Page No.# 1/6 GAHC010001032025 2025:GAU- AS:15275-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/137/2025 SURJAT ALI @ SURJYAT ALI S/O LATE KALU MIYA @ KANU MIYA, P/R/O VILL- NAGARJHAR, P.O.- HOWLY, P.S.-HOWLY, DIST- BARPETA (ASSAM), PIN-781316 VERSUS THE UNION OF INDIA AND 5 ORS REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI, PIN-110001 2:THE ELECTION COMMISSION OF INDIA REPRESENTED BY THE CHIEF ELECTION COMMISSIONER NEW DELHI-110001 3:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-781006 4:THE DISTRICT COMMISSIONER BARPETA ASSAM 781301 5:THE SUPERINTENDENT OF POLICE (B) BARPETA ASSAM 781301 Page No.# 2/6 6:THE COORDINATOR NATIONAL REGISTER OF CITIZENS BHANGAGARH GUWAHATI-0 Advocate for the Petitioner : MR. J ABBAS, MS. H G DAS,I HOQUE,MS. B LASKAR Advocate for the Respondent : DY.S.G.I., SC, F.T,SC, ECI,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 12.11.2025 (S.K.Medhi, J) 1. The instant petition under Article 226 of the Constitution of India has been instituted challenging an opinion/order dated 02.04.2022 passed by the learned Foreigners' Tribunal (10th), Barpeta in F.T.Case No.1380/2017 (arising out of Reference IM(D)T Case No.2001/01). By the impugned opinion/order, the petitioner has been declared a foreigner post 25.03.1971. The primary ground of challenge is that the order is an ex parte one whereby the petitioner was deprived of a fair and reasonable opportunity to defend himself. 2. As per the facts projected, a notice was issued by the Foreigners’ Tribunal on 20.11.2021, returnable on 28.12.2021. The petitioner however has his place of work at Guwahati and has to remain out of his residence. It appears that the notice was served on the wife of the petitioner, and in this regard, the Process Server has made a report on 27.12.2021. However, on the returnable date, i.e. on 28.12.2021, the petitioner did not appear. The learned Tribunal had thereafter given further chances of appearance and contesting and the case was fixed on 04.01.2022, 01.02.2022, 05.03.2022 and 02.04.2022 on which date, the matter was taken up for final disposal culminating in the impugned opinion. 3. We have heard Shri J. Abbas, learned counsel for the petitioner. Also heard Page No.# 3/6 Shri M.R. Adhikari, learned CGC; Shri G. Sarma, learned Standing Counsel for the Home Department and NRC; Shri N. Kalita, learned counsel appearing on behalf of Shri A.I. Ali, learned Standing Counsel for the ECI; and Shri P. Sarma, learned Additional Senior Govt. Advocate for the State. 4. Shri Abbas, the learned counsel has primarily based his argument on the aspect of the notice, issued by the learned Foreigners' Tribunal. By drawing the attention of this Court to Order 3(4) of the Foreigners (Tribunals) Order, 1964, (herein after referred to as Order of 1964), he has submitted that the contents of the notice has to be in English and also in the official language of the State. He submits that certified copy of the notice was procured after the police had recently informed the petitioner about the opinion from which he has come to learn that the contents of the notice is not in the official language. He has also contended that both the petitioner and his wife are illiterate persons and even if it is assumed that the report of the Process Server is correct regarding furnishing of the notice to the wife of the petitioner, the same would not mean a compliance of the aforesaid provision of law. He has submitted that there are good materials to defend his case, provided he is given a chance and those materials also include an opinion which was rendered in favour of his mother against whom a proceeding of similar nature was initiated. 5. Shri G. Sarma, the learned Standing Counsel has however strenuously opposed the writ petition. He has submitted that though there is a requirement under the law to have the contents of the notice also in the official language, there is no clear pleadings in the writ petition of denial of receipt of such notice. He has also submitted that it is not the case of the petitioner that on the Page No.# 4/6 returnable date itself, the matter was taken up for disposal and the learned Tribunal had given at least five more dates so as to enable the petitioner to contest the case. 6. Shri Adhikari, learned CGC has endorsed the submissions of the Shri Sarma, the learned Standing Counsel and has added that even if the case projected by the petitioner that he was not aware of the contents of the notice is considered, it will not mean that the petitioner was not at all aware of any such proceeding. He has emphasized that the aspect of the notice to be also in the official language was only to indicate that the burden is on the procedee to prove that the proceedee is not a foreigner and as such, the aspect of a proceeding which has been initiated cannot be ignored or overlooked. 7. The rival submissions advanced by the learned counsel for the parties have been duly considered and the materials placed on record, including the TCRs have been carefully perused. 8. Since the primary ground of challenge is based on Order 3 (4) of the Foreigners (Tribunals) Order, 1964, the aforesaid provision is extracted herein below: “(4) The notice shall be served in English and also in the official language of the State indicating that the burden is on the proceedee to prove that he or she is not a foreigner.” 9. The requirement of law is that the notice shall be served in English and Page No.# 5/6 also in the official language. There is also a requirement that such notice has to indicate that the burden is on the proceedee to prove that the proceedee is not a foreigner. We have however also noted that there is a provision that when a proceedee is not found to be present at the time of service, such notice may be served on any adult member of the family. 10. The records of this case which had been transmitted pursuant to orders passed earlier would however show that the notice was indeed served on the wife of the petitioner who had affixed her thumb impression. The aforesaid receipt is also supported by a report of the Process Server dated 27.12.2021. We have however noticed that the language employed in the notice is English and there is no other notice in the official language of the State. 11. The aspect of the requirement of the contents of a notice to be in official language is only to ensure that no prejudice of any nature is caused to a proceedee in defending himself or herself in a proceeding of this nature. In the instant case, the petitioner has made a statement that both he and his wife are illiterate. Though there is some force in the arguments advanced by the learned counsel for the respondents that the grounds taken by the petitioner may not be enough to come to a conclusion that the petitioner was not aware of the proceeding at all, we are of the view that in the instant case there is aberration of the requirement of law under Order 3 (4) of the Foreigners (Tribunals) Order, 1964. 12. We have however noticed that despite the aforesaid grounds, the learned Tribunal had given five further chances to the petitioner to appear and contest Page No.# 6/6 the case, which the petitioner appears to have ignored. 13. Considering the facts and circumstances, we are of the view that while the petitioner would be entitled to some relief, that has to be subjected to certain costs. Accordingly, the impugned opinion dated 02.04.2022 rendered by the learned Member, Foreigners' Tribunal (10th), Barpeta in F.T.Case No.1380/2017 (arising out of Reference IM(D)T Case No.2001/01) is hereby set aside subject to payment of cost of Rs. 5,000/- (Rupees Five Thousand only) to be paid in favour of Gauhati High Court Bar Association Welfare Fund A/C No. 34778155050. 14. We also direct the petitioner to appear and file the written statement before the concerned Foreigners Tribunal on 25.11.2025 along with a certified copy of this order, whereafter the learned Tribunal would take charge of the proceeding and complete the same expeditiously and in accordance with Order 3 (14) of the Foreigners (Tribunal) Order, 1964 . 15. Writ petition stands allowed in the manner as indicated above. 16. Send back the TCRs forthwith along with a copy of this order. JUDGE JUDGE Comparing Assistant