Rupal Ali Alias Md. Rubul Ali vs The Union Of India And 7 Ors

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GAHC010137202026

2026:GAU-
AS:15883-DB

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4026/2026
RUPAL ALI ALIAS MD. RUBUL ALI
S/O- LATE HAYJAN ALI ALIAS HAYAJAN ALI ALIAS MD. HAYJAN ALI,
RESIDENT OF VILLAGE- ROUMARI GAON, P.O- ROUMARI PATHAR,
MOUZA- CHENGA, P.S.- TARABARI, DISTRICT- BARPETA, ASSAM, PIN
-781312.
VERSUS
THE UNION OF INDIA AND 7 ORS
REPRESENTED BY SECRETARY TO THE GOVT. OF INDIA, THE MINISTRY
OF HOME AFFAIRS, NEW DELHI.
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6.
3:THE DIRECTOR GENERAL OF POLICE (ADMN.)
ASSAM
ULUBARI
GUWAHATI -7.
4:THE SUPERINTENDENT OF POLICE (B)
BARPETA
P.O.AND DIST. - BARPETA
ASSAM.

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5:THE DISTRICT COMMISSIONER
BARPETA
P.O. AND P. S.- BARPETA
ASSAM
6:THE ELECTION COMMISSIONER OF INDIA
NEW DELHI-1.
7:THE DISTRICT ELECTION OFFICER
BARPETA
P.O. AND DISTRICT- BARPETA
ASSAM
8:THE STATE CO-ORDINATOR
NRC ASSAM
ACHYUT PLAZA
BHANGAGARH
GUWAHATI-5

BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

For the petitioner : Mr. S.A.B. Khabir, Advocate.
For respondents : Mr. N. Upadhyay, CGC.
: Ms. A. Verma, SC, FT & Border.
: Mr. P. Sarmah, Addl. Sr. Govt. Advocate.
: Ms. S. Katakey, SC, ECI.
Date on which judgment is reserved : 06.08.2026
Date of pronouncement of judgment : 16.10.2026
Whether the pronouncement is of
the operative part of the judgment? : No
Whether the full judgment has been
Pronounced? : Yes

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JUDGMENT AND ORDER
(CAV)
(K.R. Surana, J.)
Heard Mr. S.A.B. Khabir, learned counsel for the petitioner. Also heard Mr.
N. Upadhyay, learned CGC; Ms. S. Katakey, learned standing counsel for the
ECI; Ms. A. Verma, learned standing counsel for the Border and FT matters; and
Mr. P. Sarmah, learned Additional Sr. Govt. Advocate for State.
2. By filing this writ petition under Article 226 of the Constitution
of India, the petitioner, namely, Md. Rubul Ali, has assailed the impugned ex
parte opinion dated 03.11.2020, passed by the learned Member, Foreigners
th
Tribunal 7 , Barpeta, Assam, in Case No. FT-144/2018 [corresponding to R/
Case No. 1674/04], thereby declaring the petitioner to be a foreigner of post
25.03.1971 stream.
3. The learned counsel for the petitioner, by placing reliance on the
decision of the Supreme Court of India in the case of Savitri Dey @ Swasthi Dey
v. Union of India & Ors., 2026 INSC 694: 2026 Supreme (SC) 786: 2026(4) GLT
(SC) 1, had submitted that the case of the petitioner falls in Category-I of the
said decision and therefore, notwithstanding the fact that the proceeding was
ex parte against the petitioner, yet a duty was cast on the learned Tribunal to
discuss the materials placed before it by the State and thereafter pass a
reasoned order. In this regard, reliance was placed on paragraphs 41, 42 and 43
of the said decision.
4. The learned standing counsel for the FT and Border matters has
made her submissions to oppose the writ petition.

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5. On a perusal of the materials available in the writ petition, it is
seen from the process server’s report dated 20.01.2020 that the notice of the
proceeding was duly served upon the petitioner by pasting the notice at the wall
of the house where the petitioner had last resided. As per the English translated
copy of the process server’s report that has been annexed to the writ petition as
Annexure-25, there is an endorsement by the Gaonburah of Charge No.21,
wherein it has been stated as follows – “That person is not seen in our Roumari
village. ”The name of the Gaonburah is reflected in the impugned opinion, but
the name of the Gaonburah is withheld in the typed copy of the process server’s
report and moreover, the Assamese copy of the process server’s report is also
not annexed in the writ petition.
6. Thus, it appears that the notice of the proceeding was served in
accordance with Paragraph 3(5) (f) of the Foreigners (Tribunals) Order, 1964.
7. The petitioner has taken a stand in the writ petition that his
name is Rupal Ali, but the notice was issued in the name of Md. Rubul Ali,
however, the address was matching. It has been stated that the process was
never served on him. Moreover, it has been stated that the petitioner is
consistently a resident of the same house and he had never shifted from his
place of residence.
8. The further case of the petition is that his father, namely, Late
Hayjan Ali, had been declared to be not a foreigner by opinion dated
30.06.2016, passed by the same learned Tribunal, i.e. Foreigners Tribunal- 7,
Barpeta, in F.T. Case No. 269/2015. Moreover, his mother, namely, Musstt. Diljan
Nessa, has also been declared to be not a foreigner by opinion dated
03.08.2023, passed by the same learned Tribunal in F.T. Case No. 386/2019.

