Gauhati High Court
Abdul Rahim Alias Md Rahim Sheikh vs The Union Of India And 6 Ors on 19 December, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/33
GAHC010275872025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/4169/2025
ABDUL RAHIM ALIAS MD RAHIM SHEIKH
S/O LATE BAJU SHEIKH, R.O. VILL DIGHALI ATI, CHAPARMUKH, P.S.
RAHA, P.S. DIGHALI ATI, DIST NAGAON, ASSAM, PIN 782446
VERSUS
THE UNION OF INDIA AND 6 ORS
REPRESENTED BY THE SECRETARY OF MINISTRY OF HOME AFFAIRS,
GOVT OF INDIA, NEW DELHI 1
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT
OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI 6
3:THE ELECTION COMMISSIONER OF INDIA
NEW DELHI 01
4:THE COORDINATOR OF NRC
ASSAM
GUWAHATI
BHANGAGARH
GUWAHATI 05
5:THE DEPUTY COMMISSIONER
NAGAON
PO AND PS NAGAON
DIST NAGAON
ASSAM
PIN 782001
Page No.# 2/33
6:THE SUPERINTENDENT OF POLICE (BORDER)
NAGAON
PO AND DIST NAGAON
ASSAM
PIN 782001
7:THE OFFICER IN CHARGE
RAHA POLICE STATION
NAGAON
ASSAM
PIN 7824
Advocate for the Petitioner : MR. A R SIKDAR, MR. S I TALUKDAR,MR. M H TALUKDAR
Advocate for the Respondent : DY.S.G.I., GA, ASSAM,SC, NRC,SC, F.T,SC, ECI
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SHAMIMA JAHAN
ORDER
19.12.2025 (K.R. Surana, J) Heard Mr. M.H. Talukdar, learned counsel for the applicant. Also heard Mr. A.I. Ali, learned standing counsel for the ECI, Mr. G. Sarma, learned standing counsel for the NRC, Mr. J. Payeng, learned standing counsel for the FT and Border Matters, and Mr. P. Sarma, learned Addl. Senior Govt. Advocate.
2. By filing this Interlocutory application, the applicant who is the applicant in the connected unregistered Review Petition, has prayed for condoning the delay of 1850 days beyond the period of limitation in filing the said review petition.
3. It appears that there is a mistake in calculating the delay, which ought to have been 2567 days or 7 years, 10 days. It may be stated that the Page No.# 3/33 Supreme Court of India by its orders had extended the period of limitation due to Covid-19 pandemic from 25.03.2020 till 01.03.2022. However, the said period was never excluded for the purpose of calculating the delay. In this case, the instant application has been filed on 10.12.2025, more than 3 years, 9 months after the Covid-19 pandemic period, the period for which limitation was extended cannot be excluded from calculation of delay. Therefore, from 31.10.2018 till 12.10.2025, the delay is of 2567 days. By excluding 30 days' time available to file review, the resultant delay would be 2567 days or 7 years, 10 days.
4. The connected unregistered Review Petition has been filed on 10.12.2025, under Chapter-X of the Gauhati High Court Rules read with Section 114 and Order XLVII, Rule 1 of the Civil Procedure Code, for review of the order dated 31.10.2018, passed by this Court in W.P.(C) No. 7436/2018.
The backdrop facts in this case:
5. The backdrop facts in this case is that upon receipt of notice, the applicant had appeared before the Foreigners Tribunal (6 th), Nagaon in connection with the proceedings registered and numbered as NFT (6 th) 294/2016 [in Ref. Case No.D-2804/98]. But, the applicant had remained willfully and/or negligently absent without taking any steps since 20.04.2017.
Accordingly, the learned Tribunal gave an ex parte opinion to the effect that the applicant has illegally entered into India after 25.03.1971 and is a foreigner.
6. Thereafter, the applicant had filed an application under Order IX Rule 13 CPC, which was registered as Misc. Case No. NFT(6 th) - 10/2007, wherein prayer was made for vacating the learned Tribunal's ex parte opinion Page No.# 4/33 dated 07.06.2013. Along with the said application, the applicant had filed a separate application under Section 5 of the Limitation Act, 1963 for condoning the delay of 130 days in filing the Misc. Case.
7. In support of the said Misc. Case, the applicant had filed a medical certificate dated 19.04.2017, which had the signature of Medical & Health Officer-I of B.P. Civil Hospital, Nagaon to support the plea that the applicant was ill for which he could not appear in the proceeding before the learned Tribunal.
8. In connection with Misc. Case No.NFT(6 th)- 10/2017, the applicant had deposed before the learned Tribunal as PW-1 and had produced the hereinbefore referred medical certificate. The applicant had also examined one Suraj Ali @ Surat Ali, who had projected himself as the younger brother of the applicant, who had deposed as PW-2 and he had supported the projection of the applicant that the applicant had sustained head injury and suffered nerve problem for which the applicant could not appear in MFT(6 th) 294/2016. However, the PW-1 and PW-2, in course of their cross-examination, could not disclose the name of the doctor. Therefore, the learned Tribunal had called for a report from the Superintendent, B.P. Civil Hospital, Nagaon, Assam regarding the said medical report dated 19.04.2017. In the report dated 05.07.2018, submitted by the Superintendent, B.P. Civil Hospital, Nagaon, it was stated that there was no Medical & Health Officer-I, with signature purportedly shown in the certificate.
9. It may also be stated that the applicant had also examined one Khirod Hazarika, the Gaonburah of Digholi Aati village as DW-3, who had supported that the applicant was a permanent resident of his village and the Page No.# 5/33 name of the applicant's father appeared in the Voter list of 1965.
10. Thereafter, by order dated 27.07.2018, passed by the learned Tribunal in Misc. Case No. NFT(6th) - 10/2007, it was held the Medical certificate dated 19.04.2017, produced by the applicant to be not genuine. Resultantly, the learned Foreigners Tribunal had declined to set aside the ex parte opinion dated 07.06.2017 and the Misc. Case for setting aside the ex parte opinion dated 07.06.2017, was dismissed.
11. In order to assail the hereinbefore referred (i) the opinion dated 07.06.2017, passed in MFT(6th) 294/2016, and (ii) order dated 27.07.2018, dismissing Misc. Case No. NFT( 6th)- 10/2017, the applicant had filed a writ petition before this Court, which was registered and numbered as W.P.(C) 7436/2014. This Court had meticulously examined the materials in the writ petition and note of the fact that the applicant had taken shelter of fraud. Accordingly, this Court in the impugned order dated 31.10.2018, for reasons recorded, held that the applicant had failed to substantiate the reasons for his absence in the proceeding by sufficient cause/ causes and it was further held that the applicant had taken shelter of fraud to establish sufficient cause for remaining absent in the Tribunal. Accordingly, this Court on consideration that the learned Tribunal, while passing the impugned order took note of the deposition of witnesses and the applicant and came to a conclusion that the applicant could not submit sufficient proof for citizenship status as Indian by submitting documentary evidence or by producing reliable witness. Under such circumstances, on the ground that fraud vitiates everything, it was held that it was difficult to hold that there was any error on the face of the impugned order so as to invoke the certiorari jurisdiction under Article 226 of the Constitution of Page No.# 6/33 India. Resultantly the writ petition was dismissed.
12. The connected review petition has been filed against the said order dated 31.10.2018, thereby dismissing the said W.P.(C) No. 7436/2014.
