Md. Mannas Ali vs Union Of India And 4 Ors
- Court
- Gauhati High Court
Page No.# 1/26
GAHC010056302026
2026:GAU-AS:7627-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./60/2026
MD. MANNAS ALI
S/O LATE LAL MAMUD, R/O VILL- AMRAKANDA, P.S.- RUPOHIHAT, DIST-
NAGAON, ASSAM
VERSUS
UNION OF INDIA AND 4 ORS
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA,
DEPARTMENT OF HOME, NEW DELHI
2:THE STATE OF ASSAM
REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-06
3:THE SUPERINTENDENT OF POLICE (BORDER)
NAGAON
DIST- NAGAON
ASSAM
PIN-782001
4:THE DISTRICT COMMISSIONER
NAGAON
DIST- NAGAON
ASSAM
PIN-782001
5:THE ELECTION COMMISSION OF INDIA
NEW DELHI
PIN-11000
Page No.# 2/26
Advocate for the Petitioner : MR P C DEY, MR BASAB DEY
Advocate for the Respondent : DY.S.G.I., SC, F.T,SC, ECI,SC, NRC,GA, ASSAM
Linked Case : WP(C)/7195/2025
MD MANNAS ALI
S/O- LATE LAL MAMUD
R/O- VILLAGE- AMRAKANDA
P.S.- RUPOHIHAT
DIST.- NAGAON
ASSAM
VERSUS
THE UNION OF INDIA AND 4 ORS
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA
DEPARTMENT OF HOME
NEW DELHI
2:THE STATE OF ASSAM
REPRESNETED BY THE SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-06
3:THE SUPERINTENDENT OF POLICE (BORDER)
DISTRICT- NAGAON
ASSAM
PIN- 782001
4:THE DISTRICT COMMISSIONER
NAGAON
DISTRICT- NAGAON
ASSAM
PIN- 782001
5:THE ELECTION COMMISSION OF INDIA
NEW DELHI
PIN- 110001
------------
Advocate for : MR P C DEY
Advocate for : GA
Page No.# 3/26
ASSAM appearing for THE UNION OF INDIA AND 4 ORS
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SHAMIMA JAHAN
JUDGMENT & ORDER
Date: 02.06.2026
(K.R. Surana, J)
Heard Mr. P.C. Dey, learned counsel for the petitioner. Also
heard Mr. R.K.D. Choudhury, learned DSGI for respondent no.1; Mr. J. Payeng,
learned Standing counsel for FT and Border matters, for respondent no. 2 and
3; Mr. H.K. Hazarika, learned Govt. Advocate for respondent no.4; and Ms. M.
Singha, learned counsel appearing on behalf of Mr. S. Katakey, learned standing
counsel for respondent no.5.
2) In view of the issue involve in this review petition, as notice has
been issued vide order dated 07.04.2026, the matter has been heard.
3) The petitioner was a proceedee in Case No. NFT. (No.3)
784/16(D) [corresponding to D/Case No. 995/98], which was a reference made
rd
before the Foreigners Tribunal 3 , Nagaon, Assam. Despite notice being duly
served in accordance with the Foreigners (Tribunals) Order, 1964, and on failure
of the petitioner to contest the proceeding and prove his Indian citizenship, the
reference was answered by the learned Foreigners Tribunal in favour of the
State and against the petitioner, vide ex parte opinion dated 10.05.2018, passed
rd
by the learned Member, Foreigners Tribunal 3 , Nagaon, thereby declaring him
to be a foreigner of post 1971 stream under Section 2(a) of the Foreigners Act,
Page No.# 4/26
1946.
4) By filing this writ petition under Article 226 of the Constitution
of India, namely, Md. Mannas Ali, had assailed the said ex parte opinion dated
rd
10.05.2018, passed by the learned Member, Foreigners Tribunal 3 , Nagaon, in
Case No. NFT. (No.3) 784/16(D) [corresponding to D/Case No. 995/98]. The
said writ petition was registered and numbered as W.P.(C) 7195/2025. This
Court, by order dated 16.12.2025, had dismissed the said writ petition.
5) The said order was assailed by the petitioner before the
Supreme Court of India and the said Hon’ble Court, by order dated 27.02.2026,
in Petition(s) for Special Leave to Appeal (C) No. 7428/2026, had passed the
following order, which is quoted below:-
“ 1. The petitioner was declared a foreigner through an ex-parte The order by the
Foreigners Tribunal vide order dated 10.05.2018. ex-parte order was passed
because the petitioner statedly did not petitioner chose to case was fixed The
appear nor file the written statement when the before the Tribunal on 07.04.2018,
18.04.2018, and 24.04.2018. challenge the same before the High Court through a
writ petition filed in the year 2025. The High Court has dismissed the same vide
the impugned judgment on the ground of Signame plained and enormous delay of
approximately 7 years, 6 months, and 24 days.
2. A categorical stand is being us taken before that the petitioner was never
served proper notice by the Tribunal and, as he had no a uch, opportunity to
challenge the same within Seasonable time. That being so, it seems to us that the
petitioner should raise such a factual issue before the High Court in a review
petition.
3. The Special Leave Petition is, accordingly, disposed of with liberty to the
petitioner to file a review application before the High Court along with necessary
documents. If such a petition is filed within two weeks, we request the High Court
to not reject the same on the issue of delay or maintainability.
