IMPORTANT POINT
The main legal point established is that the right to a reasonable opportunity to prove nationality and procedural fairness are essential in nationality determination cases under the Foreigners Act, 1946.

JUDGMENT :

Mridul Kumar Kalita, J.

1. Heard Mr. P.N. Sharma, learned counsel appearing for the petitioner. Also heard Ms. A. Verma, learned Standing Counsel, Home Department, Assam appearing for the respondent Nos. 1, 3 and 4, as well as Mr. P. Sarma, learned Additional Senior Government Advocate, Assam for the respondent No. 2 and Mr. H. Kuli, learned counsel appearing on behalf of Mr. A.I. Ali, learned Standing Counsel, Election Commission of India appearing for the respondent No. 5.

2. This writ petition has been filed by the petitioner, namely, Md. Abdul Mutalib, @ Abul Matalib impugning the ex parte opinion/order, dated 29.02.2016, passed by the learned Foreigners Tribunal No. 3rd, Morigaon in F.T. Case No. 19/2016, whereby, the above-named petitioner was declared as a Foreigner, under the Foreigners Act, 1946 who had illegally entered into India (Assam) on or after 25.03.1971.

3. Notice in this case was issued on 23.07.2018 and the case record, in original, of F.T. Case No. 19/2016 was called for from the learned Foreigners Tribunal No. 3rd, Morigaon. The said case record has been received.

4. The facts, which transpires on perusal of the case record of F.T. Case No. 19/2016, relevant for consideration of the instant writ petition, in brief, are as follows:-

i. Suspecting the petitioner, namely, Md. Abdul Mutalib, @ Abul Matalib, son of late Rajab Ali to be a Foreigner, who had illegally entered into India (Assam) from Bangladesh after 01.01.1966, the Superintendent of Police (Border), Morigaon had directed to conduct an enquiry in F.T. Case No. 78/2004 dated 28.07.2004 and on the basis of the enquiry report submitted by the Enquiry Officer, a reference under the provisions of Foreigners (Tribunals) Order, 1964 was made to the learned Foreigners Tribunal, Nagaon by the Superintendent of Police (Border), Morigaon for determining the nationality of above-named petitioner as per the provisions of the Foreigners Act, 1946.

ii. No records are available before us regarding receipt of the aforesaid reference by the learned Foreigners Tribunal, Nagaon. However, from the available records, it transpires that on 09.06.2015, the aforesaid case was received by learned Foreigners Tribunal No. 2nd, Morigaon, wherein the reference was registered as F.T. Case No. 622/2012.

iii. Thereafter, by order dated 09.06.2015, notice was issued by the learned Foreigners Tribunal No. 2nd, Morigaon to the petitioner by fixing 17.07.2015 for his appearance before the said Tribunal and for filing the written statement in support of his claim of nationality.

iv. On 17.07.2015, the notice issued to the petitioner was returned without service and same was again re-issued by fixing 28.08.2015 for appearance and filing of written statement.

v. However, by order dated 28.08.2015, the Foreigners Tribunal Case No. 622/2012 was transferred from the learned Foreigners Tribunal No.2nd, Morigaon to the learned Foreigners Tribunal No. 3rd, Morigaon for disposal.

vi. On perusal of the available records, it appears that in paragraph No. 5 of the impugned opinion, it has been mentioned that on transfer, the case record of F.T. Case No. 19/2016 was put up on 03.01.2016, and 29.02.2016 was fixed for necessary orders. However, the only order sheet of F.T. Case No. 19/2016, which is available on record, is of 29.02.2016 and nothing could be discernible from the case record as to when and how the case was re-registered as F.T. Case No. 19/2016 from F.T. Case No. 622/2012.

vii. By order dated 29.02.2016, passed in F.T. Case No. 19/2016, the learned Foreigners Tribunal No. 3rd, Morigaon, on consideration of report of the process server dated 24.08.2015, held that the notice issued to the petitioner is deemed to be served and decided to proceed ex parte against the petitioner and ultimately, the said Tribunal gave an ex parte opinion declaring the petitioner to be a Foreigner under the Foreigners Act, 1946, who had illegally entered into India (Assam) after 25.03.1971.

viii. It also tran