Submissions by the learned counsel for the applicant:
13. The learned counsel for the applicant, by referring to the order dated 06.10.2025, passed by the Supreme Court of India in Special Leave Petition (Civil) Diary No(s). 54571/2025, has submitted that the Supreme Court of India has passed the following order:
"1. We have heard learned senior counsel for the petitioner.
2. Since some of the documents now relied upon before us were seemingly not part of the record before the High Court, and as prayed for on behalf of the petitioner, the instant petition is dismissed as withdrawn at this stage with liberty to the petitioner to file a review petition before the High Court along with the documents now sought to be relied."
14. Accordingly, it has been submitted that as the Supreme Court of India had granted leave to the applicant to file a review petition before the High Court, therefore, the delay be condoned and the connected review petition be heard on merit.
15. The learned counsel for the applicant has submitted that in this case, the applicant has taken a plea that as he was released from custody pursuant to orders passed from the Supreme Court of India during Covid-19 pandemic, the applicant was under the impression that he would never be taken into custody again. Therefore, it is only after he was taken into custody that the applicant collected the necessary documents and it was found that the Local Verification Officer's Report (Annexure-A to the reference), Electoral Registration Officer's Report (Annexure-B to the reference) and Form- VII was not properly Page No.# 7/33 filled up. Accordingly, it has been submitted that the applicant was not served with the grounds for suspecting him to be a foreigner and therefore, the applicant should be heard on merit.
Submissions by the learned standing counsel for the FT and Border matters and for the NRC:
16. Per contra, the learned standing counsel for the FT and Border matters and the learned standing counsel for the NRC have made their respective submissions to oppose their prayer made in this interlocutory application for condoning the delay.
17. It has been submitted that in this case the reference had been registered because the Electoral Registration Officer had doubted the citizenship of the applicant during intensive revision of electoral rolls for No. 82 Roha (SC) Legislative Assembly Constituency, as ordered by the Election Commission of India. Accordingly, the format for reference dated 31.10.1997 was forwarded to the Superintendent of Police (Border), Nagaon, who was the competent authority under the Foreigners Act and erstwhile Illegal Migrants (Determination by Tribunals), Act, 1983 and Rules made thereunder. Accordingly, the Local Verification Officer (LVO for short), who was assigned the duty of making a report, having not been provided any document or information by the applicant, had mentioned at the end of the report his comment- "no document." Hence, the reference was forwarded to the Foreigners Tribunal. It has been submitted that the reference was originally made by the Superintendent of Police (Border) as Reference Case No. D- 2804/98, where 'D' stands for 'doubtful voter'. In this regard the learned standing counsel for the Border and FT matters and the learned standing counsel for the NRC have both cited the case of Shukurjan Page No.# 8/33 Nessa @ Sukurjan v Union of India & Ors., W.P.(C) 245/2019, decided on 28.02.2025, where the said aspect of the matter has been clarified. The relevant part of the order, on which reliance has been placed, are extracted hereinbelow:-
14. The point raised by the learned counsel for the petitioner that the reference was blank and not properly filled up and therefore, the grounds of suspecting the petitioner to be a foreigner has not been furnished to her is taken up first.
15. In this case, the reference was made by the Superintendent of Police (Border), Barpeta, on receipt of communication dated 16.03.1998, issued by the Electoral Registration Officer, 44 No. Jania L.A.C., which is accompanied with a three page Local Verification Report (Annexure-A) by one Sri Khagen Kalita, J.E. In the said LVO Report dated 17.10.1997, it has been mentioned at two places to the effect that no documents produced during field verification.
16. Therefore, this is not a case where any enquiry was made under the provisions of Foreigners Act, 1946 or Rules framed thereunder, where investigation is done under the authority of the Superintendent of Police (Border). The jurisdictional Superintendent of Police (Border) is the prescribed authority to make reference before the Illegal Migrants (Determination) Tribunal constituted under the erstwhile Illegal Migrants (Determination by Tribunals) Act, 1983 and Rules framed thereunder.
17. There is an important facet, which is contained in the judgment and order of this Court in the case of Sayam Uddin (supra), which must be referred to. We are in respectful agreement with the said judgment and therefore, paragraphs 11 to 22 thereof are quoted below:-
11. In the year 1997, Election Commission of India had undertaken an intensive revision of electoral rolls in the State of Assam as apprehensions were expressed from various quarters that the electoral rolls were infested with the names of foreigners/illegal migrants. In the course of this exercise citizenship status of as many as 3,13,046 persons whose names were in the draft voters lists were found to be doubtful and accordingly they were marked as doubtful "D" voters in the electoral rolls after local verification.
12. Legality of this exercise was challenged before this Court in HRA Choudhury Vs Election Commission of India, reported in 2002 (1) GLT 1. The challenge made was rejected by a Division Bench of this Court. In HRA Choudhury (supra) this Court examined the guidelines dated 17.07.1997 of the Election Commission of India laying down the procedure to carry out the exercise.
Page No.# 9/33 12.1. As per paragraph 3.8 of the guidelines the Electoral Registration Officer was required to consider the verification report received from the Local Verification Officer. If he was satisfied on such report and such other material/information as may be available about the eligibility of a person, he should allow his name to continue on the electoral roll. Where, however, he was not so satisfied and had reasonable doubt about the citizenship of any person, he was required to refer such doubtful cases to the competent authority under the then Illegal Migrants (Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946 as the case may be. For convenience of the Electoral Registration Officers, Election Commission devised proformas.
12.2. As per paragraph 3.9, after the case of a person was referred by the Electoral Registration Officer to the competent authority, he should wait for the decision of the relevant Tribunal in relation to that person and act according to such decision.
12.3. As per paragraph 3.10, where the relevant Tribunal decided that any such person was not a citizen of India, Electoral Registration Officer should proceed under Rule 21 A of the Registration of Electors Rolls, 1960 to have the name of such person deleted from the electoral roll before it was finally published.
12.4. This Court in HRA Choudhury (supra) held that such guidelines and decision of the Election Commission were in accordance with Article 324 of the Constitution of India besides conforming to the principles of natural justice. It was held that such guidelines cannot be held to be arbitrary or vitiated by mala fide or partiality.
13. At this stage, it may be mentioned that the Illegal Migrants (Determination by Tribunals) Act, 1983 is no longer in existence, the same having been declared unconstitutional by the Supreme Court in Sarbananda Sonowal Vs Union of India reported in (2005) 5 SCC 665. Therefore, in so far paragraph 3.8 of the guidelines dated 17.07.1997 is concerned, the reference would be under the Foreigners Act, 1946.
14. The above exercise was repeated in the year 2005 with the Election Commission of India again going for intensive revision of electoral rolls in the State of Assam taking 01.01.2005 as the qualifying date. In this connection, guidelines dated 17.06.2004 were issued by the Election Commission of India. Paragraph 2.2 of the guidelines dealt with "D" voters. It was mentioned that the guidelines issued in 1997 would be followed while dealing with such category of persons. Paragraph 8 dealt with verification by Electoral Page No.# 10/33 Registration Officers. It laid down the procedure while carrying out such verification including verification by Local Verification Officer. As per paragraph 8.6, Local Verification Officer would conduct the verification by making an on the spot visit and the person concerned could adduce any one or more of the documents mentioned therein in support of his claim as a citizen of India. After due verification, the Local Verification Officer was required to submit his report in the prescribed format. Under paragraph 8.8, Electoral Registration Officer on receipt of the verification report from the Local Verification Officer should consider the same. Where he was satisfied about the eligibility of a person, he should allow the name of such person to continue on the electoral roll but where he was not so satisfied and had reasonable doubt about the citizenship of any person he should refer such doubtful cases to the competent authority under the then Illegal Migrants (Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946 in a prepared format (Annexure-B to the guidelines dated 17.06.2004) to the competent authority for making reference to the Tribunal and await the decision of such Tribunal.
