Saidul Islam vs The Union Of India And 5 Ors

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GAHC010135912026

2026:GAU-AS:15884
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3727/2026
SAIDUL ISLAM
S/O- RUSTAM ALI. VILL- TOPGAON PT.I. P.O.- KIRTANPARA. P.S.-
MERERCHAR. DIST.- BONGAIGAON (ASSAM). PIN-783384.
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA,
DEPARTMENT OF HOME, NEW DELHI- 1.
2:THE STATE OF ASSAM
REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT OF HOME
DISPUR
GUWAHATI- 6.
3:THE DISTRICT COMMISSIONER
BONGAIGAON
PIN-783385.
4:THE SUPERINTENDENT OF POLICE (BORDER)
BONGAIGAON
PIN-783385.
5:THE ELECTION COMMISSIONER
GOVT. OF INDIA
NEW DELHI- 1.
6:THE STATE CO-ORDINATOR OF NATIONAL REGISTRATION (NRC)
ASSAM
HOUSE FED 2ND FLOOR
BONPHOOL NAGAR

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GUWAHATI - 32
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

For the petitioner : Mr. A. Roshid, 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


JUDGMENT AND ORDER
(CAV)
(K.R. Surana, J.)
Heard Mr. A. Roshid, 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, Saidul Islam, has assailed the impugned ex
parte opinion dated 22.12.2021, passed by the learned Member, Foreigners
Tribunal, Bongaigaon No.2, at Abhayapuri, Assam, in Case No. BNGN/FT-

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2/APR/10/2018 [arising out of Ref: BNGN IMDT 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.
5. On a perusal of the materials available in the writ petition, it is
seen that notice was duly served on the petitioner and the case was fixed for his
appearance on 17.01.2018. However, the petitioner did not appear in spite of
due service of notice. Thereafter, fresh notice of appearance was issued to the
petitioner on 13.02.2018 and 09.04.2018. As per the order dated 04.02.2020, it
has been recorded that as per the police report, the petitioner was not available
at the address. Hence, fresh notice was issued to the petitioner at his new
address, fixing the date of appearance as 10.03.2020. But, due to Govt. holiday,
the case was deferred to 03.04.2020 and then to 21.08.2020, due to lockdown.
Once again notice was served to the petitioner. As per order dated 07.01.2021,
fresh service report was received, which revealed that the petitioner was not
present and therefore, notice was served to the father of the petitioner and he
was explained about the matter. His thumb impression was taken. Thus, notice

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was duly served in terms of Paragraph 3(5)(b) and 3 (5) (c) of the Foreigners
(Tribunals) Order, 1964.
6. The case was then fixed on 08.03.2021 as a last chance to file
written statement, but one more opportunity was granted by re-fixing the case
on 30.03.2021. The case was not put-up on 19.05.2021 due to revised Covid-19
guidelines dated 12.05.2021. The matter was then fixed on 22.11.2021 as per
the mandate of Paragraph 3(8) and 3(14) of the Foreigners (Tribunals) Order,
1964.
7. Thus, the Court does not find that the learned Tribunal has
committed any error in passing the ex parte opinion dated 22.11.2021.
8. From the materials available in the writ petition an impression is
gathered that the petitioner was sitting on the fence all along and immediately
after the decision of the case of Sabitri Dey @ Swasthi Dey, was passed, the
present writ petition was filed.
9. In the instant case, the learned Tribunal, in the impugned
opinion, had referred to the evidence on record and report of the Investigation
Officer and on consideration of the same, as per the provision of the Foreigners
Act, 1946 and Foreigners (Tribunals) Order, 1964, and reference made by the
Superintendent of Police (Border), Bongaigaon, expressed its opinion that the
petitioner was a foreigner who had illegally entered into India from Bangladesh
after 25.03.1971.
10. It may be mentioned that the inquiry which was hitherto made
under the erstwhile regime of the Illegal Migrants (Determination by Tribunals)
Act, 1983, cast the burden on the State to first discharge its burden to show
that the proceedee was a foreigner. It is because of the said reason that the