4. Pending application(s) if any, shall stand closed.”
6) It is noted as follows:-
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a. In the paragraph-2 of the order dated 27.02.2026, passed by the
Supreme Court of India, it has been recorded that the categorical
stand taken by the learned counsel for the petitioner was that the
“petitioner was never served proper notice by the Tribunal”.
b. However, on the contrary, from the contents of the order dated
16.12.2025, passed by this Court in W.P.(C) 7195/2025, it is noted that
this Court had recorded that notice issued by the Foreigners Tribunal
was served on the petitioner on 17.03.2018.
c. Moreover, in paragraphs 2(D) and 2(E) of this review petition, the
petitioner has admitted that notice issued by the learned Tribunal was
served on the petitioner.
7) Accordingly, in response to the query of the Court, the learned
counsel for the petitioner had submitted as follows:-
a. It was categorically submitted that it is not the pleaded case of the
petitioner that he was not served with the notice issued by the
rd
Foreigners Tribunal 3 , Nagaon, to appear and contest the proceeding
of Case No. NFT. (No.3) 784/16(D) [corresponding to D/Case No.
995/98].
b. It was submitted that the case of the petitioner is that he was
served with the notice. However, in this review petition it is the case of
the petitioner that the said notice was not in accordance with the
provisions of Order 3(4) of the Foreigners (Tribunals) Order, 1964. In
support of his submissions, the learned counsel for the petitioner had
cited paragraph 103 of the case of State of Assam v. Moslem Mondal,
2013 (1) GLT 809.
Page No.# 6/26
c. It has been submitted that in paragraph 2(D) of this review petition,
it has been stated that the notice of the proceeding was required to be
submitted in English as well as in the official language of the State, but
in this case, the petitioner was served notice only in the official
language, i.e. Assamese, but not in English. Accordingly, it has been
submitted that there was a violation of the manner in which notice is
required to be served and therefore, the said notice cannot be treated
as proper and valid notice to the petitioner. It was also submitted that
as notice was not served in English but only in Assamese, the
petitioner did not get a fair chance to contest the proceeding.
d. It was also submitted that the notice should have contained a fair
warning to the petitioner that the burden was cast on him to prove
that he is a citizen of India and not a foreigner. Thus, the absence of
such statement in the notice, though the petitioner had received it,
cannot be said that the notice was properly served to the petitioner.
e. It was submitted that in the writ petition, it was stated that though
the notice of the proceeding was served on 17.03.2018, but the
petitioner was arrested on 20.03.2018, in connection with Rupahihat
P.S. Case No. 187/2018, and was in custody till third week of June,
2018 and therefore, he could not appear and take steps before the
learned Foreigners Tribunal on 07.04.2018, 18.04.2018, 24.04.2018
and 10.05.2018. Therefore, he could not appear on those dates before
the learned Tribunal.
f. It was submitted that the petitioner had appointed a learned
counsel to take steps in the case and gave her all the relevant
documents and his counsel had informed that the proceeding had been
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halted due to Covid-19 Pandemic and she would communicate
whenever the proceeding is resumed. But he was not informed about
the proceeding either by his engaged counsel, or by the learned
Tribunal, or by the Border Police. However, when the police started to
take steps against the declared illegal migrants since 16.06.2025, the
police visited his residence and he came to know about the ex parte
opinion dated 10.05.2018.
g. Then, his learned advocate had informed him that he should assail
the said ex parte opinion and accordingly, the petitioner had filed a writ
petition, which was registered and numbered as W.P.(C) 7195/2025.
h. Accordingly, it has been submitted that the petitioner deserves an
opportunity to contest the proceeding by filing his written statement.
i. No other submissions were made by the learned counsel for the
petitioner.
8) It may be stated herein that in this order, the Court has
withheld the name of the learned counsel, who was purportedly engaged by the
petitioner before the Foreigner’s Tribunal as the said learned counsel was not a
party in the writ petition and had not opportunity to contest allegation made
against the said learned counsel.
9) Per contra, the learned standing counsel for the FT and Border
matters has submitted that the petitioner had admitted the receipt of notice of
the proceeding before the Foreigners Tribunal in the writ petition as well as in
this review petition. Thus, there is an admission on the part of the petitioner
that the service of notice was duly effected on the petitioner in accordance with
law.
Page No.# 8/26
10) It has been submitted that there is no statement either in the
writ petition or in this review petition that the petitioner knows only English and
cannot read and understand Assamese. It has been further submitted that there
is no pleading either in the writ petition or in the review petition that the
petitioner had suffered any prejudice only because the notice of the proceeding
was not bilingual and issued in the State language, i.e. Assamese as well as in
English.
11) It was submitted that it has been pleaded by the petitioner in
paragraph 3 of the review petition that at the time of his arrest in connection
with Rupahihat P.S. Case No. 187/2018, he was serving as a Grade-IV employee
in a school. Hence, it was submitted that as the petitioner was then a
Government servant, he cannot be permitted to take a plea that he cannot read
the learned Tribunal’s notice served on him in Assamese, which is the official
language of the State and therefore, he had suffered prejudice as he could not
understand its contents.
12) Thus, it has been submitted that the notice was valid, duly
informing the petitioner that he has to prove that he is a citizen and not a
foreigner, which is in accordance with the Full Bench decision of this Court in the
case of Moslem Mondal (supra), cited by the learned counsel for the petitioner.
Therefore, he prays that the review petition is liable to be dismissed.
13) Considered the submissions made by the learned counsel for all
the parties and perused the writ petition and the instant review petition. Also
considered the order dated 27.02.2026, passed by the Supreme Court of India
in Petition(s) for Special Leave to Appeal (C) No(s). 7428/2026.
