1. Petitioner challenges an ex parte declaration of foreign national status on grounds of defect in notice service, following which she was taken into detention. (Para 2 , 3 )
Back
Next 
2026 Supreme(Online)(Gau) 23971
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Kalyan Rai Surana, Susmita Phukan Khaund, JJ
Diluwara Khatun Alias Diluwara Begum – Appellant
Versus
Union of India – Respondent
WP(C)/2729/2026
Important Points
The court held that if a petitioner creates a reasonable doubt regarding the service of notice in a Foreigners Tribunal proceeding, the ex parte opinion should be set aside to allow the petitioner an opportunity to contest the case on merits.
Subject
Civil - Citizenship
Act Referred
Headnote
(A) Foreigners Tribunal - Service of Notice - Discrepancy in service reports - Where a doubt is created regarding the actual service of notice, the party deserves an opportunity to contest the proceedings to ensure natural justice. (Para 7, 8)
(B) Natural Justice - Right to be heard - Setting aside ex parte order - An ex parte opinion can be set aside at the motion stage if the petitioner demonstrates a plausible claim of non-service of notice, allowing for a fresh hearing on merits. (Para 8)
Issues: Whether the ex parte opinion dated 04.07.2022 passed by the Foreigners’ Tribunal Jorhat should be set aside on the grounds of improper service of notice.
(B) Natural Justice - Right to be heard - Setting aside ex parte order - An ex parte opinion can be set aside at the motion stage if the petitioner demonstrates a plausible claim of non-service of notice, allowing for a fresh hearing on merits. (Para 8)
Issues: Whether the ex parte opinion dated 04.07.2022 passed by the Foreigners’ Tribunal Jorhat should be set aside on the grounds of improper service of notice.
Legal Category Hierarchy
Advocates:
For the Appellants/Petitioners: Mr. N. Hoque
For the Respondents: Mr. N. Upadhyay, Ms. A. Verma, Mr. P. Sarmah, Ms. S. Katakey
For the Appellants/Petitioners: Mr. N. Hoque
For the Respondents: Mr. N. Upadhyay, Ms. A. Verma, Mr. P. Sarmah, Ms. S. Katakey
Table of Contents
2. Petitioner claims notice was not properly served whereas respondent maintains service was compliant with statutory requirements and the challenge is prompted only by arrest. (Para 3 , 4 )
3. Notice service report is inconsistent with the evidence now presented regarding the physical service of notice, justifying an opportunity to contest the matter on merits. (Para 5 , 6 , 7 )
4. Even absent procedural irregularity found in the impugned opinion, a credible doubt regarding the sufficiency of notice service necessitates providing a fair opportunity to contest the proceedings. (Para 8 )
5. Ex parte opinion set aside, matter restored to tribunal, with directions for petitioner's release on bail and appearance for de novo contested proceedings. (Para 8 , 9 , 10 , 11 )
6. When may a court set aside an ex parte tribunal order regarding nationality despite facial compliance with service rules?
A court may set aside an ex parte opinion when the petitioner successfully casts doubt on the integrity of the service record, showing it is materially inconsistent with the actual method of service, thereby warranting a fresh opportunity for the petitioner to present a defence. (Para 6 , 7 , 8 )
7. What is the consequence of restoration of a matter once an ex parte opinion is set aside by a writ court?
Upon setting aside the ex parte opinion, the matter is restored to the file of the original tribunal. The petitioner is given a specific time frame to appear, submit a written statement of defence, and produce evidentiary documents for a de novo determination. (Para 9 , 11 , 12 )
8. Can a writ court impose a time-bound direction for the disposal of a restored tribunal case?
Yes, a court may direct the tribunal to dispose of the restored reference within a specified period—such as sixty days—while keeping in view the prevailing statutory mandates for expeditious disposal of foreign national status proceedings. (Para 13 )
JUDGMENT AND ORDER
(CAV)
(K.R. Surana, J.)
Heard Mr. N. Hoque, learned counsel for the petitioner. Also heard Ms. A. Verma, learned standing counsel for FT and Border matters; Ms. S. Katakey, learned standing counsel for ECI; Mr. N. Upadhyay, learned CGC for the Union of India; and Mr. P. Sarmah, learned Addl. Senior Government Advocate for the State.
2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Diluwara Khatun @ Diluwara Begum, has assailed the ex parte opinion dated 04.07.2022, passed by the learned Member, Foreigners’ Tribunal Jorhat, in FTG.1890/2011, corresponding to S.P.’s Enquiry No. 21/2011, by which she was declared to be a foreigner who had entered into India (Assam) illegally after 25.03.1971.
3) Assailing the impugned opinion, the learned counsel for the petitioner has submitted that the notice of the case was stated to have been served on the husband of the petitioner, but the signature appearing in the process server’s notice is not of the husband of the petitioner. It has been also submitted that pursuant to the said ex parte opinion, the petitioner was taken into custody on 25.05.2025 and she is presently held at the Transit Camp/ Holding Centre at Matia, Gowalpara. Therefore, when the family members of the petitioner collected documents from the learned Tribunal, they came to know that the notice was served to the husband of the petitioner, but when the family members of the petitioner approached the Gaonburah, he had stated that the notice was not served to the husband of the petitioner, but pasted at the wall of their house. The learned counsel for the petitioner had submitted that the petitioner has good defence of not being a foreigner. Hence, he has prayed for one opportunity to the petitioner to contest the proceeding and prove her defence. In support of his submissions, the learned counsel for the petitioner had cited the case of Savitri Dey @ Swasthi Dey v. Union of India & Ors., 2026 INSC 694: 2026 Supreme (SC) 786: 2026(4) GLT (SC) 1.
4) Per contra, the learned standing counsel for the FT and Border matters has submitted in support of the impugned opinion. It was submitted that the certificate of the Gaonburah, which is annexed to the writ petition as Annexure-E is doubtful because in the said certificate, the Gaonburah had signed as Nazrul Islam, but his correct name is Nazrul Islam Choudhury and the petitioner has arrayed the Gaonburah concerned as respondent no.7, but his name is written in the cause title of this writ petition as Md. Nazrul Islam Choudhury. It has been submitted that as the notice was served on the petitioner in accordance with Paragraph 3(5)(b) and 3(5)(c) of the Foreigners (Tribunals) Order, 1964, the said ex parte opinion was not liable to be interfered with. It was also submitted that the petitioner would not have challenged the opinion but for her arrest and consequently holding her at the Holding Centre, awaiting her expulsion from the Country.
5) Considered the submissions and perused the records of the learned Tribunal, which was called for and received.
6) On perusal of the Tribunal's records, it appears that the notice is stated to be duly served on the petitioner, who has put her signature towards acknowledgement of receipt of notice. However, in the vakalatnama filed along with this writ petition, the petitioner had put her Right-hand thumb impression. Moreover, notwithstanding the discrepancy in the name of the Gaonburah, the petitioner has projected through the Gaonburah’s certificate that the notice was pasted on the wall of the house of the petitioner.
7) Under the circumstances, taking into consideration that the Gaonburah has now taken a stand that the notice was served on the petitioner but pasted on her house, which is inconsistent with the service report, the Court is of the considered opinion that the petitioner deserves one opportunity to contest the proceeding.
8) Resultantly, without finding fault
