Gauhati High Court
Page No.# 1/15 vs The Union Of India And 4 Ors on 3 September, 2025
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/15
GAHC010171002025
2025:GAU-AS:11891-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4896/2025
AJIRAN NESSA
D/O. LT. RAIJUDDIN SEIKH, R/O. VILL.- FUHURATOLI, P/S. SIPAJHAR, DIST.
DARRANG, ASSAM.
VERSUS
THE UNION OF INDIA AND 4 ORS.
REP BY THE SECRETARY TO THE GOVT OF INDIA, MINISTRY OF HOME
AFFAIRS, NORTH BLOCK, NEW DELHI, PIN-110001
2:THE STATE OF ASSAM
REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
HOME AND POLITICAL DEPARTMENT
GOVT. OF ASSAM
ASSAM SECRETARIAT
DISPUR
GUWAHATI
ASSAM
PIN-781006.
3:THE SUPERINTENDENT OF POLICE (BORDER)
DIST. DARRANG
ASSAM.
4:THE STATE COORDINATOR OF NRC
OFFICE OF THE STATE COORDINATOR
NRC ASSAM
1ST FLOOR
ACHYUT PLAZA
Page No.# 2/15
G.S. ROAD
BHANGAGARH
GUWAHATI
ASSAM
PIN-781005.
5:THE ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN
ASHOK ROAD
SANSAD MARG AREA
NEW DELHI
PIN-110001
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
HON'BLE MR. JUSTICE RAJESH MAZUMDAR
Advocate for the petitioner(s) : Mr. S. Dey.
Advocate for the respondent(s) : Mr. M. R. Adhikari,
Ms. A. Verma,
Mr. M. Islam,
Mr. P. Sarmah.
Date of Hearing and Judgment : 03.09.2025.
JUDGMENT AND ORDER (ORAL)
(Kalyan Rai Surana, J.) Heard Mr. S. Dey, learned counsel for the petitioner. Also heard Mr. M. R. Adhikari, learned CGC; Ms A Verma, learned Standing Counsel for the FT matters and NRC; Mr. M. Islam, learned counsel appearing on behalf of Mr. A. I. Ali, learned Standing Counsel for the ECI, learned Standing Counsel for the ECI; and Mr. P. Sarmah, learned Additional Senior Govt. Advocate for the State respondent.
Page No.# 3/15
2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned opinion dated 22.10.2019, passed by the learned Member, Foreigners' Tribunal (1st), Mangaldai, in F T Case No. 740/07, corresponding to Reference Case No. I.M. 17,376/98, by declaring the petitioner, namely, Musstt. Ajiran Nessa as a foreigner, by holding that in the absence of any documentary evidence, the petitioner had failed to prove the existence of her parents in the Indian soil, prior to 1971 and that she had failed to discharge her burden of proof as envisaged under Section 9 of the Foreigners' Act, 1946.
3. The learned counsel for the petitioner has referred to paragraph-2 of the said opinion, to project that there were good grounds for the petitioner for not appearing and not taking steps in the proceedings before the learned Foreigners' Tribunal. He accordingly submitted that although the petitioner had filed her written statement on 12.09.2019, subsequently, she could not appear and ex-parte opinion was rendered. Hence, it is submitted that the petitioner has all the documents to prove that she is not a foreigner, and hence, it is submitted that one opportunity be granted to the petitioner to adduce evidence to prove her defence.
4. Having noticed that an opinion dated 22.10.2019, has been assailed by filing this writ petition on 31.07.2025, the Court has heard both sides on the issue of delay and laches.
5. While the learned Standing Counsel for the FT matters has opposed the maintainability of the writ petition, the learned counsel for the petitioner has submitted that the petitioner belongs to a poor strata of the society and she has the family identity card to show that she is a person of below poverty line. It is submitted that some persons of the village were helping the petitioner to enable her to participate in the proceedings before the Foreigners' Tribunal. It is submitted that the petitioner is an uneducated lady and she affixes her thumb impression on the documents as she does not know how to Page No.# 4/15 read and write.