14) The petitioner, in the writ petition, had specifically stated in
Page No.# 9/26
paragraph 14 of the writ petition that a reference was made against him,
suspecting him to be a foreigner. He had also stated that notice was issued to
him in Case No. NFT. (No.3) 784/16(D). It was also stated that as per the order-
sheet of the case, the order for issuance of notice was passed on 12.03.2018
and the next date for return of notice was fixed on 07.04.2018. In paragraph 15
of the writ petition, he had stated to the effect that though the notice was
served on him on 17.03.2018, but he could not appear before the learned
Tribunal because he was in jail hazot (i.e. judicial custody). It was also stated
that in the order dated 07.04.2018, the learned Tribunal had recorded that
notice was returned after service and the petitioner was absent without steps.
15) In paragraph 2(D) of this review petition the petitioner has
admitted in that notice of the case was served to him on 17.03.2018.
16) It may be stated that in paragraph 2 of the order dated
27.02.2026, the Supreme Court of India had observed as follows:-
“ A categorical stand is being taken before us that the petitioner was never served
proper notice by the Tribunal and, as such, he had no opportunity to challenge the
same within a reasonable time.”
17) Therefore, in order to ascertain what was actually pleaded
before the Supreme Court of India, the Court desired to peruse the petition for
Special Leave to Appeal, but the learned counsel for the petitioner had
submitted that he was not provided with the same.
18) Be that as it may, a copy of the learned Tribunal’s notice issued
on 12.03.2018, served upon the petitioner is annexed as Annexure-1 to the
review petition. As per a rough English translation of the said notice, it is seen
that the same contains three important and relevant pieces of information.
Firstly, the notice discloses that the petitioner had been accused of residing in
Page No.# 10/26
the address after illegally entering into India from East Pakistan between
01.01.1966 to 25.03.1971. Secondly, the petitioner was also accused of residing
in the address after illegally entering into India from Bangladesh after
25.03.1971. Thirdly, the petitioner was specifically informed that if he wants to
prove the above allegations as untrue and that he was an Indian citizen, then
he was directed to appear in person or through an Advocate on 07.04.2018,
before the Tribunal and to submit his written statement.
19) Thus, in light of what has been discussed in the foregoing
paragraph 17 above, there is no merit in the submissions made by the learned
counsel for the petitioner that in the notice it was not mentioned that the
burden was on the petitioner to prove that he is a citizen of India and not a
foreigner. The provision of Section 9 of the Foreigners Act, 1946, casts the
burden on the petitioner to prove that he is not a foreigner but a citizen of
India.
20) In this regard, if one needs any authority on the point as to why
the burden of proof is cast on the proceedee, one may refer to paragraph 26 of
the decision of the Supreme Court of India in the case of Sarbananda Sonowal
v. Union of India, (2005) 6 SCC 665, may be referred to.
21) Thus, in this review petition, the petitioner has raised a new plea
for the first time that in serving notice, the provision of Order 3(4) of the
Foreigners (Tribunals) Order, 1964 was not complied with. The said provision is
extracted below:-
3(4) The notice shall be served in English and also in the official language of the
State indicating that the burden is on the proceedee to prove that he or she is not
a foreigner.
22) The petitioner had not pleaded in the writ petition that he had
Page No.# 11/26
suffered any prejudice whatsoever because notice of the proceeding that was
issued by the learned Tribunal on 12.03.2018 and served to the petitioner on
17.03.2018, was not served on him in English.
23) Thus, the only point of determination that is required to be
answered in this review petition is –
Whether in this case, non-service of notice to the petitioner in English, despite the
notice in Assamese, official language of the State of Assam, has caused any
prejudice to the petitioner and/or otherwise fatal for the State?
24) In light of the prescription of Order 3(4) that the notice shall be
served in English and also in the official language of the State, the matter has
been examined. The first factor to be considered is that the admitted case of
the petitioner in the writ petition is that at the time when notice of the
proceeding was served on him and he was arrested in a criminal case, he was
working as a Grade-IV employee in a school. The said school appears to be a
Govt. School because as per statement made by the petitioner in paragraph 18
of the writ petition, on being arrested, he was suspended and thereafter, he was
reinstated in service by order dated 11.03.2019, passed by the District
Elementary Education Officer, Nagaon. A DEEO will be passing orders for
reinstatement only if the concerned school was a Govt. School. Thus, at the
relevant time, as the petitioner was a Grade-IV employee of a Govt. school, it
can be presumed that the petitioner would be able to read Assamese, the
Official language of the State of Assam for the District of Nagaon. Moreover, the
notice of the proceeding before the Foreigners Tribunals in the State of Assam is
served through the Border Police. Therefore, it would be very difficult to
presume that the petitioner, who was served the notice by Border Police Branch,
would not be aware that he has been called upon by the Foreigners Tribunal to
answer the charge that he is a foreigner.
Page No.# 12/26
25) It may be mentioned that the Full Bench of this Court, noticing
the absence of any uniform procedure laid down procedure, had issued certain
directions in paragraph 102 of the case of Moslem Mondal (supra), cited by the
learned counsel for the petitioner. The relevant paragraph 102 is quoted below.
