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Judgment
(Pranjal Das, J)
Heard Mrs. H. Ahmed, learned counsel for the petitioner. Also heard Mr. G. Sarma, learned Standing counsel, F.T. & NRC; Mr. A.I. Ali, learned Standing counsel, ECI and Ms. S. Bhattacharjya, learned CGC; and Mr. P. Sarmah, learned Additional Senior Government Advocate.
Invoking the jurisdiction under Article 226 of the constitution of India, the petitioner herein, namely Musstt. Aleha Khatun alias Ahela Khatun, has assailed the order dated 08.06.2015 passed by the learned Foreigners’ Tribunal, rd (3 ), Darrang, Mangaldai in F.T. Case No. 2939/12, declaring that the petitioner is a foreigner who has illegally come into Assam and India after 25.03.1971.
The facts in brief are that a reference was made vide S.P. Enquiry No. 06/2012, seeking a determination with regard to the nationality of the petitioner in the context of suspicion about her being an illegal migrant post 1971 stream. Accordingly, the aforementioned FT case was registered and notice was issued to the petitioner as proceedee.
The petitioner, thereafter, appeared before the learned Tribunal and filed her written statement. However, subsequently, she defaulted in appearance before the learned Tribunal during the proceeding on multiple occasions, as a result of which the learned Tribunal issued a notice to show cause as to why the matter should not be disposed of ex parte. But it appears thereafter, though the proceedee appeared, she did not pursue the matter, whereupon the case was disposed of ex parte, declaring her as a foreigner post the stream of 25.3.1971.
Mrs. Ahmed, the learned counsel for the petitioner submits and contends that the petitioner is an elderly lady aged more than 70 years and that when the notice was given to Goanburah, he demanded Rs.20,000/- for her and that subsequently her signature was forcefully taken on the papers. It is contended that the petitioner is a poor and illiterate person, not aware of her rights. It is submitted that thereafter she went to Kerala in search of livelihood and later, during the NRC process, from the NRC center in August, 2019, she came to know that an ex parte order being ordered dated 08.6.2015 has already been passed against her, declaring her to be a foreigner.
On the other hand, Mr. Sarma, the learned Standing Counsel for FT and NRC submits that the learned Tribunal has given enough opportunities to the petitioner to appear, but she abandoned the proceedings after filing her written statement.
The learned counsel submits that the petitioner was enlisted in the voters’ list of 1966 with regard to No. 73, Dalgaon LAC against serial No. 34 along with other family members and that her husband's name was Khalu Sk. is also indicated therein. Her age is indicated therein as 21 years.
It is submitted and contended that the petitioner may be given an opportunity to adduce her documents to show that she was an Indian national, having figured in the voters’ list in 1966 itself.
We have perused the materials and considered the submissions. Before proceeding further, the operative part of the impugned opinion dated 08.06.2015 may be reproduced herein below –
“OP is absent. Seen the case record and found that after receipt of the notice the OP appeared and filled her W/s. but thereafter neither OP nor Ld. Counsel have not taken any further steps negligently for a long time. Thereafter the notice to show cause as to why the case will not be disposed of ex-parte was issued upon the OP. Hence alternatively the case is proceeded to decide ex-parte in her absence. Even after appearing and subsequent to proper service of the show cause notice OP did not take further necessary steps. Therefore the case was heard and decided to declare OP as foreigner of the stream of post 25/03/1971 in her absentia.”
In a recent decision of Sabitri Dey @ Swasthi Dey & Ors. vs. Union of India & Ors. reported in 2026 INSC 694, the Hon’ble Apex Court passed orders for remanding of proceedings to the Foreigners’ Tribunal in certain situations where the impugned opinion was passed ex parte. The Hon’ble Apex Court, however, made it clear that by directing the remand, it was not condoning the acts of the proceedees in not appearing before the Tribunal. Three categories were enunciated in which such orders came to be passed.
Category III pertain to situations where the proceedee had appeared at some point before the Tribunal but thereafter stopped appearing whereupon, the proceedings culminated in an ex parte opinion. The Court held that in these situations also, the proceedings, though initially not ex-parte, effectively became ex parte as the declarations were made without a complete adjudication.
In paragraph 42, the Hon’ble Apex Court made it clear that such default of the proceedee would not, however, alter the character of the adjudication which the Tribunal is required to make by way of setting down the facts, applying its mind to the questions referred, the materials placed and any such materials already on record on behalf of the proceedee.
However, the Hon’ble Apex Court stated that when the proceedee repeatedly defaults before the Tribunal, the forum cannot be faulted for declining repeated adjournments or proceeding further in accordance with law.
The relevant para 39, 40 and 41 of the decision of Sabitri Dey (supra) may be reproduced hereinbelow-
“39.We now turn to the third category, where the appellants had appeared before the Tribunal at some stage, or had taken some step in the proceeding, but thereafter the proceeding continued in their absence and culminated in an ex parte opinion.
40.This category stands on a slightly different footing from the first category. Here, the appellants were aware of the proceedings and had, in many cases, either appeared before the Tribunal, sought time, filed a written statement, or participated through counsel. Paragraph 3(7) of the 1964 Order places an obligation upon a proceedee, once notice is duly served, to appear before the Tribunal on every date of hearing either in person or through counsel. Paragraph 3(8) provides the time within which the proceedee is to reply to the show cause notice and produce evidence. Paragraph 3(12) further makes it clear that adjournments are to be granted sparingly and for reasons to be recorded.
41.Therefore, where a proceedee appears before the Tribunal but thereafter defaults, the Tribunal cannot be faulted merely for declining to grant repeated adjournments or for proceeding further in accordance with law. The statutory scheme expects diligence from the proceedee, particularly because the burden under Section 9 of the 1946 Act lies upon him or her. A person who has entered appearance cannot treat the proceeding casually or frustrate the adjudication by remaining absent at the stage of evidence.”
In the instant case also, when the proceedee did not appear despite the second notice, the learned Tribunal was left with no option but to proceed. It cannot be overlooked that Tribunals also have to keep in mind the mandate of Section 3 (14) of the Foreigners’ Tribunals Order 1964 about concluding the proceedings within 60 days.
In view of the cryptic nature of the impugned opinion and the documents shown by the petitioner’s side pertaining to the 1966 voter's list and also keeping in mind the principles laid down in Sabitri Dey (supra), it would be in the interest of justice to remand this matter for fresh adjudication, giving an opportunity to the petitioner to adduce her evidence.
Accordingly, in the aforesaid facts and circumstances, the impugned rd opinion dated 08.06.2015 passed by learned Foreigners’ Tribunal, (3 ), Darrang, Mangaldai in F.T. Case No. 2939/12, is hereby set aside. The matter is remanded back to the learned Tribunal for fresh adjudication in accordance with law after giving opportunity to the petitioner to adduce her evidence. The petitioner as proceedee shall appear before the learned Tribunal on or before 29.09.2026 to receive further orders from the learned Tribunal.
Till completion of the fresh adjudication upon the present remand, the petitioner shall not be subjected to any coercive action by way of detention and/or deportation.
Sent back the TCR.
The writ petition stands allowed and disposed of.