Gauhati High Court
Page No.# 1/13 vs The Union Of India And Ors on 5 March, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/13
GAHC010137982025
2026:GAU-AS:3360-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3602/2025
MUSST JUBEDA BEGUM
D/O- LATE ABDUL KHALEK,
R/O VILL SARUCHOLA, P.O- OKORABARI, MOUZA- LAHORIGHAT, P.S-
MOIRABARI, DIST- MORIGAON, ASSAM
VERSUS
THE UNION OF INDIA AND ORS
REP. BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF
INDIA, SASTRI BHAWAN, NEW DELHI- 110001.
2:THE ELECTION COMMISSION OF INDIA
NEW DELHI-110001
3:THE STATE OF ASSAM
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6
4:THE DIRECTOR GENERAL OF POLICE
ULUBARI
GUWAHATI-07
5:THE STATE COORDINATOR
NATIONAL REGISTER OF CITIZENS
ASSAM
1ST FLOOR
ACHYUT PLAZA
G.S ROAD.
BHANGAGARH
Page No.# 2/13
GUWAHATI-05
DIST- KAMRUP (M)
6:THE DISTRICT COMMISSIONER
MORIGAON
ASSAM
7:THE SUPERINTENDENT OF POLICE (B)
MORIGAON
ASSA
Advocate for the Petitioner : MR. A M DUTTA,
Advocate for the Respondent : DY.S.G.I., GA, ASSAM,SC, NRC,SC, F.T,SC, ECI,SC, NRC
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 05.03.2026 (K.R. Surana, J) Heard Mr. Z. Hammad, learned counsel for the petitioner. Also heard Ms. K. Phukan, learned CGC; Mr. A.I. Ali, learned standing counsel for the ECI; Mr. G. Sarma, learned standing counsel for the FT and Border matters; Mr. P. Sarmah, 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, namely, Mustt. Jubeda Begum, has assailed the impugned ex parte opinion dated 13.06.2016, passed by the learned Member, Foreigners Tribunal No.3rd, Morigaon, in Case No. F.T. 06/2016, arising out of F.T. Case No. 232/2009, dated 21.07.2009, by which she was declared to be a foreigner who had entered into India illegally from Bangladesh after 25.03.1971.
3. This writ petition was filed on 20.06.2025, to assail the ex parte Page No.# 3/13 opinion dated 13.06.2016, i.e. after there has been an extraordinary delay of 9 years, 7 days (or 3294 days). Hence, the learned counsel for the petitioner was heard on delay and laches on part of the petitioner to assail the ex parte opinion.
4. The learned counsel for the petitioner has submitted that the petitioner is an Indian citizen by birth, born on or about the year 1957 at Village Hatimuria, Mouza Moirabari, P.S. Lahorighat, District Morigaon, Assam. Her parents were Late Abdul Khalek and Late Rabia Khatun, and her grandfather Nasruddin was also a resident of the same village. The petitioner comes from a family long residing in the said locality. The petitioner married Md. Dil Mohammad around 1985 and has three children, namely, Gias Uddin Ahmed, Md. Jahur Ali, and Shahida Begum. Certificates issued by the Village Headman as well as the Secretary of Borchola Gaon Panchayat to confirm her place of residence and that she is the daughter of Late Abdul Khalek. The petitioner has relied on voters lists of 1971 (father), 1989 (mother), and 2005 & 2010 (herself) to establish citizenship. It is also submitted that her grandfather had also purchased land in 1949, which was duly mutated and recorded in the Jamabandi.
5. In 2016, the petitioner received a notice from the Foreigners' Tribunal, Morigaon, pertaining to FT Case No. 06/2016, naming her and her three children. Being unaware of the legal implications, she approached a lawyer, submitted all the documents, attended the learned Tribunal regularly, and paid legal fees. At that time, her sons were working in Kerala and since there was no telephone with the petitioner, she could not inform anything about the case to her sons. At that time, the daughter of the petitioner was also a minor.
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6. However, the case proceeded ex parte against all the proceedees, i.e. the petitioner and her three children, thereby declaring them foreigners. The petitioner came to know about the ex parte opinion only when the police personnel of Mikirbheta P.S. came to the residence of the petitioner on 06.05.2017. It is submitted that the petitioner was present at the learned Tribunal on various dates, but perhaps owning to the fact that her advocate did not file hazira or any application, the case was proceeded ex parte, which was not a fault of the petitioner.
7. Thereafter, the petitioner and her children had filed a Misc. Case under section 3(A) of the Foreigners (Tribunals) Amendment Order, 2013 for setting aside the ex parte opinion, which was registered as Misc. Case No. 12/2017. The same was dismissed by order dated 27.06.2017. It is also stated that after the dismissal of the Misc. Case, the petitioner was staying away from her children and lost contact and therefore, she could not file any case before this Court.
