Gauhati High Court
Page No.# 1/7 vs The Union Of India And 5 Ors on 25 November, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/7
GAHC010247242024
2025:GAU-
AS:16030-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6486/2024
LAL BHANU NESSA
DAUGHTER OF LT. AFAJ UDDIN,
WIFE OF ABDUL BAREK,
RESIDENT OF VILLAGE- GHUGUBARI,
P.O.- GHUGUBARI, PIN- 781319,
P.S.- SORBHOG,
DISTRICT- BARPETA, (ASSAM).
VERSUS
THE UNION OF INDIA AND 5 ORS.
REPRESENTED BY THE SECRETARY,
MINISTRY OF HOME AFFAIRS,
GOVERNMENT OF INDIA,
SASHTRI BHAWAN, NEW DELHI,
PIN- 110001.
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI- 781006.
3:THE SUPERINTENDENT OF POLICE (B)
BARPETA
DISTRICT- BARPETA
ASSAM
PIN- 781301.
Page No.# 2/7
4:THE DISTRICT COMMISSIONER
DISTRICT- BARPETA
P.O. AND P.S.- BARPETA
PIN- 781301
ASSAM.
5:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTION COMMISSION
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI
INDIA
PIN- 110001.
6:THE NATIONAL REGISTER OF CITIZEN
REPRESENTED BY THE STATE COORDINATOR
ACHYUT PLAZA
BHANGAGARH
GUWAHATI
KAMRUP(M)
ASSAM
PIN- 781006
Advocate for the Petitioner : MR G JALAN, S FAZIL,MR. S D PURKAYASTHA
Advocate for the Respondent : DY.S.G.I., SC, ECI,SC, F.T,GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
Advocates for the petitioner : Shri G. Jalan
Advocate for the respondents : Shri A.K. Dutta, CGC
Shri J. Payeng, SC,
Home & NRC
Shri A.I. Ali, SC, ECI
Shri P. Sarmah, Addl.
Page No.# 3/7
Sr. Govt. Advocate
Date on which judgment is reserved:
Date of pronouncement of judgment: 25.11.2025
Whether the pronouncement is of
the operative part of the judgment : Full judgment.
Whether the full judgment has been
pronounced : Yes
JUDGEMENT AND ORDER (ORAL)
25.11.2025
(S.K. Medhi, J)
Heard Shri G. Jalan, learned counsel for the petitioner. Also heard Shri A.K.
Dutta, learned CGC; Shri J. Payeng, learned Standing Counsel, Home
Department and NRC; Shri A.I. Ali, learned Standing Counsel, Election
Commission of India and Shri P. Sarmah, learned Additional Senior Government
Advocate for the State respondent.
2. By means of this petition instituted under Article 226 of the Constitution of
India, the petitioner has put to challenge an opinion dated 06.07.2017 passed
by the Foreigner's Tribunal No. 8 TH, Barpeta, Assam, in F.T. Case No. 46/2016
arising out of IM(D)T Reference Case No. 5093(A)/98. By the impugned opinion,
the petitioner has been declared a foreigner post 1971.
3. Shri Jalan, the learned counsel for the petitioner has submitted that the
principal ground of challenge is that the opinion in question has been passed
without giving any reasonable opportunity to the petitioner. He has submitted
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that admittedly the opinion is an ex-parte one and it proceeded without coming
to a conclusion as to whether the notice was indeed served upon the petitioner.
He has submitted that the petitioner has been residing in the locality since the
year 1985 after her marriage, and also presently staying there. However, neither
at any point of time any notice of the proceeding was served upon her nor she
was made aware of the same. He has submitted that only recently, in the year
2024, some information was received regarding the impugned opinion
whereafter, the petitioner had collected the necessary documents and
thereafter, had instituted the present challenge.
4. The learned counsel has submitted that there are adequate evidence to
prove her citizenship, if a proper chance is granted to her. He accordingly prays
for setting aside the impugned judgment and to remand the same to the
learned Tribunal.
5. On the other hand, Shri Payeng, learned Standing Counsel, Home
Department and NRC, has submitted that attempts were made to serve notice
upon the petitioner and not finding her to the residing in the last known place,
the notice was furnished to the concerned Gaonburah and in this connection, a
report was given by the Process Server. He has also added that subsequently,
warrant of arrest was issued and only thereafter, the present application had
been filed. He denies that the petitioner has been able to make out a case that
she was wholly unaware of the proceeding and had actually evaded the process.
He therefore prays for dismissal of the writ petition.
6. The learned counsel for the other respondents have endorsed the
submissions of the learned Standing Counsel for the Home Department and NRC
and reiterated the prayer for dismissal of the writ petition.
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7. The contentions advanced by the learned counsel for the rival parties have
been duly considered. We have also perused the original records which were
requisitioned by this Court vide its order dated 06.12.2024.
8. Without going into the merits of the case with regard to the aspect
whether the petitioner is a foreigner or not, we have examined the records on
the aspect of service of notice. We have noted that the Process Server had
submitted a report on the reverse side of the notice dated 07.03.2016, whereby
it has been stated that the proceedee was not found at the last known place of
her residence. He has also stated that the Gaonburah of the concerned village,
was consulted in this regard.
9. The aspect of service of notice has been laid down in the Foreigners
(Tribunals) Order, 1964 [Order of 1964, for short] and the relevant part of the
said order is extracted herein below:-
"Order - 3. Procedure for disposal of questions.
...
(5)(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 so 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;
Page No.# 6/7
..."
10. The requirement of law is to affix the 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 work for gain. The
same is thereafter, required to be returned to the concerned Foreigner's
Tribunal, from which it was issued with a report of such compliance.
11. Though the aspect of affixing the copy of notice has been put in a broad
manner including a place where the proceedee has reportedly resided, the
aspect of serving notice through the Gaonburah is not a prescribed mode
mentioned in the Order.
12. It is a settled position of law that unless a prescribed procedure is
followed, no other procedure can be adopted. In this regard, it would be
convenient to refer and rely upon the landmark judgment of the Hon'ble Privy
Council in the case of Nazir Ahmad Vs. the King Emperor reported in AIR
1936 PC 253 (II) wherein the following observations were made-
"... The rule which applies is a different and not less well recognized
rule, namely, that where a power is given to do a certain thing in a
certain way the thing must be done in that way or not at all. Other
methods of performance are necessarily forbidden. ..."
13. In view of the aforesaid discussions and the requirement of law which
have been quoted above, we are of the opinion that the prescribed procedure
regarding service of notice has not been followed in the present case. We are,
therefore of the view that the petitioner is liable to be given an opportunity to
contest the case. Accordingly, the impugned opinion dated 06.07.2017 passed
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by the Foreigner's Tribunal No. 8 TH, Barpeta, Assam, in F.T. Case No. 46/2016
stands set aside.
14. We however direct the petitioner to appear before the Foreigner's Tribunal
No. 8TH, Barpeta, Assam on 09.12.2025 and file the written statement along
with a copy of this order. On such appearance, the written statement so filed
would be accepted by the learned Tribunal and from the said date, the Tribunal
would take charge of the proceeding. We further direct the learned Tribunal to
complete the proceedings expeditiously in accordance with law and in terms of
Order 3 (14) of the Order of 1964.
15. Writ petition accordingly stands allowed.
16. The records of the learned Tribunal be sent back forthwith.
JUDGE JUDGE
Comparing Assistant
