Page No.# 1/4 GAHC010017422025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/546/2025 FAZAL MIAH ALIAS FAZAL MIA S/O- ABU BAKKAR MIAH, R/O- VILLAGE- GANAK PARA (PIRALAVITHA), P.O.- MAKRI KUCHI, P.S. TARABARI, DISTRICT- BARPETA, ASSAM VERSUS THE UNION OF INDIA AND 5 ORS REPRESENTED BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI-01 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE DEPARTMENT OF HOME AFFAIRS GOVERNMENT OF ASSAM DISPUR GUWAHATI-06 3:THE DISTRICT COMMISSIONER BARPETA P.O. AND DISTRICT- BARPETA ASSAM PIN- 781301 4:THE SUPERINTENDENT OF POLICE P.O. AND DISTRICT- BARPETA ASSAM PIN- 781301 5:THE STATE COORDINATOR OF NRC ASSAM HOUSEFED COMPLEX 3RD FLOOR Page No.# 2/4 BANPHOOL NAGAR DISPUR GUWAHATI- 38 6:THE ELECTION COMMISSION OF INDIA NEW DELHI-0 Advocate for the Petitioner : MR. A R SIKDAR, MR. O FARUK,MR. S I TALUKDAR Advocate for the Respondent : DY.S.G.I., SC, F.T,GA, ASSAM,SC, NRC,SC, ELECTION COMMISSION. BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER 27.03.2025 (K.R. Surana, J) Heard Mr. A. R. Sikdar, learned counsel for the petitioner. Also heard Mr. G. Sarma, learned standing counsel for the FT matters, Mr. M. Kalita, learned counsel appearing on behalf of Ms. P. Barua, learned standing counsel for the ECI, Mr. P. Sarmah, learned Additional Senior Govt. Advocate and Mr. R. Talukdar, learned Govt. Advocate for the State. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned opinion dated 01.08.2023, passed by the learned Member, Foreigner’s Tribunal, III, Barpeta, Assam in F.T. Case No. 3405(III)/2016, arising out of Reference No. 7280/98, by which the petitioner was declared as an illegal migrant. 3. Pursuant to the order dated 10.02.2025 and 24.02.2025, the learned Standing Counsel for the FT matters has procured the relevant records from the concerned Tribunal and the same is placed before the Court for perusal. Page No.# 3/4 4. On examinations of the records of the Tribunal it appears that the notice issued upon the petitioner by the learned Foreigners Tribunal, III, Barpeta was not served upon the petitioner in accordance with 3(5)(f) of the Foreigners (Tribunals) Order, 1964. 5. According to the process server’s report, the petitioner was not found in the village and the notice could not be served and subsequently, the process/notice was returned unserved. 6. The requirement of Section-3(5)(f) of the Foreigners (Tribunals) Order, 1964 is as follows:- (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 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 no 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. 7. 7. Accordingly, as the notice was not properly served on the petitioner in accordance with law, the Court is inclined to hold that the impugned opinion dated 01.08.2023, passed by the learned Member, Foreigner’s Tribunal, III, Barpeta, Assam is vitiated because of non service of notice. Accordingly, the said opinion dated 01.08.2023, passed by the learned Member, Foreigner’s Tribunal, III, Barpeta, Assam is hereby set aside. Page No.# 4/4 8. The matter is remanded back to the said learned Tribunal for giving an opportunity to the petitioner to file his written statement along with documents. Thereafter, opportunity should be given to the petitioner to give evidence, and the matter should be decided in accordance with law. 9. Accordingly, the court is inclined to direct the petitioner, namely, Fazal Miah @ Fazal Mia, who is duly represented by his learned counsel, to appear before the learned Member, Foreigner’s Tribunal, III, Barpeta, Assam within 30 (thirty) days from the date of this order without any requirement for issuance of any notice for the petitioner to appear before the learned Tribunal and file his written statement positively without fail. By producing a certified copy of this order, the petitioner shall await for further directions from the said learned Tribunal. 10. Therefore, if the petitioner fails to appear before the learned Tribunal on the date to be fixed, it will be open to the learned Tribunal to treat the petitioner as absent on call and proceed ex parte against him in accordance with law. 11. The records are returned to the learned Standing Counsel for FT the matters to be sent back to the concerned Tribunal. 12. This writ petition stands allowed to the extent as indicated above. JUDGE JUDGE Comparing Assistant