8. The dismissal of the Misc. Case was challenged by the children of the petitioner, namely, (1) Gias Uddin; (2) Jahur @ Jahur Ali; and (3) Shahida Begum by filing WP(C) No. 4963/2019, which was allowed by this Court by order dated 01.11.2019, by setting aside the ex parte opinion dated 13.06.2016 insofar as it relate to the three children of the petitioner herein because there was no enquiry or reference against them. It was also stated in the said order dated 01.11.2019 that if the concerned authorities are inclined to proceed against (1) Gias Uddin; (2) Jahur @ Jahur Ali; and (3) Shahida Begum, the same be done by initiating proceeding as required under the law.
9. It is also submitted that the petitioner belongs to lower statra of the society and financially weak background to engage a lawyer in time. It was Page No.# 5/13 only when the petitioner meet the instant learned counsel, she could file the present writ petition.
10. Per contra, the learned standing counsel for the FT, Border matters and NRC had submitted that the explanation given is vague, and not supported by any documents or any other cogent and reliable material.
11. The learned CGC and the learned Junior Govt. Advocate for the other appearing respondents have adopted the submissions made by the learned standing counsel for the FT, Border matters and NRC.
12. As per the contents of the impugned ex parte opinion dated 13.06.2016, the notice of the proceeding was duly received by the petitioner on 19.11.2014. The petitioner appeared through learned counsel but repeatedly sought for adjournments on various grounds such as lack of documents and illness, filing multiple petitions between 20.12.2014 and 25.05.2015 without filing the written statement. On 02.06.2015, the petitioner remained absent without taking any steps, and the case proceeded with summons issued to the V.O. i.e. Verification Officer, for prosecution witness. The petitioner again remained absent on 15.07.2015. Subsequently, on 21.09.2015, the case was transferred to the Foreigners Tribunal pursuant to Government Notification dated 10.08.2015 on jurisdictional grounds. After transfer, the case was renumbered as F.T. 06/2016 and fixed on 05.03.2016 for filing written statement. However, the petitioner remained absent on several dates thereafter, i.e., 05.03.2016, 21.03.2016, 05.04.2016 and 20.04.2016, without taking any steps. Consequently, the matter was fixed for Necessary Order and is taken up today, i.e., 13.06.2016, for Final Order.
13. As mentioned hereinbefore, this writ petition has been filed after Page No.# 6/13 9 years, 7 days (or 3294 days) after the ex parte opinion was passed. It may also be stated that no period of limitation is prescribed for filing a writ petition. But, unless the petitioner demonstrates good and cogent reason, delay and laches would disentitle the petitioner to equitable relief on the principle that "delay defeats equity". If one needs any authority on the point, the decision of the Supreme Court of India in the case of Mrinmoy Maity v. Chhanda Koley, 2024 INSC 314: (2024) 0 Supreme(SC) 351 , and Chairman/Managing Director, U.P. Power Corporation Ltd. V. Ram Gopal, (2020) 13 SCC 225: (2020) 0 Supreme(SC) 93 (Full Bench). In the later case, while approving the decision of the Supreme Court of India in the case of P.S. Sadasivaswamy v. State of Tamil Nadu, (1975) 1 SCC 152 and S.S. Balu v. State of Kerala, (2009) 2 SCC 479 , it was held to the effect that limitation does not strictly apply to a proceeding under Articles 32 and 226 of the Constitution of India, nevertheless, such rights cannot be enforced after an unreasonable lapse of time and the High Courts were cautioned by observing that prolonged delay of many years ought not to have been overlooked or condoned. Paragraph 16 thereof [as extracted from (2020) 0 Supreme(SC) 93 ] is quoted below:-
16. Whilst it is true that limitation does not strictly apply to proceedings under Articles 32 or 226 of the Constitution of India, nevertheless, such rights cannot be enforced after an unreasonable lapse of time. Consideration of unexplained delays and inordinate laches would always be relevant in writ actions, and writ courts naturally ought to be reluctant in exercising their discretionary jurisdiction to protect those who have slept over wrongs and allowed illegalities to fester. Fence-
sitters cannot be allowed to barge into courts and cry for their rights at their convenience, and vigilant citizens ought not to be treated alike with mere opportunists. On multiple occasions, it has been restated that there are implicit limitations of time within which writ remedies can be enforced. In SS Balu vs. State of Kerala, (2009) 2 SCC 479 this Court observed thus:
"17. It is also well-settled principle of law that "delay defeats equity". ...It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of Page No.# 7/13 delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment."
