Page No.# 1/8 GAHC010196882025 2025:GAU-AS:15525-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5147/2025 KASEM ALI @ MD ABU KASEM AND 6 ORS S/O LATE MAFEJ ALI @ MAFEJ @ MOFIZUDDIN, R/O VILL- NAKHULAGRANT, P.S.- JAGIROAD, DIST- MORIGAON, ASSAM 2: JULHASH ALI AHMED @ MD. JULHASH ALI S/O LATE MAFEJ ALI @ MAFEJ @ MOFIZUDDIN R/O VILL- NAKHULAGRANT P.S.- JAGIROAD DIST- MORIGAON ASSAM 3: SIKANDAR ALI @ MD. SEKANDAR ALI S/O LATE MAFEJ ALI @ MAFEJ @ MOFIZUDDIN R/O VILL- NAKHULAGRANT P.S.- JAGIROAD DIST- MORIGAON ASSAM 4: MISS UMESALEMA KHATUN @ SALEMA KHATUN D/O LATE MAFEJ ALI @ MAFEJ @ MOFIZUDDIN W/O BABUR ALI R/O VILL- KHALIHAMARI P.S.- JAGIROAD DIST- MORIGAON ASSAM 5: MISS SAJIN KHATUN D/O LATE MAFEJ ALI @ MAFEJ @ MOFIZUDDIN W/O ABED ALI R/O VILL- NAKHULAGRANT P.S.- JAGIROAD DIST- MORIGAON ASSAM Page No.# 2/8 6: MISS MARIOM NEHAR @ MARIYAM NESSA D/O LATE MAFEJ ALI @ MAFEJ @ MOFIZUDDIN W/O MAHMUDUL ISLAM R/O VILL- KURU KANTA P.O.- MOIRABARI DIST- MORIGAON ASSAM 7: MISS SADIKUN NEHAR @ SADIKUN NEHAR D/O LATE MAFEJ ALI @ MAFEJ @ MOFIZUDDIN W/O ISAHAQUE ALI R/O VILL- MIJOBARI PATHAR P.S.- DEKIAJULI DIST- SONITPUR ASSA VERSUS THE UNION OF INDIA AND 5 ORS REPRESENTED BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI1- 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE DEPARTMENT OF HOME GOVT. OF ASSAM DISPUR GUWAHATI-06 3:THE DISTRIC COMMISSIONER MORIGAON P.O. AND DIST- MORIGAON ASSAM PIN-782105 4:THE SUPERINTENDENT OF POLICE (B) MORIGAON P.O. AND DIST- MORIGAON ASSAM PIN-782105 5:THE ELECTION COMMISSION OF INDIA NEW DELHI-01 6:THE STATE COORDINATOR OF NRC ASSAM HOUSEFED COMPLEX 2ND FLOOR Page No.# 3/8 BONPHOOL NAGAR DISPUR GUWAHATI-0 Advocate for the Petitioner : MR. A R SIKDAR, J A SIKDAR,MS M SARMA,MR. S I TALUKDAR Advocate for the Respondent : DY.S.G.I., SC, F.T,SC, NRC,SC, ECI,GA, ASSAM B E F O R E Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI HON’BLE MR. JUSTICE PRANJAL DAS Advocate for the petitioners : Shri AR Sikdar Advocate for the respondents : Ms. A. Verma, SC-Home & NRC Shri P. Sarma, GA-Assam Shri H. Kuli, for ECI Date on which judgment is reserved : 17.11.2025 Date of pronouncement of the judgment : 17.11.2025 Whether the pronouncement is of the operative part of the judgment? : NA Whether the full judgment has been pronounced? : YES Judgment & Order 17.11.2025 (S.K. Medhi , J.) Heard Shri A.R. Sikdar, learned counsel for the petitioners. Also heard Ms. A. Verma, learned Standing Counsel, NRC & Home Department; Shri P. Sarma, learned State Counsel and Shri H. Kuli, learned counsel appearing on behalf of Shri A.I. Ali, learned Standing Counsel, ECI. Page No.# 4/8 2. In this writ petition instituted under Article 226 of the Constitution of India, a challenge has been made to an order dated 19.11.2013 passed by the learned Foreigners' Tribunal (1st), Morigaon, Assam in F.T(C) Case No. 162/2008 [Police Reference IM(D)T Case No. 107/01] declaring the petitioners as foreigners post 25.03.1971. It has been projected that the order impugned is an ex parte one. 3. Shri Sikdar, learned counsel for the petitioners, by drawing the attention of this Court to the impugned order dated 19.11.2013, has submitted that the requirement of serving notice upon the petitioners was not fulfilled in accordance with law. In this regard, he has referred to the Foreigners' Tribunal Order 1964, more particularly, Order 3(5)(f). He has also referred to the report of the Process Server dated 16.08.2013, and has contended that a bare perusal of the report would show that though the notice was affixed, as the residence of the petitioners could not be ascertained, there is no clarity as to where such notice was affixed. He has also submitted that the requirement in such a situation is to affix the notice on the outer door of the residence or any other conspicuous part of the house in which the proceedee had last resided. 4. The learned counsel for the petitioners has also urged that the initial reference by the Superintendent of Police (B) was not against the petitioners but their mother, who in the meantime, had passed away. He has therefore assailed the entire reference as such. In this regard, he has relied upon judgment of a Coordinate Bench of this Court reported in 2019 (2) GLT 61 (Sudhir Roy & Ors. Vs. Union of India & Ors.). 5. Per contra, Ms. Verma, learned Standing Counsel, Home Department and NRC has submitted that the plea taken in the writ petition is that the petitioners Page No.# 5/8 were not aware of the proceeding is not believable inasmuch as, they were aware of the proceeding ever since the reference was made. She has submitted that the notice by the Tribunal is sent after the initial inquiry of which the petitioners were aware. She has also submitted that the report of the Process Server is clear that the notice was affixed upon finding that the petitioners had left their place of stay. On the aspect of there being no reference against the petitioners, the learned Standing Counsel has submitted that the records would reveal that the initial communication dated 22.02.2001 issued by the Superintendent of Police (Border), Morigaon had mentioned the name of the mother of the petitioner along with other family members. She has accordingly submitted that there is no violation of the principles laid down in the case of Sudhir Roy (supra). 