Page No.# 1/6 GAHC010185342025 2025:GAU-AS:12988-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4790/2025 ABDUL KHALEK S/O- ABDUL RAHMAN, R/O- VILL. 3 NO. BARUAJHAR, P.S. DALGAON, DIST. DARRANG, ASSAM VERSUS THE UNION OF INDIA AND 5 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF INDIA, HOME AFFAIRS DEPARTMENT, NEW DELHI-01. 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-06. 3:THE ELECTION COMMISSION OF INDIA NEW DELHI-01. 4:THE STATE CO-ORDINATOR NRC ASSAM 5:THE DISTRICT COMMISSIONER DARRANG MANGALDAI DIST. DARRANG ASSAM PIN- 784115. 6:THE SUPERINTENDENT OF POLICE (B) Page No.# 2/6 DARRANG DIST. DARRANG ASSAM PIN- 784115 Advocate for the Petitioner : MR A ALI, MS. M KHATUN,MS K TAYE Advocate for the Respondent : DY.S.G.I., SC, ECI,GA, ASSAM,SC, NRC,SC, F.T BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE RAJESH MAZUMDAR ORDER Date : 19.09.2025 (R. Mazumdar, J) Heard Mr. A. Ali, learned counsel for the petitioner. Also heard Mr. G. Pegu, learned CGC; Mr. G. Sarma, learned standing counsel for the FT matters and NRC; Mr. M. Islam, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for the ECI; and Mr. P. Sarmah, learned Additional Senior Govt. Advocate for the State respondent. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Abdul Khalek, has challenged the ex parte opinion dated 30.08.2023, passed by the learned Member, Foreigners’ Tribunal-4th, Kamrup, in F.T. Case No. 1024/17, arising out of FT Case No. 350/11, by which the petitioner was declared as a foreigner of post 25.03.1971 stream. 3. The Tribunal’s records requisitioned by order dated 20.08.2025 have been received. 4. At the request of the learned counsel for the parties, the matter has been taken up for disposal in view of the short issue raised by the petitioner. Page No.# 3/6 5. Mr. Ali, learned counsel for the petitioner has submitted that the perusal of the orders of the Tribunal would reveal that the notice of the proceedings was never served upon the petitioner and therefore, he could not avail the opportunity of defending himself effectively before the learned Tribunal. On the contrary, Mr. G Sarma, learned standing counsel appearing for the FT matters has submitted that there were attempts to serve the notice on the petitioner at his address given at Satgaon, Guwahati. However, when the same could not be served upon him, the concerned authorities had taken the witness of the house owner of the last known place of residence of the petitioner to the effect that the petitioner had left his place of residence and thereafter, had fixed a copy of the notice on the last known address of the petitioner and therefore, the service in accordance with the law was deemed to have been affected by the learned Tribunal. He submits that there is no error in such assumption by the learned Tribunal and therefore, this petition does not require further consideration. 6. We have gone through the records received from the learned tribunal. 7. It is noticed that the enquiry was initiated on 27.07.2011 by the Senior Superintendent of Police (Border), City, Guwahati, by endorsing the matter to one Sakshi Gopal Sharma, SI (B), giving two addresses of the petitioner, one at Dalgaon, Darrang, Assam and the other near Basanti Bazar, Police Station- Satgaon, Guwahati. Records further reveal that when the enquiry was made on 13.01.2012, the Enquiry Officer had visited the known residence at Guwahati, where the house owner had informed him that the petitioner had already vacated his rented premises and left the place nearly 4-5 months back to an unknown place. The records reveal that the notices issued by the learned Tribunal on the petitioner were sought to be served at the address given at Page No.# 4/6 Satgaon, Guwahati and an endorsement was also given by the process server that the house owner of the premises, where the petitioner had earlier resided, had given a statement that the petitioner had left the premises and the whereabouts were not presently known to him. The house owner had further stated that the petitioner had been engaged to build the brick boundary wall and after completion of job now he is no longer there. 8. What we have noticed here is that the petitioner had left the address at Satgaon, Guwahati even prior to the enquiry having been initiated upon him in the year 2012. In such circumstances, we are of the view that the petitioner had not been put to notice of the enquiry since he was not contacted at that point of time also. 9. The Clause 3(5)(a) of the Foreigners Tribunal's Order, 1964 provides that the notice shall be served at the address where the proceedee last resided or reportedly resides or works for gain and in case of change of place of residence, which has been duly intimated in writing to the investigating agency by the alleged person, it shall be served at such changed address by the Foreigners Tribunal. 10. In the present case we find that the petitioner was never contacted by the investigating agency at his Guwahati address and further, when the notice from the learned Tribunal was sought to be served upon him, there were specific statements made by the witness that the petitioner was not there after completion of the construction of the brick wall. In such circumstances we do not find that the attempt of the process server to serve the notice only at a place where the petitioner was not found even during the investigation would serve the purposes of duly serving the notice of the learned Tribunal on the petitioner. Page No.# 5/6 11. In view of the exceptional circumstances of the present case, we are inclined to set aside the ex parte opinion dated 30.08.2023, passed by the learned Member, Foreigners’ Tribunal-4th, Kamrup, in F.T. Case No. 1024/17, passed against the petitioner only on the ground that the petitioner was not duly served with the notices of the proceedings before the learned Tribunal in accordance with law. On setting aside of this impugned opinion, the matter is now remanded back to the learned Tribunal to render its opinion upon the citizenship of the petitioner in accordance with law. 12. Since the petitioner is already at notice of a proceeding pending against him before the learned Tribunal, it is provided that the petitioner should appear before the learned Tribunal on 24.10.2025 without requirement of any further notice. 13. It is submitted that the petitioner is in custody since 02.06.2025 and presently, he is lodged at Transit Camp at Matia, Goalpara. Accordingly, the petitioner is directed to be released from the detention centre at Matia, Goalpara, subject to the following conditions. a. The family members of the applicant shall appear before the Superintendent of Police (Border), Darrang and furnish bail bond of Rs.5,000/- (Rupees five thousand only) with 2 (two) solvent sureties of like amount to the satisfaction of the said authority. b. Before releasing the applicant on bail, the Superintendent of Police (Border), Darrang shall obtain the biometrics of the iris of both eyes, the fingerprints of both hands and the photographs of the petitioner. c. The said authority shall also obtain necessary information and Page No.# 6/6 documentation as required under the Rules from the applicant for securing his presence. 14. Thereafter, steps shall be taken by the Superintendent of Police (Border), Darrang to have the applicant released from the detention centre within 3 (three) days from the date of receipt of certified copy of this order. 15. On appearance before the learned Tribunal, the petitioner shall file his written statement and evidence-on- affidavit. On failure of the petitioner to appear before the learned Tribunal on or before 24.10.2025, the learned Tribunal shall be at liberty to treat the petitioner absent on call and pass such order as deem fit and proper in accordance with law. 16. It is provided that the petitioner shall cooperate with the proceedings before the learned Tribunal without causing any undue delay. 17. With the aforesaid direction, this writ petition stands disposed of. 18. The records of the learned Tribunal be sent back forthwith along with a copy of this order for its doing the needful. JUDGE JUDGE Comparing Assistant