“ 102. Having regard to the aforesaid discussion, we are of the view that, in the
absence of any uniform laid down procedure, the following procedure is henceforth
required to be adopted, in the matter of service of notice by the Tribunals on the
proceedee. The procedure laid down herein below shall be applicable to all the
proceedings pending before the Tribunal where the notices are either yet to be
issued or issued but not yet served:
i. The proceedee shall be served with the notice, together with the main
grounds on which he is suspected to be a foreigner, as far as practicable,
personally, whose signature/thumb impression, as proof of service, is to be
obtained.
ii. Such notice shall be issued in the address where the proceedee last resided
or reportedly resides or works for gain. In case of change of place of residence,
which has been duly intimated in writing to the investigating agency by the
proceedee, the Tribunal shall issue notice in such changed address.
iii. The notice shall be issued by the Tribunal in the official language of the State
also indicating that the burden is on the proceedee to prove that he is an Indian
citizen and not a foreigner.
iv. The service of notice on any adult member of the family of the proceedee, in
case he is found to be not present at the time of service, shall constitute the
service on the proceedee. In token of such service the name and
signature/thumb impression of such adult member shall be obtained. In case
such adult member refuses to put the signature or thumb impression, a report
in that regard shall be submitted.
v. If the proceedee or any available adult member of his family refuses to
accept the notice, the process server has to give a report in that regard along
with the name and address of a person of the locality, who was present at the
time of making such an effort to get the notices served, provided such person is
available and willing to be a witness to such service. The signature/thumb
impression of such witness, if present and willing, must be obtained.
vi. In case the proceedee has changed the place of residence or place of work,
without intimation to the investigating agency, a report in that regard shall be
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submitted by the process server. A copy of the notice shall then be affixed in a
conspicuous place where the proceedee last resided or reportedly resided or
worked for gain, containing the name and address of a respectable person of
the locality, if available and willing to be a witness for that purpose. The
signature/thumb impression of such person, in that case, shall also be obtained
in the said report.
vii. Where the proceedee or any adult member of his family are not found in the
residence, a copy of the notice shall be pasted in a conspicuous place of his
residence, witnessed by 1(one) respectable person of the locality, subject to his
availability and willingness to be a witness in that regard. In that case the
signature or thumb impression of that person shall also be obtained in proof of
the manner in which such service is effected.
viii. Where the proceedee resides outside the jurisdiction of the Tribunal, the
notice has to be sent for service to the officer-in-charge of the police station
within whose jurisdiction the proceedee resides or last resided or last known to
have been resided or works for gain. The process server shall then cause the
service of notice in the manner as provided herein above.
ix. In case no person is available or willing to be the witness of service of
notice, as mentioned above, or refused to put his signature or thumb
impression, a signed certificate/verification is to be filed by the process server
to that effect, which shall be sufficient proof of such non-availability,
unwillingness and refusal.
Questions (f): Whether an application filed by a foreigner under sub-section (3)
of Section 6A of the 1955 Act read with Rule 19 of the 2009 Rules, can be
entertained beyond the time limit prescribed by Rule 19 of the said Rules for
registration? If so, the ground(s) on which such delayed application can be
entertained?
AND
Questions (g): Whether a person, who has been detected to be a foreigner
within the meaning of sub-section (3) of Section 6A of the 1955 Act, is liable to
be deported from India if he does not register his name as required under the
provisions of 1955 Act and 2009 Rules?”
26) Therefore, from sub-paragraph (iii) of paragraph 102 of the case
of Moslem Mondal (supra), in the absence of a uniform procedure, the Full
Bench of this Court, had directed that the notice shall be issued by the Tribunal
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in the official language of the State, also indicating that the burden is on the
proceedee to prove that he is an Indian citizen and not a foreigner. The learned
counsel for the petitioner has not been able to show that the notice of the
proceeding, as served on the petitioner, was not in strict compliance with the
direction contained in paragraph 102(iii) quoted hereinbefore.
27) It will be an unacceptable legal proposition that unless the notice
of the Foreigners Tribunal is served in bilingual mode, i.e. English and official
language of the State, which in this case is Assamese, a proceedee, in spite of
receipt of notice need not appear before the learned Foreigners Tribunal to
contest the proceeding. The non-service of notice in English, could, at best, be a
ground for the petitioner to pray for an adjournment before the learned Tribunal
by showing cause for not being able to file his written statement and pray that
notice to him be served in English.
28) Thus, this is a fit case where the Court must resort to a
purposeful reading of the provisions of Order 3(4) of the Foreigners (Tribunals)
Order, 1964.
29) The notice served on the petitioner is found to be in compliance
with the directions contained in paragraph 102(iii) of the case of Moslem
Mondal (supra). The Full Bench of this Court having directed that the notice
should be served in Official language of the State. Therefore, this Bench, being
bound by the decision of the Full Bench, cannot return a finding contrary to the
Full Bench decision by holding that the learned Foreigners Tribunal’s notice,
having been served in official language in accordance with the directions
contained in sub-paragraph (iii) of paragraph 102 of the case of Moslem Mondal
(supra), has vitiated the ex parte opinion dated 10.05.2018.
30) Therefore, in connection with the issue relating to issuance and
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service of notice, the Court is inclined to hold that there has to be a purposeful
reading of the provisions of Order 3(4) of the Foreigners (Tribunals) Order,
1964, and has to be harmoniously read with the directions contained in sub-
paragraph (iii) of paragraph 102 of the case of Moslem Mondal (supra).
31) Moreover, actus curiae neminem gravabit, meaning thereby that
the act of Court shall not harm anyone, is a well settled principle of law that has
to be invoked in this case. In the said context, suppose in a given case, the
notice of the Court or summons issued by a Court contains some typographical
error, which is otherwise inconsequential to the context of informing the persons
summoned why he has been so summoned, it cannot be held that the decree or
judgment or order passed by the concerned Court would be a nullity.
32) There is another reason for purposefully reading the provision of
Order 3(4) of the Foreigners (Tribunals) Order, 1964, harmoniously with the
directions contained in paragraph 102(iii) of the case of Moslem Mondal (supra).
In the considered opinion of the Court, the principles that can be applied in
interpretation of the said provision of Order 3(4) are as follows:
a. ex visceribus actus, meaning “construction of the Act as a whole”;
and
b. ut res magis valeat quam pereat, meaning “it is better to validate a
thing than invalidate it”.
