MD MISHER ALI @ MESER ALI versus THE UNION OF INDIA AND OTHERS

Citation: [2021] 12 S.C.R. 365 · Decided: 24-03-2021 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed

Judgment (excerpt)

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   [2021] 12 S.C.R. 365
365
MD MISHER ALI @ MESER ALI
v.
THE UNION OF INDIA AND OTHERS
(Civil Appeal Nos 1058-1059 of 2021)
MARCH 24, 2021
[DR. DHANANJAYA Y CHANDRACHUD, M. R. SHAH
AND SANJIV KHANNA, JJ.]
Foreigner’s (Tribunal) Order 1964: Para 3(5)(f) and 3A –
Illegal Migrant – In the instant case, Superintendent of Police made
a reference before Foreigner’s Tribunal alleging that the appellant
is an illegal migrant who entered into India without valid documents
from Bangladesh after 24 March 1971 – Record indicated that notice
to the appellant was served “by hanging”at his temporary address
in the district Sivasagar – Foreigner’s Tribunal declared appellant
to be a foreigner who had illegally entered into India – Appellant
filed writ petition before High Court which was dismissed on the
ground that notice was properly served under Para 3(5)(f) of Order
1964 – High Court also held that the burden to prove his citizenship
lies on the appellant since the facts were within his knowledge and
by neglecting to pursue the proceedings, appellant failed to
discharge the burden – On appeal, held: Tribunal was apprised of
the fact that the permanent place of residence of the appellant was
in district Dhubri in Assam – However, notice was served at his
temporary address in the district Sivasagar – No effort was made to
effect service at the permanent place of residence – Para 3(5)(f) of
Order 1964 is not attracted in the facts as there was no change of
place of work or residence of appellant – It was within knowledge
of the investigating officer that the appellant had a permanent place
of residence at Assam – Para 3A which provides time limit for setting
aside ex-parte order also has no applicability as service was not
properly effected – Judgment of High Court is set aside – Case
restored to the Foreigner’s Tribunal, Jorhat, Assam.
Allowing the appeals, the Court
HELD: 1.1 Order dated 22 March 2018 of the Foreigner’s
Tribunal indicates that the Tribunal was apprised of the fact that
while the address of the appellant is shown as “...District
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SUPREME COURT REPORTS
[2021] 12 S.C.R.
Sivasagar”, the permanent residential address of the appellant
has been indicated at District Dhubri, Assam. This is also fortified
by the statement of the appellant recorded by the Senior Inspector
of Police. The statement indicates that the address of the appellant
corresponds to the permanent residential address which is noted
in the Tribunal’s order. Apart from this, the counter affidavit has
also adverted to the interrogation report before the Inspector of
Police which again refers to the “address in India” as District
Dhuburi, Assam. [Paras 8, 9][368-F-H; 369-B-C]
1.2 Evidently, no effort was made to effect service at the
permanent place of residence. Para 3(5)(f) of the Order 1964
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. 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, 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. [Paras 10, 11][369-D-H; 370-A-C]
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.1058-
1059 of 2021.
From the Judgment and Order dated 06.12.2019 of the High Court
of Gauhati in WP (C) No.6462 of 2019 and order dated 17.02.2020 in
Review Petition No.05 of 2020.
Fuzail Ahmad Ayyubi, Ibad Mushtaq, Ms. Akanksha Rai, Advs.
for the Appellant.
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Rupinder Singh Suri, ASG, Bhuvan Mis

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