14. In this case, it is not at all disputed that the petitioner had received the notice of the proceeding. Thus, for non-appearance of the petitioner despite service of notice, which is in accordance with the provisions of the Foreigners (Tribunals) Order, 1964, the petitioner has to assign good, cogent and acceptable reason for not appearing before the learned Tribunal. Moreover, from the date of opinion, the petitioner has filed this writ petition after 9 years, 7 days (or 3294 days), as stated hereinbefore. The said delay is sought to be explained merely by stating that the petitioner is poor and unable to manage the cost and expenditure of approaching this Court and she was unaware of the legal proceedings and its consequences. Such a vague statement cannot be accepted as nothing prevented the petitioner from availing free legal aid, which she did not.
15. Though the petitioner has stated that due to financial constraints, she could not approached this Court earlier, it cannot be accepted that the court fees is so high that it is beyond the approach of the common man. It is not the case of the petitioner that she had applied for certified copy as a pauper and that issuance of certified copy was refused to her for non- payment of court fee.
16. The petitioner had obtained the certified copy of the impugned ex parte opinion on 02.06.2025. Thus, by virtue of the long delay of over nine years, the petitioner is deemed to have accepted the ex parte opinion passed against her without any demur. As notice was served on the petitioner herself, it must be deemed that the petitioner had full knowledge of the fact that she has been declared to be a foreigner, who has illegally entered into India (Assam) Page No.# 8/13 from the specified territory. Thus, the writ petition is also not maintainable in view of the delay and laches.
17. In this case, the delay and laches of the petitioner are in two phases. Firstly, after due service of notice in accordance with the provisions of Order 3(5)(c) of the Foreigners (Tribunals) Order, 1964, i.e. on 19.11.2014, till passing of the ex parte opinion, i.e. 13.06.2016. during this period, the petitioner appeared with engaged lawyer only once on 20.12.2014, and thereafter, she had remained absent on all the dates by showing various reasons and sometime without any steps; and secondly, from the date of the impugned ex parte opinion, i.e. 13.06.2016 till filing of this writ petition, i.e. 23.06.2025. Hence, on all counts, the delay is not properly and/or sufficiently explained.
18. It is not the case of the petitioner that neither the petitioner nor any person in her family was aware that an inquiry as to whether or not the petitioner was an illegal migrant from the specified territory was made against the petitioner by the concerned authorities. Thus, despite having knowledge of such a serious inquiry regarding the petitioner, wherein she was accused of being an illegal migrant from the specified territory, the petitioner did not participate in the proceeding. It may also be stated that usually and/or in the normal course, the uniformed police personnel from the Border Branch of the concerned Police Station visit the house of the proceedee to serve notice and/or process for appearance. It would be hard to believe that no villager would come to know about police visiting any household in the village to serve process and that none in the house or in the village would be bothered by the visit of police in a co-villager's house.
19. In paragraph 46 of the case of Urban Improvement Trust v. Vidhya Devi, 2024 INSC 980: (2024) 0 Supreme(SC) 1189 , the Supreme Court of India Page No.# 9/13 has reiterated the law that undue delay in approaching the Court can be a ground for refusing relief and it has been expressed that only in exceptional cases, delay can be condoned. The said paragraph 46 is quoted below:-
"46. As regards the appellant's challenge to the inordinate delay of 21 years in filing of the writ petitions by the respondents, we are of the view that the same needs to be considered in the facts and circumstances of the case. While it is true that the courts have consistently held that undue delay in approaching the court can be a ground for refusing relief, the courts have also recognized that in exceptional cases, where the impugned action is patently illegal or affects fundamental rights, the delay must be condoned ."
20. In respect of the legal proposition that delay and laches is fatal to a belated challenge to the opinion of the Foreigners Tribunals, it may be relevant to refer to the decision of this Court in the case of Jonali Das v. Union of India, 2018 (5) GLT 492: (2018) 0 Supreme (Gau) 1186. Paragraph 9 thereof is as follows:-
"9. In Azmat Ali @ Amzad Ali Vs. Union of India [W.P.(C) No.4971/2018, disposed of on 01.08.2018], this Court had observed as follows:-
"It is more than three decades that the issue of influx of foreign nationals has been in public domain in the State of Assam and has engaged the attention of the people. Interest of the State is of paramount importance in that unabated influx has the potential to affect the integrity and sovereignty of the country. Citizenship of a person, no doubt, is a very valuable right and should be zealously guarded. There is no gainsaying the fact that a person who is alleged to be a foreigner must be given due and reasonable opportunity to establish that he is a citizen of India. However, if a person does not take steps for safeguarding his interest, he does so at his own risk and peril as grant of opportunity cannot be an endless exercise. Right to a fair hearing or principles of natural justice cannot be permitted to lead to a farcical situation and to be an engine for defeating the very object of identification and deportation of foreigners."
