Page No.# 1/7 GAHC010250302019 2026:GAU-AS:5309 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/8114/2019 AJGAR ALI S/O- LT. KALIMUDDIN ALI, R/O- VILL. NO. 1 GERUAJHAR, P.S. PANERY, DIST- UDALGURI, ASSAM, PIN- 784523. VERSUS THE UNION OF INDIA AND 6 ORS. REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI-1. 2:THE ELECTION COMMISSIONER OF INDIA NEW DELHI-1. 3:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY.-06. 4:THE STATE CO-ORDINATOR OF NRC BHANGAGARH ASSAM GHY.-05. 5:THE DY. COMMISSIONER UDALGURI DIST.- UDALGURI ASSAM PIN- 784509. 6:THE SUPERINTENDENT OF POLICE (B) UDALGURI DIST.- UDALGURI Page No.# 2/7 ASSAM PIN- 784509. 7:THE OFFICER-IN-CHARGE PANERY POLICE STATION DIST.- UDALGURI ASSAM PIN- 784523 Advocate for the Petitioner : MR. M U MAHMUD, MS F N ZAMAN,MR S ISLAM,MS C. KALITA,MS K GOGOI Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, NRC,SC, ECI BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SHAMIMA JAHAN ORDER Date : 08.04.2026 (K.R. Surana, J) Heard Mr. M.U. Mahmud, learned counsel for the petitioner. Also heard Mr. K.K. Barman, learned CGC; Ms. A. Verma, learned standing counsel for the FT and Border matters; Mr. N. Kalita, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for the ECI; and Mr. P. Sarmah, learned Addl. 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 22.11.2018, passed by the learned Member, Foreigners’ Tribunal, Udalguri, BTAD, Assam, in FT (DV) Case No. 109/2015, arising out of Ref. Case No. UEL- 65/97/1757 dated 07.11.1997, by which the petitioner was declared as an illegal migrant. Page No.# 3/7 3. The learned counsel for the petitioner in order to assail the impugned ex parte opinion has submitted that the order passed by the learned Tribunal is quite confusing. 4. On a perusal of the records of the learned Tribunal, it is noticed that the proceeding was registered against the petitioner on 08.10.2010 and thereafter, notice was issued to the petitioner on 04.12.2012, which was made returnable on 29.12.2012. As per the service report, the notice was served on Razia Begum, wife of the petitioner, but the petitioner failed to appear on 29.12.2012. However, instead of proceeding ex parte, the learned Tribunal continued to wait for appearance of the petitioner till 20.04.2013. On 20.04.2013, an order was passed to proceed ex parte against the petitioner. However, on the next date i.e. 18.5.2013, once again the learned Tribunal issued notice. Though the process was returned after an endorsement dated 28.05.2016, the learned Tribunal continued to pass orders awaiting service report, appearance and written statement and thereafter, the next notice for appearance was issued only on 03.06.2017 fixing the next date of appearance on 07.07.2017 and the notice was duly served on the petitioner, who has accepted the notice by putting his LTI on the service return report dated 20.06.2017. 5. On 07.07.2017, the petitioner had appeared before the learned Tribunal and by filing petition no. 2241 dated 07.07.2017, prayed for another date to submit written statement. The learned Tribunal by its order dated 07.07.2017, recorded return of the notice. However, having mentioned that notice has returned with a report, the learned Tribunal passed further order, "Let it be awaited". Thereafter, several orders were passed from time to time. Page No.# 4/7 However, it is noticed that the process server’s report dated 20.06.2017, fixing the date of appearance on 07.07.2017 was endorsed as "seen" by the learned Tribunal only on 09.10.2018. There is no order on record regarding petition no. 2241 dated 07.07.2017 in the order-sheet. Several further orders after 07.07.2017 were passed from time to time and the ex parte opinion was pronounced on 22.11.2018. 6. Opposing the prayer made in this writ petition, the learned Standing Counsel of the FT & Border matters has submitted that as the petitioner appeared before the learned Tribunal on 07.07.2017 along with his learned counsel, who has filed his vakalatnama, the subsequent non-appearance would show his subsequent conduct of not appearing before the learned Tribunal and to participate in the proceedings. Accordingly, she has justified the ex parte opinion. 