Gauhati High Court
Page No.# 1/12 vs The Union Of India And 5 Ors on 21 May, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/12
GAHC010078002025
2025:GAU-AS:6513-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2527/2025
GOPAL MANDAL
S/O- LATE MADAN CHANDRA MANDAL ALIAS MADAN MANDAL, R/O-
NO. 3 PANERI VILLAGE, P.O. PANERIHAT, P.S. PANERI, DIST. UDALGURI,
ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS,
GOVERNMENT OF INDIA, SHASTRI BHAWAN, NEW DELHI.
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HOME DEPARTMENT
DISPUR-06.
3:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY DISTRICT ELECTION OFFICER
UDALGURI
BTAD
ASSAM
4:THE SUPERINTENDENT OF POLICE (BORDER)
UDALGURI
BTAD
ASSAM
PIN- 784509.
5:THE DISTRICTCOMMISSIONER
UDALGURI
BTAD
Page No.# 2/12
ASSAM
6:THE STATE COORDINATOR
NATIONAL REGISTER OF CITIZENS ACHYUT PLAZA
BEHIND
HUB
BHANGAGARH
GUWAHATI
ASSAM-781005
Advocate for the Petitioner : MR P S RAJA, MR A B DUTTA,MR B BORA
Advocate for the Respondent : DY.S.G.I., SC, ECI,GA, ASSAM,SC, NRC,SC, F.T
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 21.05.2025 (K.R. Surana, J) Heard Mr. B. Bora, learned counsel for the petitioner. Also heard Ms. K.M. Phukan, learned CGC; Ms. M. Kalita, learned counsel on behalf of Ms. P. Barua learned standing counsel for the ECI; Ms. A. Verma, learned standing counsel for the FT matters; and Mr. P Sarma, learned Additional Senior Govt. Advocate for the State respondent.
2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned ex parte opinion dated 19.06.2018, passed by the learned Member, Foreigner's Tribunal, Udalguri BTAD, Assam in FT (DV) Case No. UDL/FT/2794/2015 (Ref. Memo No. UDL(B)/F.T/26/2012/1287 dated 21.12.2012), by which the petitioner was declared as a foreigner who entered into Assam/India on or after 25.03.1971 from Bangladesh.
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3. The notice of the proceeding was served upon the petitioner and accordingly, the petitioner had appeared before the learned Tribunal and filed his written statement on 06.12.2016. While denying the allegation that he was a foreigner, the petitioner claimed to be a citizen of India by birth. It was claimed that his father was Late Madan Ch. Mandal (father), whose name appeared in the voter list of 1971 and in the Legacy Data of the year 1971. It was claimed that his grandfather was Late Ganga Charan Mandal. It was claimed that Gouranga Ch. Mandal, grandfather of Gopal Mandal was certified as citizen of India under Section 5(1)(d) of the Citizenship Act, 1915 ( sic. should have been 1955). It was also stated that he has Gaonburah's certificate issued by Sri Karen Malla Bujar Baruah (Singha), 1/2/3/4 Panery Tea Estate under Udalguri, BTAD, Assam. Accordingly, it was prayed that by accepting the written statement, the case be disposed off by declaring the petitioner as an Indian citizen.
4. After a lapse of about 18 (eighteen) months, on failure of the petitioner to adduce any evidence, an ex parte opinion dated 19.06.2018, was rendered by the learned Tribunal against the petitioner, as referred hereinbefore.
5. To assail the said ex parte opinion dated 19.06.2018, the present writ petition has been filed on 08.04.2025. On 09.04.2025, the Stamp Reporter reported two defects. However, the defects were rectified on 08.05.2025.
6. By order dated 14.05.2025, the Court had directed that the learned counsel for the petitioner shall address the Court on the maintainability of the writ petition on the ground of delay and laches and accordingly, the matter has been listed today.
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7. Referring to the statement made in paragraph nos. 9 to 11 of the writ petition, it has been submitted that the petitioner is a poor person with limited resources and many times, he had failed to pay day-to-day legal proceeding and although his learned counsel offered him best legal assistance, but failed to represent him on all dates. It was stated that after filing written statement, his learned counsel had told the petitioner to go to Bangalore and he would take care of everything and accordingly, he had left for Bangalore. But, his learned counsel did not inform him about the dates fixed in the case and also did not take steps and thus, ex parte opinion was rendered by the learned Tribunal. It was also submitted that the petitioner has sufficient documents to show that he was not a foreigner, but an Indian and therefore, the Court would be pleased to grant one chance to the petitioner to adduce evidence by remading the matter back to the learned Tribunal.
8. The learned standing counsel for the FT matters has opposed the prayer and it has been submitted that the vague explanation by the petitioner was not sufficient to set aside the impugned ex parte opinion. In this regard, reliance is placed on the case of (i) Mrinmoy Maity v. Chhanda Koley, 2024 INSC 314 SC, (ii) Kodvanu v. Union of India, (2016) 4 GLR 182.