The Three-Judge Bench of the Supreme Court of India, by referring to the
hereinbefore referred two legal maxims of construction of statute, had held in
the case of Executive Engineer & Anr. v. M/s. Sri Seetaram Rice Mills, (2012) 2
SCC 108, that a construction which will improve the workability of the statute, to
be more effective and more purposive, should be preferred to any other
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interpretation which may lead to undesirable results.
33) In the case of Sarbananda Sonowal (supra), the issue of influx of
people from specified territory has been equated with external aggression.
Therefore, in the present case, if a restrictive meaning is given to the provision
of Order 3(4) of the Foreigners (Tribunals) Order, 1964, then though in this case
the petitioner has been served with a notice, and though it cannot be said that
he is not conversant in official language of the State, by not contesting the
proceeding, he would be able to get the otherwise lawful opinion of the learned
Foreigners Tribunal annulled only because of some error in the notice or for
non-service of notice in English, which is not fatal in any way.
34) In this case, the petitioner was served with a notice. He has not
made any effort to show why on his behalf, no steps were taken before the
learned Foreigners Tribunal at least to make a prayer before the said learned
Tribunal that he was in jail and would require time till he is released on bail to
contest the proceeding. At the cost of repetition, it is reiterated that the
petitioner has not taken a plea in the writ petition, W.P.(C) 7195/2025, that he
had suffered prejudice because he did not know Assamese, the official language
of the State, in which language notice was served on him. The point that he
was not served with notice in English has been raised for the first time in this
Review Petition.
35) The petitioner was released on bail, but the petitioner has not
disclosed the date when he was released on bail, but he has stated that he was
in custody till third week of June, 2018. Be that as it may, the petitioner has
stated that he was reinstated in service by order dated 11.03.2019, passed by
the DEEO. Thus, on and from his release on bail in third week of June, 2018,
the petitioner did not suffer from any legal disability to appear before the
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Foreigners Tribunal and to file a review petition, or to assail the opinion before
this Court under Article 226 of the Constitution of India.
36) The specific plea of the petitioner in this review petition is that
the petitioner had appointed a learned counsel to take steps in the case and
gave the said learned counsel all the relevant documents. The petitioner has not
disclosed the date when he had engaged a counsel. It has not been pleaded
that he had given the learned counsel his vakalatnama or that he had filed any
petition before the learned Foreigners Tribunal to recall the ex parte opinion.
Therefore, when no application was filed before the Foreigners Tribunal and
after the ex parte opinion had already been passed on 10.05.2018, it cannot be
believed that the counsel for the petitioner had informed the petitioner that the
proceeding before the Foreigners Tribunal and/or before any other Court
including this High Court was hitherto continuing, but had been halted due to
Covid-19 Pandemic. It is not the case of the petitioner that from the third week
of June, 2018 till 04.12.2025, when the W.P.(C) 7195/2025 was filed, Covid-19
Pandemic was continuing. Thus, the petitioner had admitted that only when the
police had started to take steps against the declared illegal migrants since
16.06.2025, he came to know about the ex parte opinion dated 10.05.2018.
37) After the writ petition was dismissed, the petitioner has now
taken a new plea in this review petition that proper notice was not served. In
the said context, the Court has already referred hereinbefore to the three pieces
of information that were given in the notice issued by the learned Foreigners
Tribunal, which was in Assamese, the official language of Assam, and duly
served on the petitioner on 17.03.2018.
38) The pertinent fact which has not been highlighted by the
petitioner is that in paragraph 2 of the said ex parte opinion dated 10.05.2018,
Page No.# 18/26
it has been recorded that during the course of verification of voters list of 1997,
the petitioner could not produce any document regarding his Indian citizenship
and therefore, doubting his citizenship, the LVO (i.e. Local Verification Officer)
had submitted a report.
39) In the context of the foregoing paragraph, it may be mentioned
that the Election Commission of India had ordered revision of the draft electoral
roll which was published on 24.07.1997, with reference to the qualifying date of
01.01.1997. Accordingly, house-to-house enumeration was conducted between
16.01.1997 to 15.04.1997. In this case, the petitioner is a voter in 85 No.
Rupahihat LAC. The Electoral Registration Officer (ERO for brevity) of 85 No.
Rupahihat LAC had doubted the citizenship of the petitioner and ordered an
enquiry by the LVO. The petitioner could not produce any document of his
citizenship before the LVO. Thus, on receipt of the LVO Report in Form-A, the
ERO had submitted his report in Form-B to the Superintendent of Police
(Border), Nagaon, who is the statutory authority to make a formal reference
before the jurisdictional Foreigners Tribunal. Accordingly, the Superintendent of
Police (Border), Nagaon, vide his D-Case No. 995/98, of 85 No. Rupahihat LAC,
referred the matter to the Tribunal for determination as to whether or not the
petitioner was a foreigner. It may be mentioned that this exercise has not been
initiated under the Foreigners Act, 1946, but is an exercise under the
Representation of the People Act, 1950. As per the Election Manual, the
erstwhile Illegal Migrants (Determination) Tribunal [IM(D)T for brevity], and
after the Illegal Migrants (Determination by Tribunals) Act, 1983 was declared
ultra vires the Constitution of India by the Supreme Court of India in the case of
Sarbananda Sonowal (supra), all references pending before IM(D)Ts were either
transferred to the Foreigners Tribunals or references were made by the
Page No.# 19/26
jurisdictional Superintendent of Police before the Foreigners Tribunal. Under the
current Election Manual, the determinations are required to be done by the
Foreigners Tribunals. Hence, it can be presumed that in the year 1997 itself the
petitioner was aware of the enquiry that was made by the LVO on the doubt
expressed by ERO about his Indian citizenship.