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9. The learned standing counsel for the Border and FT Matters has
opposed the prayer made in this writ petition to set aside the impugned opinion
and to give one opportunity to the petitioner to contest the proceeding on merit.
It was submitted that the petitioner was duly served with the notice in
accordance with Paragraph 3(5)(f) of the Foreigners (Tribunals) Order, 1964. It
was submitted that the explanation of the petitioner that COVID-19 lockdown
was in force during the time when notice was served is false because lockdown
started from 25.03.2020, much later than 20.01.2020, when the notice was
served in the presence of the Gaonburah, a responsible person in the village. It
was also submitted that the learned Tribunal gave enough opportunity to the
petitioner to appear and contest the proceeding. Thus, it was submitted that
according to the mandate of Paragraph 3(14) of the Foreigners (Tribunals)
Order, 1964, the opinion against the petitioner is sustainable.
10. Perused the writ petition and documents annexed thereto. Also
considered the submissions of the learned counsel and also considered the case
of Sabitri Dey @ Swasthi Dey (supra), cited by the learned counsel for the
petitioner.
11. The documents appended to the writ petition shows that the
notice was duly served on the petitioner as per the mandate of Paragraph 3(5)
(f) of the Foreigners (Tribunals) Order, 1964. The notice was pasted on the wall
of the last residence of the petitioner in the presence of the Gaonburah. The
petitioner claims that the address which is given in the notice is his address all
throughout. Therefore, the Court does not find that the learned Tribunal has
committed any error in accepting service of summons to be duly served. On that
count, the ex parte opinion dated 03.11.2020, is not found to be vitiated on
ground of non-service of notice.

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12. Though the petitioner has taken a plea that his name is Rupal Ali
but process was served in the name of Md. Rubul Ali is also not found
sustainable because in the cause title of this writ petition and in the affidavit
sworn in support of the writ petition, the petitioner has disclosed his name as
Rupal Ali @ Md. Rubul Ali.
13. Be that as it may, apart from other explanation given for non-
appearance, in this case, the petitioner has taken a plea that his father and
mother have both been declared to be not a foreigner by separate opinions
dated 30.06.2016 and 03.08.2023, referred hereinbefore.
14. Therefore, without commenting on the said two opinion dated
30.06.2016 and 03.08.2023, the Court is of the considered opinion that if there
is any substance in the plea of the petitioner that both his parents have been
declared to be not a foreigner, it would be a travesty of justice to hold the
petitioner to be a foreigner and not an Indian on the strength of an ex parte
opinion, without affording one opportunity to the petitioner to contest the
proceeding and to prove his defence, the burden of which lies on him under
Section 9 of the Foreigners Act, 1946.
15. Resultantly, without finding fault with the manner of service of
notice on the petitioner or any fault in the impugned opinion, but solely on the
consideration that as the petitioner claims that his father and his mother have
both been declared to be not a foreigner but an Indian, the petitioner deserves
one chance to contest the proceeding and prove his defence, the impugned ex
parte opinion dated 03.11.2020, passed by the learned Member, Foreigners
th
Tribunal 7 , Barpeta, Assam, in Case No. FT-144/2018 [corresponding to R/
Case No. 1674/04], thereby declaring the petitioner to be a foreigner of post

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25.03.1971 stream, is set aside at the motion stage, without issuing notice upon
the respondents.
16. The aforesaid proceeding is restored back to the file of the
th
learned Foreigners Tribunal No.7 , Barpeta.
17. The petitioner, who is duly represented by his learned counsel, is
directed to appear before the said learned Tribunal on or before the outer time
limit of 30.11.2026, without requirement of any fresh notice to be served on him
for appearance.
18. The petitioner is directed that on the date of his appearance, he
shall produce the certified copy of this order before the learned Tribunal and
shall also file his written statement of defence and also produce all the
documents on which he intends to rely upon. Thereafter, the learned Tribunal
shall give opportunity to the petitioner to take steps for securing presence of
witness and for production of document, if so advised.
19. It is clarified that in the event the petitioner fails to appear and
file his written statement within the time allowed, it would be permissible for the
learned Tribunal to treat the petitioner to have defaulted in appearing and to
take steps and to pass a fresh opinion in accordance with law. The learned
Tribunal shall take into consideration the mandate of Paragraph 3 (14) of the
Foreigners (Tribunals) Order, 1964 and Paragraph 17 (14) of the Immigration
and Foreigners Order, 2025 and as far as practicable, make an attempt to
dispose of the reference within a period of 60 (sixty) days from the date of
appearance of the petitioner.
20. Thus, the writ petition is conditionally allowed on terms as
indicated above.

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21. There shall be no order as to cost.
22. The learned Standing Counsel for Home Department and FT
matters shall transmit a downloaded copy of this order to the concerned
respondent authorities for information.

JUDGE JUDGE
Munna
Kumar
Digitally signed by Munna
Kumar
Date: 2026.10.16 16:09:46
+05'30'
Comparing Assistant (Private Secretary)