6. It is submitted that the petitioner had engaged a counsel and all the documents were provided by her to the said learned counsel for filing a writ petition to challenge the impugned opinion. In this regard, the learned counsel for the petitioner relies on social media posting, which is annexed as Annexure-11 to the writ petition, to project that the advocate had retained the file for more than 2 (two) years, without doing anything.
7. In support of his submissions that this Court, on earlier occasions, had been lenient so as to condone the delay in assailing the opinion and the ex-parte orders were set aside, although they were challenged with some delay to ensure that the proceedees have a right to prove that they are Indians and not foreigners, in this regard, reliance has been placed on the decision of this Court in Rajendra Das & Others -Vs- Union of India; reported in 2022 (1) GLT 756, as well as Md Jafar Ali @ Zafar Ali -Vs- The Union of India and Others; disposed of, by order dated 19.02.2025, in WP(C) No. 3913/2024. The learned counsel for the petitioner has also placed his reliance on a decision rendered in the Urban Improvement Trust v. Smt. Vidhya Devi and Ors.; reported in 2024 LiveLaw (SC) 1008 (Civil Appeal No. 14473 of 2024).
8. Per contra, the learned Standing Counsel for the FT matters has opposed the prayer made in the writ petition, where a limited challenge is made after 6 (six) years of the opinion dated 22.10.2019, and has cited the following cases:-
1) WP(C) No. 4896/2025 (Ajiran Nessa -Vs- The Union of of India & 4 Others); disposed of 03.09.2025;
2) WP(C) No. 1293/2020 (Sajiran Nessa -Vs- The Union of India & 5 others);
disposed of on 05.01.2021;
3) WP(C) No. 8361/2019 (Ijjat Ali -Vs- The Union of India & 5 Others); disposed of on 12.10.2020;
4) WP(C) No. 291/2024 (Baharul Islam -Vs- The Union of India & 6 Others);
Page No.# 5/15 disposed of on 23.02.2024;
5) Review Petition No. 55/2020 (Sri Ananda Das @ Ananda Rahi Das -Vs- The Union of India & 6 Others); disposed of on 01.02.2021;
6) Civil Appeal No. 5027 of 2024 (Mrinmay Maity -Vs- Chhanda Koley); disposed of on 18.04.2024.
9. Examined the materials available on record and given an anxious consideration to the submissions made by the learned counsel for the petitioner and for the respondents as well as considered the decisions cited at the Bar.
10. On the factual matrix which appears from paragraph-2 of the impugned opinion, it is seen that the notice issued to the petitioner was duly served and the report was returned on 26.07.2019. The proceeding was taken up on various dates between 30.07.2019 to 16.10.2019, i.e., on 13.08.2019, 23.08.2019, 27.08.2019, 19.09.2019, 24.09.2019, 03.10.2019, 16.10.2019. Out of these dates, the Government declared holiday on 23.08.2019 and there was a Vehicle Strike Call on 03.10.2019. Therefore, it is seen that despite being given due opportunity to the petitioner to contest the proceedings, after filing of the written statement on 02.09.2019, either the petitioner was intermittently absent or the engaged counsel for the petitioner had prayed for adjournment.
11. As per the guidelines provided for filing of written statement and evidence and disposal of cases, the Tribunal is required to follow the provisions as provided under the Foreigners' (Tribunals) Order, 1964. As per Order 3 (14) of the said 1964 Order, the proceeding is required to be disposed of within a time limit of 60 days from the reference being made.
12. The learned counsel for the petitioner has projected that for the purpose of assailing the impugned opinion by filing a writ petition before this Court, the petitioner was assisted by the neighbours of the village. In the said context, we take note of the Page No.# 6/15 statements made in paragraphs-8, 9 and 10 of the impugned judgment. The petitioner has deposed that her father has 2 (two) brothers. She herself has 7 (seven) brothers and 3 (three) sisters, including herself and she has a son and 3 (three) daughters. Under such circumstances, the Court is of the considered opinion that the projection that neighbours or other villagers are assisting the petitioner to come to this Court, is only a ground set out for the purpose of this case, as there is total absence of any statement why none of the family members support the petitioner to sustain her claim for being an Indian and not a foreigner.