40) These issues were exhaustively dealt with by this Court in the
case of Shukurjan Nessa @ Sukurjan v Union of India & Ors., W.P.(C) 245/2019,
decided on 28.02.2025, where the said aspect of the matter has been clarified.
The relevant part of the said order are extracted hereinbelow:-
14 . The point raised by the learned counsel for the petitioner that the reference
was blank and not properly filled up and therefore, the grounds of suspecting the
petitioner to be a foreigner has not been furnished to her is taken up first.
15 . In this case, the reference was made by the Superintendent of Police
(Border), Barpeta, on receipt of communication dated 16.03.1998, issued by the
Electoral Registration Officer, 44 No. Jania L.A.C., which is accompanied with a
three page Local Verification Report (Annexure-A) by one Sri Khagen Kalita, J.E. In
the said LVO Report dated 17.10.1997, it has been mentioned at two places to the
effect that no documents produced during field verification.
16 . Therefore, this is not a case where any enquiry was made under the
provisions of Foreigners Act, 1946 or Rules framed thereunder, where investigation
is done under the authority of the Superintendent of Police (Border). The
jurisdictional Superintendent of Police (Border) is the prescribed authority to make
reference before the Illegal Migrants (Determination) Tribunal constituted under
the erstwhile Illegal Migrants (Determination by Tribunals) Act, 1983 and Rules
framed thereunder.
17 . There is an important facet, which is contained in the judgment and order of
this Court in the case of Sayam Uddin (supra), which must be referred to. We are
in respectful agreement with the said judgment and therefore, paragraphs 11 to
22 thereof are quoted below:-
11. In the year 1997, Election Commission of India had undertaken an
intensive revision of electoral rolls in the State of Assam as apprehensions
were expressed from various quarters that the electoral rolls were infested
with the names of foreigners/illegal migrants. In the course of this exercise
citizenship status of as many as 3,13,046 persons whose names were in the
Page No.# 20/26
draft voters lists were found to be doubtful and accordingly they were
marked as doubtful “D” voters in the electoral rolls after local verification.
12. Legality of this exercise was challenged before this Court in HRA
Choudhury Vs Election Commission of India, reported in 2002 (1) GLT 1. The
challenge made was rejected by a Division Bench of this Court. In HRA
Choudhury (supra) this Court examined the guidelines dated 17.07.1997 of
the Election Commission of India laying down the procedure to carry out the
exercise.
12.1. As per paragraph 3.8 of the guidelines the Electoral
Registration Officer was required to consider the verification report
received from the Local Verification Officer. If he was satisfied on
such report and such other material/information as may be available
about the eligibility of a person, he should allow his name to continue
on the electoral roll. Where, however, he was not so satisfied and
had reasonable doubt about the citizenship of any person, he was
required to refer such doubtful cases to the competent authority
under the then Illegal Migrants (Determination by Tribunals) Act,
1983 or the Foreigners Act, 1946 as the case may be. For
convenience of the Electoral Registration Officers, Election
Commission devised proformas.
12.2. As per paragraph 3.9, after the case of a person was referred
by the Electoral Registration Officer to the competent authority, he
should wait for the decision of the relevant Tribunal in relation to that
person and act according to such decision.
12.3. As per paragraph 3.10, where the relevant Tribunal decided
that any such person was not a citizen of India, Electoral Registration
Officer should proceed under Rule 21 A of the Registration of Electors
Rolls, 1960 to have the name of such person deleted from the
electoral roll before it was finally published.
12.4. This Court in HRA Choudhury (supra) held that such
guidelines and decision of the Election Commission were in
accordance with Article 324 of the Constitution of India besides
conforming to the principles of natural justice. It was held that such
guidelines cannot be held to be arbitrary or vitiated by mala fide or
partiality.
13. At this stage, it may be mentioned that the Illegal Migrants
(Determination by Tribunals) Act, 1983 is no longer in existence, the same
having been declared unconstitutional by the Supreme Court in Sarbananda
Sonowal Vs Union of India reported in (2005) 5 SCC 665. Therefore, in so far
paragraph 3.8 of the guidelines dated 17.07.1997 is concerned, the reference
Page No.# 21/26
would be under the Foreigners Act, 1946.
14. The above exercise was repeated in the year 2005 with the Election
Commission of India again going for intensive revision of electoral rolls in the
State of Assam taking 01.01.2005 as the qualifying date. In this connection,
guidelines dated 17.06.2004 were issued by the Election Commission of
India. Paragraph 2.2 of the guidelines dealt with “D” voters. It was
mentioned that the guidelines issued in 1997 would be followed while dealing
with such category of persons. Paragraph 8 dealt with verification by Electoral
Registration Officers. It laid down the procedure while carrying out such
verification including verification by Local Verification Officer. As per
paragraph 8.6, Local Verification Officer would conduct the verification by
making an on the spot visit and the person concerned could adduce any one
or more of the documents mentioned therein in support of his claim as a
citizen of India. After due verification, the Local Verification Officer was
required to submit his report in the prescribed format. Under paragraph 8.8,
Electoral Registration Officer on receipt of the verification report from the
Local Verification Officer should consider the same. Where he was satisfied
about the eligibility of a person, he should allow the name of such person to
continue on the electoral roll but where he was not so satisfied and had
reasonable doubt about the citizenship of any person he should refer such
doubtful cases to the competent authority under the then Illegal Migrants
(Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946 in a
prepared format (Annexure-B to the guidelines dated 17.06.2004) to the
competent authority for making reference to the Tribunal and await the
decision of such Tribunal.
