Assam HC Quashes Detained Woman’s Ex-Parte Foreigner Declaration Over School-Wall Notice, Orders Fresh Hearing And Steps For Her Release

The petitioner challenged two Foreigners Tribunal opinions.

The first, dated 7 September 2017, declared her a foreigner of the post-25 March 1971 stream in an ex parte proceeding.

She alleged that she had not been duly served.

The Tribunal record showed that the first notice was recorded as served before the service report was returned, and that a later notice was affixed to a school wall rather than served at her last place of residence.

The petitioner was arrested in November 2025 and was in custody when she brought the first writ petition.

In the second writ petition, she challenged a later opinion dated 31 October 2023, also declaring her a foreigner.

She argued that the second proceeding was barred by res judicata because both proceedings concerned her.

The High Court heard the two writ petitions together.

Under paragraph 3(5)(f) of the Foreigners (Tribunals) Order, 1964, notice must be served at the proceedee’s last place of residence.

In Abdul Kuddus v. Union of India, (2019) 6 SCC 604, the Supreme Court held that a Foreigners Tribunal opinion is quasi-judicial and that res judicata applies to such opinions; the High Court also referred to its decisions in Musstt. Amina Khatun v. Union of India, (2018) 4 GLR 643, and Jahir Ali v. Union of India, (2021) 3 GLR 105.

Accordingly, where the same person is the proceedee in both proceedings, the earlier Tribunal decision may bar the later proceeding.

The Court found the service record unreliable: the first notice was recorded as served on 12 December 2016, although the report appeared to have been returned only on 13 December, and the later notice was affixed to a school wall rather than served at the petitioner’s last residence as required by the Order.

The ex parte opinion was therefore unsustainable.

As to the 2023 opinion, the Court accepted that res judicata applied to Tribunal opinions but held that its application depended on whether the petitioner and proceedee in both cases were one and the same person.

It directed the Tribunal to determine that factual question and transferred the later proceeding to the Tribunal dealing with the remanded first proceeding, to avoid conflicting decisions.

It directed that the petitioner be released from custody within three days after the SP (Border), Goalpara, received a certified copy of the order, and required her to appear before the Tribunal by 4 December 2026 and be prepared to furnish bail on terms set by the Tribunal.

The 2023 opinion was not set aside on its merits; the later proceeding was to be transferred, and the Tribunal was to determine whether the same person was the proceedee in both cases.

If so, res judicata would apply; if not, the Tribunal could make an appropriate order enabling the petitioner to challenge the 2023 opinion afresh.