Page No.# 1/8 GAHC010182392018 2025:GAU-AS:3250 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5682/2018 SAMSUDDIN @ SAMSUL HAQUE AND ANR. S/O- LT ASMOT ALI, R/O- VILL- KHALAPIA, P.S. MIKIRBHETA, DIST- MORIGAON, ASSAM 2: MS. ANOWARA BEGUM @ ANOWARA KHATOON W/O- MD. HAISUDDIN R/O- VILL- KHALAPIA P.S. MIKIRBHETA DIST- MORIGAON ASSA VERSUS UNION OF INDIA AND 6 ORS. THROUGH THE SECY. OF THE MINISTRY OF HOME AFFAIRS, NEW DLEHI 2:THE STATE OF ASSAM THROUGH THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-6 3:THE ELECTION COMMISSION OF INDIA REP. BY THE DISTRICT ELECTION OFFICER MORIGAON ASSAM 4:THE STATE CO-ORDINATOR NRC ACHYUT PLAZA BHANGAGARH Page No.# 2/8 GHY 5:THE ADDL. DIRECTOR GENERAL OF POLICE (BORDER) BHANGAGARH GHY-5 6:THE DY. COMMISSIONER MORIGAON ASSAM 7:THE SUPERINTENDENT OF POLICE (B) MORIGAON ASSA Advocate for the Petitioner : MR. J SARMAH, Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, ELECTION COMMISSION.,SC, NRC BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 24.03.2025 (K.R. Surana, J) Heard Mr. J. Sarmah, learned for the petitioners. Also heard Ms. J. Sarmah, learned CGC; Mr. G. Sarma, learned standing counsel for the FT matters and NRC; Mr. R. Islam, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for the ECI; and Mr. H.K. Hazarika, learned Govt. Advocate for the State respondent. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioners have assailed the impugned ex parte opinion dated 12.04.2018, passed by the learned Member, Foreigners Tribunal No.3rd, Morigaon in Case No. F.T. 461/2016, arising out of Reference F.T. Case no. Page No.# 3/8 677/2006, by which the petitioners have been declared to be foreigners, who have illegally entered into India (Assam) after 25.03.1971. It is to be mentioned that the impugned opinion was passed against 7 (seven) persons, namely, (1) Md. Samsuddin; (2) Md. Asmat Ali; (3) Musstt. Anuwara Begum; (4) Md. Sahidul; (5) Md. Yahidul; (6) Md. Asadul; and (7) Md. Ajaharul. However, this writ petition has been preferred only by the petitioners, who are proceedee nos.1 and 3. 3. It would be appropriate to quote paragraph nos.1 and 2 of the impugned opinion, which reads as follows: “1. The Superintendent of Police (B), Morigaon referred this case to the learned Foreigners Tribunal No 2. Morigaon. The allegation is that O.P. namely Md. Samsuddin, S/o- Md. Asmot Ali, residents of village Khalapia under Mikirbheta. P. S. of Morigaon district have illegally entered into India (Assam) after 25.03.1971 for easy livelihood along with his father namely (2) Md. Asmat Ali and his wife namely (3) Musstt. Anuwara Begum and sons (4) Md. Sahidul, (5) Md. Yahidul. (6) Md. Asadul and (7) Md. Ajaharul from Bangladesh and therefore he could not produce any documents in support of being an Indian citizen at the time of verification Investigation. Subsequently the reference was received on transfer from Foreigners Tribunal No 2, in view of the Government Notification No. MRN 8/2015-48 dtd. 10.08.2015 on jurisdictional point 2. The Process Servers namely H/e(B) Dilip Kr. Baruah, Hic (B) Firuj Ali, Cu (B) Dina Horah, C/n (B) Dipak Kr. Patar and C/n (B) Matibur Rahman, as per their service report dated 09.02.2018 went to the given address of the Opposite Parties to serve the summon and they found the OPI's wife Musstt. Anuwara Begum a Musstt. Hanufa Khatoon at their house and served the summon to put her signature m presence of local witnesses and informed about the date of appearance at the Tribunall” 4. We deem it appropriate to scan the process server’s report to make it a part of the order: Page No.# 4/8 Page No.# 5/8 5. Therefore, contrary to the finding of the learned Tribunal in pargarph- 2 of the opinion, the process server’s report discloses that the notice was served on Musstt. Hanufa Khatoon and the date of service is 05.02.2018. Therefore, Page No.# 6/8 apparently, the learned Member, Foreigner’s Tribunal had misread the process server’s report, which makes the observations made in paragraph-2 of the impugned opinion relating to service of notice as perverse. 6. According to paragraph-1 of the impugned opinion, the Superintendent of Police (Border) has made reference against all the petitioners. Therefore, we deem it appropriate to scan the reference, which is available at page-4 of the record of the learned Tribunal to make it a part of the order: 7. From the above scanned copy of the reference, we find that a reference was made only against the petitioner no.1 Md. Samsuddin @ Samsul Haque and not against the petitioner no.2 or any other proceedee. 8. It is well settled that unless there is a specific reference against a proceedee, such person cannot be declared to be a foreigner under the Page No.# 7/8 schemes of Foreigners (Tribunals) Order, 1964 and therefore, the impugned opinion dated 12.04.2018 cannot be sustained in respect of the petitioner no.2, namely, Ms. Anowara Begum @ Anowara Khatoon and therefore, the impugned opinion deserves to be quashed in respect of the petitioner no.2. In this regard, if any authority is required, the decision of this Court in the case of Sudhir Roy & Ors. Vs. Union of India and Ors., 2019 (1) GLT 353 be referred to. 9. From the scanned copies of the process server’s report, as the process was not served on the petitioner no.2, but it was served on Hanufa Khatoon, whose relationship with the petitioner no.1 is not disclosed, the proceedings against the petitioner no.1 is liable to be set aside and the matter be remanded back to the learned Member, Foreigner’s Tribunal 3rd, Morigaon for a fresh proceeding by giving an opportunity to the petitioner no.1 to file his written statement along with documents as well as evidence-on-affidavit and further opportunity to examine any other witness, as may be required. 10. In order to facilitate the petitioner a fresh proceeding from the stage of written statement, the impugned opinion dated 12.04.2018, passed by the learned Member, Foreigners Tribunal No.3rd, Morigaon in Case No. F.T. 461/2016 is hereby set aside. 11. The petitioner no.1, namely, Samsuddin @ Samsul Haque is directed to appear before the learned Member, Foreigners Tribunal No.3rd, Morigaon within 30 (thirty) days from the date of this order without any necessity of a fresh notice being issued and by producing a certified copy of this order, await further instruction from the said learned Tribunal. 12. On the date of appearance, the petitioner no.1 is directed to submit his Page No.# 8/8 written statement of defence along with the copies of the documents. It is made clear that in the event the petitioner no.1 fails to appear within the time allowed, it would be open to the learned Tribunal to treat the petitioner no.1 absent on call and to decide the reference in accordance with law. 13. Let a copy of this order be sent to the Commissioner & Secretary to the Govt. of Assam, Home & Political (B) Department to examine if it is inclined to hold a training programme for the learned Members of the Foreigners Tribunal so that the mistake of these natures do not re-occur in future. 14. The learned standing counsel for the FT matters shall transmit a downloaded copy of this order to the concerned authorities in the Home Department. 15. Accordingly, this writ petition stands partly allowed to the extent as indicated above. JUDGE JUDGE Comparing Assistant