13. In so far as the post being made in the social media, as the petitioner has not disclosed the names of the persons, who uploaded the comments in the social media and the name of the counsel who was engaged, it would be far-fetched for this Court to presume that there was an intentional delay by any advocate for not filing the writ petition. Moreover, the opinion was passed on 22.10.2019. The petitioner has not been able to demonstrate the reasons for continuous default of 6 (six) years in presenting the present writ petition. Although the learned counsel for the petitioner submitted has that in the meantime, COVID-19 pandemic had set in, but the period of extension of time for COVID-19 had expired long back, i.e., a 90-day period was granted from 01.03.2022. Therefore, the petitioner would not get the benefit of further extension of time for the COVID-19 pandemic that was prevailing and for which the Supreme Court of India has taken cognizance by excluding the period of COVID-19 pandemic period.
14. In respect of the case law cited by the learned counsel for the petitioner, it may be stated that in Rajendra Das (supra), in paragraph-9 thereof, the coordinate Bench of this Court had taken note of the fact that ex-parte matters cannot be interfered with, in a routine manner, nonetheless by accepting the stand that the petitioner in that case, the Court was of the concerned opinion that the ex-parte would have cascading effect on the other members of the family as the rest of the family were dependent on the petitioner No. 1 and accordingly, an opportunity was granted. However, it may be stated that when Page No.# 7/15 the said order was passed, perhaps the previous decisions of this Court in the case of Ijjat Ali (supra), decided on 12.10.2020 and the case of Sajiran Nessa (supra), decided on 05.01.2021, cited by the learned Standing Counsel for the FT matters were not brought to the notice of this Court.
15. It would be appropriate to refer to paragraph 13 to 15 of the case of Ayub Ali (Md.) & Ors. v. Union of India & Ors., 2016 (1) GLT 273, cited by the learned counsel for the FT and Border matters, which are extracted hereinbelow:-
"13. He further submits that section 9 of the F.T. Act 1946 requires that the duty of proving that a person is an Indian citizen is on the person who claims to be Indian citizen, and not, on the State. Unfortunately, despite granting several adjournments, the appellants herein failed to discharge their burden which law enjoins upon them. Being so, having passed the order declaring the appellants as foreigner, the Tribunal had committed no wrong whatsoever.
14. We have considered the rival submissions having regard to the judgment under challenge and the pleadings of the parties. For ready reference the relevant part of the judgment is reproduced below:-
"7. I have considered the submissions of the learned counsel for the parties and have perused the materials on record including the records of the Tribunal, which has been called for.
8. The petitioners herein belong to one family. The petitioner No. 1 is the husband of petitioner No. 2 and father of petitioner Nos. 3 and 4. It appears that there was a case registered against the petitioner Nos. 1 and 2 under the IMDT Act. Consequent upon the Page No.# 8/15 Hon'ble Supreme Court striking down the IMDT Act, 1983 and the Illegal Migrants (Determination by Tribunals) Rules, 1984, for short, IMDT Rules, 1994, as unconstitutional, in terms of the directions contained in the said judgment all pending cases stood transferred to the Tribunal constituted under the Foreigners (Tribunals) Order, 1964, for short, the Order of 1964 and are to be decided in the manner provided in the Foreigners Act, 1946, for short, the Act of 1946 and the Rules made there under and the procedure prescribed under Order of 1964.
9. The Tribunal has issued a notice dated 01.03.2007 to the petitioners indicating that the Superintendent of Police (Border), Morigaon had submitted a report that they are suspected to have illegally entered India after 25.03.1971 and are residing in India in the present address of the petitioners. By the said notice dated 01.03.2007, the petitioners were directed to submit written statement on 20.04.2007 failing which, it was indicated that the case would proceed ex-parte against them.
10. The petitioners appeared before the Tribunal and presented their written statement on 20.04.2007. Two witnesses were examined on behalf of the State. On 14.06.2001, case was posted for evidence of the petitioners. On 16.08.2011, on the ground of ailment, petition for adjournment was filed and accordingly, case was posted for evidence on 14.11.2011, after 3 months. On 14.11.2011, a petition was filed on behalf of the petitioners praying for adjournment on the grounds that they have Page No.# 9/15 not been able to collect their documents as well as due to sickness of the witnesses. On both the occasions, namely on 16.08.2011 and 14.11.2011, while granting adjournment, the Tribunal had noted that medical certificates were not produced. The Tribunal also noted in the order dated 14.11.2011 that the plea that they have not been able to collect the documents at that distance of time, could not be considered to be a reasonable ground for granting adjournment. Nevertheless, one more opportunity was granted to produce the documents by fixing the matter after more than 3 months on 23.02.2012. It was also recorded in the said order that if on the next date fixed, the witnesses were not ready with their documents, the Tribunal will dispose of the case in accordance with law.
