Page No.# 1/5 GAHC010165572025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4912/2025 ABDIN ALI @ ABDDIN ALI S/O LATE AYEN ALI, VILL- GUILEZA, P.O.- CHARCHARIA, MOUZA- RUPSHI, P.S.- KALGACHIA, DIST- BARPETA, ASSAM, PIN-781317 VERSUS THE UNION OF INDIA AND 5 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, NEW DELHI-110001 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6 3:THE ELECTION COMMISSION OF INDIA REPRESENTED BY THE STATE ELECTION COMMISSIONER ASSAM HOUSEFED COMPLEX DISPUR GUWAHATI-781006 4:THE NODAL OFFICER NATIONAL REGISTER OF CITIZENS (NRC) ASSAM P.O.- BHANGAGARH GUWAHATI-781005 DIST- KAMRUP (M) ASSAM Page No.# 2/5 5:THE DISTRICT COMMISSIONER BARPETA DIST- BARPETA ASSAM PIN-781301 6:THE SUPERINTENDENT OF POLICE (B) BARPETA DIST- BARPETA ASSAM PIN-78130 Advocate for the Petitioner : MR. S AHMED, S FAZIL,MR. A BORO,MR H P GUWALA,T UDDIN,MR M RAHMAN,MR Z HUSSAIN Advocate for the Respondent : DY.S.G.I., SC, NRC,SC, F.T,SC, ECI,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER 28.11.2025 (S.K. Medhi, J) Heard Shri H.P. Guwala, learned counsel for the petitioner. Also heard Ms. M. Das, learned counsel appearing on behalf of Shri S.K. Medhi, learned CGC, Shri G. Sarma, learned Standing Counsel, Home Department and NRC, Shri P. Sarma, learned State Counsel and Shri A.I. Ali, learned Standing Counsel, ECI. 2. The instant application under Article 226 of the Constitution of India has been filed challenging an opinion dated 09.07.2024 passed by the learned Foreigners Tribunal No. 5th, Barpeta in F.T. Case No. 499/ 2017. By the aforesaid opinion, the petitioner was declared a foreigner post 25.03.1971. 3. Notice was issued on 29.08.2025 by this Court and records were called for Page No.# 3/5 which have been received. 4. Shri Guwala, the learned counsel for the petitioner has submitted that though notice was received by the petitioner, since he was declared a D-Voter, he could not contest the same. 5. On the other hand, Shri Sarma, the learned Standing Counsel, Home Department and NRC has submitted that though the impugned opinion has been passed in absence of the petitioner, it is not a case where notice was not served as admittedly the petitioner was served with such notice. He has submitted that the petitioner had neglected to defend himself by appearing and filing written statement in accordance with law. 6. By drawing the attention of this Court to Section 9 of the Foreigners Act, 1946 , the learned counsel has submitted that the burden is entirely upon a proceedee to prove that the proceedee is not a foreigner and that burden was not discharged. For ready reference, the aforesaid provision is extracted herein below: “9. Burden of proof- If in any case not falling under Section 8 any question arises with reference to this act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.” 7. The learned counsel for the other respondents have endorsed and supported the submissions advanced by Shri Sarma, the learned Standing Counsel and has prayed for dismissal of the writ petition. 8. After hearing the parties and on perusal of the records, we are of the Page No.# 4/5 opinion that it is not a case where notice was not served upon the petitioner or that he was not aware of the proceedings. In fact, the learned counsel for the petitioner has fairly admitted that notice was indeed served but due to certain reasons, the same could not be contested. 9. In view of the above, we are of the opinion that no grounds for interfering with the impugned opinion has been able to be made out and accordingly, the writ petition is dismissed. 10. At this stage, the learned counsel for the petitioner submits that under Order 3C of the Foreigners (Tribunals) Order, 1964, a procedure has been laid down for setting aside ex parte order. For ready reference, the said provision is extracted herein below: “3-C. Procedure for setting aside ex-parte order (1) Where the Foreigners Tribunal has passed an ex-parte order for non- appearance of the proceedee and he or she has sufficient cause for not appearing before the Foreigners Tribunal, it may on the application of the proceedee, if filed within thirty days of the said order, set aside its ex parte order and decide the case accordingly. (2) ...” 11. We have however noted that such application is required to be filed within a period of 30 days from the date of the order. 12. In view of the above, we give liberty to the petitioner to file such an application on or before 12.12.2025, for setting aside the ex parte order. We further direct that in the interest of justice, the said application be considered on its merits by the learned Tribunal without insisting on the aspect of timely Page No.# 5/5 presentation within the prescribed period of 30 days. 13. The learned counsel for the petitioner has also submitted that since the petitioner is presently in custody, some order is required to be passed in this regard. 14. Considering the facts projected, the Court is inclined to grant bail to the petitioner, namely, Abdin Ali @ Abddin Ali on the on furnishing a bail bond of Rs. 10,000/- (Rupees Ten Thousand only) with one solvent surety of the like amount to the satisfaction of the said authority. We further direct that the biometrics of the iris of both eyes, the fingerprints of both hands and the photographs of the petitioner shall be obtained, if not done in the meantime. 15. We direct that the petitioner would remain on bail till consideration of the application as directed above and depending on its outcome, necessary action be taken. It is however made clear that if the application is not filed within the prescribed period, the bail automatically stands cancelled. 16. We also make it clear that the present order has been passed on the peculiar facts and circumstances and will not be considered as a precedent. 17. The writ petition accordingly stands disposed of. 18. The records be sent back forthwith. JUDGE JUDGE Comparing Assistant