7. Having carefully perused the Tribunal’s record, this Court is surprised to note that the learned Tribunal failed to appreciate the provisions of Order 3(14) of the Foreigners (Tribunals) Order, 1964. It is not clear from the order dated 07.07.2017 as to whether the petitioner was present or absent. Nonetheless, having recorded the presence of the petitioner on 07.07.2017 in connection with Case No. 2241, the learned Tribunal ought to have completed the proceedings within the time prescribed under Order 3(14) of the Foreigners (Tribunals) Order, 1964. The Court does not find any justification in accepting the return of service and, at the same time, passing an order to await the report. 8. Although the conduct of the petitioner is not good for not appearing in Page No.# 5/7 the said learned Tribunal after 07.07.2017 and not taking steps. But the orders that were passed on 08.08.2017, 14.09.2017, 01.11.2017 indicates that the learned Tribunal was still awaiting return of the service report. As mentioned earlier, the service report was noted as “seen” by the learned Tribunal only on 09.10.2018. However, having seen the service report, yet in the order dated 09.10.2018, the learned Tribunal has not recorded the service report in the order. Under the circumstances, the learned Tribunal failed to take notice of the returned service report in its subsequent orders dated 08.08.2017, 14.09.2017 and 01.11.2017. 9. From the order-sheet, it also appears that since the initiation of this case, there was a different Presiding Officer as learned Member till order dated 07.03.2018 and the Presiding Officer, being the new learned Member, took up the matter since order dated 15.06.2018. This is evident because of the change in the signature of the learned Member. Thus, the subsequent learned Member having noticed the service report had “seen” it on 09.10.2018 and proceeded to pass ex parte order. Therefore, the fault was on part of the previous learned Member, who dealt with record till 07.03.2018. 10. Be that as it may, as subsequent to the appearance of the petitioner, the learned Tribunal still awaited the service report. Therefore, the Court is of the considered opinion that the petitioner be granted one opportunity to participate by filing his written statement. However, in view of the default on part of the petitioner in failing to appear and contest in the proceedings after having appeared on 07.07.2017, the same calls for payment of cost of Rs.6000/- to be deposited before the District Legal Services Authority, Udalguri. Page No.# 6/7 11. Accordingly, the matter is remanded back to the learned Member, Foreigners’ Tribunal, Udalguri, BTAD, Assam, for taking up the proceedings afresh. 12. The petitioner, namely, Ajgar Ali, who is duly represented by his learned counsel, is directed to appear before the learned Member, Foreigners’ Tribunal, Udalguri, BTAD, Assam, positively on 20.05.2026 and to file his written statement and produce all relevant documents in support of his defence. Alongwith the written statement and certified copy of the order, the petitioner shall also submit proof of deposit of cost of Rs.6,000/- before the learned Secretary, District Legal Services Authority, Udalguri. The written statement of the petitioner shall only be accepted on payment of such cost. 13. In order to facilitate the appearance of the petitioner and to file his written statement, the impugned ex parte opinion dated 22.11.2018, passed by the learned Member, Foreigners’ Tribunal, Udalguri, BTAD, Assam, in FT (DV) Case No. 109/2015, arising out of Ref. Case No. UEL-65/97/1757 dated 07.11.1997 is conditionally set aside by providing that in the event the petitioner fails to appear on the date fixed, this order shall stand lapsed by efflux of time. The effect of the aforesaid condition would be that the opinion dated 22.11.2018 would stand revived without any further order of the Court. 14. The learned Tribunal shall provide sufficient time to the petitioner to produce his witness. The learned Tribunal shall dispose of the proceedings, as far as practicable, within the time as permitted under Order 3 (14) of the Foreigners (Tribunals) Order, 1964. Page No.# 7/7 15. Accordingly, the petition is conditionally allowed to the extent indicated above. 16. Send back the Tribunal records. 17. No order order as to cost. JUDGE JUDGE Comparing Assistant