15. As pointed out by Mr. Barua, in Mameja Khatun (supra) a Single Bench of this Court directed that "D" voters should not be allowed to cast their votes with the clarification that "D" voters would include persons whose names were included in the electoral rolls but their citizenship was doubted or disputed and also those whose cases were pending before the Foreigners Tribunals. This decision of the learned Single Bench was confirmed by the Division Bench in Writ Appeal No. 114/2011 (State Vs Mameja Khatun). By the judgment and order dated 13.10.2015, the Division Bench directed Election Commission of India and other authorities to implement the directions of the Single Bench in letter and spirit.
16. At this stage, it may also be mentioned that in WP(C) No. 274/2009 filed by Assam Public Works which is pending before the Supreme Court of India wherein NRC updation exercise in the State of Assam is being monitored by the Supreme Court of India, on 25.10.2013, Supreme Court clarified that as far as persons in the "D" list are concerned, undoubtedly they were doubtful voters and therefore their names could not be included unless the NRC is updated and unless the Foreigners Tribunals declared them to be Indian citizens.
17. The Foreigners Act, 1946 is an act to confer upon the Central Government certain powers in respect of foreigners. This Act provides for the exercise of certain powers by the Central Government in respect of the entry of foreigners into India; their presence in India and their departure therefrom. Section 2 (a) defines a "foreigner" to mean a person who is not a Page No.# 11/33 citizen of India. Section 3 confers power to the Central Government to make orders making provision either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigners, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or their continued presence therein.
17.1. In exercise of the powers conferred by Section 3 of the Foreigners Act, 1946, Central Government made the Foreigners (Tribunals) Order, 1964. As per order 2 (1), the Central Government may by order refer the question as to whether a person is or is not a foreigner within the meaning of the Foreigners Act, 1946 to a Tribunal to be constituted for the purpose for its opinion.
18. Ministry of Home Affairs, Govt. of India had issued notification dated 19.04.1958 in exercise of powers conferred by Clause-(1) of Article 258 of the Constitution of India whereby the President with the consent of the State Government concerned entrusted to the Governments of each of the States mentioned therein including the State of Assam the functions of the Central Government in making orders of the nature specified in Section 3 of the Foreigners Act, 1946. Another notification dated 17.02.1976 was issued by the Government of India, Ministry of Home Affairs in the exercise of the powers conferred by Article 258 (1) of the Constitution entrusting the Superintendents of Police and Deputy Commissioners (In-charge of Police) under the Government of Assam the functions of the Central Government in making orders of the nature specified in Section 3 of the Foreigners Act, 1946 within their respective jurisdictions subject to the conditions mentioned therein which included the condition that exercise of such functions would be in respect of nationals of Bangladesh and that while exercising such functions, Superintendents of Police and Deputy Commissioners (In-charge of Police) shall comply with such general or special directions as the Government of Assam or the Central Government may issue from time to time.
19. Article 258 of the Constitution deals with power of the Union to confer powers etc on States in certain cases. Clause (1) of Article 258 starts with a non-obstante clause. It says that notwithstanding anything in the Constitution, President may with the consent of the Government of a State entrust either conditionally or unconditionally to that Government or to its officers, functions in relation to any matter to which the executive power of the Union extends. Clause (3) provides for making of payment by the Government of India to the State concerned such sum as may be agreed upon or in default of agreement through arbitration in respect of any extra-
Page No.# 12/33 cost of administration incurred by the State in connection with the exercise of powers and duties of the Government of India conferred or imposed upon a State Government.
20. Thus, under the Central Government notifications dated 19.04.1958 and 17.02.1976, Government of Assam, Superintendents of Police and Deputy Commissioners (In-charge of Police) have been delegated the power to make reference to the Foreigners Tribunal under order 2 (1) of the Foreigners (Tribunals) Order, 1964 to seek opinion as to whether the proceedee is a foreigner or not within the meaning of the Foreigners Act, 1946.
21. Thus from the above, what transpires is that there are two categories of "D" voters:- (i). those who were marked as "D" voters in the electoral roll by the Electoral Registration Officer following enquiry by Local Verification Officer; and (ii). those whose references are pending before the Foreigners Tribunals.
22. In so far Electoral Registration Officer is concerned the exercise undertaken by him while marking a person as a "D" voter in the electoral roll is a quasi judicial exercise. If he holds the view after examining the enquiry report of the Local Verification Officer that the concerned person is not a citizen of India he is required to forward the case of that person to the competent authority i.e., the Superintendent of Police. If it is so forwarded by the Electoral Registration Officer, the jurisdictional Superintendent of Police has to make a reference to the competent Foreigners Tribunals under order 2(1) of the Foreigners (Tribunals) Order, 1964 based on the report received from the Electoral Registration Officer. Question of making further enquiry by the Superintendent of Police in such a case would not arise because enquiry has already been made by the Electoral Registration Officer by exercising quasi judicial powers and the Superintendent of Police cannot sit over such decision of the Electoral Registration Officer. He has to forward the same by making the reference to the competent Foreigners Tribunal for its opinion.
17. The said judgment by the learned Single Judge has stood affirmed by the virtue of judgment and order dated 29.07.2019, passed by the Division Bench of this Court in the case of Sayam Uddin v. The Union of India & Ors., W.A. 170/2019.
18. The learned counsel for the petitioner had cited the case of Moslem Mondal (supra) and Amina Khatun (supra) to support his contention that if LVO report is blank, the reference is vitiated. In this regard, it would be relevant to mention that as per the contents of para-10 of the case of Moslem Mondal (supra), the Superintendent of Police, Barpeta, suspecting the respondent therein as illegal migrant within the meaning of the Illegal Migrants (Determination by Tribunals) Act, 1983, made a reference under Section 8 (1) of the said Act read with Rule 9 (A) of the Rules framed thereunder and accordingly, Case No. 1311/2003 was Page No.# 13/33 registered before the IM(D)T, Barpeta and the said proceeding was subsequently transferred to the Foreigners Tribunal and registered as F.T. Case No. 243/2006. Therefore, in the said case, reference was not made by Electoral Registration Officer (EVO for short). Hence, the decision of Moslem Mondal (supra), being distinguishable on facts, is not found to help the petitioner in any manner.
19. However, in the case of Amina Khatun (supra), which was decided on 28.04.2022, the reference was made by the Superintendent of Police (Border), based on LVO by the ERO. But when the said writ petition was being heard and decided by a Coordinate Bench, it appears that the previous decision of the learned Single Judge of this Court in the case of Sayam Uddin v. The Union of India & Ors., 2019 (4) GLT 456, as affirmed by the Division Bench of this Court in the case of Sayam Uddin v. Union of India & Ors., W.A. 170/2019, decided on 29.07.2019, were not brought to the notice of this Court. Therefore, under such circumstances, the Court is of the considered opinion that under the well settled principles of stare decisis, the decision in the case of Amina Khatun (supra) would be per incurium. Accordingly, the decision rendered in the case of Amina Khatun (supra) will also not be of any help to the petitioner.