21. The Supreme Court of India, in the case of Shivamma (Dead) by LRs v. Karnataka Housing Board & Ors., 2025 INSC 1104: 2025 Supreme(SC) Page No.# 10/13 1679, while dealing with the provision of Section 5 of the Limitation Act, 1963, has laid down certain guidelines. Though Section 5 of the Limitation Act, 1963 does not apply to a writ petition, but in the considered opinion of the Court, when a writ petition is filed to assail the opinion of the Foreigners Tribunals, under certiorari jurisdiction, the same principles should apply, requiring the petitioner to provide at least some cogent and acceptable explanation for the inordinate delay in assailing the opinion.
22. Moreover, 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 with 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. A similar opinion was also expressed by this Court in the case of Abu Bokkor Siddique v. Union of India, 2019 (1) GLT 813.
23. It must be taken note of the fact that 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 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 Page No.# 11/13 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.
24. In this case, the learned counsel for the petitioner could not show as to which fundamental right of the petitioner would be violated if the ex parte opinion is not set aside. Rather, it is the interest of the Country that would suffer if persons who are declared illegal migrants are allowed to defeat the process of expulsion of detected illegal foreigners/migrants, by allowing such illegal migrants endless time to assail the opinion passed by the learned Tribunals.
25. The three children of the petitioner, as stated hereinbefore, had filed WP(C) No. 4963/2019 to challenge the ex parte opinion and the order dated 27.06.2017, passed in Misc. Case No. 12/2017, but the petitioner had accepted the opinion without any challenge.
26. By showering sympathy in this particular case, this Court would be encouraging the unscrupulous practice of not appearing before Courts and Tribunals, despite notice being duly served on an adult member of the family.
27. The Court is of the considered opinion that if such belated petitions are entertained after 9 years, 7 days (or 3294 days), all delays, irrespective of the number of days, will have to be condoned at the drop of a hat. It would also render the provisions of Order 3 (5)(c), Order 3(8) and Order 3(14) of the Foreigners (Tribunals) Order, 1964 otiose.
28. It may also be stated that the learned counsel for the petitioner had submitted that the petitioner has all the documents to prove that she is an Indian citizen. In the said context, this Court is reminded of the fact that this Page No.# 12/13 Court is exercising certiorari jurisdiction and thus, cannot act as a Foreigners Tribunal, having original jurisdiction and start examining and appreciating the documents annexed to the writ petition, which were hitherto not presented before the learned Foreigners Tribunal. In this case, the Court is not exercising appellate or revisional jurisdiction. The petitioner has failed to show that the impugned opinion is vitiated by any error apparent on the face of the record. Accordingly, the Court is of the considered opinion that in exercise of certiorari jurisdiction under Article 226 of the Constitution of India, the High Court ought not to substitute its view over the opinion of the learned Foreigners Tribunal, which is not found to be vitiated by any error whatsoever. If one needs any authority on the point, the decision of the Supreme Court of India in the case of Central Council for Research in Ayurvedic Sciences v. Bikartan Das, 2023 INSC 733: (2023) 0 Supreme(SC) 763, may be referred to. Paragraph 77 thereof is quoted below:-
"77. The purpose of certiorari, as we understand, is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non- exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law committed by them in the exercise of powers vested in them under the statute. The accepted rule is that where a Court has jurisdiction it has a right to decide every question which crops up in the case and whether its decision is correct or otherwise, it is bound to stand until reversed by a competent Court. This Court in G. Veerappa Pillai v. Messrs Raman and Raman Ltd. Kumbakonam, Tanjore District and Others, (1952) 1 SCC 334 observed:
"26. Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned Page No.# 13/13 and decide what is the proper view to be taken or the order to be made ."
29. Thus, the challenge to the impugned ex parte opinion dated 13.06.2016, passed by the learned Member, Foreigners Tribunal No.3 rd, Morigaon, in Case No. F.T. 06/2016, arising out of F.T. Case No. 232/2009, dated 21.07.2009, by which the petitioner, namely, Mustt. Jubeda Begum, was declared to be a foreigner who had entered into India illegally from Bangladesh after 25.03.1971, fails. Resultantly, this writ petition is dismissed. The consequences of the said opinion shall follow.
30. There shall be no order as to cost.
31. Registry shall send back the records to the learned Tribunal.
32. The learned standing counsel for the FT, Border matters and NRC shall communicate a downloaded copy of this order to the Home and Political (B) Department, so as to send a copy of this order to be made a part of the record of the learned Foreigners Tribunal for future reference.
JUDGE JUDGE Comparing Assistant