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Supreme Court of India in the case of Sarbananda Sonowal Vs. Union of India,
reported in (2005) 5 SCC 665, declared the said 1983 Act as ultra vires the
Constitution of India and all the references which were pending before the
erstwhile IM(D)T, were transferred to the jurisdictional Tribunals.
11. In this case, the initial reference was made before the
Foreigners' Tribunals and under Section 9 of the Foreigners Act, 1946, the
burden of proof lies on the proceedee to show that he is not a foreigner but an
Indian citizen.
12. The Supreme Court of India in the case of Sarbananda Sonowal
(supra), in para 26 thereof has observed as under :
"26. There is good and sound reason for placing the burden of proof upon the
person concerned who asserts to be a citizen of a particular country. In order to
establish ones citizenship, normally he may be required to give evidence of (i) his
date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and
citizenship. Sometimes the place of birth of his grandparents may also be relevant
like under Section 6-A(1)(d) of the Citizenship Act. All these facts would
necessarily be within the personal knowledge of the person concerned and not of
the authorities of the State. After he has given evidence on these points, the State
authorities can verify the fact and can then lead evidence in rebuttal, if necessary.
If the State authorities dispute the claim of citizenship by a person and assert that
he is a foreigner, it will not only be difficult but almost impossible for them to first
lead evidence on the aforesaid points. This is in accordance with the underlying
policy of Section 106 of the Evidence Act which says that when any fact is
especially within the knowledge of any person, the burden of proving that fact is
upon him."

13. Therefore, it would be relevant to refer to the procedure
prescribed for disposal of questions under the Foreigners (Tribunals) Order,
1964. As per the procedure prescribed under the Foreigners (Tribunals) Order,
1964, it is nowhere provided that the State is required to lead the first evidence
to establish or prove that the suspect, i.e., the petitioner herein, is a foreigner

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who has entered into India (Assam) after 25.03.1971.
14. The determination by Foreigners’ Tribunals is unique to the State
of Assam and the said procedure is not followed in any other part of the
Country. Such power of determination by the Foreigners' Tribunals is specifically
provided for under Section 6-A of the Citizenship Act, 1955, which contains
special provisions as to citizenship of persons covered by the Assam Accord.
Under Section 6-A(1) (e), it is provided that a person shall be deemed to have
been detected to be a foreigner on the date on which a Tribunal constituted
under the Foreigners (Tribunals) Order, 1964 submits its opinion to the effect
that he is a foreigner to the officer or authority concerned.
15. By virtue of notifications issued by the Government of India, the
jurisdictional Superintendent of Police of the district also acts as a
Superintendent of Police (Border) of each district in the State. The said authority
is authorized to make a reference before the Foreigners Tribunals. Therefore, on
a combined reading of the provisions of Section 6-A of the Citizenship Act, which
applies to the State of Assam under the Assam Accord, read with the provisions
of Section 9 of the Foreigners Act, 1946, read with the Foreigners (Tribunals)
Order, 1964, there is no requirement on the part of the State to first produce
evidence so as to satisfy the learned Tribunal that the suspect, in this case, the
petitioner, was a foreigner and not an Indian.
16. In this case, as stated above, in spite of service of notice to the
petitioner on three occasions as referred hereinbefore. The last notice was
served on his father, an adult member of the family. It may be stated that the
learned Tribunal had afforded reasonable and sufficient time to the petitioner to
appear and file his written statement. However, despite service of notice, the
petitioner did not appear before the learned Tribunal.