20. In the present case, the proceedings which were hitherto pending before the Illegal Migrants (Determination) Tribunals were transferred by the Supreme Court of India to the Foreigners Tribunal vide directions issued in the case of Sarbananda Sonowal (supra). The said fact has been stated in para-1 of the impugned opinion. Hence, this Court would refrain from making any observations on the LVO Report in this case because the Foreigners Tribunals would have no power or jurisdiction to remand the reference back to the Superintendent of Police (Border) for a fresh enquiry by the LVO/ERO.
21. Therefore, the challenge to the proceeding before the learned Foreigners Tribunal on the ground that certain paragraphs and/or columns of the Local Verification Officer's (LVO) Report, as forwarded by the Electoral Registration Officer (ERO) were left blank, is held to be not maintainable on facts and in law morefully referred to hereinbefore. The point of determination no. (i) is answered accordingly."
18. It has been submitted that in this case, the "format for making reference to the competent authority" was made on 31.10.1997. The Superintendent of Police (Border), Nagaon, had made the reference to the erstwhile Illegal Migrants (Determination) Tribunal, Nagaon on 20.08.1998. The Supreme Court of India, in the case of Sarbananda Sonowal (supra), had transferred all the reference pending before the erstwhile Illegal Migrants Page No.# 14/33 (Determination) Tribunal, Nagaon, were transferred to the Foreigners Tribunal having jurisdiction. Therefore, as observed by this Court in the case of Shukurjan Nessa @ Sukurjan (supra) , this Court would exercise restraint on making any comment on the form by which reference has been made because the Supreme Court of India had transferred the proceedings pending before the erstwhile Illegal Migrants (Determination) Tribunal, Nagaon, were transferred to the Foreigners Tribunal having jurisdiction.
Reasons and decision:
19. Having heard the learned counsel for both sides, perused the statements made in this Interlocutory application and as the learned counsel for the applicant has insisted that the records of the reference, which includes Local Verification Officer's Report (Annexure-A to the reference), Electoral Registration Officer's Report (Annexure-B to the reference) and Forms VII be examined, the Court has reluctantly perused the same, only to find that the issue raised regarding those reports as already covered by the decision of this Court in case of Shukurjan Nessa @ Sukurjan (supra).
20. Be that as it may, the learned counsel for the applicant has stated that the new documents on which reliance has been placed are the Local Verification Officer's Report (Annexure-A to the reference), Electoral Registration Officer's Report (Annexure-B to the reference) and Forms VII. These documents were part of the record of the reference that was originally made before the Illegal Migrants (Determination) Tribunal, Nagaon, which had been transferred to the Foreigners Tribunal, Nagaon. From the photocopy of the said three documents annexed to this writ petition as Annexure nos. 22, 23 and 24, it is seen that the "certified to be true copies" were issued by the UDA-Cum-
Page No.# 15/33 Accountant of the learned Foreigners Tribunal on 10.04.2019. Therefore, those three documents were not only available in the record of the Foreigners Tribunal, Nagaon, when the applicant had first entered appearance before the said learned Tribunal, but the applicant had obtained copies of the said documents way back on 10.04.2019. The seal of the Tribunal is available at the both of the last page of Annexure-22 and Annexure-23 and bottom of Annexure-24 is a testimony to the same. Therefore, the Court is constrained to hold that the applicant has taken a false plea before this Court by falsely projecting that the applicant has come to know about those documents recently.
21. Therefore, before the learned Foreigners Tribunal, the applicant took recourse to fraud by producing forged medical certificate. Moreover, before this Court, the applicant has made a false statement, knowing it to be false by projecting that he has come across new documents, whereas as per office endorsement made by the UDA-cum- Accountant, Foreigners Tribunal Nagaon No.6th, the certified to be true copies of (i) "Format for verification officer's report (Annexure-22 to writ petition); (ii) format for making reference to the competent authority (Annexure-23 to writ petition); and (iii) Form VII dated 20.08.1998 (Annexure-24 to writ petition) were prepared on 10.04.2019, i.e. within 6 (six) months of the order dated 31.10.2018, by which W.P.(C) 7436/2018 was dismissed. Thus, the applicant had been holding those documents since last 7 (seven) years.
22. Hence, it was due to sheer negligence and willful abstinence on part of the applicant to examine the records of the learned Foreigners Tribunal that those documents remained unnoticed by the applicant. Moreover, when the application for setting aside the ex parte opinion was made by registration of Page No.# 16/33 Misc. Case No. NFT (6th)-10/2017, decided on 27.08.2018, those documents were available in the records of FT Case No.294/2016.
23. Therefore, the Court is of the considered opinion that this is not a case where the new documents on which the applicant seeks to rely on where not known to the applicant despite exercise of due diligence.
24. Be that as it may, in this interlocutory application, the applicant has failed to show sufficient cause to explain the day-to-day delay in filing the connected review petition.
25. In the said context of, it may be stated that this Court, in the case of Ajbahar Ali v. Union of India, (2025) 0 Supreme (Gau) 763 , had held to the effect that the plea of compliance of the 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. Similar opinion has also been expressed by this Court in the case of Abu Bokkor Siddique v. Union of India, 2019 (1) GLT 813.
26. The Supreme Court of India, in the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665 , in paragraph 73, has held to the effect that the procedure under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 is just, fair and reasonable and does not offend any constitutional provision. In paragraph 63, the Supreme Court of India had observed that there can be no manner of doubt that the State of Assam is facing external aggression and internal disturbance on account of large-scale illegal migration of Bangladeshi nationals and that it, therefore, becomes the duty of the Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Page No.# 17/33 Article 355 of the Constitution of India. In paragraph 70, it was observed that the influx of Bangladeshi nationals who have illegally migrated into Assam pose a threat to the integrity and security of the North Eastern region and that their presence has changed the demographic character of that region and the local people of Assam have been reduced to a status of minority in certain districts.
27. The opinion in NFT(6th) 294/2016 was passed on 07.06.2017.
The order in Misc. Case No. NFT(6th)- 10/2017 was passed on 27.07.2018. The order in W.P.(C) No. 7436/2018 was passed on 31.10.2018. However, the connected unnumbered review petition has been filed after 7 years, 10 days of passing of the order dated 31.10.2018 by this Court in W.P.(C) No. 7436/2018. Thus, it is apparent that only after the applicant was again taken into custody on 28.05.2025, he has awakened from his deep slumber to assail the said order dated 31.10.2018, by filing this review petition on 10.12.2025, i.e., after 7 years, 10 days or 2567 days after deducting 30 days time allowable to file review petition.
28. In a recent decision of the Supreme Court of India, in the case of Shivamma (Dead) by LRs v. Karnataka Housing Board & Ors., 2-25 INSC 1104:
2025 Supreme(SC) 1679, while dealing with the provision of Section 5 of the Limitation Act, 1963 has reiterated certain guidelines. It has been laid down that no litigant should be permitted to be so lethargic and apathetic, much less me permitted by Courts to misuse the process of law, further holding that the rules of limitation are not meant to destroy rights of parties, but they are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly.
