Prior findings that both parents were Indian warranted one opportunity to contest the ex parte foreigner proceeding.

The petitioner challenged an ex parte opinion dated 03.11.2020 of the Foreigners Tribunal No. 7, Barpeta, which declared him a foreigner of the post-25.03.1971 stream.

He disputed service, noting that the notice named him as “Md. Rubul Ali” rather than “Rupal Ali”; the notice had been pasted at his last-known residence in the presence of the Gaonburah.

He also asserted that both his father and mother had separately been declared not to be foreigners.

The High Court found service valid and rejected the name discrepancy as a ground for setting aside the opinion, but set it aside to give the petitioner an opportunity to establish his defence based on his parents’ opinions.

Whether the ex parte opinion was liable to be set aside for want of proper service or because the notice used a different version of the petitioner’s name.

Whether the petitioner should be given an opportunity to contest the reference where he claimed that both his parents had been declared not to be foreigners.

Paragraph 3(5)(f) of the Foreigners (Tribunals) Order, 1964 permits service by the prescribed process, including pasting notice at the person’s last residence; the Court found service in this case compliant with that provision.

Section 9 of the Foreigners Act, 1946 places the burden of proving that a person is not a foreigner on that person.

Paragraph 3(14) of the 1964 Order and paragraph 17(14) of the Immigration and Foreigners Order, 2025 were identified as provisions the Tribunal must consider if the petitioner defaults or when dealing with the restored proceeding.

The petitioner relied on Savitri Dey @ Swasthi Dey v. Union of India & Ors.; the Court considered that decision but did not rest its disposition on it.

The Court held that the notice had been duly served by pasting it at the petitioner’s stated residence in the presence of the Gaonburah, and that the difference in the petitioner’s name did not invalidate service because he described himself in the writ petition as “Rupal Ali @ Md. Rubul Ali”.

Nonetheless, the petitioner’s claim that both parents had been declared not to be foreigners could, if substantiated, bear on his defence.

The Court considered it unjust to sustain an ex parte declaration without giving him an opportunity to prove that defence, while leaving the burden of proof on him under Section 9.

The petitioner was directed to appear by 30.11.2026, file his written statement, and produce his supporting documents; failure to do so may permit the Tribunal to proceed afresh in accordance with law.

The Tribunal was asked, as far as practicable, to dispose of the reference within 60 days of the petitioner’s appearance.