6. The learned counsel for the other respondents have endorsed the submission of Ms. Verma, learned Standing Counsel and have prayed for dismissal of the petition. 7. The rival submissions advanced by the learned counsel for the parties have been duly considered and the materials placed before this Court, including records of the learned Tribunal have been carefully perused. 8. The aspect of service of notice has been laid down in the Orders of 1964, the relevant aspect of which is extracted hereinbelow- “3(5)(f) - if the proceedee has changed the place of residence or place of work, without intimation to the investigating agency, the process server shall affix a copy of the notice on the outer door or some other conspicuous part of the house in which the proceedee ordinarily resides or last resided or reportedly resided or personally Page No.# 6/8 worked for gain or carries on business, and shall return the original to the Foreigners Tribunal from which it was issued with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did do, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.” The aforesaid provision takes care of a situation where the proceedee has changed the place of residence or place of work without intimation to the Investigating Agency. In such a situation, the Process Server is required to affix a copy of the notice on the outer door or any other conspicuous part of the house in which the proceedee ordinarily resided or last resided or reportedly resided or personally worked for gain and thereafter return the original to the learned Tribunal. The expressions used in the statute is very wide which would also include a place where the proceedee had purportedly resided. 9. A perusal of the Process Server's Report which is available with the records would however show that though a satisfaction was arrived at by the Process Server that the petitioners had changed their place of residence and accordingly the notice was affixed, it is not clear as to where the notice was affixed. A proceeding of the present nature being very important to the rights and liberties of a proceedee, who is suspected to be a foreign national, the aspect of giving an adequate and fair opportunity to represent is fundamental. 10. In view of the aforesaid discussion and the facts and circumstances narrated above, we are of the opinion that the impugned order dated 19.11.2013 is indeed an ex parte one. 11. On the aspect of the delay in approaching the Court by means of this writ Page No.# 7/8 petition, which has been filed in the year 2025 i.e. after a period of 12 years, Shri Sikdar, learned counsel for the petitioners has drawn the attention of this Court to the pleadings made in paragraphs 2, 4 and 11 of the writ petition. Though the pleadings are not properly verified, we are of the opinion that the interest of justice would be served if the matter is remanded for a fresh determination by the learned Tribunal in accordance with law. 12. As regards the other issues sought to be raised by the learned counsel for the petitioners, we are of the opinion that in exercise of certiorari jurisdiction, we are required to examine as to whether the impugned order is based on relevant materials or on extraneous and irrelevant materials. The aspects which have not been dealt with by the order impugned cannot be the subject matter of examination by this Court in exercise of such certiorari jurisdiction. 13. Be that as it may, the principle laid down in the case of Sudhir Roy (supra) is that no members of a family can be declared as a foreigner only because of the fact that another member of the family has been declared as a foreigner in an independent reference. A bare perusal of the records would show that the notice dated 29.07.2013 was issued to all the petitioners and their deceased mother. We are of the view that the said principle laid down in Sudhir Roy (supra) would not be applicable in a case of present nature. Be that as it may, we are of the view that the petitioners may raise this issue before the learned Tribunal which can give its findings. 14. Accordingly, the impugned order dated 19.11.2013 passed by the learned Foreigners' Tribunal (1st), Morigaon, Assam in F.T(C) Case No. 162/2008 is set aside. 15. The records be sent back immediately to the concerned Tribunal. Page No.# 8/8 16. We also direct the petitioners to appear before the learned Tribunal on 05.12.2025 by filing their written statements. The said written statements are directed to be accepted by the learned Tribunal and from the said date, the learned Tribunal would take charge of the proceedings and complete the same expeditiously and in accordance with the Order 3(14) of the Order of 1964. 17. The writ petition accordingly stands disposed of. JUDGE JUDGE Comparing Assistant