IMPORTANT POINT
Proper service of notice is essential for a fair legal process and the validity of judgments.

JUDGMENT :

(M.R. Pathak, J.) :

Heard Mr. A. Roshid, learned counsel appearing for the petitioner and Mr. G. Sarma, learned Standing Counsel, Home Department, Assam for the respondent Nos. 2, 4 and 7. Also heard Mr. P. Sharma, learned Additional Senior Government Advocate, Assam for the respondent No. 3 and Mr. H. Kuli, learned Standing Counsel, Election Commission of India for the respondent No. 5.

2. This writ petition has been filed on 12.01.2024 by the petitioner against the ex-parte judgment and order dated 10.03.2009 passed by the learned Foreigners Tribunal-II, Barpeta in F.T. (2nd Tribunal) Case No. 201/2007, whereby the Tribunal declared the petitioner as a foreigner under the Foreigners Act, 1946.

3. It is contended by the petitioner that she received notice from the Foreigners Tribunal-II, Barpeta, but could not appear before the said Tribunal and failed to file her written statement on the date fixed and thereafter the Tribunal passed the ex-parte order dated 10.03.2009 holding her to be a foreigner.

4. Petitioner stated that pursuant to said ex-parte order dated 10.03.2009 in F.T (2nd Tribunal) Case No. 201/2007 passed by the Foreigners Tribunal-II, Barpeta, holding her as a foreigner, police on 30.10.2023 took her in custody and detained her at Matia Detention Camp, District-Goalpara where she is under detention since 30.10.2023.

5. Petitioner stated that she is an Indian by birth and her father, mother and husband have already expired including her full family members. She stated that name of her father was Bandu Sheikh and her mother was Joyban Nessa @ Phuljan Nessa and that both of their names figured in the voters lists of 1966 and 1970 at village Rangapani of Kamrup district under No. 48 Boko Legislative Assembly Constituency.

6. Petitioner also stated that she was born at village No. 1, Uttar Rangapani under Police Station-Boko, district- Kamrup and married with one Rahimuddin @ Rahim Sheikh on 10.09.1973 from village Alengamari district Baksa and in that regard the Secretary of No. 44 Bhakhuradia Rangeswari Gaon Panchayat, issued a certificate. Petitioner stated that her name figured in the voter list of 1989 from village Alengamari, Police Station Gobardhana, district Baksa under No. 40 Sorbhog Legislative Assembly Constituency with her husband Rahimuddin and that though she is Hamida Khatun, but her name was wrongly shown as Emeda Khatun in the said voter list. She also stated that she is the second wife of her husband Rahimuddin.

7. Petitioner further contended that her name also appeared in the voters lists of 1997, 2021 from village Alengamari and Uttar Rangapani under No. 40 Sorbhog Legislative Assembly Constituency.

8. Hence, this writ petition by the petitioner to set aside and quash the impugned ex-parte order dated 10.03.2009 passed by the learned Foreigners Tribunal-II, Barpeta in F.T. (2nd Tribunal) Case No.201/2007 with interim prayer to grant her bail in said the F.T. Case.

9. On being called for, the record of F.T (2nd Tribunal) Case No. 201/2007 has been placed by Mr. G. Sarma, Standing Counsel, Home Department from the Foreigners Tribunal-II, Barpeta.

10. From the records, we have seen that during the force of IM(D)T Act, 1983, Superintendent of Police (Border), Barpeta referred the case of the petitioner to the Foreigners Tribunal, Barpeta to give its opinion as to whether the petitioner is a foreigner or not. After striking down of the said IM(D)T Act, the said referred case was transferred to the Foreigners Tribunal-II, Barpeta under the Foreigners Act, 1946, wherein it was registered as F.T. (2nd Tribunal) Case No.201/2007.

11. From the records of the case, we have seen that on 17.05.2007, the Tribunal issued notice to the petitioner under the Foreigners Act, 1946 fixing 25.06.2007 as the date of her appearance and for filing of reply/written statement. Said notice was sent to the address of the proceedee at village Alengamari, Police Station Sorbhog, District-Barpeta.

12. Record reveals that the