Page No.# 1/5 GAHC010003572025 2025:GAU-AS:3249-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/113/2025 MAHIR ALI @ MOHIBOR SHEIKH S/O- LT. JABAN ALI @ JABAN, RESIDENT OF VILLAGE- SAHPUR, P.O. AND P.S. SORBHOG, DIST.- BARPETA, ASSAM VERSUS THE UNION OF INDIA AND 6 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI, 110001 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI- 781006 3:THE ELECTION COMMISSION OF INDIA NEW DELHI 4:THE STATE COORDINATOR NRC ASSAM ACHYUT PLAZA BHANGAGARH GUWAHATI- 781005 5:THE DISTRICT COMMISSIONER BARPETA ASSAM- 781301 6:THE SUPERINTENDENT OF POLICE (B) BARPETA Page No.# 2/5 ASSAM- 781301 7:THE OFFICER-IN-CHARGE SORBHOG POLICE STATION DIST.- BARPETA ASSA Advocate for the Petitioner : MR S ISLAM, Advocate for the Respondent : DY.S.G.I., SC, ELECTION COMMISSION.,SC, F.T,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER 24.03.2025 (K.R. Surana, J) Heard Mr. S. Islam, learned counsel for the petitioner. Also heard Ms. J. Sarmah, learned CGC; Ms. P. Barua, learned standing counsel for the ECI; Ms. G. Sharma, learned standing counsel for the FT matters; and Mr. P. Sarmah, learned Additional Senior Govt. Advocate for the State respondent. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned ex parte opinion dated 05.09.2018, passed by the learned Member, Foreigner’s Tribunal Barpeta, 11th in Case No.(Bpt/11th) F.T.1049/2017, arising out of P.E. No. IM(D)T. 1125/03, by which the petitioner was declared as an illegal migrant. 3. The learned counsel for the petitioner has submitted that it is an admitted fact that the notice of the proceeding was duly served on the petitioner and he appeared on the date fixed. However, written statement could not be filed due to want of certain documents. Thereafter, the petitioner had defaulted to appear before the learned Tribunal on all subsequent dates. Page No.# 3/5 4. The learned counsel for the petitioner has submitted that the petitioner was not informed about the date fixed for appearance and for filing of a written statement thus, the default. 5. The learned standing counsel for the F.T. matters has opposed the prayer for interference with the impugned ex parte opinion on the ground that the petitioner is a willful defaulter in appearing and taking steps before the learned Tribunal and therefore, by absenting himself from the proceeding, the petitioner has been able to dodge the Border Police for more than 7(seven) years even after ex parte opinion was rendered on 05.09.2018, and only on the petitioner being apprehended by the Border Police on 20.12.2024 and he is currently detained in Transit Camp, Matia, Goalpara, the present writ petition has been filed belatedly on 07.01.2025. 6. On careful perusal of the records received from the learned Tribunal, it seems that the petitioner was granted sufficient to file his written statement. However, as written statement was not filed, the learned counsel for the petitioner had withdrawn from the case, which was allowed by order dated 27.08.2018. Thereafter, the ex parte opinion was rendered on 05.09.2018. Accordingly, we do not find any fault with the approach of the learned Member, Foreigners’ Tribunal, Barpeta, 11th. 7. Nonetheless, considering the consequences that would ensue on the petitioner due to ex parte opinion, this Court is inclined to grant one last opportunity to the petitioner to establish his claim before the Foreigners’ Tribunal 8. Having considered the conduct of the petitioner, who have absented himself from the Tribunal since 20.07.2018, and his casual approach is not taking care to know what orders were passed by the learned Foreigners’ Page No.# 4/5 Tribunal in his proceeding and that the petitioner awoke from his deep slumber only after he was arrested on 20.12.2024, in order to compel appearance of the petitioner before the learned Tribunal, the Court is inclined to conditionally set aside the ex parte opinion dated 05.09.2018, passed by learned Member, Foreigner’s Tribunal Barpeta, 11th in Case No.(Bpt/11th) F.T.1049/2017, arising out of P.E. No. IM(D)T. 1125/03, with the condition attached hereunder:- a. That the family members of the petitioner shall appear before the learned Member, Foreigners’ Tribunal, Barpeta, 11th within a period of 10 days from the date of this order and move an application for bail to the petitioner which should contain an undertaking to appear before the said learned Tribunal on the next date fixed, and to appear in person on all date fixed subsequently. b. In the event the petitioner appears before the learned Tribunal on the date fixed after bail is granted, at that stage the impugned opinion dated 05.09.2018, referred above would be deemed to have been set aside. However, in the event the petitioner does not appear before the Tribunal after being released on bail, this order to conditionally set aside the impugned ex parte opinion shall stand cancelled/ revoked and or recalled. c. As one of the conditions, it is also provided that the petitioner and or his family members shall deposit a sum of Rs.2,000/- before the District Legal Services Authority (DLSA), Barpeta towards cost and produce the receipt thereof before the learned Tribunal. 9. It is clarified that if the petitioner does not appear before the learned Tribunal, the order shall stand revoked and it would be deemed as if there is no Page No.# 5/5 interference with the impugned ex parte opinion dated 05.09.2018 passed by learned Member, Foreigner’s Tribunal Barpeta, 11th and consequences thereof will follow. 10. In the event family members appear before the learned Tribunal and prays for bail, the same shall be considered by the learned Tribunal in accordance with law. 11. Registry shall send back the records of the Tribunal. 12. This writ petition stands disposed of accordingly. JUDGE JUDGE Comparing Assistant