Page No.# 1/4 GAHC010071782023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2131/2023 NABIRAN NECHA @ NABIRAN NESSA W/O HIBJUR RAHMAN, VILL-KASHIMPUR, P.O.-KENDUKUCHI, P.S. AND DIST-NALBARI (ASSAM) VERSUS THE UNION OF INDIA AND 5 ORS REPRESENTED BY THE SECRETARY OF THE HOME AFFAIRS, NEW DELHI- 110001 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-781006 3:THE SUPERINTENDENT OF POLICE (B) NALBARI ASSAM PIN-781337 4:THE DEPUTY COMMISSIONER NALBARI ASSAM PIN-781335 5:THE ELECTION COMMISSION OF INDIA NEW DELHI-110001 6:STATE CO-ORDINATOR NRC Page No.# 2/4 ASSAM BHANGAGARH GUWAHATI ASSAM PIN-78100 Advocate for the Petitioner : MR S C PANDIT, MD S ULLAH Advocate for the Respondent : DY.S.G.I., SC, NRC,SC, F.T,SC, ECI,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER 25.03.2025 (K.R. Surana, J) Heard Mr. S. C. Pandit, learned counsel for the petitioner. Also heard Mr. G. Sarma, learned standing counsel for the FT matters, Mr. M. Islam, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for the ECI, Mr. H. K. Hazarika, learned Govt. Advocate for respondent no.4. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned opinion dated 16.03.2021, passed by the learned Member, Foreigner’s Tribunal, No.1, Nalbari, Assam in F.T. Case No. (N) 2462/06, arising out of I.M. (D)T Case No. 638/2003, by which the petitioner was declared as an illegal migrant. 3. Pursuant to the order dated 08.12.2023, the records of the Tribunal is received. 4. The records that process upon the petitioner was issued on multiple occasions and lastly as per the process service report dated 07.09.2019, notice was served on the petitioner in a substituted manner. Thereafter, the learned Page No.# 3/4 Tribunal had examined the concerned Head Constable of the (Border) Patacharkuchi Police Station on 09.02.2021, who had deposed that notice was served in a substituted manner in the presence of her local villagers. 5. The relevant provision of Section- 3(5)(f) of the Foreigners (Tribunals) order, 1964 regarding service of process when the proceedee has changed the place of residence is as follows: (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 no 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. 6. Therefore, from the process service report, it cannot be ascertained as to place where the notice was served in a substituted manner. As per the provisions of paragraph-3 (5)(f) of the Foreigners (Tribunals) order, 1964 it is provided that the copy of notice should be affixed on the outer door or some other conspicuous part of the house in which the proceedee ordinarily resided or last resided. Accordingly, the Court is of the considered opinion that the process as prescribed under paragraph-3(5)(f) of the Foreigners (Tribunals) order, 1964 has not been followed. Accordingly, the order dated 09.02.2021 to proceed against the petitioner is found to be vitiated. Resultantly, the ex parte opinion dated 16.03.2021, passed by the learned Member, Foreigners Tribunal No.1, Nalbari, Assam in F.T. Case No. (N) 2462/06, arising out of I.M.(D)T Case No. 638/2003 is interfered with. The said opinion is thereby set aside and the matter Page No.# 4/4 is remanded back for a fresh decision by the learned Foreigners Tribunal,No.1, Nalbari, Assam by giving reasonable opportunity to the petitioner to file her written statement along with documents and thereafter, to lead evidence. 7. It is clarified that the Court has not examined the matter on merit of the impugned opinion. 8. Accordingly, the court is inclined to direct the petitioner, namely, Nabiran Necha @ Nabiran Nessa, who is duly represented by her learned counsel, to appear before the learned Member, Foreigners Tribunal No.1, Nalbari, Assam within 30 (thirty) days from the date of this order along with her written statement and documents on which she intends to rely upon. Thereupon, the learned Tribunal shall fix a date for evidence of the petitioner. 9. It is further clarified that as the petitioner is represented by another counsel, there is no requirement for fresh notice for the petitioner to appear before the learned Tribunal. 10. Therefore, if the petitioner fails to appear before the learned Tribunal on the date to be fixed, it will be open to the learned Tribunal to treat the petitioner as absent on call and proceed ex parte against her in accordance with law. 11. This writ petition stands allowed to the extent as indicated above. JUDGE JUDGE Comparing Assistant