Jass Kaur Bindra
The Supreme Court bench was headed by Justice DY Chandrachud, Mr Saha and Sanjiv Kanna. The supreme court heard an appeal against the decision of The Guwahati High Court. The bench stated “Paragraph 3A of foreign tribunal order 1964 insofar as it can templates a period of 30 days to apply to the tribunal to set aside an ex parte order would be attracted only where the service of notice was duly affected and proceedee still failed to appear”.
According to this Order Of The Foreign Tribunal, it can set aside an ex party declaration. It can be set aside if the proceeding files it within 30 days of the upcoming of this order. Along with that the proceeding must give strong reason for nonappearance during the time of declaration. The order of the foreign Tribunal declared a person as an illegal immigrant. The Superintendent Of Police stated before the supreme court that the appellant was an illegal immigrant from Bangladesh.
The head of police stated that he entered India without any legal documents. A notice was sent to the appellant at his last known residence. The appellant stated that the residence was his temporary residence before he shifted to his permanent residence.
The notice was not duly served, he was unable to appear before the Foreign Tribunal, and was declared an illegal immigrant.
The appellant brought writ petition under Article 266 of Indian Constitution to The High Court Of Guwahati.
Article 226 of Constitution Of India states,
” Notwithstanding anything in article 32 every high court shall have the pass through the territory in relation to which it exercise during fiction to issue to any person or authority including in appropriate cases any government within those territories directions orders or its including rates in nature of habeas Corpus, mandamus, prohibition, quo warranto, Certiorari or any of them.”
The High Court ruled against the appellant, saying the notice was duly served and the burden to prove the citizenship lies on the appellant. The Supreme Court bench stated, As per Section 3 (5)(f) the appellant must be served the notice duly.
Moreover, Advocate Fuzail Ahmed Ayyubi mentioned that not serving the notice duly to the petitioner was against The Principles Of Natural Justice.
The court heard, “At the outset it is material to advert 2 paragraph 1 of the order of foreign Tribunal which indicates that Tribunal was surprised that while address of The appeal and is shown, at the same time is permanent residential address, is also indicated. This is further 45 by the statement of appellant record by Senior inspector of police which indicates that address of the appearance corresponds to permanent residential address noted in paragraph 1 of the tribunals order.”
Therefore, the court said that no effort was made to search the permanent address of the appellant and to serve him the notice duly.