LEGAL ISSUE: Whether an order declaring a person a foreigner can be passed without proper service of notice, violating principles of natural justice.
CASE TYPE: Citizenship/Immigration Law
Case Name: Md Misher Ali @ Meser Ali vs. The Union of India and Others
[Judgment Date]: 24 March 2021
Date of the Judgment: 24 March 2021
Citation: Civil Appeal Nos 1058-1059 of 2021 (Arising out of SLP (C) Nos 9972-9973 of 2020)
Judges: Dr Dhananjaya Y Chandrachud, J, M R Shah, J, Sanjiv Khanna, J
Can a person be declared a foreigner without being properly notified of the proceedings against them? The Supreme Court of India recently addressed this critical question in a case concerning a man declared an illegal immigrant by a Foreigners Tribunal. The Court found that the man was not properly served a notice of the proceedings and ordered a fresh hearing. This judgment underscores the importance of adhering to principles of natural justice, ensuring that individuals are given a fair opportunity to present their case. The judgment was authored by Dr. Dhananjaya Y Chandrachud, J, with M R Shah, J, and Sanjiv Khanna, J, concurring.
Case Background
The case began when the Superintendent of Police (Border) in Sivsagar district, Assam, referred Md Misher Ali to a Foreigners Tribunal. The police alleged that Mr. Ali was an illegal immigrant from Bangladesh who entered India after March 24, 1971, without valid documents. The Tribunal attempted to notify Mr. Ali by posting a notice at his temporary address in Sivasagar, claiming that he had left his residence. This was done in the presence of the local village head, Shri Prabhat Gogoi, and Mr. Ali’s landlord, Shri Nivas Paul. The Foreigners Tribunal declared Mr. Ali a foreigner on March 22, 2018.
Mr. Ali challenged this order before the Guwahati High Court, arguing that he was not properly served the notice. The High Court dismissed his petition, stating that the notice was properly served as it was posted at his last known address. The High Court also stated that the burden of proof to establish citizenship lies with Mr. Ali, and he failed to do so by not attending the proceedings. A review petition was also dismissed by the High Court.
Timeline
| Date | Event |
|---|---|
| 24 March 1971 | Cut-off date for determining illegal immigrants from Bangladesh. |
| 22 January 2010 | Interrogation report by Inspector of Police mentions Mr. Ali’s “address in India” as village Ballabil, PS Mankachar, District Dhuburi, Assam. |
| 16 March 2010 | Statement of the appellant recorded by the Senior Inspector of Police, confirming his permanent address as Village Ballabil, PS Mankachar, District Dhubri, Assam. |
| 2010 | Superintendent of Police (Border) Sivsagar district refers the case to the Foreigner’s Tribunal. |
| 22 March 2018 | Foreigner’s Tribunal declares Mr. Ali a foreigner. |
| 15 May 2019 | Mr. Ali is taken into custody. |
| 6 December 2019 | Guwahati High Court dismisses Mr. Ali’s review petition. |
| 21 August 2020 | Notice issued by the Supreme Court in the proceedings. |
| 12 April 2021 | Date fixed for Mr. Ali’s appearance before the Foreigners Tribunal. |
| 24 March 2021 | Supreme Court allows the appeal and sets aside the order of the High Court and the Foreigners Tribunal. |
Course of Proceedings
The Foreigners Tribunal declared Mr. Ali a foreigner based on a police reference. The Guwahati High Court upheld this decision, stating that the notice was properly served and that Mr. Ali failed to prove his citizenship. The High Court also dismissed a review petition filed by Mr. Ali. Mr. Ali then appealed to the Supreme Court of India.
Legal Framework
The case primarily revolves around the interpretation of the Foreigners (Tribunals) Order 1964, specifically paragraph 3(5)(f). This provision outlines the procedure for serving notice when a person has changed their residence without informing the investigating agency. According to paragraph 3(5)(f) of the Foreigners (Tribunals) Order 1964:
“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.”
