Page No.# 1/9 GAHC010259412024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7145/2023 ABDUL JALIL AND 5 ORS S/O- LATE JAHAR ALI @ JAHARUDDIN R/O- VILLAGE- KUIYADAL NAKHULA GRANT P.O.- JAGIROAD P.S.- JAGIROAD PIN- 782410 DIST.- MORIGAON ASSAM. 2: MUSSTT. AJIJA KHATUN @ AJIFA @ AJIYA @ UJUFA W/O- MD. ABDUL JALIL AND D/O- ABDUL MANAN R/O- VILLAGE- KUIYADAL NAKHULA GRANT P.O.- JAGIROAD P.S.- JAGIROAD PIN- 782410 DIST.- MORIGAON ASSAM. 3: MD. IZAJUL HAQUE @ IZAZUL S/O- MD. ABDUL JALIL R/O- VILLAGE- KUIYADAL NAKHULA GRANT Page No.# 2/9 P.O.- JAGIROAD P.S.- JAGIROAD PIN- 782410 DIST.- MORIGAON ASSAM. 4: MD. AFIKUL HAQUE @ AZIZUL S/O- MD. ABDUL JALIL R/O- VILLAGE- KUIYADAL NAKHULA GRANT P.O.- JAGIROAD P.S.- JAGIROAD PIN- 782410 DIST.- MORIGAON ASSAM. 5: MD. RAFIKUL ISLAM @ RAFIZUL S/O- MD. ABDUL JALIL R/O- VILLAGE- KUIYADAL NAKHULA GRANT P.O.- JAGIROAD P.S.- JAGIROAD PIN- 782410 DIST.- MORIGAON ASSAM. 6: MUSSTT. MASUMA KHATUN D/O- MD. ABDUL JALIL R/O- VILLAGE- KUIYADAL NAKHULA GRANT P.O.- JAGIROAD P.S.- JAGIROAD PIN- 782410 Page No.# 3/9 DIST.- MORIGAON ASSAM. VERSUS THE UNION OF INDIA AND 8 ORS. REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NEW DELHI- 110001. 2:THE STATE OF ASSAM REPRESENTED BY ITS SECRETARY GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI- 781006. 3:THE ELECTION COMMISSION OF INDIA REPRESENTED BY THE CHIEF ELECTION COMMISSIONER NIRVACHAN SADAN ASHOK ROAD NEW DELHI- 110001. 4:THE STATE COORDINATOR NATIONAL REGISTRAR OF CITIZENS (NRC) ASSAM 1ST FLOOR ACHYUT PLAZA G.S. ROAD BHANGAGARH GUWAHATI- 781005. 5:THE DEPUTY COMMISSIONER MORIGAON DIST.- MORIGAON ASSAM PIN- 782104. 6:THE DEPUTY COMMISSIONER GOALPARA Page No.# 4/9 DIST.- GOALPARA ASSAM PIN- 783101. 7:THE SUPERINTENDENT OF POLICE (BORDER) MORIGAON DIST.- MORIGAON ASSAM PIN- 782104. 8:THE SUPERINTENDENT OF POLICE (BORDER) GOALPARA BAPUJINAGAR DIST.- GOALPARA ASSAM PIN- 783121. 9:THE OFFICER-IN-CHARGE (BORDER) MATIA POLICE STATION GOALPARA DIST.- GOALPARA ASSAM PIN- 783121. ------------ Advocate for : MR. K LAHKAR Advocate for : DY.S.G.I. appearing for THE UNION OF INDIA AND 8 ORS. BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 13.08.2025 (K.R. Surana, J) Heard Mr. K. Lahkar, learned counsel for the petitioners. Also heard Ms. M. Das, learned counsel appearing on behalf of Mr. S.K. Medhi, learned CGC; Mr. G. Sarma, learned Standing Counsel for the FT matters and NRC; Mr. H. Kuli, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for Page No.# 5/9 the ECI; and Mr. H.K. Hazarika, learned Junior Govt. Advocate for the State. 2. The petitioners are aggrieved by the opinion dated 07-06-2017, passed by the learned Member, Foreigners Tribunal- 1, Morigaon, in F.T. (C) Case No. 26/2009, arising out of Police Reference, I.M.(D).T. Case No.295/2003, thereby declaring all the petitioners to be foreigners under the Foreigners Act, 1946 who have illegally entered into the territory of India (Assam), on or after 25-03-1971. 3. Pursuant to the said impugned opinion dated 07-06-2017, the petitioners were taken into custody on 04-11-2023 and forwarded to the Transit Camp at Matia District-Goalpara on 05.11.2023. The petitioner no. 1 is Md. Abdul Jalil, his wife is petitioner no.2, Musstt. Ajija Khatun @ Ajifa @ Ajiya @ Ujufa, and their children are Md. Izajul Haque @ Izazul, Md. Afikul Haque @ Azizul, Md. Rafikul Islam @ Rafizul, and Musstt. Masuma Khatun. 4. It is submitted on behalf of the petitioners that the petitioner no.-1 was born in the year 1965. The petitioner no.2 was born in the year 1970 and her marriage was solemnized with petitioner no.1 on 05-03-1989 and they are Indian citizens by birth. The petitioner no.1 was born in the village- Dewaguri under Lahorighat P.S. in the district of Nagaon, Assam, and the petitioner no.2 was born in village-Salmari under Moirabari P.S. 5. It is contended that the Superintendent of Police, (Border), Morigaon, made a reference under the Illegal Migrants (Determination by Tribunals) Act, 1983 vide Police Reference No. I.M.(D).T. Case No. 295/2003, dated 24-04- 2003, expressing doubt about the nationality of petitioner no.1. The said reference was registered as F.T.(C) Case No.26/2009. However, notice was issued against all the petitioners. Thereafter, the case was posted on 03-05- 2016, for defence evidence, but the petitioners could not file evidence on the Page No.# 6/9 given date owing to non-availability of certain documents. Thereafter, on several grounds, adjournments were granted and finally, on 07-06-2017, the petitioners sought adjournment through their engaged counsel as the petitioner no.1 was suffering from stomach ache and diarrhea and was unable to appear before the Tribunal. The next date was posted for evidence, but the petitioners’ prayer for adjournment was not considered and learned Tribunal had passed the impugned opinion, holding the petitioners to be foreigners. 6. This Court has perused the relevant records of the Tribunal, and considered the submissions of both sides. 7. On a perusal of the verification report dated 11-05-2003 and the reference dated 24-04-2023, both clearly reveals that the inquiry was made only against the petitioner no.1, but the learned Member Foreigners Tribunal-1, exceeding its jurisdiction, issued notice not only to the petitioner no. 1, but also to his entire family i.e. petitioner nos. 2 to 6. The petitioners are highly aggrieved by the issuance of notice to the entire family, beyond jurisdiction, as the reference was only against petitioner no. 1. 