29. In this case, the reference was made in the year 1998. The applicant allowed an ex parte opinion to be passed against him. Then he Page No.# 18/33 appeared and prayed to set aside the ex parte opinion, which was allowed. The said orders were unsuccessfully assailed before this Court. Now when the State has initiated the process of expulsion of the applicant, he has approached this Court for review of this Court's order after 7 years. Thus, in this case, the applicant is lethargic. Moreover, before the learned Tribunal, the applicant had taken recourse to fraud, and in this case, the applicant has resorted to suppression of material fact that he had the documents now sought to be shown as new document since 10.04.2019.
30. Therefore, the applicant has to provide cogent and acceptable explanation for the inordinate delay in assailing the opinion, which he has failed to do so in this case. The explanation for delay is an ominous vague statement that the applicant was having financial difficulties, without making any effort to explain the delay. In the case of Shivamma (supra), the Supreme Court of India had remarked that the High Court had made a mockery of justice by condoning the delay of 3966 days. In this case, the delay of 2567 days, erroneously calculated as 1850 days.
Submissions which were made by the learned counsel for the applicant on merit:
31. The Court is conscious of the fact that it is dealing with the application for condonation of delay and therefore, merit is not required to be examined. However, the learned counsel for the applicant had referred to the constitutional right under Article 21 and 22 of the Constitution of India and insisted that the same be addressed, the Court is compelled to deal with those submissions.
32. One of the submissions of the learned counsel for the applicant Page No.# 19/33 was that as the applicant was released pursuant to the orders passed by the Supreme Court of India during Covid-19 pandemic. As the learned counsel for the applicant insisted that the proprietary of the State of taking the applicant into custody be addressed by this Court, thus, this Court is compelled to address the said issue, conscious of the fact that the delay in presenting the review petition has not been condoned.
33. It is perhaps an appropriate moment to refer to a historical background of the foreigners' issue plaguing the State of Assam, which, as per media reports, is altering the demography of the State. This led to a long-drawn students' agitation. The statement to that effect has been elaborately referred to in the case of Sarbananda Sonowal v. Union of India & Ors., (2005) 5 SCC 665, which was decided by the Full Bench of the Supreme Court of India. Some portions of the said judgment are quoted below: -
"2. ... It is further averred that in view of the problem of illegal migration of foreigners into Assam and their continued presence therein, a State- wise protest movement of students was organized which continued for a long period. As a result of the students' movement and ensuing negotiations, a memorandum of settlement dated 15-8-1985 was entered into between All Assam Students' Union and the Union of India and the State of Assam, which is commonly known as "Assam Accord". The terms of the Accord specifically provided that steps would be taken to detect and deport illegal migrants from Assam and it also contained a clause that "the Government will give due consideration to certain difficulties expressed by AASU/AAGSP regarding the implementation of the Illegal Migrants (Determination by Tribunals) Act, 1983." The Accord further provided that foreigners who have entered into India after 25-3-1971 will continue to be detected, their names deleted from the electoral rolls and they will be deported from India. In pursuance of this provision, the Citizenship Act, 1955 was amended by Act 65 of 1985 and Section 6-A was inserted with the heading "Special Provisions as to Citizenship of Persons covered by the Assam Accord." It provides that the term "detected to be a foreigner" shall mean so detected under the Foreigners Act and the Foreigners (Tribunals) Order, 1964 framed thereunder. Under the said provision a person of Indian origin as defined u/s 6-A(3) who entered into Assam prior to 1-1-1966 and has been resident in Assam since then is deemed to be a citizen of India. However, if such a person entered into Assam Page No.# 20/33 between 1-1-1966 and before 25-3-1971 and has been detected to be a foreigner under the Foreigners Act then he is not entitled to be included in the electoral list for a period of 10 years from the date of detection. This amendment of the Citizenship Act makes it clear that the question of determination or detection of a foreigner is to be governed by the provisions of the existing Central legislation, viz. the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964.
* * *
4. ... A true copy of the latest status report filed by the Government in Writ Petition No. 125 of 1998, which has been filed seeking deportation of all Bangladeshi nationals from India, has been filed as Annexure R-1 to the Counter Affidavit and paragraphs 3 to 7 of the said status report are being reproduced below:
"3. Continuing influx of Bangladeshi nationals into India has been on account of a variety of reasons including religious and economic. There is a combination of factors on both sides which are responsible for continuing influx of illegal immigration from Bangladesh. The important "Push Factors"
on the Bangladesh side include: -
a) steep and continuous increase in population;
b) sharp deterioration in land-man ratio;
c) low rates of economic growth particularly poor performance in
agriculture;
The"Pull Factors" on the Indian side include: -
a) ethnic proximity and kinship enabling easy shelter to the immigrants;
b) porous and easily negotiable border with Bangladesh;
c) better economic opportunities;
d) interested religious and political elements encouraging immigration;
4. It is difficult to make a realistic estimate of the number of illegal immigrants from Bangladesh because they enter surreptitiously and are able to mingle easily with the local population due to ethnic and linguistic similarities. The demographic composition in the districts bordering Bangladesh has altered with the illegal immigration from Bangladesh. The districts of Assam and West Bengal bordering Bangladesh have recorded growth of population higher than the national average. The States of Meghalaya, Mizoram and Tripura have also recorded high rates of population growth. Illegal immigrants from Bangladesh have also been using West Bengal as a corridor to migrate to other parts of the country.
5. The large-scale influx of illegal Bangladesh immigrants has led to large tracts of sensitive international borders being occupied by foreigners. This has serious implications for internal security.
Page No.# 21/33
6. The types of illegal migrants are as follows: -
a) those who came with valid visa/documents and overstayed;
b) those who came with forged visa/documents; and
c) those who entered surreptitiously.
7. During talks between the Prime Ministers of India and Bangladesh in February, 1972, the Prime Minister of Bangladesh had assured the return of all Bangladesh nationals who had taken shelter in India since 25-3-1971.
Accordingly, a circular was issued by the Government of India on 30.9.1972, setting out guidelines for action to be taken in respect of persons who had come to India from Bangladesh. According to this circular, those Bangladesh nationals who had come to India before 25-3-1971 were not to be sent back and those who entered India in or after the said date were to be repatriated."
* * *
17. A copy of the report dated 8-11-1998 sent by Governor of Assam, Lt. Gen. S.K. Sinha (Retired), former Deputy Chief of Army Staff, has also been filed along with this application. The report is a long and comprehensive one which was prepared after thorough inspection of border areas and districts, discussion with Indian Ambassador in Bangladesh and talks with political leaders. Some portions of the report are being reproduced below: -
"1. The unabated influx of illegal migrants from Bangladesh into Assam and the consequent perceptible change in the demographic pattern of the State has been a matter of grave concern. It threatens to reduce the Assamese people to a minority in their own State, as happened in Tripura and Sikkim.
2. Illegal migration into Assam was the core issue behind the Assam student movement. It was also the prime contributory factor behind the outbreak of insurgency in the State. Yet we have not made much tangible progress in dealing with this all important issue.
3. There is a tendency to view illegal migration into Assam as a regional matter affecting only the people of Assam. It's more dangerous dimensions of greatly undermining our national security, is ignored. The long cherished design of Greater East Pakistan/Bangladesh, making in-roads into strategic land link of Assam with the rest of the country, can lead to severing the entire land mass of the North-East, with all its rich resources from the rest of the country. They will have disastrous strategic and economic consequences.