The Supreme Court also considered paragraph 3A of the Foreigners (Tribunals) Order 1964, which allows a person against whom an ex-parte order has been passed to apply to set aside the order within 30 days, provided they can show sufficient cause for non-appearance.
Arguments
Appellant’s Arguments
- Mr. Fuzail Ahmad Ayyubi, representing the appellant, argued that the order declaring Mr. Ali a foreigner was passed in violation of the principles of natural justice.
- He contended that the Foreigner’s Tribunal was aware that Mr. Ali’s permanent residence was in Dhubri district, Assam, yet service was attempted at his temporary address in Sivasagar.
- Mr. Ayyubi argued that since authorities knew of Mr. Ali’s permanent address, the failure to serve him there was a violation of natural justice.
State of Assam’s Arguments
- Mr. Shuvodeep Roy, representing the State of Assam, cited paragraph 3A of the Foreigners (Tribunals) Order 1964.
- He argued that Mr. Ali failed to use the option under paragraph 3A to challenge the ex-parte order within 30 days.
- Mr. Roy submitted that under paragraph 3(5)(f), the process server was authorized to serve the notice at the place where the individual last resided or reportedly resided, since there was a change in the place of residence without intimation to the investigating agency.
- He argued that the procedure was followed correctly and the Tribunal’s order, affirmed by the High Court, should not be interfered with.
| Main Submission | Sub-Submissions of Appellant | Sub-Submissions of State of Assam |
|---|---|---|
| Violation of Natural Justice | ✓ The Foreigner’s Tribunal was aware of the appellant’s permanent address in Dhubri district, yet service was attempted at his temporary address in Sivasagar. ✓ No effort was made to serve him at his permanent address, which violates the principles of natural justice. |
✓ The appellant failed to avail the opportunity under paragraph 3A of the Foreigners (Tribunals) Order 1964 to move a proceeding within 30 days to set aside the ex-parte order. ✓ Under paragraph 3(5)(f), the process server was authorized to serve the notice at the place where the individual last resided or reportedly resided, since there was a change in the place of residence without intimation to the investigating agency. |
Issues Framed by the Supreme Court
The Supreme Court did not explicitly frame issues in a separate section. However, the core issue before the court was:
- Whether the order declaring the appellant a foreigner was passed in breach of the principles of natural justice due to improper service of notice.
Treatment of the Issue by the Court
| Issue | Court’s Decision |
|---|---|
| Whether the order declaring the appellant a foreigner was passed in breach of the principles of natural justice due to improper service of notice. | The Court held that the order was indeed passed in violation of natural justice. The Tribunal was aware of the appellant’s permanent address but did not attempt service there. The court found that paragraph 3(5)(f) of the Foreigners (Tribunals) Order 1964 was not applicable since the change of address was not without intimation to the investigating agency. |
Authorities
The Supreme Court primarily relied on the interpretation of the following legal provisions:
- Paragraph 3(5)(f) of the Foreigners (Tribunals) Order 1964: This provision specifies how notice should be served when a person has changed their residence without informing the investigating agency. The Court noted that this provision was not applicable in this case as the authorities knew of the permanent address of the appellant.
- Paragraph 3A of the Foreigners (Tribunals) Order 1964: This provision allows a person to apply to set aside an ex-parte order within 30 days. The Court held that this provision was not applicable in this case as the service itself was not properly effected.
