribunal indicates that the

permanent place of residence of the appellant is in district Dhubri in Assam,

whereas service was sought to be effected at his temporary address in the

district of Sivasagar. Learned counsel submitted that since the authorities

had knowledge of the fact that the permanent place of residence of the

appellant was in district Dhubri, the fact that no effort was made to serve

him at this address would be sufficient to indicate that the order has been

passed in violation of the principles of natural justice.

7 On the other hand, Mr Shuvodeep Roy, learned counsel appearing on behalf

of the State of Assam has adverted to paragraph 3A of the Foreigners

(Tribunals) Order 1964. It has been submitted that the appellant failed to

avail of the opportunity under paragraph 3A of moving a proceeding within

30 days before the Foreigner’s Tribunal for setting aside the ex-parte order.

That apart, it has been submitted that under paragraph 3(5)(f), if there is a

change in the place of residence or of work without intimation to the

investigating agency, the process server is authorized to serve the notice at

the place where the individual ordinarily resides or last resided or reportedly

resided or personally worked for gain or carried on business. Hence, it has

been submitted that this procedure was complied with and consequently, the CA 1058-1059/2021 4

order of the Tribunal which has been affirmed by the High Court does not

warrant interference.

8 At the outset, it would be material to advert to paragraph 1 of the order

dated 22 March 2018 of the Foreigner’s Tribunal, which is extracted below:

“Originally this case was referred by the Superintendent of Police (B) Sivasagar District, under Foreigners Act 1946 vide Police Enquiry No.135/10 expressing doubt about the nationality of the proceedee namely Md. Misher Ali, S/o Md. Dasher Ali C/o Sri Nivas Paul, Village Haluating Bazar, P.S. Haluating, Dist. Sivasagar and Permanent residence of Vill. Ballabil, P.S. Mankachar, Dist. Dhuburi, Assam, with a prayer to decide as to whether the proceedee is a citizen of India or a foreigner. Subsequently this case was transferred to this Tribunal for decision as per provision of Foreigner’s Act 1946.”

9 The above extract indicates that 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, PS Haluating, District Sivasagar”, the permanent residential

address of the appellant has been indicated at Village Ballabil, PS Mankachar,

District Dhubri, Assam. This is also fortified by the statement of the appellant

which was recorded by the Senior Inspector of Police on 16 March 2010, a

copy of which annexed to the counter filed by the State of Assam. The

statement indicates that the address of the appellant corresponds to the

permanent residential address which is noted in paragraph 1 of the Tribunal’s

order as extracted above. Apart from this, the counter affidavit has also

adverted to the interrogation report before the Inspector of Police dated 22

January 2010, which again refers to the “address in India” as village Ballabil,

PS Mankachar, District Dhuburi, Assam.

CA 1058-1059/2021 5

10 Evidently, no effort had been made to effect service at the permanent place

of residence. Para 3(5)(f) of the Foreigners (Tribunals) Order 1964 is

extracted below:

“3(5)(f) if the proceedee has changed the place of residence or place of work, without intimation to the investigating agency, the process server shall affix a copy of the notice on the outer door or some other conspicuous part of the house in which the proceedee ordinarily resides or last resided or reportedly resided or personally worked for gain or carries on business, and shall return the original to the Foreigners Tribunal from which it was issued with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did do, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.”

11 The above provision deals with a situation where a “proceedee” has changed

the place of residence or place of work without intimation to the

investigating agency. The material which has been placed on record by the

State of Assam in the counter affidavit demonstrates that the provisions of

paragraph 3(5)(f) were not attracted ,since it was within the knowledge of

the investigating officer that the appellant has a permanent place of

residence, as reflected in the earlier part of the order. We are not impressed

with the submission that the appellant has not availed of the remedy under

paragraph 3A. This is for the simple reason that paragraph 3A contemplates

that where an ex-parte order is passed for non-appearance, the person who

is proceeded against may move an application within 30 days to set aside

the ex-parte order by demonstrating sufficient cause for not appearing

before the Foreigner’s Tribunal. This can have no application on the facts of

the present case where, as has now been duly established before this Court, CA 1058-1059/2021 6

service was not properly effected. Paragraph 3A which provides a time-limit

of thirty days to file an appeal would undoubtedly apply in a situation where

service has been duly effected despite which, the person who is proceeded

against has failed to appear and in which case a remedy is provided under

paragraph 3A. This can have no application in the facts of the present case.

12 For the reasons which have been indicated above, we are of the view that

the appeals should succeed. We accordingly allow the appeals and set aside

the impugned judgment of the High Court dated 6 December 2019, as well

as the order of the Foreigner’s Tribunal dated 22 March 2018. We accordingly

restore Case No FT/SVR/310/2010 (arising out of Police Enquiry No 135/10) to

the Foreigner’s Tribunal, Jorhat, Assam.

13 The appellant has been in custody since 15 May 2019. As a consequence of

the setting aside of the order of the Foreigner’s Tribunal, the appellant shall,

in the meantime, be set at liberty. Before his release from custody, the

appellant shall provide his address to the authorities. The appellant shall

appear before the Foreigner’s Tribunal on 12 April 2021 and continue to

cooperate by appearing in person until the proceedings are disposed of. The

Tribunal shall allow the appellant a sufficient opportunity, consistent with the

principles of natural justice, to file his response and produce documentary

and other material. Since a date has been fixed for the appearance of the

appellant before the Foreigner’s Tribunal, no fresh service of notice would be

necessary.

CA 1058-1059/2021 7

14 Pending applications, if any, stand disposed of.

….....…...….......………………........J. [Dr Dhananjaya Y Chandrachud]

..…....…........……………….…........J. [M R Shah]

..…....…........……………….…........J. [Sanjiv Khanna]

New Delhi;

March 24, 2021 CKB CA 1058-1059/2021 8

ITEM NO.10 Court 5 (Video Conferencing) SECTION XIV-A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal Nos.1058-1059/2021

MD. MISHER ALI @ MESER ALI Appellant(s)

VERSUS

THE UNION OF INDIA & ORS. Respondent(s)

(With appln.(s) for IA No. 65542/2020 - EXEMPTION FROM FILING O.T. IA No.65538/2020 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ ANNEXURES)

Date : 24-03-2021 These matters were called on for hearing today.

CORAM :

HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE M.R. SHAH HON'BLE MR. JUSTICE SANJIV KHANNA

For Appellant(s) Mr. Fuzail Ahmad Ayyubi, AOR Mr. Ibad Mushtaq, Adv.

Ms. Akanksha Rai, Adv.

For Respondent(s) Mr. Rupinder Singh Suri, ASG Mr. Bhuvan Mishra, Adv.

Mr. Kush Chaturvedi, Adv.

Mr. B. V. Balaram Das, AOR

Mr. Shuvodeep Roy, AOR Mr. Rahul Raj Mishra, Adv.

Mrs. Swarupama Chaturvedi, AOR Mr. Ashutosh Mohan, Adv.

Ms. Neha Rai, Adv.

CA 1058-1059/2021 9

UPON hearing the counsel the Court made the following O R D E R

1 Leave granted.

2 The appeals are allowed in terms of the signed reportable judgment.

3 Pending applications, if any, stand disposed of.

(CHETAN KUMAR) (ANITA RANI AHUJA) A.R.-cum-P.S. ASSISTANT REGISTRAR

(Signed Reportable Judgment is placed on the file)