Page No.# 1/8 GAHC010250242024 2025:GAU-AS:1073- DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/6373/2024 AJGAR ALI @ AJGAR @ AJGAR AH S/O LT. INNAS ALI SHEIKH @ INNAS @ INNES ALI SHAKE R/O VILL- KHELLI, P.O. NIZ RAMPUR, P.S. KALGACHIA, DIST. BARPETA, ASSAM, PIN-781319 VERSUS THE UNION OF INDIA AND 7 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI-1. 2:THE ELECTION COMMISISON OF INDIA NEW DELHI-1. 3:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6. 4:THE STATE CO-ORDINATOR OF NRC BHANGAGARH ASSAM GUWAHATI -05. 5:THE DEPUTY COMMISSIONE DARRANG ASSAM PIN-784125. Page No.# 2/8 6:THE FOREIGNERS TRIBUNAL (4TH) DARRANG AT MANGALDAI ASSAM 7:THE SUPERINTENDENT OF (B) DARRANG ASSAM PIN-784125 8:THE OFFICER-INCHARGE DHUA POLICE STATION DHULA DIST. DARRANG ASSAM PIN-78411 Advocate for the Petitioner : M M RAHMAN, MR. S. SUR Advocate for the Respondent : DY.S.G.I., GA, ASSAM,SC, ECI,SC, F.T BEFORE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 30.01.2025 (S.P. Khaund, J) Heard Mr. M.M. Rahman, learned counsel for the petitioner. Also heard Mr. D.J. Das, learned CGC for the respondent No. 1;Mr. H. Kuli, learned Standing Counsel for the Election Commission of India, respondent No. 2; Mr. A. Kalita, learned Standing Counsel for the Home Department of Government of Assam, respondent Nos. 3, 6 and 7; Mr. G. Sarma, learned Standing Counsel for the NRC, respondent No. 4 as well as Mr. H.K. Hazarika, learned Junior Government Advocate, Assam for the respondent No. 5. Page No.# 3/8 2. The petitioner Ajgar Ali @ Ajgar @ Ajgar AH is aggrieved by the impugned order/opinion dated 10.08.2017 passed by the learned Foreigners Tribunal (4TH), Darrang, Mangaldoi, Assam in Case No. F.T. 4th 1017/2015 corresponding to IM(D)T Case No. 99/1999 whereby the petitioner has been declared a foreigner of post 1971 stream. 3. It is contended that a sham enquiry was conducted by the Enquiry Officer under the supervision of Superintendent of Police (Border), Darrang, Assam [SP(B) in short). A reference was forwarded to the Foreigners Tribunal (4TH), Darrang, Mangaldoi by the SP(B) for opinion as to whether the petitioner is a foreigner, who came from Bangladesh after 25.03.1971. Notice was issued to the petitioner thereafter on 25.04.2016 for appearance on 25.10.2016. 4. It is contended that the petitioner did not receive any notice from the Tribunal and had no knowledge about the proceeding against him and thus, he failed to appear before the Tribunal as and when required. The learned Foreigners Tribunal (4TH), Darrang, Mangaldoi passed an ex-parte order dated 10.08.2017 declaring the petitioner as a foreigner of the post 1971 stream. It is further submitted that after six long years i.e. on 22.06.2024, the ASI (B) of Dhula Police Station lodged an FIR with the Officer-In-Charge at Dhula Police Station contending inter-alia that the petitioner has been declared a foreigner by the aforementioned Foreigners Tribunal on 10.08.2017 in connection with the case vide F.T. (4TH) Case No. 1017/2015 and the petitioner thereafter has been evading police arrest in violation of the Passport rules and laws. Pertaining to the said FIR dated 22.06.2024, Dhula Police Station Case No. 95/2024 under Section 3 of the Passport (Entry into India) Act, 1920 read with Rule 6 (a) of the Passport (Entry into India) Rules, 1950 and read with Section 14A (b) of the Page No.# 4/8 Foreigners Act, 1946 (the Act of 1946 in short) was registered against the petitioner. 5. It is further submitted that the petitioner was arrested and forwarded to custody as he failed to produce any relevant documents after he was declared a foreigner by the learned Tribunal. The learned Chief Judicial Magistrate, Darrang had no other option but to forward him to custody. 6. It is further submitted that the Foreigners Tribunal No. 4th, Darrang, Mangaldoi on 25.04.2016 issued notice in said Case No. FT/4th/1017/15/521 to Ajgar Ali, S/O – Late Innush Ali, Village - Sherpur, P.S. – Dhula, district – Darrang, Assam. But the Process Servers, namely, Dolen Bora and Ali Haque, served the notice to a person, namely, Md. Idrish Ali, S/O – Late BuidaSeikh, R/O – Vill. Sherpur, P.S. – Dhula, Dist. – Darrang, Assam. 7. It is averred that Md. Idrish Ali has been falsely identified as the petitioner’s cousin whereas in reality the petitioner was not residing in the aforementioned address at the relevant point of time. When the notice was issued, the petitioner was residing at village - Khelli in the district of Barpeta. It is contended that a false report has been submitted by the Process Servers apprising the learned Tribunal that the notice of the case was properly served on the petitioner in the manner provided under the Foreigners (Tribunals) Order of 1964 (Order of 1964 for short) and they have also affixed a copy of the Page No.# 5/8 notice in the notice board of the Ozagaon Gaon Panchayat. Consequentially, the petitioner was prevented from contesting the proceeding. 8. The petitioner has vehemently denied that Md. Idrish Ali is his cousin. 9. It is further submitted that Md. Idrish Ali, may have acted in connivance with the Process Servers to proclaim the petitioner to be declared a foreign national. It is further contended that although the Process Servers through their statements in the Foreigners Tribunal (4TH), Darrang, Mangaldoi deposed on 16.03.2017 that notice was duly served to the petitioner, yet in reality the petitioner was never communicated to appear before the learned Tribunal. It is submitted that summonses were issued on 11.04.2017 to the Investigating Officer (IO in short) but the IO did not appear before the Tribunal as a witness. The petitioner is highly prejudiced by the ex-parte order/opinion dated 10.08.2017 passed by the learned Foreigners Tribunal (4TH), Darrang, Mangaldoi, Assam in F.T.