11. Once again a petition was filed on 23.02.2012 praying for adjournment on the ground that though they had applied for voter list, they had not received the same. The Tribunal rejected the prayer for adjournment and in absence of any evidence on the side of the petitioners, proceeded to hold that petitioners to be illegal migrants entering India after 25.03.1971.
12. Section 9 of the Act of 1946 provides that if in any case not falling under Section 8 any question arises with reference to the Act or any order made or direction given there under, whether any person is or not a foreigner of a particular class or description, the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall notwithstanding anything contained in the Indian Evidence Act, Page No.# 10/15 1872, shall lie upon such person. A Full Bench of this Court in the case of State of Assam & Ors., Vs. Moslem Mondal & Ors., reported in 2013(1) GLT (FB) 809, had held that Section 9 of the Act of 1946 imposes a burden on the proceedee to prove that he is not a foreigner. It was further held that the State is not required to adduce evidence even in an ex-parte proceeding as the burden lies on the proceedee to prove to the satisfaction of the Tribunal that he is not a foreigner.
13. It is also relevant to note that in exercise of powers conferred by Section 3 of the Act of 1946, the Central Government had made certain amendments in the Order of 1964. Paragraph 3 of Order of 1964 is substituted and presently, paragraph 3(9) of the said order reads as follows:-
"After the case has been heard, the Tribunal shall submit its opinion as soon as thereafter as may be practicable, to the officer or the authorities specified in this behalf in the order of reference. Every case should be disposed of within a period of 60 days after the receipt of the reference from the competent authority."
14. Thus, in view of the above, every case should be disposed of within a period of 60 days from the date of receipt of the reference from the competent authority. However, this amendment was effected after the Tribunal had rendered the impugned judgment. But it goes without saying even in absence of a time frame, the reference were to be disposed of within a reasonable Page No.# 11/15 period of time having regard to the issue involved. The Full Bench in Moslem Mondal (supra) had also noted about this aspect of the matter and had observed that speedy trial is a fundamental right which is guaranteed under Article 21 of the Constitution of India and that while there can be no denying of the fact that in the name of detection and deportation of foreigners, India citizen should not be harassed, it is equally true that the reference proceeding must also be disposed of at the earliest so that foreigners can be deported from India immediately as otherwise it would be against notional interest.
15. That the petitioners did not adduce any evidence is not in dispute. The thrust of the argument of the learned counsel for the petitioners is that the petitioners have been denied reasonable opportunity to enable them to discharge the burden cast upon them by Section 9 of the Act of 1946 and one more opportunity should be granted to them.
16. Principles of natural justice cannot be put into a strait- jacket formula. It is more than three decades that the issue of influx of foreign nationals has been in public domain in the State of Assam. Process of determination of question of citizenship cannot be a one -way traffic, leaning only in favour of a person whose citizenship is doubted. Interest of the State is also of paramount importance in that unabated influx has the potential to affect the integrity and sovereignty of the country. Citizenship of a person, no doubt, is a very valuable right and should be zealously guarded.
Page No.# 12/15 However, if a person does not take steps for safeguarding his interest, he does so at his own peril. Right to a fair hearing or principles of natural justice cannot be permitted to lead to a farcical situation and to be an engine for defeating the very object of identification and deportation of foreigners. The petitioners had known about the allegations against them that they are foreigners entering India with any valid documents, at least from 2007, even ignoring the earlier part under the IMDT Act from 1997. The petitioners, all these years, apparently, did not take any step to defend their rights in the Court proceedings. In the circumstances, I am not inclined to grant any further opportunity to the petitioners as any such course of action, according to the perception to the Court, would be self-defeating."
