The court emphasized the necessity of proper notice and opportunity to be heard in nationality proceedings, ruling that lack of notification constituted a denial of due process.

JUDGMENT :

MRIDUL KUMAR KALITA, J.

1. Heard Mr. M. Rana, learned counsel appearing for the petitioner. Also heard Ms. P. Swargiary, learned counsel appearing on behalf of Mr. H. Gupta, learned Central Government counsel for the respondent No. 1, Ms. A. Verma, learned Standing Counsel, Home Department, Assam appearing for the respondent Nos. 2 and 4 and Mr. P. Sarma, learned Additional Senior Government Advocate, Assam for the respondent No. 3.

2. This writ petition has been filed by the petitioner, namely, Md. Sohar @ Shahar Ali impugning the ex parte opinion/order, dated 17.08.2016, passed by the learned Foreigners Tribunal No. 2, Abhayapuri, District-Bongaigaon in the Case No. BNGN/FT/2093/2007, whereby he was declared as a foreigner, under the Foreigners Act, 1946 who had illegally entered into India (Assam) on or after 25.03.1971.

3. The petitioner has also impugned the order dated 29.11.2016, passed by the learned Foreigners Tribunal No. 2, Abhayapuri in the Misc. Case No. 23/2016, arising out of Case No. BNGN/FT/2093/2007, whereby the learned Tribunal had dismissed the application filed by the petitioner for setting aside the ex parte opinion/order, dated 17.08.2016, passed by the learned Foreigners Tribunal No. 2, Abhayapuri in the Case No. BNGN/FT/2093/2007.

4. Notice in this case was issued on 21.09.2017 and the case record, in original, of the Case No. BNGN/FT/2093/2007, was called for from the learned Foreigners Tribunal No. 2, Abhayapuri, Bongaigaon and the petitioner was granted interim protection and interim bail which is still in force. The record of the aforesaid F.T. Case has been received by this Court.

5. The facts relevant for consideration of the instant writ petition, in brief, are as follows:

(i) Suspecting the petitioner, namely Md. Sohar @ Shahar Ali, son of late Jiyarad Mia @ Jiyorat Ali, resident of village Matraghola under Abhayapuri police station to be a Foreigner, an inquiry was conducted as regards his nationality.

(ii) On the basis of inquiry report dated 28.03.2007 submitted by the Inquiry Officer, wherein the petitioner was suspected to be a foreigner, a reference was made by the Superintendent of Police (Border), Bongaigaon to the learned Foreigners Tribunal, Bongaigaon under the provisions of the Foreigners (Tribunals) Order, 1964 for determining his nationality as per the provisions of Foreigners Act, 1946.

(iii) On receipt of the aforesaid reference from the Superintendent of Police (Border), Bongaigaon, the learned Foreigners Tribunal, Bongaigaon registered the Case No. BNGN/FT/2093/2007, and on 12.03.2013, issued notice to the petitioner fixing 11.06.2013 for his appearance. It appears from record that on 11.06.2013, the Tribunal issued notice to the petitioner, which was returned after due service and the petitioner accordingly appeared before the said Tribunal through his counsel and filed an application praying for time for filing written statement.

(iv) Said prayer of the petitioner was allowed and next date was fixed on 05.09.2013 for filing written statement and documents by him. On the next day, i.e. on 05.09.2013, also, the petitioner had filed an application through his engaged counsel and prayed further time for filing written statement and documents which was allowed and the next date was fixed on 10.12.2013 for filing the written statement.

(v) On 10.12.2013, the petitioner remained absent without taking any steps. However, the learned Tribunal again fixed the case on 12.03.2014 for filing written statement and documents by the petitioner.

(vi) Thereafter, on two consecutive dates, that is, on 12.03.2014 as well as on 12.06.2014, the petitioner remained absent before the Tribunal without steps.

(vii) However, on 12.06.2014, the learned Foreigners' Tribunal, Bongaigaon, had issued fresh notice to the petitioner fixing 10.09.2014 for appearance. On 10.09.2014, the petitioner appeared personally before the Tribunal and again prayed for time for filing written statement, which was allowed an