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17. The Court is compelled to observe that insofar as the issue of
citizenship is concerned, with regard to the reference made as to whether the
suspect is an Indian or a foreigner, the consequences are civil in nature because
in this case the petitioner is not being prosecuted for illegal entry into the
Country for offences under the Foreigners Act or under the Passports Act, etc.,
which carry a sentence of imprisonment and have consequences under criminal
law by way of imprisonment under the said Acts.
18. In Paragraph 4 of the Foreigners (Tribunals) Order, 1964, for the
purposes of the said order, the Tribunals shall have the powers of a civil court
while trying a suit under the Civil Procedure Code. In this regard, reference may
be made to the provisions of Order VIII, Rule 10 of the Civil Procedure Code,
where, even in a civil suit, when a party fails to present written statement called
for by the Court, the civil court has the power to pronounce judgment against
him. In the proceeding before the Foreigners Tribunal, no initial burden cast on
the State under Section 9 of the Foreigners Act, 1946, to lead evidence first.
Such burden constantly remained on the petitioner to prove that he is an Indian
and not a foreigner.
19. Therefore, in the present case the petitioner has failed to submit
his written statement and evidence. Hence, the Court is of the considered
opinion that granting an opportunity to the petitioner, who is alleged to be a
foreigner, beyond the period prescribed under paragraph 3(14) of the Foreigners
(Tribunals) Order, 1964, would render the entire proceeding before the
Foreigners Tribunal farcical, as endless adjournments cannot be granted for the
purpose of enabling the suspect to adduce evidence. The said provision is para
material with paragraph 17(14) of the Immigration and Foreigners Order, 2025.
20. In this case, the only explanation of the petitioner is that when

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his name did not appear in the voter list of 2026, he made enquiry and came to
know from the Booth Level Officer about the case. He then obtained the
certified copy and this writ petition was filed. However, the petitioner has
admitted that as he was not at home, the notice was served to Rustom Ali, his
father on 21.02.2020 and accordingly, the case of the petitioner is that service
of notice was not in accordance with law. Thus, it would be appropriate to
extract hereinbelow the provisions of Paragraph 3(5)(b) and 3(5)(c) of the
Foreigners (Tribunals) Order, 1964.
"3. Procedure for disposal of questions.—
(5)...(b) if the proceedee is not found at the address at the time of service of
notice, the notice may be served on any adult member of the family of the
proceedee and it shall be deemed to be served on the proceedee;
(c) where the notice is served on the adult member of the family of the proceedee,
the process server shall obtain the signature or thumb impression of the adult
member on the duplicate of the notice as a token of proof of the service;"
21. In the present case, the petitioner is not on record to show that
due to certain pre-existing dispute, his father intentionally did not inform him
about the summons. The petitioner has not tendered any explanation as to
what prevented him from contesting when notice was first served. Thus, the
reason assigned for the delay is found to be unacceptable.
22. Therefore, the decision of the Supreme Court of India, in the
case of Savitri Dey @ Swasthi Dey (supra), with all due respect to the same, will
have no application under the distinguishable facts and legal provisions which
arise in this case. The legal position under the Foreigners Act, 1946 read with
Paragraph 4 of the Foreigners (Tribunals) Order, 1964 and Section 9 of the
Foreigners Act, 1946 was perhaps not brought to the notice of the Supreme
Court of India, when the said case of Savitri Dey @ Swasthi Dey was decided.

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23. Resultantly, the challenge to the ex parte opinion dated
22.12.2021, passed by the learned Member, Foreigners Tribunal, Bongaigaon
No.2, at Abhayapuri, Assam, in Case No. BNGN/FT-2/APR/10/2018 [arising out
of Ref: BNGN IMDT Case No. 1674/04], fails. Consequently, this writ petition is
dismissed at the motion stage, without issuance of notice on the respondents.
24. There shall be no order as to cost.
25. Consequences of the said ex parte opinion dated 22.12.2021
shall follow.
26. Accordingly, 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 and for doing the needful.

JUDGE JUDGE
Munna
Kumar
Digitally signed by
Munna Kumar
Date: 2026.10.16 16:08:54
+05'30'
Comparing Assistant (Private Secretary)