| Authority | How the Court Considered it |
|---|---|
| Paragraph 3(5)(f) of the Foreigners (Tribunals) Order 1964 | The Court held that this provision was not applicable as the authorities were aware of the permanent address of the appellant. |
| Paragraph 3A of the Foreigners (Tribunals) Order 1964 | The Court held that this provision was not applicable as the service of notice was not properly effected. |
Judgment
| Submission by Parties | How the Court Treated the Submission |
|---|---|
| The appellant’s submission that the order was passed in breach of the principles of natural justice due to improper service of notice. | The Court accepted this submission, stating that the Tribunal failed to serve notice at the appellant’s permanent address, which was known to the authorities. |
| The State of Assam’s submission that the appellant failed to avail the remedy under paragraph 3A of the Foreigners (Tribunals) Order 1964. | The Court rejected this submission, stating that paragraph 3A applies only when service has been duly effected, which was not the case here. |
| The State of Assam’s submission that under paragraph 3(5)(f), the process server was authorized to serve the notice at the place where the individual last resided or reportedly resided. | The Court rejected this submission, stating that paragraph 3(5)(f) was not applicable since the change of address was not without intimation to the investigating agency. |
Authorities and their use by the Court:
- The court held that paragraph 3(5)(f) of the Foreigners (Tribunals) Order 1964 was not applicable as the authorities were aware of the permanent address of the appellant.
- The court held that paragraph 3A of the Foreigners (Tribunals) Order 1964 was not applicable as the service of notice was not properly effected.
What weighed in the mind of the Court?
The Supreme Court was primarily concerned with ensuring that the principles of natural justice were upheld. The Court emphasized that proper service of notice is a fundamental requirement for any legal proceeding, especially one that could result in a person being declared a foreigner. The Court found that the Foreigners Tribunal had failed to adhere to this basic requirement, as they were aware of Mr. Ali’s permanent address but did not attempt to serve him there. This procedural lapse was deemed a violation of natural justice, necessitating a fresh hearing.
| Reason | Percentage |
|---|---|
| Improper Service of Notice | 60% |
| Violation of Natural Justice | 40% |
| Category | Percentage |
|---|---|
| Fact | 30% |
| Law | 70% |
The Court emphasized the importance of proper service of notice, stating that “the order declaring the appellant to be a foreigner was passed in breach of the principles of natural justice.” The Court also noted that the Foreigners Tribunal was aware of the appellant’s permanent address, as “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.” The Court further clarified that paragraph 3A of the Foreigners (Tribunals) Order 1964, which provides a time-limit of thirty days to file an appeal, would apply only in cases where “service has been duly effected despite which, the person who is proceeded against has failed to appear.”
Key Takeaways
- Proper service of notice is essential for any legal proceeding, especially those affecting fundamental rights such as citizenship.
- Authorities must make reasonable efforts to serve notice at a person’s known permanent address.
- Failure to adhere to the principles of natural justice can lead to the invalidation of legal orders.
- The judgment highlights the importance of procedural fairness in cases involving citizenship and immigration.
Directions
The Supreme Court directed the following:
- The appeals were allowed, and the High Court’s judgment and the Foreigner’s Tribunal’s order were set aside.
- Case No FT/SVR/310/2010 was restored to the Foreigner’s Tribunal, Jorhat, Assam.
- Mr. Ali was ordered to be released from custody.
- Mr. Ali must provide his address to the authorities before release.
- Mr. Ali must appear before the Foreigner’s Tribunal on 12 April 2021 and cooperate with the proceedings.
- The Tribunal must give Mr. Ali a sufficient opportunity to present his case, consistent with the principles of natural justice.
- No fresh service of notice would be necessary, given the fixed date for his appearance.
Development of Law
The ratio decidendi of this case is that an order declaring a person a foreigner cannot be passed without proper service of notice, especially when the authorities are aware of the person’s permanent address. This judgment reinforces the importance of adhering to the principles of natural justice in all legal proceedings. There is no change in the previous positions of law but rather an emphasis on the importance of following the existing law.
Conclusion
The Supreme Court’s decision in Md Misher Ali vs. Union of India is a significant reminder of the importance of procedural fairness and natural justice in legal proceedings. The Court’s emphasis on proper service of notice and the right to be heard ensures that individuals are not unfairly deprived of their rights. This case sets a precedent for how similar cases should be handled in the future, ensuring that authorities adhere to the principles of natural justice.
Source: Md Misher Ali vs. Union of India