(4TH) Case No. 1017/2015. 10. The petitioner has earnestly prayed to accord him an opportunity to contest the proceeding as he has sufficient documents to prove his citizenship and rebut the reference forwarded by the SP(B), Darrang. The petitioner’s fundamental rights enshrined under Article 21 of the Constitution of India has been violated and he has prayed to set aside the order/opinion dated 10.08.2017 passed by the learned Foreigners Tribunal (4TH), Darrang, Mangaldoi, Assam in F.T.(4TH) Case No. 1017/2015. 11. The learned Departmental Standing Counsel for the Home Department of Government of Assam, Mr. A. Kalita has fairly submitted that the notice issued to Page No.# 6/8 the petitioner does not contain the signature of said Idrish Ali and the date on which said Idrish Ali received the said notice and as such, it appears that the notice may not have been served to the petitioner. It is further submitted by Mr. Kalita, learned Departmental Counsel that although vide order dated 10.08.2017, the Tribunal has observed that notice was properly served in the manner provided under Order 3(5)(f) of the Foreigners (Tribunals) Order, 1964, yet it appears that the notice has not been properly served on the petitioner. 12. We have given our thoughtful consideration to the arguments at the bar. The notice is marked as Exhibit – 1 and the name and address of Idrish Ali showed as elder brother (cousin) of the petitioner, is depicted as Exhibit – 1 in the case records of the Tribunal (Annexure-17/18 to this petition). The Process Servers have stated that they have served the notice issued in the given address. The notice was received by the petitioner/proceedee’s cousin as they could not meet the petitioner. They explained in details about the notice and apprised the recipient of the notice to inform the addressee to appear before the Tribunal on the next date fixed i.e. on 17.11.2016. The Process Servers Dolen Bora and Ali Hoque have proved their signatures as Exhibit – 1(ii) along with the report marked as Exhibit – 1 (i). 13. As it is apparent from Exhibit – 1 that said Md. Idrish Ali on whom the notice of the Tribunal was allegedly served, has not affixed his signature after receiving the notice on behalf of the petitioner, it appears that the petitioner deserves an opportunity to contest the proceeding. Considering the entire circumstances and reasons stated above, we set aside and quash the impugned ex-parte order/opinion dated 10.08.2017 passed by the learned Foreigners Tribunal 4th, Darrang, Mangaldoi in Case No. F.T. 4th 1017/2015 (arising out of Page No.# 7/8 Mangaldoi IM(D)T Case No. 99/1999) and remand back the matter to the said Tribunal for necessary communication afresh. Although the learned counsel for the petitioner has submitted to quash the FIR registered as Dhula Police Station Case No. 95/2024 under Section 3 of the Passport (Entry into India) Act, 1920 read with Rule 6 (a) of the Passport (Entry into India) Rules, 1950 read with Section 14A (b) of the Foreigners Act, 1946, as the FIR is incidental to the impugned order of the Foreigners Tribunal (4TH), Darrang, Mangaldoi dated 10.08.2017, no prayer has been made by the petitioner in this writ petition and thus, no order to set aside the aforementioned FIR is passed. 14. As the petitioner has submitted that he has all the relevant documents to prove his nationality, he, on 21.02.2025, shall appear before the Foreigners Tribunal 4th, Darrang, Mangaldoi in Case No. F.T. 4th 1017/2015 and also submit his Written Statement along with the relevant documents which he wants to place before the said Tribunal in F.T.(4TH) Case No. 1017/2015. 15. Further, on the said date, i.e., on 21.02.2025, the petitioner shall also submit hisAffidavit-in-Evidence in said in F.T.(4TH) Case No. 1017/2015 before the learned Foreigners Tribunal (4TH), Darrang, Mangaldoi. 16. As this order has been passed today in presence of the counsel for the petitioner, the learned Foreigners Tribunal (4TH), Darrang, Mangaldoi need not issue any fresh notice to the petitioner for his appearance in the said case. 17. Registry shall return the records of said F.T.(4TH) Case No. 1017/2015 to the learned Foreigners Tribunal (4TH), Darrang, Mangaldoi forthwith along with a copy of this order. Page No.# 8/8 18. Needless to say that the learned Foreigners Tribunal (4TH), Darrang, Mangaldoi shall dispose of said F.T.(4TH) Case No. 1017/2015 in accordance with law and as per the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964. 19. However, it is made clear that if the petitioner fails to appear before the learned Foreigners Tribunal (4TH), Darrang, Mangaldoi on 21.02.2025 and also fails to submit his Written Statement as well as Affidavit-in-Evidence as directed above, the concerned Tribunal shall be at liberty to pass appropriate order for such non-compliance by the petitioner. 20. In terms of the above observations, this writ petition stands allowed to the extent above. 21. Copy of this order be forwarded to the Superintendent of Police (Border), Darrang, Mangaldoi for its necessary use. JUDGE JUDGE Comparing Assistant