* * *
MIGRATION INTO ASSAM
HISTORICAL BACKGROUND
7. Failure to get Assam included in East Pakistan in 1947 remained a source of abiding resentment in that country. Zulfikar Ali Bhutto in his book Page No.# 22/33 "Myths of Independence" wrote - "It would be wrong that Kashmir is the only dispute that divides India and Pakistan, though undoubtedly the most significant. One at least is nearly as important as the Kashmir dispute, that of Assam and some districts of India adjacent to East Pakistan. To these Pakistan has very good claims". Even a pro-India leader like Sheikh Mujibur Rahman in his book "Eastern Pakistan; its population & economics" observed, "Because Eastern Pakistan must have sufficient land for its expansion and because Assam has abundant forests and mineral resources, coal, petroleum etc., Eastern Pakistan must include Assam to be financially and economically strong. (emphasis by us) * * * CONTRIBUTORY FACTORS
10. Besides the above considerations, there are other contributory factors facilitating infiltration from Bangladesh. Ethnic, linguistic and religious commonality between the illegal migrants and many people on our side of the border enables them to find shelter. It makes their detection difficult. Some political parties have been encouraging and even helping illegal migration with a view to building vote banks. These immigrants are hardworking and are prepared to work as cheap labour and domestic help for lower remuneration than the local people. This makes them acceptable. Moreover, with corruption being all pervasive, corrupt officials are bribed to provide help. Recently, a racket has been busted in Lakhimpur. Four individuals were found to have been providing forged citizenship certificates and other documents to illegal migrants for the last 14 years.
* * * ILLEGAL MIGRANTS
15. ...Mr. Mulan described this as invasion using military terminology which in present geostrategically context, underscores the strategic aspect of the problem. It is unfortunate that to this day, after half a century of independence, we have chosen to remain virtually oblivious to the grave danger to our national security arising from this unabated influx of illegal migrants. Third, the prophecy that except the Sibsagar district, the Assamese people will not find themselves at home in Assam, is well on its way to becoming true as reflected by the present demographic pattern of Assam.
16. Mr. Inderjit Gupta, the then Home Minister of India stated in the Parliament on May 6, 1997 that there were 10 million illegal migrants residing in India. Quoting Home Ministry/Intelligence Bureau sources, the 10-8-1998 issue of India Today has given the breakdown of these illegal migrants by States: -
West Bengal - 5.4 million
Page No.# 23/33
Assam - 4 million
Tripura - 0.8 million
Bihar - 0.5 million
Maharashtra - 0.5 million
Rajasthan - 0.5 million
Delhi - 0.3 million
Making a total of- 10.83 millions
Communitywise growth
Assam India
Hindus Muslims Hindus Muslims
(1) 1951-1961 33.71 38.35 20.29 25.61
(2) 1961-1971 37.17 30.99 23.72 30.85
(3) 1971-1991 41.89 77.42 48.38 55.04
EXPLANATORY NOTE
... In the case of Muslims, the Assam growth rate was much higher than the All India rate. This suggests continued large scale Muslim illegal migration into Assam.
* * *
(d) Muslim population in Assam has shown a rise of 77.42 per cent in 1991 from what it was in 1971. Hindu population has risen by nearly 41.89 per cent in this period.
(e) Muslim population in Assam has risen from 24.68 per cent in 1951 to 28.42 per cent in 1991. As per 1991 census four districts (Dhubri, Goalpara, Barpeta and Hailakandi) have become Muslim majority districts. Two more districts (Nagaon and Karimganj) should have become so by 1998 and one district Morigaon is fast approaching this position.
* * *
20. The growth of Muslim population has been emphasized in the previous paragraph to indicate the extent of illegal migration from Bangladesh to Assam because as stated earlier, the illegal migrants coming into India after 1971 have been almost exclusively Muslims.
21. Pakistan's ISI has been active in Bangladesh supporting militant movement in Assam. Muslim militant organization have mushroomed in Assam and there are reports of some 50 Assamese Muslim youths having gone for training to Afghanistan and Kashmir.
CONSEQUENCES Page No.# 24/33
22. The dangerous consequences of large scale illegal migration from Bangladesh, both for the people of Assam and more for the Nation as a whole, need to be emphatically stressed. No misconceived and mistaken notions of secularism should be allowed to come in the way of doing so.
23. As a result of population movement from Bangladesh, the specter looms large of the indigenous people of Assam being reduced to a minority in their home State. Their cultural survival will be in jeopardy, their political control will be a weakened and their employment opportunities will be undermined.
24. The silent and invidious demographic invasion of Assam may result in the loss of the geostrategically vital districts of lower Assam. The influx of these illegal migrants is turning these districts into a Muslim majority region. It will then only be a matter of time when a demand for their merger with Bangladesh may be made. The rapid growth of international Islamic fundamentalism may provide for driving force for this demand. In this context, it is pertinent that Bangladesh has long discarded secularism and has chosen to become an Islamic State. Loss of lower Assam will severe the entire land mass of the North East, from the rest of India and the rich natural resources of that region will be lost to the Nation.
18. Since extensive reference has been made in the affidavits to the Assam Accord, it is necessary to notice the main provisions thereof. It is a Memorandum of Settlement which was signed on 15-8-1985 by the President and General Secretary of All Assam Students' Union and Convenor of All Assam Gana Parishad on the one hand and Home Secretary, Government of India and the Chief Secretary, Government of Assam on the other, in the presence of Shri Rajiv Gandhi, the then Prime Minister of India. The main clauses of the settlement which have a bearing on the case are being reproduced below:
"Memorandum of Settlement The Government have all along been most anxious to find a satisfactory solution to the problem of foreigners in Assam. The All Assam Students' Union (AASU) and the All Assam Gana Sangram Parishad (AAGSP) have also expressed their keenness to find such a solution.
2. The AASU through their Memorandum dated 2-2-1980 presented to the late Prime Minister Smt Indira Gandhi, conveyed their profound sense of apprehensions regarding the continuing influx of foreign nationals into Assam and the fear about adverse effects upon the political, social, cultural and economic life of the State.
3. Being fully alive to the genuine apprehensions of the people of Assam, the then Prime Minister initiated the dialogue with the AASU/AAGSP. Subsequently, talks were held at the Prime Minister's and Home Minister's levels during the period 1980-83. Several rounds of informal talks were held during 1984. Formal discussions were resumed in March 1985.
Page No.# 25/33
4. Keeping all aspects of the problem including constitutional and legal provisions, international agreements, national commitments and humanitarian considerations, it has been decided to proceed as follows:
Foreigners Issue 5.1 For purposes of detection and deletion of foreigners, 1-1-1966 shall be the base date and year.
5.2 All persons who came to Assam prior to 1-1-1966, including those amongst them whose names appeared on the electoral rolls used in 1967 elections, shall be regularised.
5.3 Foreigners who came to Assam after 1-1-1966 (inclusive) and up to 24-
3-1971 shall be detected in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964. 5.4 Names of foreigners so detected will be deleted from the electoral rolls in force. Such persons will be required to register themselves before the Registration Office of the respective districts in accordance with the provisions of the Registration of Foreigners Act, 1939 and the Registration of Foreigners Rules, 1939.