9. Para 9 to 13 of the case of Mrinmoy Maity (supra), are quoted below:-
9. Having heard rival contentions raised and on perusal of the facts obtained in the present case, we are of the considered view that writ petitioner ought to have been non-suited or in other words writ petition ought to have been dismissed on the ground of delay and laches itself. An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or laches is one of the factors which should be born in Page No.# 5/12 mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action.
10. The discretion to be exercised would be with care and caution. If the delay which has occasioned in approaching the writ court is explained which would appeal to the conscience of the court, in such circumstances it cannot be gainsaid by the contesting party that for all times to come the delay is not to be condoned.
There may be myriad circumstances which gives rise to the invoking of the extraordinary jurisdiction and it all depends on facts and circumstances of each case, same cannot be described in a straight jacket formula with mathematical precision. The ultimate discretion to be exercised by the writ court depends upon the facts that it has to travel or the terrain in which the facts have travelled.
11. For filing of a writ petition, there is no doubt that no fixed period of limitation is prescribed. However, when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death. In such circumstances on the ground of delay and laches alone, the appeal ought to be dismissed or the applicant ought to be non-suited. If it is found that the writ petitioner is guilty of delay and laches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and laches on the part of the applicant in approaching a writ court. This Court in the case of Tridip Kumar Dingal & others v. State of W.B and others., (2009) 1 SCC 768 has held to the following effect:
"56. We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches.
57. If the petitioner wants to invoke jurisdiction of a writ court, he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for Page No.# 6/12 refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime (vide State of M.P. v. Bhailal Bhai, AIR 1964 SC 1006: (1964) 6 SCR 261, Moon Mills Ltd. v. Industrial Court, AIR 1967 SC 1450 and Bhoop Singh v. Union of India, (1992) 3 SCC 136: (1992) 21 ATC 675: (1992) 2 SCR 969. This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi, (1969) 1 SCC 110, Durga Prashad v. Chief Controller of Imports & Exports, (1969) 1 SCC 185 and Rabindranath Bose v. Union of India, (1970) 1 SCC 84.
58. There is no upper limit and there is no lower limit as to when a person can approach a court. The question is one of discretion and has to be decided on the basis of facts before the court depending on and varying from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose."
12. It is apposite to take note of the dicta laid down by this Court in Karnataka Power Corporation Ltd. & another v. K. Thangappan and Anr., (2006) 4 SCC 322, whereunder it has been held that the High Court may refuse to exercise extraordinary jurisdiction if there is negligence or omissions on the part of the applicant to assert his right. It has been further held thereunder:
"6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports, (1969) 1 SCC 185: AIR 1970 SC 769. Of course, the discretion has to be exercised judicially and reasonably.
7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, (1874) 5 PC 221: 22 WR 492 (PC at p. 239), was approved by this Court in Moon Mills Ltd. v. M.R. Meher, AIR 1967 SC 1450 and Maharashtra SRTC v. Shri Balwant Regular Motor Service, (1969) 1 SCR 808: AIR 1969 SC 329. Sir Barnes had stated:
"Now, the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his Page No.# 7/12 conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy."
8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of the Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article 226. It was observed in Rabindranath Bose v. Union of India, (1970) 1 SCC 84: AIR 1970 SC 470, that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution-makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.
9. It was stated in State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566:
AIR 1987 SC 251, that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction."
13. Reiterating the aspect of delay and laches would disentitle the discretionary Page No.# 8/12 relief being granted, this Court in the case of Chennai Metropolitan Water Supply & Sewerage Board and others v. T.T. Murali Babu, (2014) 4 SCC 108 has held:
"16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant -- a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis."
10. It would be apposite to refer to paragraph nos. 7 to 11 of the case of Kodvanu (supra), which are quoted below:-
7. We have gone through the judgment so rendered by the learned Tribunal passed in F.T. Case No. 58/G/06 and it reflects that the learned Tribunal has given enough time to the appellant to file written statement and thereafter the appellant filed the written statement only when last chance was given to file the same. It is also to be noted that after filing of written statement, the appellant failed to adduce evidence even after giving last chance for adducing evidence since 10.3.2009 to 22.10.2009, for which ultimately the learned Tribunal passed the impugned order. No any infirmity is found in the order of the learned Tribunal and the learned Single Judge has also appreciated each and every material aspect on record as has been indicated above. The appellant himself failed to assign any convincing reason as to why she remained absent in the subsequent course of proceeding while she was very much aware about the pendency of the proceeding and the consequence of non-appearance. Further, the appellant simply cannot avoid her responsibility blaming her conducting lawyer. Unless contrary is proved, it cannot be accepted that the conducting lawyer will not provide necessary instruction to his client, in a proceeding of such serious nature. It is also hard to accept as to why such persons, whose nationality has been questioned before a legal Forum can remain idle without pursuing its own case. Necessary implication of such aspect may indicate that the appellant had no necessary document to Page No.# 9/12 prove her case for which even after giving ample opportunity for adducing evidence, she failed to adduce the same.
8. Though the appellant herein try to defend herself by blaming her engaged counsel but she failed to fortify her own conduct, as to what restrained her to make her counsel or to enquire about her case after filing written statement. Such a conduct of the appellant is not at all acceptable.