15. As pointed out by Mr. Barua, in Mameja Khatun (supra) a Single Bench
of this Court directed that “D” voters should not be allowed to cast their
votes with the clarification that “D” voters would include persons whose
names were included in the electoral rolls but their citizenship was doubted
or disputed and also those whose cases were pending before the Foreigners
Tribunals. This decision of the learned Single Bench was confirmed by the
Division Bench in Writ Appeal No. 114/2011 (State Vs Mameja Khatun). By
the judgment and order dated 13.10.2015, the Division Bench directed
Election Commission of India and other authorities to implement the
directions of the Single Bench in letter and spirit.
16. At this stage, it may also be mentioned that in WP(C) No. 274/2009
filed by Assam Public Works which is pending before the Supreme Court of
India wherein NRC updation exercise in the State of Assam is being
monitored by the Supreme Court of India, on 25.10.2013, Supreme Court
clarified that as far as persons in the “D” list are concerned, undoubtedly
Page No.# 22/26
they were doubtful voters and therefore their names could not be included
unless the NRC is updated and unless the Foreigners Tribunals declared them
to be Indian citizens.
17. The Foreigners Act, 1946 is an act to confer upon the Central
Government certain powers in respect of foreigners. This Act provides for the
exercise of certain powers by the Central Government in respect of the entry
of foreigners into India; their presence in India and their departure
therefrom. Section 2 (a) defines a “foreigner” to mean a person who is not a
citizen of India. Section 3 confers power to the Central Government to make
orders making provision either generally or with respect to all foreigners or
with respect to any particular foreigner or any prescribed class or description
of foreigners, for prohibiting, regulating or restricting the entry of foreigners
into India or their departure therefrom or their presence or their continued
presence therein.
17.1. In exercise of the powers conferred by Section 3 of the Foreigners
Act, 1946, Central Government made the Foreigners (Tribunals) Order,
1964. As per order 2 (1), the Central Government may by order refer
the question as to whether a person is or is not a foreigner within the
meaning of the Foreigners Act, 1946 to a Tribunal to be constituted for
the purpose for its opinion.
18. Ministry of Home Affairs, Govt. of India had issued notification dated
19.04.1958 in exercise of powers conferred by Clause-(1) of Article 258 of
the Constitution of India whereby the President with the consent of the State
Government concerned entrusted to the Governments of each of the States
mentioned therein including the State of Assam the functions of the Central
Government in making orders of the nature specified in Section 3 of the
Foreigners Act, 1946. Another notification dated 17.02.1976 was issued by
the Government of India, Ministry of Home Affairs in the exercise of the
powers conferred by Article 258 (1) of the Constitution entrusting the
Superintendents of Police and Deputy Commissioners (In-charge of Police)
under the Government of Assam the functions of the Central Government in
making orders of the nature specified in Section 3 of the Foreigners Act, 1946
within their respective jurisdictions subject to the conditions mentioned
therein which included the condition that exercise of such functions would be
in respect of nationals of Bangladesh and that while exercising such
functions, Superintendents of Police and Deputy Commissioners (In-charge of
Police) shall comply with such general or special directions as the
Government of Assam or the Central Government may issue from time to
time.
19. Article 258 of the Constitution deals with power of the Union to confer
Page No.# 23/26
powers etc on States in certain cases. Clause (1) of Article 258 starts with a
non-obstante clause. It says that notwithstanding anything in the
Constitution, President may with the consent of the Government of a State
entrust either conditionally or unconditionally to that Government or to its
officers, functions in relation to any matter to which the executive power of
the Union extends. Clause (3) provides for making of payment by the
Government of India to the State concerned such sum as may be agreed
upon or in default of agreement through arbitration in respect of any extra-
cost of administration incurred by the State in connection with the exercise of
powers and duties of the Government of India conferred or imposed upon a
State Government.
20. Thus, under the Central Government notifications dated 19.04.1958 and
17.02.1976, Government of Assam, Superintendents of Police and Deputy
Commissioners (In-charge of Police) have been delegated the power to make
reference to the Foreigners Tribunal under order 2 (1) of the Foreigners
(Tribunals) Order, 1964 to seek opinion as to whether the proceedee is a
foreigner or not within the meaning of the Foreigners Act, 1946.
21. Thus from the above, what transpires is that there are two categories of
“D” voters:- (i). those who were marked as “D” voters in the electoral roll by
the Electoral Registration Officer following enquiry by Local Verification
Officer; and (ii). those whose references are pending before the Foreigners
Tribunals.
22. In so far Electoral Registration Officer is concerned the exercise
undertaken by him while marking a person as a “D” voter in the electoral roll
is a quasi judicial exercise. If he holds the view after examining the enquiry
report of the Local Verification Officer that the concerned person is not a
citizen of India he is required to forward the case of that person to the
competent authority i.e., the Superintendent of Police. If it is so forwarded by
the Electoral Registration Officer, the jurisdictional Superintendent of Police
has to make a reference to the competent Foreigners Tribunals under order
2(1) of the Foreigners (Tribunals) Order, 1964 based on the report received
from the Electoral Registration Officer. Question of making further enquiry by
the Superintendent of Police in such a case would not arise because enquiry
has already been made by the Electoral Registration Officer by exercising
quasi judicial powers and the Superintendent of Police cannot sit over such
decision of the Electoral Registration Officer. He has to forward the same by
making the reference to the competent Foreigners Tribunal for its opinion.
17 . The said judgment by the learned Single Judge has stood affirmed by the
virtue of judgment and order dated 29.07.2019, passed by the Division Bench of
this Court in the case of Sayam Uddin v. The Union of India & Ors., W.A. 170/2019.