5.5 For this purpose, the Government of India will undertake suitable strengthening of the governmental machinery.
5.6 On the expiry of a period of ten years following the date of detection, the names of all such persons which have been deleted from the electoral rolls shall be restored.
5.7 All persons who were expelled earlier, but have since re-entered illegally into Assam, shall be expelled. (emphasis supplied by us) 5.8 Foreigners who came to Assam on or after 25-3-1971 shall continue to be detected, deleted and expelled in accordance with law. Immediate and practical steps shall be taken to expel such foreigners. (emphasis supplied by us) 5.9 The Government will give due consideration to certain difficulties expressed by the AASU/AAGSP regarding the implementation of the Illegal Migrants (Determination by Tribunals) Act, 1983."
Subsequent thereto the Citizenship Act, 1955 was amended and Section 6-A was introduced w.e.f. 7-12-1985. The relevant provisions of Section 6-A are being reproduced below:
"6-A. Special provisions as to citizenship of persons covered by the Assam Accord.--(1) For the purposes of this section--
(a) 'Assam' means the territories included in the State of Assam immediately before the commencement of the Citizenship (Amendment) Page No.# 26/33 Act, 1985;
(b) 'detected to be a foreigner' means detected to be a foreigner in accordance with the provisions of the Foreigners Act, 1946 (31 of 1946) and the Foreigners (Tribunals) Order, 1964 by a Tribunal constituted under the said Order;
(c) 'specified territory' means the territories included in Bangladesh immediately before the commencement of the Citizenship (Amendment) Act, 1985;
(d) a person shall be deemed to be of Indian origin, if he, or either of his parents or any of his grandparents was born in undivided India;
(e) a person shall be deemed to have been detected to be a foreigner on the date on which a Tribunal constituted under the Foreigners (Tribunals) Order, 1964 submits its opinion to the effect that he is a foreigner to the officer or authority concerned. (2) Subject to the provisions of sub-sections (6) and (7), all persons of Indian origin who came before the 1st day of January, 1966 to Assam from the specified territory (including such of those whose names were included in the electoral rolls used for the purposes of the General Election to the House of the People held in 1967) and who have been ordinarily resident in Assam since the dates of their entry into Assam shall be deemed to be citizens of India as from the 1st day of January, 1966.
(3) Subject to the provisions of sub-sections (6) and (7), every person of Indian origin who--
(a) came to Assam on or after the 1st day of January, 1966 but before the 25th day of March, 1971 from the specified territory; and
(b) has, since the date of his entry into Assam, been ordinarily resident in Assam; and
(c) has been detected to be a foreigner;
shall register himself in accordance with the rules made by the Central Government in this behalf under Section 18 with such authority (hereafter in this sub-section referred to as the registering authority) as may be specified in such rules and if his name is included in any electoral roll for any assembly or parliamentary constituency in force on the date of such detection, his name shall be deleted therefrom.
Explanation.--In the case of every person seeking registration under this sub-section, the opinion of the Tribunal constituted under the Foreigners (Tribunals) Order, 1964 holding such person to be a foreigner, shall be deemed to be sufficient proof of the requirement under clause (c) of this sub- section and if any question arises as to whether such person complies with Page No.# 27/33 any other requirement under this sub-section, the registering authority shall,
--
(i) if such opinion contains a finding with respect to such other requirement, decide the question in conformity with such finding;
(ii) if such opinion does not contain a finding with respect to such other requirement, refer the question to a Tribunal constituted under the said Order having jurisdiction in accordance with such rules as the Central Government may make in this behalf under Section 18 and decide the question in conformity with the opinion received on such reference. (4) A person registered under sub-section (3) shall have, as from the date on which he has been detected to be a foreigner and till the expiry of a period of ten years from that date, the same rights and obligations as a citizen of India [including the right to obtain a passport under the Passports Act, 1967 (15 of 1967) and the obligations connected therewith], but shall not be entitled to have his name included in any electoral roll for any assembly or parliamentary constituency at any time before the expiry of the said period of ten years.
(5) A person registered under sub-section (3) shall be deemed to be a citizen of India for all purposes as from the date of expiry of a period of ten years from the date on which he has been detected to be a foreigner. (6) (Omitted as not relevant.) (7) Nothing in sub-sections (2) to (6) shall apply in relation to any person--
(a) who, immediately before the commencement of the Citizenship (Amendment) Act, 1985, is a citizen of India;
(b) who was expelled from India before the commencement of the Citizenship (Amendment) Act, 1985, under the Foreigners Act, 1946 (31 of 1946).
(8) Save as otherwise expressly provided in this section, the provisions of this section shall have effect notwithstanding anything contained in any other law for the time being in force."
34. In the said decision of Sarbananda Sonowal (supra), the Supreme Court of India has also equated the influx of illegal migrants into Assam as an external aggression. The said observations are true, only if one cares to visit the length and breadth of the State. Due to reasons, which can be answered by competent authorities, the illegal immigrants are seen to have Page No.# 28/33 been allowed to settle in non-cadestally mapped areas, alluvial soil (called char area in Assam), Govt. land, forest land, etc. Thus, there are no land records available regarding when the settlements of illegal migrants came into existence. Be that as it may, we may refer to the to the observations made by the Supreme Court of India in paragraph nos. 21 to 26, 32, 34, 46, 56, 59, 63 and 82 of the case of Sarbananda Sonowal (supra), which have not reiterated and/or replicated in this order to maintain brevity.
35. Thus, with the said factual back-ground and law laid down by the Supreme Court of India, the Government has a duty to preserve the unity and integrity of the Country and as unabated influx from the specified territory of Bangladesh has been equated to an act of aggression, it may be stated that it is perhaps a wrong perception in a section media report projecting that a religious persecution is going on in the State of Assam, which appears to be an example of misinformation warfare being carried out against the Country in general and the State of Assam in particular.
36. The learned counsel for the applicant has referred to the provisions of Article 21 and 22 of the Constitution of India to project that those Constitutional provisions have been violated and in the said context, the decision by the Supreme Court of India in the case of Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta & Ors., (1955) 1 SCC 167, has been cited. The said case is one under Section 3(1)(b) of the Preventive Detention Act, 1950. In that case, a German National was taken into preventive detention in order to make arrangement of his expulsion from India, which required satisfaction to be recorded by the competent authority under Section 3(1)(b) of the said Act. While deciding the issue, reference was made to the provisions of Page No.# 29/33 the Foreigners Act, 1946, but it was not the subject matter of adjudication. It would be appropriate to quote paragraphs 34 to 37, 40 and 41 thereof hereinbelow: -
34. Article 19 of the Constitution confers certain fundamental rights of freedom on the citizens of India, among them, the right "to move freely throughout the territory of India" and "to reside and settle in any part of India"
subject only to laws that impose reasonable restrictions on the exercise of those rights in the interests of the general public or for the protection of the interests of any Scheduled Tribe. No corresponding rights are given to foreigners. All that is guaranteed to them is protection to life and liberty in accordance with the laws of the land. This is conferred by Art. 21 which is in the following terms:-
"No person shall be deprived of his life or personal liberty except according to procedure established by law."