15. On considering the matter in its entirety, we have found no infirmity in the judgment under challenge since it was found well evident that appellants had been granted sufficient opportunity to show that they are citizens of India but they fail to utilize all those opportunities."
16. We are inclined to follow the observations made by this Court in the said case of Ayub Ali (Md.) (supra). Granting of further opportunity to the petitioner in this case to contest the proceeding on assailing the opinion after five years would amount to give premium to the petitioner for such delayed challenge.
17. This Court, in the case of Jonali Das v. Union of India, 2018 (5) GLT 492:
(2018) 0 Supreme (Gau) 1186, has referred to the earlier decision of this Court in the case of Azmat Ali @ Amzad Ali v. Union of India & Ors . The same is quoted below:-
Page No.# 13/15 "9. In Azmat Ali @ Amzad Ali Vs. Union of India [WP(C) No. 4971/2018] disposed of on 01.08.2018, this Court had observed as follows:-
"It is more than three decades that the issue of influx of foreign nationals has been in public domain in the State of Assam and has engaged the attention of the people. Interest of the State is of paramount importance in that unabated influx has the potential to affect the integrity and sovereignty of the country. Citizenship of a person, no doubt, is a very valuable right and should be zealously guarded. There is no gain saying the fact that a person who is alleged to be a foreigner must be given due and reasonable opportunity to establish that he is a citizen of India. However, if a person does not take steps for safeguarding his interest, he does so at his own risk and peril as grant of opportunity cannot be an endless exercise. Right to a fair hearing or principles of natural justice cannot be permitted to lead to a farcical situation and to be an engine for defeating the very object of identification and deportation of foreigners."
18. The learned counsel for the petitioner, to overcome the issue of delay and laches has also cited the case of Urban Improvement Trust (supra). The Supreme Court of India, taking note of the inordinate delay of 21 years in filing a writ petition, considered the decision rendered in the case of Vidya Devi -Vs- State of Himachal Pradesh; reported in (2020) 2 SCC 569, by holding that delay and laches cannot be raised in a case of a continuing cause of action. In the said case, the land of the respondent before the Supreme Court of India had been acquired and considering that the Right of Property, protected under Article 300 (A) of the Constitution of India, the Supreme Court of India referred to 3 (three) instances of procedural irregularity of the non-service of the notice individually to the land owners. Possession was taken over by the State Page No.# 14/15 Government and handed over to the appellant, prior to deposit of compensation in contravention of the concerned Act and the payment of compensation was not made in terms with the guidelines stipulated under the said Act, and therefore, it was held that the land was acquired and they were dispossessed from the property without following the due process of law. Under such circumstances, the delay was not found to be fatal. In the present case in hand, the petitioner has not been able to demonstrate that there is a continuing cause of action. In this case, the cause of action arose on 22.10.2019, when the opinion was rendered. Therefore, the cases cited by the learned counsel for the petitioner, do not come to the aid of the petitioner.
19. In this case, the petitioner cannot demonstrate that she did not have knowledge of an ex-parte opinion being passed against her, as she was duly represented by her learned counsel. Moreover, we also take note of the fact that the application for certified copy of the impugned opinion was made on 14.02.2022 and the certified copy was handed over to the petitioner on 28.02.2022. Therefore, again there is a delay of more than 3 (three) years in approaching this Court.
20. Therefore, on the ground of delay and laches alone, this Court is disinclined to interfere with the impugned opinion.
21. In this case, the said opinion dated 22.10.2019, discloses that the reference case was registered as I.M. 17,376/98. Thereafter, the proceeding was transferred to the concerned Tribunal and the notices were issued only on 16.07.2019, which were duly served on the petitioner, and despite opportunity being granted, he did not adduce evidence on time.
22. Resultantly, on the ground of delay and laches alone, this writ petition stands dismissed. The consequences of the impugned opinion dated 22.10.2019, shall follow.
23. The Registry shall download a copy of this order and transmit the same to the learned Member, Foreigners' Tribunal (1st), Darrang, Mangaldai, who shall make it a Page No.# 15/15 part of the record of FT Case No. 740/07, corresponding to Reference Case No. I.M. 17,376/98.
JUDGE JUDGE Comparing Assistant