Nobjesh v. Union of India, Review. Pet./147/2019
Read the judgment here.
Date of the decision: 22-03-2022
Court: Gauhati High Court
Judges: Justice N. Kotiswar Singh (authoring) and Justice Nani Tagia
Summary: The Gauhati High Court set aside an ex parte order passed by the Foreigner's Tribunal declaring the Petitioner to be a ‘foreigner’ on the ground that the notice was not properly served to the Petitioner. Therefore, the proceedings before the Tribunal, in which someone other than the Petitioner appeared, were not valid. The Petitioner was allowed to appear before the FT for a fresh determination of his nationality.
Facts: The summons issued by the Foreigners’ Tribunal (FT) in the Petitioner’s name was received by someone not related to the Petitioner. Someone other than the Petitioner by the name of Tomes Ali appeared before the FT, seeking time to file a written statement. Thereafter, even he did not appear. Even though Tomes Ali had submitted before the FT that he is not the Petitioner, the FT assumed that the Petitioner had appeared and proceeded ex parte against him and consequently declared the Petitioner to be a foreigner.
The Petitioner challenged the order before the Gauhati High Court, which dismissed the writ petition. It reiterated that it did not find any error or infirmity in the view taken by the Tribunal as the Petitioner remained absent from the process and did not even answer the reference. The Petitioner consequently filed a review petition.
Holding: The Court set aside the orders by FT and confirmed that in the present case the notice was not served upon the Petitioner. It held that the order dismissing the petition proceeded on a false premise that the Petitioner received the notice issued by the FT. To ascertain this factual aspect, the Court perused the original records and noted that the state counsel could not demonstrate any material in the original record to show that the Petitioner had received the notice, and in fact notice had been received by one Najimuddin. The Court further noted that “Unless the relationship of Nobjesh and Najimuddin is established by the State either by way of relation or being the authorized person to receive notice on behalf of Nobjesh Ali, but the notice was received by somebody else, we have no other option but to hold that notice was not served upon Nobjesh Ali.” (paragraph14). This meant that the state failed to establish the person receiving the notice was in any way authorized to receive the notice on behalf of the actual proceedee and thus it negated the notice requirement. The Court found that due process was breached since the person receiving the notice was not authorized to receive the notice on behalf of the actual proceedee.
The Court emphasized that proper service of notice on the proceedee is sine qua non for further proceedings (Para18) and that the absence of a notice to the ‘actual proceedee’ in the instant case rendered the proceedings illegal. The Court emphatically remarked, “Before a proceeding is initiated against the proceedee before the Foreigners Tribunal, it is the responsibility of the Tribunal to ensure that the right person, who has been proceeded with, is served the notice” (Para 16). This means that not only does the FT have to ensure that notice is served to the right person but also if the proceedee is not identified correctly it will not have the locus to give an opinion on the proceedee.
Significance: The order is noteworthy because it strengthens the idea that principles of natural justice need to be strictly followed by requiring the tribunals to use greater caution while determining the correct identity of the procedee. This case also brings to light the unpleasant fact that despite precedent, improper service of notice very often becomes the sole cause for the ex-parte orders. The correct ascertainment of the person as well as serving of proper notice remains the first step towards the subsequent proceeding and to ensure this step gets fulfilled remains the responsibility of the FT.
More importantly, the case recognises a higher level of responsibility to be undertaken by the state in the process of citizenship determination. The order reminds the state about its obligation to constantly justify any and every action that deprives people of their freedom and rights.
Table of Authorities:
Eyad Ali vs The Union Of India , WP(C)/2355/2021
The State of Assam vs. Moslem Mondal, MANU/GH/0001/2013
Parichay-The Blog, Challenging Ex Parte Orders on the Ground of Improper Service of Notice (February 11, 2021)
This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and the latest developments in citizenship law and adjudication in India. This note was prepared by Tanvi Raina.