35. Entries 9, 10, 17, 18, and 19 in the Union List confer wide powers on the Centre to make laws about, among other things, admission into and expulsion from India, about extradition and aliens and about preventive detention connected with foreign affairs. Therefore, the right to make laws about the extradition of aliens and about their expulsion from the land is expressly conferred; also, it is to be observed that extradition and expulsion are contained in separate entries indicating that though they may overlap in certain aspects, they are different and distinct subjects. And that brings us to the Foreigners Act which deals, among other things, with expulsion and the Extradition Act which regulates extradition.
36. The Foreigners Act confers the point to expel foreigners from India. It would the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains.
37. The law of extradition is quite different. Because of treaty obligations it confers a right on certain countries (not all) to ask that persons who are alleged to have committed certain specified offences on the territory or who have already been convicted of those offences by their courts, he handed over to them in custody for prosecution or punishment. But despite that the Government of India is not bound to comply with the request and has an absolute and unfettered discretion to refuse.
* * *
39. The Extradition Act is really a special branch of the law of Criminal Procedure. It deals with criminals and those accused of certain crimes. The Foreigners Act is not directly concerned with criminals or crime though the fact that a foreigner has committed offences, or is suspected of that, may be a good ground for regarding him as undesirable. Therefore, under the Extradition Act warrants or summons must be issued; there must be a magisterial enquiry and when there is an arrest it is penal in character; and- and this is the most important Page No.# 30/33 distinction of all - when the person to be extradited leaves India he does not leave the country a free man. The police in India hand him over to the police of the requisitioning State and he remains in custody throughout.
40. In the case of expulsion, no idea of punishment is involved, at any rate, in theory, and if a man is prepared to leave voluntarily he can ordinarily go as and when he pleases. But the right is not his. Under the Indian law, the matter is left to the unfettered discretion at the Union Government and that Government can prescribe the route and the port or place of departure and can place him on a particular ship or plane. [See Ss. 3(2)(b) and 6, Foreigners Act]. Whether the Captain of a foreign ship or plane can be compelled to take a passenger he does not want or to follow a particular route is a matter that does not arise and we express no opinion on it. But assuming that he is willing to do so, the right of the Government to make the order vis-à-vis the man expelled is absolute.
41. This may not be the law in all countries. Oppenheim, for example, says that in England, until December 1919, the British Government had "no power to expel even the most dangerous alien without the recommendation of a court, or without an Act of Parliament making provision for such expulsion, except during war or on an occasion of imminent national danger or great emergency" (Openheim's International Law, Vol. I, 7 thedition, page 631).
But that is immaterial, for the law in each country is different and we are concerned with the law as it obtains in our land. Here the matter of expulsion has to be viewed from three points of view: (1) does the Constitution permit the making of such a law? (2) does it place any limits on such laws? and (3) is there in fact any law on this topic in India and if so, what does it enact? We have already examined the law making power in this behalf and its scope, and as to the third question the law on this matter in India is embodied in the Foreigners Act which gives an unfettered right to the Union Government to expel. But there is this distinction. If the order is one of expulsion, as opposed to extradition, then the person expelled leaves India a free man.
It is true he may be apprehended the moment he leaves, by some other power and consequently, in some cases, this would be small consolation to him, but in most cases the distinction is substantial, for the right of a foreign power to arrest except in its own territory and on its own boats is not unlimited. But however that may be, so far as India is concerned, there must be an order of release if he is in preventive custody and though he may be conducted to the frontier under detention he must be permitted to leave a free man and cannot be handed over under arrest.
37. Thus, the said decision of Hans Muller of Nurenburg (supra), decided by the Constitution Bench of the Supreme Court of India, confirms and reaffirms the absolute and unfettered power of the Government to order Page No.# 31/33 expulsion of a foreigner. In this case, the applicant is a "declared foreign national".
38. It may be stated that in the rest of the Country, except the State of Assam, it is the Executive, who can order expulsion of a foreigner. However, in respect of persons who have entered into the territory of India (Assam) from the specified territory (which includes erstwhile East Pakistan before 25.03.1971 and Bangladesh, after 25.03.1971) are subjected to proceeding before the jurisdictional Foreigners Tribunal and thereafter, they are subjected to deportation and/or expulsion.
39. In light of the observations made in the case of Sarbananda Sonowal (supra) that Assam is facing external aggression and reference being made to the excerpts of "Eastern Pakistan; its population & economics", the book by a pro-India leader Sheikh Mujibur Rahman, where it is observed, "Because Eastern Pakistan must have sufficient land for its expansion and because Assam has abundant forests and mineral resources, coal, petroleum etc., Eastern Pakistan must include Assam to be financially and economically strong.", the question would arise as to how can the Country deport a "declared foreign national", who has entered into Assam illegally after 25.03.1971, if the specified territory, i.e. the present Republic of Bangladesh refuses to acknowledge and/or admit that the proceedee as their subject and deny to take those persons into their Country. In the considered opinion of the Court, the State has unfettered power to cause expulsion of a declared foreign national. Therefore, in the event a "declared foreign national" cannot be expelled due to any reason whatsoever, including the policy in force, then the only way open to the State would be to prevent a declared foreign national from getting Page No.# 32/33 employment, purchase land, marry Indian national, etc., by detaining such "declared foreign national" in the holding areas ear-marked for the purpose. Accordingly, the act of the appropriate Government to keep in holding camps, a "declared foreign national" and/or "foreigner" as declared by a Foreigners Tribunal, cannot be faulted with or equated to arrest as is understood under Criminal Procedure Code and/or Bharatiya Nagarik Suraksha Sanhita, which confers certain procedural safeguards for citizens of India, who are arrested in connection with some criminal offence.
40. The Court finds force in the submission of the learned standing counsel for the FT and Border matters, that the applicant was released on bail pursuant to orders passed by the Supreme Court of India, During those difficult days, the Supreme Court of India and all the High Courts in the Country, owing to unprecedented Covid-19 Pandemic, had focused to decongest the jails. However, the said Covid-19 situation no longer prevails in the Country and moreover, the bail order would not come in the way of the State to take appropriate steps to cause expulsion of the applicant, a declared foreign national. The learned counsel for the applicant has not been able to show that the process of expulsion for declared foreign nationals was ever stayed.
41. Therefore, following the decision of the Constitution Bench of the Supreme Court of India in the case of Hans Muller of Nurenburg (supra), the Central Government would have unfettered power to take the applicant into custody and expel him, for which the State Government machinery has to extend all its support.
Order:
42. Accordingly, the Court is of the considered opinion that in this Page No.# 33/33 case, the explanation of delay is not neither good nor cogent and thus, are not found acceptable because the explanation for delay in approaching this Court is absolutely vague. Moreover, the documents which are claimed to have come to the notice of the applicant recently are found to be with the petitioner since 10.04.2019.
43. Therefore, this interlocutory application is found to be without any merit and the same is dismissed without issuing notice upon the respondents.
44. Resultantly, the connected unnumbered review petition shall also stand dismissed.
45. The consequences of the opinion dated 07.06.2017, passed in Case No. NFT(6th) - 294/2016, passed by the learned Member, Foreigners Tribunal (6th), Nagaon shall follow.
46. The Standing counsel for the NRC and the learned standing counsel for the FT and Border matters shall send a downloaded copy of this order to the Home and Political (B) Department to enable them to send a copy thereof to the learned Member, Foreigners Tribunal (6 th), Nagaon, to make it a part of the record of Case No. NFT(6th) - 294/2016, for future reference.
JUDGE JUDGE. Comparing Assistant