The main legal point established in the judgment is that the service of notice must be proper, and the rejection of a prayer for vacating an ex parte order should not be merely on technical grounds.

JUDGMENT & ORDER :

M. Thakuria, J.

This writ petition is against the ex parte order/opinion dated 17.05.2017 passed by the learned Member, Foreigners Tribunal, Hojai, Sankardev Nagar in Case No. FT/H/2175/2012, whereby the petitioner has been declared as a foreigner under the Foreigners Act, 1946, who had illegally entered into the territory of India after 25.03.1971.

2. Though, the learned Member, Foreigners Tribunal, Hojai, Sankardev Nagar, who passed the said ex parte order dated 17.05.2017 has been made a party respondent No. 8 herein, but according to us the said respondent is not a necessary party for proper adjudication of the case. Accordingly, the respondent No. 8 be struck off from the cause title.

3. Heard Mr. N. Islam, learned counsel for the petitioner. Also heard Mr. A.

I. Ali, learned Standing Counsel, Election Commission of India for respondent No. 2; Ms. A. Verma, learned Standing Counsel, Home Department, Assam for respondent Nos. 3, 5 & 7 and Mr. R. Talukdar, learned Government Advocate, Assam for respondent No. 6.

4. In pursuance of a reference made by the Superintendent of Police (Border) of Nagaon District (as it was then, now Hojai), Case No. FT/H/2175/2012 was accordingly registered against the present petitioner before the learned Member, Foreigners Tribunal, Hojai, Sankardev Nagar. Considering that even after proper service of the notice of the case, as the proceedee (the petitioner herein) remained absent in the matter, the learned Member, Foreigners Tribunal, Hojai, Sankardev Nagar on 17.05.2017 in said Case No. FT/H/2175/2012 passed the ex parte order opining him as a foreigner, who had illegally entered into the territory of India after 25.03.1971.

5. Being aggrieved and dissatisfied with the said impugned ex parte order of the learned Member, Foreigners Tribunal, Hojai, Sankardev Nagar dated 17.05.2017, passed in Case No. FT/H/2175/2012, noted above, the petitioner filed this writ petition on 14.12.2020 praying amongst others, for setting aside the said ex parte order dated 17.05.2017 and to allow him to contest the said Case No. FT/H/2175/2012 by filing his Written Statement as well as the relevant documents to prove his nationality.

6. It is submitted by Mr. N. Islam, learned counsel for the petitioner that he is an Indian citizen by birth and he was born at village Khring Khring under erstwhile jurisdiction of Hojai, now Kaki of earlier Nagaon District, now Hojai District of Assam. It is stated that the petitioner along with his parents cast their votes regularly. The petitioner stated that he did not receive any notice from the Foreigners Tribunal, Hojai, Sankardev Nagar in said Case No. FT/H/2175/2012 and on coming to know about the said ex parte order dated 17.05.2017 declaring him as a foreigner of post 1971 stream, he immediately applied for the certified copy of the said order and after obtaining the same, he on 03.09.2019 filed an application before the Foreigners Tribunal, Hojai, Sankardev Nagar praying for vacating the said ex-parte order dated 17.05.2017. But the said learned Tribunal did not consider the same. As such, he preferred the present petition praying to set aside and quash the impugned ex-parte order dated 17.05.2017, passed by the learned Member, Foreigners Tribunal, Hojai, Sankardev Nagar.

7. The learned counsel for the petitioner, Mr. N. Islam further submitted that if the petitioner is allowed to contest the case by setting aside the ex parte order passed against him, he has sufficient evidence and documents to prove his nationality/citizenship. The learned counsel further submitted that during the time of NOC verification only, the petitioner could come to know about the said ex parte order dated 17.05.2017 passed against him in said Case No. FT/H/2175/2012 by the learned Member, Foreigners Tribunal, Hojai, Sankardev Nagar, in which he never received any notice/summon from the said Foreigners Tribunal and that the said ex parte order dated 17.05.2017 was passed against him wit