8. Per contra, the learned Standing Counsel for the FT and Border matters has submitted that the prayer of the petitioners to contest the proceedings by submitting their evidence cannot be accepted at this stage. It is submitted that several opportunities were afforded to the petitioners to adduce evidence, which were not availed. The petitioner no. 1 had filed a written statement on 26-02- 2016, but thereafter, he failed to adduce evidence. Several adjournments were also granted and finally, after more than a year, when this case was fixed for evidence, the petitioners had still failed to adduce evidence to substantiate their pleadings. Hence, it is submitted that the petitioners’ prayer for adjournment was rightly rejected by the learned Tribunal and the ex parte opinion was Page No.# 7/9 passed. The learned Standing Counsel for the FT matters and NRC has also resisted the prayer for setting aside the impugned opinion. 9. A close scrutiny of the record reveals that on 24-04-2017, the learned Member, Foreigners Tribunal-1 was not present. However, the engaged counsel for the petitioners had filed petition no. 480/2017 with prayer for adjournment as the petitioner no.1 was suffering from high pressure. As the learned Member of the Foreigners Tribunal No.1, Morigaon was absent, no order could be passed and therefore, the case was fixed on 07-06-2017 for necessary orders. On 07-06-2017, the learned Member, Foreigners Tribunal-1, Morigaon rejected petition no. 640/ 2017, filed by the petitioners, praying for time to adduce evidence as the petitioner no. 1 was suffering from fever and diarrhea. Thereafter, opinion was passed on 07.06.2017 without giving any opportunity to the petitioners to adduce evidence and without giving the petitioners any opportunity of hearing in their case. The case, which was otherwise fixed for necessary order, as the learned Member was not present on previous date, was disposed of without hearing the petitioners. Thus, the impugned opinion is found not sustainable on facts and law, for which it is hereby set aside. 10. This court thereby deems it fit to remand back the case on two grounds viz.; (i) The first ground is that the reference was made only against petitioner no.1, but notice was issued not only to the petitioner no. 1, but to the petitioner nos. 2 to 6. (ii) The other ground is that on 24-04-2017, the learned Member, Foreigners Tribunal No.1 was absent and therefore, case was fixed for necessary order, which was not a judicial order, but an order passed by the Bench Assistant. However, on the next date i.e. on 07-06-2017, when this case was fixed for Page No.# 8/9 necessary order, without hearing the parties and without passing an appropriate order, the impugned opinion was passed by the learned Tribunal. 11. The petitioners, who are duly represented by their learned counsel, are directed to appear before the said learned Tribunal within 25.09.2025, without any requirement for the said learned Tribunal to issue any notice for appearance and to file an appropriate application to strike out the names of the petitioner nos. 2 to 6 as well as the evidence –on-affidavit by the petitioner no. 1. 12. The writ petition is disposed of with a direction to the learned Tribunal to make every endeavor to dispose of this case within 03 (three) months from the date of this order. 13. As the petitioners namely, 1. Md. Abdul Jalil, 2. Musstt. Ajija Khatun @ Ajifa @ Ajiya @ Ujufa, 3. Md. Izajul Haque @ Izazul, 4. Md. Afikul Haque @ Azizul, Md. Rafikul Islam @ Fafizul and 6. Musstt. Masuma Khatun are in custody, they shall be released on bail, subject to compliance of the following conditions: a. The family members of the petitioners shall appear before the Superintendent of Police (Border), Morigaon and furnish bail bond of Rs.5,000/- (Rupees five thousand only) each with 2 (two) solvent sureties of like amount to the satisfaction of the said authority. b. Before releasing the petitioners on bail, the Superintendent of Police (Border), Morigaon shall obtain the biometrics of the iris of both eyes, the fingerprints of both hands and the photographs of the petitioners. c. The said authority shall also obtain necessary information and documentation as required under the Rules from the petitioners for securing their presence. Page No.# 9/9 14. Thereafter, steps shall be taken by the Superintendent of Police (Border), Morigaon to have the petitioners released from the Transit Camp at Matia District-Goalpara within 3 (three) days from the date of receipt of certified copy of this order. 15. As a further condition of bail, the petitioners are directed not to leave the territorial jurisdiction of the Superintendent of Police (Border), Morigaon without prior written intimation to the said authority, failing which, it would be open to the Superintendent of Police (Border), Morigaon to move this Court for cancellation of bail. 16. Registry to return back the original records of F.T. (C) Case No. 26/2009 expeditiously together with a copy of this order to be made a part of the records. JUDGE JUDGE Comparing Assistant