Page No.# 24/26
18 . The learned counsel for the petitioner had cited the case of Moslem Mondal
(supra) and Amina Khatun (supra) to support his contention that if LVO report is
blank, the reference is vitiated. In this regard, it would be relevant to mention that
as per the contents of para-10 of the case of Moslem Mondal (supra), the
Superintendent of Police, Barpeta, suspecting the respondent therein as illegal
migrant within the meaning of the Illegal Migrants (Determination by Tribunals)
Act, 1983, made a reference under Section 8 (1) of the said Act read with Rule 9
(A) of the Rules framed thereunder and accordingly, Case No. 1311/2003 was
registered before the IM(D)T, Barpeta and the said proceeding was subsequently
transferred to the Foreigners Tribunal and registered as F.T. Case No. 243/2006.
Therefore, in the said case, reference was not made by Electoral Registration
Officer (EVO for short). Hence, the decision of Moslem Mondal (supra), being
distinguishable on facts, is not found to help the petitioner in any manner.
19 . However, in the case of Amina Khatun (supra), which was decided on
28.04.2022, the reference was made by the Superintendent of Police (Border),
based on LVO by the ERO. But when the said writ petition was being heard and
decided by a Coordinate Bench, it appears that the previous decision of the
learned Single Judge of this Court in the case of Sayam Uddin v. The Union of
India & Ors., 2019 (4) GLT 456, as affirmed by the Division Bench of this Court in
the case of Sayam Uddin v. Union of India & Ors., W.A. 170/2019, decided on
29.07.2019, were not brought to the notice of this Court. Therefore, under such
circumstances, the Court is of the considered opinion that under the well settled
principles of stare decisis, the decision in the case of Amina Khatun (supra) would
be per incurium. Accordingly, the decision rendered in the case of Amina Khatun
(supra) will also not be of any help to the petitioner.
20 . In the present case, the proceedings which were hitherto pending before the
Illegal Migrants (Determination) Tribunals were transferred by the Supreme Court
of India to the Foreigners Tribunal vide directions issued in the case of Sarbananda
Sonowal (supra). The said fact has been stated in para-1 of the impugned opinion.
Hence, this Court would refrain from making any observations on the LVO Report
in this case because the Foreigners Tribunals would have no power or jurisdiction
to remand the reference back to the Superintendent of Police (Border) for a fresh
enquiry by the LVO/ERO.
21 . Therefore, the challenge to the proceeding before the learned Foreigners
Tribunal on the ground that certain paragraphs and/or columns of the Local
Verification Officer’s (LVO) Report, as forwarded by the Electoral Registration
Officer (ERO) were left blank, is held to be not maintainable on facts and in law
morefully referred to hereinbefore. The point of determination no. (i) is answered
accordingly .”
Page No.# 25/26
41) Be that as it may, in this case, the ex parte opinion was
rendered by the learned Foreigners Tribunal on 10.05.2018. The petitioner had
filed W.P.(C) No. 7195/2023 on 04.12.2025. Thus, the petitioner had assailed
the said ex parte opinion after a delay of about 7 years, 6 months, 24 days or
2765 days, which is not properly explained.
42) Hence, in light of the discussions above, the point of
determination in this case is answered by holding that as the learned Tribunal
had caused service of notice issued on 12.03.2018, which was in Assamese, the
official language of the State, and therefore, in this case, non-service of notice
to the petitioner in English is not found to have caused any prejudice
whatsoever to the petitioner and therefore, as the notice is in accordance with
the directions contained in sub-paragraph (iii) of paragraph 102 of the case of
Moslem Mondal (supra), therefore, the service of notice in Assamese only is not
found fatal for the State and is also not found to vitiate the opinion dated
rd
10.05.2018, passed by the learned Member, Foreigners Tribunal 3 , Nagaon, in
Case No. NFT. (No.3) 784/16(D) [corresponding to D/Case No. 995/98].
43) Thus, no case is made out by the petitioner to either interfere
with the ex parte opinion dated 10.05.2018, passed by the learned Member,
rd
Foreigners Tribunal 3 , Nagaon, in Case No. NFT. (No.3) 784/16(D)
[corresponding to D/Case No. 995/98], or to review the order dated 16.12.2025,
passed by this Court in W.P.(C) 7195/2025, by which the said writ petition
challenging the opinion dated 10.05.2018 was dismissed.
44) Before parting with the records, it must be stated that in the
order dated 16.12.2025, an inadvertent typographical error had crept in. The
said error has been noticed only while passing this order. Accordingly, to set the
Page No.# 26/26
records correct, the said typographical error is required to be corrected, which is
set out below:-
Para and
Line No.
Error in order To be read as.
Para- 5,
Line- 4.
20.03.218 20/03/18
45) Therefore, it is clarified that the date of “20.03.218”, appearing
in line no. 4 of paragraph 5 of the order dated 16.12.2025, is required to be
read as 20.03.2018.
46) It is also clarified that though no case for review has been made
out on merit, but in respectful deference to the order dated 27.02.2026, passed
by the Supreme Court of India in Petition(s) for Special Leave to Appeal (C) No.
7428/2026, the issues raised by the petitioner have been examined on merit.
Accordingly, it is further clarified that the examination of issues raised in this
review petition, is under the unique facts of this case and therefore, this order
shall not be a precedent in any other case.
47) Hence, this review petition fails on all counts.
48) Resultantly, this review petition is dismissed.
49) The parties are left to bear their own cost.
JUDGE JUDGE
Digitally signed by Champak
Rajbongshi
Date: 2026.06.02 11:51:46 +05'30'
Comparing Assistant Private Secretary