Page No.# 1/6 GAHC010192052017 2025:GAU-AS:5236- DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/69/2017 SANAT SARKAR @ SARAT KUMAR SARKAR S/O. LT. DHIRENDRA CHANDRA SARKAR, VILL. 2 NO. SAKUNA, P.O. and P.S. GOHPUR, DIST. BISWANATH CHARIALI, ASSAM. VERSUS THE UNION OF INDIA and 4 ORS THROUGH- THE MINISTRY OF HOME AFFAIRS, GRIHA MANTRALAYA, NEW DELHI. 2:THE STATE OF ASSAM THROUGH- THE SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY.-06. 3:THE DY. COMMISSIONER SONITPUR P.O. TEZPUR PIN-784001 DIST. SONITPUR ASSAM. 4:THE DY. COMMISSIONER BISWANATH CHARIALI DIST. BISWANATH CHARIALI ASSAM. 5:THE SUPDT. OF POLICE B Page No.# 2/6 BISWANATH CHARIALI P.O. BISWANATH CHARIALI DIST. BISWANATH CHARIALI ASSAM Advocate for the Petitioner : MR.P BISWAS, MR.R DE,MR. E AHMED,MR.S C BISWAS,MS.J BORAH,MS.U NANDA Advocate for the Respondent : ASSTT.S.G.I., GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 30.04.2025 (K.R. Surana, J) Heard Mr. S.C. Biswas, learned counsel for the petitioner. Also heard Ms. A. Verma, learned Standing counsel, F.T.; Mr. A.I. Ali, learned counsel, ECI; and Mr. P. Sarmah, learned Additional Senior Government Advocate, Assam. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the ex-parte opinion dated 06.05.2016, passed by the learned Member, Foreigner's Tribunal 4th, Tezpur, Sonitpur, in F.T. Case No. 493/2016, vide reference Case No. TZ(B)/98/900/GPR LAC 78, dated 04.07.1998, by which the petitioner was declared to be a foreigner who was illegally entered into the State after 25.03.1971. 3. Pursuant to the previous order of the Court, the records from the Foreigners' Tribunal 4th, Sonitpur, Tezpur, as well as the records of IMDT Case No.254/1990, received from the Foreigners' Tribunal 2nd, Tezpur, Sonitpur. 4. The learned counsel for the petitioner, by referring the ex-parte opinion Page No.# 3/6 dated 13.01.1992, passed by the Court of the Illegal Migrants (Determination) Tribunal, Sonitpur, Tezpur, in IM Case No. 254/1990 (arising out of S.P. Case No. 2109/87) has submitted that the IM(D)T, held that the State had failed to prove the case against the six proceedings named herein, the first being Sarat Kumar Sarkar and as a result, in the said proceeding was declared to be an illegal migrant and the reference was dismissed by answering the point of determination as to whether the said proceedings are illegal migrants within the meaning of Section 3(1) (c) of the IM(D)T Act, 1983, against the State. Accordingly, the learned counsel for the petitioner has raised the plea of res judicata. 5. The learned counsel for the petitioner has also submitted that as the petitioner was already declared not to be an illegal migrant, despite receipt of notice of the proceedings of F.T. Case No. 493/2016, he did not participate in the proceedings advised by some persons. Accordingly, it is submitted that an opportunity be granted to petitioner to contest the proceedings, setting aside the ex-parte opinion dated 06.05.2016. 6. The learned Standing counsel for the FT matters has opposed the prayer of the petitioner and she has submitted that even in the proceedings before the IM(D)T, the petitioner had not appeared and therefore, the stand of the petitioner is not on record. It is also submitted that in the said proceedings, the name of the proceedee was Sarat Kumar Sarkar, S/o Late Dhiren Sarkar, whereas the present proceedings before the Foreigners’ Tribunal was against Sanat Sarkar @ Sarat Kumar Sarkar, S/o Late Dhirendra Chandra Sarkar and therefore, the petitioner has to demonstrate that the ex-parte opinion dated 13.01.1992 rendered by the IM(D)T was in his respect. 7. The learned Standing counsel for the FT matters has also submitted that Page No.# 4/6 as the petitioner was served with a notice to appear and contest the proceeding and the proceedings was allowed to continue ex-parte against him, the petitioner is not entitled to any relief to this writ petition as it is a case of failure to take his defence despite opportunity granted. 8. Considered the materials available on record and also considered the submissions made by the learned counsel for the petitioner as well as the learned Standing counsel for the FT matters. 9. From the records of IM(D)T proceedings, which is received from the Foreigners' Tribunal 2nd, Sonitpur, Tezpur, which shows that the petitioner had not appeared in the said proceeding and did not take any steps for his defence, as such, the proceeding was heard ex-parte and the learned Tribunal, after recording the evidence of 3 PWs, formed an opinion that the State had failed to prove against the proceedings therein. 10. Taking note of the fact the erstwhile Illegal Migrants (Determination by Tribunal) Act, 1983, the burden of proof was on the State. The said was declared to be ultra vires by the Supreme Court of India in the case of Sarbananda Sonowal vs. Union of India & Anr. reported in (2005) 5SCC 665. However, under Section 9 of the Foreigner's Act, 1946, burden of proof is upon the proceedee. Therefore, the Court is not able to accept the plea of res judicata as raised by the learned counsel for the petitioner. 11. Nonetheless, we have seen that in the inquiry that was made in connection with the proceedings of F.T. Case No. 493/2016, the petitioner had appeared before the LVO, and had produced certain documents which includes a bond executed on 28.03.1968. Moreover, he had informed the LVO that as per IM(D)T, Sonipur, Tezpur, opinion in IMDT Case No. 254/1990, the petitioner is Page No.# 5/6 not an illegal migrant. Therefore, the Court is of the considered opinion that one opportunity be granted to the petitioner to file an appropriate defence and discharge his burden of proof as provided under Section 9 of the Foreigners' Act, 1946. 12. Therefore, without expressing any opinion or the opinion expressed by the learned Foreigners' Tribunal, the Court is inclined to set aside the ex-parte opinion dated 06.05.2016, passed by the learned Member, Foreigners' Tribunal 4th, Sonipur, Tezpur in F.T. Case No. 493/2016 on conditions herein after provided :- (i) Petitioner will appear before the learned Tribunal within 30(thirty) days from the date of the order and may submit the written statement of his defence. Thereafter, the Tribunal shall fix a date for evidence. (ii) Petitioner shall also produce the certified copy of this order before the Tribunal and await for further order in the proceedings before the said learned Tribunal. (iii) It is also provided that in the event the petitioner fails to appear before the learned Tribunal within the time as mentioned above, it would be open to the learned Tribunal to treat the petitioner as absent on call and pass and ex-parte opinion. (iv) It is also provided that as the petitioner is represented by his learned counsel before this Court, there will be no necessity about issuance of a fresh notice for appearance before the learned Tribunal. 13. This order is passed under circumstances unique to this case and therefore, this order shall not be a precedent in any other case. Page No.# 6/6 14. The writ petition stands disposed of. 15. The Registry shall send back the Tribunal records expeditiously. JUDGE JUDGE Comparing Assistant