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Md. Misher Ali @ Meser Ali v. Union of India & Ors.

Civil Appeal · 2021 INSC 205Decided 24 Mar 2021
Civil Appeal Nos. 1058-1059 of 2021
Dr. Justice D.Y. Chandrachud · Justice M.R. Shah · Justice Sanjiv Khanna

Background

The appellant was referred to the Foreigner's Tribunal, Jorhat, Assam, on suspicion of being an illegal migrant from Bangladesh. Notice of the proceedings was served "by hanging" (affixing) at his temporary residence in Sivasagar district even though the authorities knew his permanent address was in Dhubri district. Since he did not appear, the Tribunal declared him a foreigner ex-parte, and the Guwahati High Court dismissed his writ petition and later his review petition, holding that service was proper and that he had failed to prove his citizenship.

Decision Breakdown

The Supreme Court found that the rule allowing substituted service by affixing a notice (paragraph 3(5)(f) of the Foreigners (Tribunals) Order, 1964) only applies when a person has changed residence without informing the investigating agency: here, the record itself showed the agency knew his permanent address, so service ought to have been attempted there. Because proper service was never effected, the ex-parte order breached natural justice, and the 30-day remedy to set aside an ex-parte order (paragraph 3A) could not be held against him since that remedy presumes valid service in the first place. The Court set aside both the High Court's judgment and the Tribunal's order, restored the matter to the Tribunal, and ordered the appellant's release from custody (he had been detained since May 2019), directing him to furnish his address, appear before the Tribunal on a fixed date, and be given a fair opportunity to present his case.

Lesson Learnt

Before any adverse order can be passed against a person in their absence, authorities must make a genuine effort to serve notice at an address they already know to be correct: substituted service (affixing a notice) is only valid when the person's whereabouts are genuinely unknown, not as a shortcut when a known address exists.

Official source (sci.gov.in)View Judgment (PDF)

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