9. The learned Single Judge has appreciated also the merit of the case and has held that the petitioner filed only two photocopies of document, one is certificate of Gaonburah (about marriage of the petitioner) and second one is the photocopy of voter list of 1966 (not legible), which is also not admissible in evidence. Having regard to the contentions raised by the learned counsel for the appellant that for the error committed by the engaged counsel for the appellant for giving no proper instruction to the appellant resulting for her non-appearance before the Tribunal, cannot be a ground to be interfered by way of appeal.
10. In Sarbananda Sonowal v. Union of India reported in (2005) 5 SCC 665, the Hon'ble Apex Court dealing with the modality of proving one citizenship, it has been emphasised that the burden of proof is always on the proceed as per provisions of Section 9 of the Foreigner's Act, 1946. Merely by producing some photocopies, one cannot establish his/her 'Indian Citizenship'. The power of proviso 2 in exercising judicial review under Article 226 of the Constitution of India cannot sit on appeal over the findings of facts recorded by the Court/Tribunal. It is only when the Court/Tribunal exercise a jurisdiction without being empowered or in excess of it or fails to exercise the vested jurisdiction or acts illegally, the Writ Court can exercise its jurisdiction to interfere in such matter. The power of judicial review is limited only to correction of errors apparent on the face of records and does not need long drawn out process of reasons on points whether there may be conceivably two views.
11. As per the direction rendered, it is seen that in the present case, the appellant failed to make out any exceptional and special circumstances so as to interfere into the ex-parte order so passed by the learned Tribunal for which such order has been upheld by the learned Single Judge.
11. In this case, the petitioner has not stated about his conduct during trial, as to whether he was in constant touch with his learned advocate. It is not the pleaded case of the petitioner that though he was in constant touch with his learned counsel, he was given misleading or false information. Rather, in paragraph 9 of the writ petition, the specific statement of the petitioner is Page No.# 10/12 that - "... And as a result thereof the learned Foreigners Tribunal, Udalguri, BTAD, Assam decided to proceed ex-parte and declared the petitioner as foreigner vide final order dated 19-06-2018 passed in FT(DV) Case No. UDL/FT/2794/2015. The petitioner came to know about the final order and opinion dated 19-06-2018 when police visited his village house ." However, the petitioner has concealed (i) the date when he had last contacted his learned counsel, and (ii) the date when the police had visited his house.
12. Moreover, in order to prevent the Court from knowing the truth regarding number of adjournments availed by the petitioner during the proceedings before the learned Foreigners Tribunal, the petitioner has not annexed the certified copy of order-sheet of the learned Tribunal.
13. The certified copy of the impugned ex parte opinion was obtained on 14.11.2024. However, the present writ petition was filed with defect on 08.04.2025, however, without any explanation why the petitioner waited for 5 (five) months after receiving certified copy of the opinion to file this writ petition.
14. Moreover, it is noticed that after granting a lot of chance for about 18 months from the date of filing of the written statement, the learned Tribunal had decided the reference ex parte.
15. As per the mandate of paragraph 3(14) of the Foreigners (Tribunals) Order, 1964, the Tribunal is required to answer the reference within two months. The timelines for filing written statement and evidence is also provided under paragraph no.3(8) thereof. Therefore, giving reasonable time to the petitioner to adduce evidence cannot be allowed to mean granting endless adjournment to the petitioner, whose Indian citizenship is doubted. Therefore, Page No.# 11/12 this is a case where adverse presumption can be drawn under Section 114, Illustration (g) of the Evidence Act, 1872 is that evidence, which could be and is not produced would, if produced, would be unfavourable to the person who withholds it.
16. Therefore, at every stage the petitioner has caused undue delay and is therefore, guilty of delay and laches. There is unexplained delay and laches in (a) maintaining regular contact with his learned counsel; (b) in adducing evidence; (c) in collecting date of his proceeding; (d) filing of this writ petition on 08.04.2025, when he had obtained the certified copy of the opinion on 14.11.2024. Rather, the petitioner had exhibited his casual approach at all stages, thus contributing to the delay in disposal of the reference made before the learned Tribunal.
17. This Court is examining the impugned ex parte opinion in exercise of certiorari jurisdiction and thus, this Court is not sitting in appeal over the impugned opinion. In this case, there is no explanation why the petitioner did not adduce his evidence within a reasonable time after his written statement was filed on 06.12.2016.
18. Hence, this writ petition fails on the ground of unexplained delay and laches in assailing the opinion dated 19.06.2018, by filing this writ petition on 08.04.2025, i.e. after nearly 8 (eight) years 4 (four) months. Resultantly, this writ petition stands dismissed at the motion stage, without issuing any notice upon the respondents.
19. The Registry shall transmit a downloaded copy of this order to the learned Member, Foreigners Tribunal, Udalguri, BTAD, Assam to make it a part of record of FT (DV) Case No. UDL/FT/2794/2015 (Ref. Memo No. Page No.# 12/12 UDL(B)/F.T/26/2012/1287 dated 21.12.2012).
20. The parties are left to bear their own cost.
JUDGE JUDGE Comparing Assistant