Gauhati High Court
Page No.# 1/5 vs The Union Of India And 5 Ors on 20 August, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/5
GAHC010140112025
2025:GAU-
AS:11254-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3671/2025
MOINUL HAQUE @ MD MAINUL HAQUE
S/O LATE RIAZ ALI, P/R/O VILL- MADHYAM SAMARALI, P.O.-
CHOUDHURY BAZAR, P.S.- MURAJHAR, DIST- HOJAI, ASSAM, PIN-782439
VERSUS
THE UNION OF INDIA AND 5 ORS
THROUGH THE SECRETARY TO THE GOVERNMENT OF INDIA, THE
MINISTRY OF HOME AFFAIRS, GRIHA MANTRALAYA, NEW DELHI, PIN-
110011
2:THE STATE OF ASSAM
THROUGH THE SECRETARY TO THE GOVERNMENT OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6
3:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTION COMMISSIONER OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI-110001
4:THE STATE CO-ORDINATOR
NATIONAL REGISTRATION OF CITIZEN
ASSAM
BHANGAGARH
GUWAHATI-781005
5:THE DISTRICT COMMISSIONER
KARBI ANGLONG
Page No.# 2/5
DIPHU
DIST- KARBI ANGLONG
ASSAM
PIN-782460
6:THE SUPERINTENDENT OF POLICE (BORDER)
KARBI ANGLONG
DIPHU
DIST- KARBI ANGLONG
ASSAM
PIN-78246
Advocate for the Petitioner : MD. I HUSSAIN, MS. M MEDHI
Advocate for the Respondent : DY.S.G.I., SC, F.T,SC, NRC,SC, ECI,GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 20.08.2025
(K.R. Surana, J)
Heard Mr. Md. I. Hussain, learned counsel for the petitioner. Also
heard Mr. M.R. Adhikari, learned CGC; Mr. G. Sharma, learned standing counsel
for the FT and Border matters; Mr. M. Kalita, learned counsel, appearing on
behalf of Ms. P. Barua, learned standing counsel for the ECI; and Mr. H.K.
Hazarika, learned Govt. Advocate for the State respondent.
2. By filing this writ petition under Article 226 of the Constitution
of India, the petitioner, namely, Moinul Haque @ Md. Mainul Haque, has assailed
the impugned ex parte opinion dated 08.11.2023, passed by the learned
Member, Foreigners Tribunal, Diphu, Karbi Anglong, in F.T. Case No. 123/2007
[arising out of Police Ref. Case No. 12/2007], by which the petitioner was
declared as a foreigner, who has entered into India (Assam) illegally after
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25.03.1971.
3. The learned counsel for the petitioner has submitted that at the
time when enquiry was being made, the petitioner was a resident of Rong
Nagar, and he had shifted his temporary residence form the said locality to
Chinargaon. It has been submitted that both the localities are under Howraghat
Police Station and in the same Karbi Anglong District. It has been submitted that
no one including the Gaonburah had informed him about the notice issued by
the learned Foreigners Tribunal. It is further submitted that the petitioner has all
the documents, by which he can prove that he is a bona fide citizen of India and
not a foreigner. Accordingly, the learned counsel for the petitioner has prayed
that one opportunity may be granted to the petitioner to contest the proceeding
and to prove his nationality.
4. Per contra, the learned standing counsel for the FT and order
matters has vehemently opposed the prayer made in this writ petition for
interference with the impugned opinion on the ground of deliberate and wilful
default on part of the petitioner to participate in the proceeding even after due
service of notice. It has been submitted that as the petitioner has failed to
appear and participate in the proceeding, the petitioner, having not approached
the learned Tribunal for setting aside the ex parte opinion within thirty days by
showing cause, as prescribed under the Foreigners (Tribunals) Order, 1964, the
petitioner would not be entitled to any relief.
5. Considered the materials available in the record and also
considered the submissions made by both sides.
6. The Court also takes note of the fact that the proceeding of F.T.
Case No. 123/2007 was kept "filed" vide order dated 17.04.2015. Thereafter, it
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was resumed vide order dated 10.06.2022, pursuant to judgment and order
dated 14.05.2018, passed by this Court in W.P.(C) 6280/2016 - Tuta Mia @ Tota
Mia, 2018 (3) GLT 652. Thereafter, notice was issued and duly served in
accordance with the provisions of Order 3(5)(f) of the Foreigners (Tribunals)
Order, 1964. Therefore, the order dated 25.10.2022 and 08.11.2023, passed by
the learned Tribunal, regarding due service of notice, cannot be faulted with.
7. The explanation tendered by the petitioner is that he had a
temporary residence at Rong Nagar, which he had shifted to Chinargaon, and
that both the area are under the under the same Howraghat Police Station.
8. As per the order dated 02.10.2011, the notice of the proceeding
was duly served on the petitioner. As per order dated 15.09.2012 and
11.10.2012, the petitioner was present before the learned Tribunal. The
attendance sheet of the petitioner before the learned Tribunal on 15.09.2012,
11.10.2012 and 25.03.2014 are available in the Tribunal's record at pages 51,
52 and 53. On 25.03.2014, the petitioner had also filed a petition, bearing
petition no. 2038, seeking further time for appearance and submission of
documents. The said petition is available at page 54 of the TCR. It is also noted
that due to the petitioner's consistent and/or regular default in appearance, the
learned Tribunal had been adjourning the matter, thereby giving sufficient time
to the petitioner to defend himself in the case. However, the petitioner had not
availed of the opportunity so given.
9. Therefore, this is not a case where the petitioner was totally
unaware of the proceeding.
10. The provision of Order 3(5)(f) of the Foreigners (Tribunals)
Order, 1964 is quoted below:-
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11. Thus, in light of the discussions above, the Court is of the
considered opinion that there was deliberate default on part of the petitioner to
contest the proceeding despite receipt of notice. Moreover, though he was
aware of the proceeding, the petitioner had changed his address without
informing the Border Branch of Howraghat Police and the learned Tribunal.
Therefore, the manner in which notice was served upon the petitioner, being in
accordance with Order 3(5)(f) of the Foreigners (Tribunals) Order, 1964, no case
has been made out by the petitioner for the Court to set aside the ex parte
opinion, impugned in this writ petition.
12. Resultantly, the writ petition fails and the same is dismissed.
13. The Registry shall return back the Tribunal's record along with a
copy of this order to be made a part of the record.
JUDGE JUDGE
Comparing Assistant
