Page No.# 1/7 GAHC010146412025 2025:GAU-AS:9880-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4063/2025 MD. SOHAR ALI SK. @ SAHAR ALI S/O LT. SAHEB ALI SARDER @ LT. SAHEB ALI @ LT. CHAHEB ALI, VILL- TINKONIA PART-III, P.S.- JOGIGHOPA, DIST- BONGAIGAON (ASSAM) VERSUS THE UNION OF INDIA AND 5 ORS. REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, TRILOK MARG, NEW DELHI- 110001 2:THE ELECTION COMMISSION OF INDIA REPRESENTED BY THE CHIEF ELECTION COMMISSIONER NEW DELHI-110001 3:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-781006 4:THE STATE COORDINATOR OF NATIONAL REGISTER OF CITIZENS ASSAM 1ST FLOOR ACHYUT PLAZA GUWAHATI SHILLONG ROAD BHANGAGARH GUWAHATI ASSAM PIN-781005 Page No.# 2/7 5:THE DISTRICT COMMISSIONER OF BONGAIGAON DISTRICT P.O.- MAYAPURI P.S. AND DIST- BONGAIGAON ASSAM PIN-783380 6:THE SUPERINTENDENT OF POLICE (BORDER) BONGAIGAON P.O.- CHAPAGURI ROAD P.S. AND DIST- BONGAIGAON ASSAM PIN-78338 Advocate for the Petitioner : MR. A T SARKAR, S R DAS,S. HUSSAIN Advocate for the Respondent : DY.S.G.I., SC, F.T,SC, NRC,SC, ECI,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE RAJESH MAZUMDAR ORDER Date : 30.07.2025 (K.R. Surana, J) Heard Mr. A.T. Sarkar, learned counsel for the petitioner. Also heard Mr. M.R. Adhikari, learned CGC; Mr. G. Sarma, learned standing counsel for the FT matters and NRC; Mr. M. Kalita, learned counsel appearing on behalf of Ms. P. Barua, learned standing counsel for the ECI; and Mr. H.K. Hazarika, learned Junior Govt. Advocate for the State respondent. 2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Sohar Ali Sk @ Sahar Ali, has assailed the ex parte opinion dated 03.02.2017, passed by the learned Member, Foreigners Tribunal Bongaigaon No.2, Abhayapuri in Case No. BNGN/FT-2/APR/654/2016 [arising out of Ref. FT 469/08], by which the petitioner was held to be a foreigner of post 25.03.1971 stream. Page No.# 3/7 3) The materials available on record discloses that on 23.11.2016, summons was served on the petitioner and accordingly, he had entered appearance before the learned Tribunal and prayed for adjournment on 25.11.2016, 19.12.2016 and 05.01.2017. The matter was then fixed on 27.01.2017, on which date the petitioner had again prayed for an adjournment, which was rejected and the matter was fixed for order on 03.02.2017. Therefore, despite the petitioner being aware that his petition for adjournment was rejected, he had made no attempt to file his written statement before 03.02.2017. On 03.02.2017, once again a petition for adjournment was filed by the petitioner. However, the same was rejected on the ground that the proceeding before the Foreigners Tribunals is required to be disposed of within the stipulated 60 days, the prayer made in the said petition was rejected. Thereafter, the impugned opinion followed. 4) As the petitioner has assailed the opinion after an inordinate delay of 8 years 4 months, heard the learned counsel for the parties on the issue of delay and laches. 5) It may also be mentioned that though this writ petition was filed on 27.06.2025, but the filing was defective as the requisite family tree of the petitioner was not provided. The learned counsel for the petitioner had cured the said filing defect only after a considerable delay on 21.07.2025. 6) The petitioner, in paragraph 7 of this writ petition, amongst others, has made three statements. First is that the petitioner, on going through the relevant records of the Tribunal, was suggested that the reference in which he had participated was actually not initiated against him since the name of father and village was wrongly mentioned. The second reason is that, since the date of passing of the impugned ex parte opinion, the petitioner had been Page No.# 4/7 residing in his address, but the authority did not initiate any coercive action against the petitioner considering him to be an illegal migrant, but on 15.05.2025, he was arrested. Thirdly, it has been stated that the impugned opinion be stayed and a chance be given to the petitioner to establish his citizenship and to direct the learned Tribunal to make a fresh enquiry. 7) Considered the materials on record, as well as the submissions made at the Bar. 8) Thus, the admitted case of the petitioner is that after the ex parte opinion was passed he had examined the Tribunals record and he was “suggested” that the reference was not against him. Accordingly, in the considered opinion of the Court, the petitioner had taken a well considered and a very conscious decision not to assail the impugned ex parte opinion. The said statement is verified to be true to the knowledge of the deponent, i.e. the wife of the petitioner, who has sworn the affidavit in support of the writ petition. 9) In this writ petition, the petitioner has deliberately withheld the dates on which he had “gone through” the Tribunal’s records and the date when he was suggested that the reference was not against him. The petitioner has chosen not to disclose the name of the person who had given “suggestion” to him. The specific statement in paragraph 7 of the writ petition is as follows: “However, the petitioner was informed that a case is pending against him in the Tribunal and responding the same, the petitioner engaged an Advocate to represent his case and applied his relevant document establish his citizenship, meanwhile the impugned order has been passed but the petitioner after going through the relevant records of the Tribunal, the petitioner was suggested that the reference in which, he had participated, actually not initiated against him since name of the petitioner as well as his father were wrongly mentioned in the notice while the village of the petitioner was also wrongly mentioned as Mohanpur Part-II instead of Tinkonia Part-III, as such, the petitioner decided not to challenge the impugned Ex-parte order before this Hon'ble High Court. The petitioner further Page No.# 5/7 states that since the date of passing the impugned order, he has been residing in the aforesaid locality but the authority did not initiate any coercive action against the petitioner considering him as an illegal migrant but on 15-05-25 the petitioner has been arrested by the police.” 10) Therefore, the petitioner has admitted that he had decided not to challenge the impugned ex parte opinion. It may be mentioned that the provisions of Paragraph 3-C of the Foreigners (Tribunals) Order, 1964 contains an inherent safeguard of permitting the proceedee to pray to apply for setting aside of an ex parte opinion, provided one approaches the learned Tribunal within a period of thirty days from the date of the ex parte opinion. The petitioner, did not avail the said opportunity. Moreover, despite being conscious and aware of the impugned ex parte opinion, the petitioner had decided not to challenge the impugned ex parte opinion. 11) 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 [WP(C) No.4971/2018] disposed of on 01.08.2018, this Court had observed as follows:- "It is more than three decades that the issue of influx of foreign nationals has been in public domain in the State of Assam and has engaged the attention of the people. Interest of the State is of paramount importance in that unabated influx has the potential to affect the integrity and sovereignty of the country. Citizenship of a person, no doubt, is a very valuable right and should be zealously guarded. There is no 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." 12) It would also be relevant to refer to the observations made by Page No.# 6/7 the Full Bench of this Court in paragraph 91 of the case of State of Assam v. Moslem Mondal, 2013 (1) GLT 809, which is quoted below:- “91. The Apex Court in Grindlays Bank Ltd. (supra) while dealing with the power of the Labour Court, constituted under the Industrial Disputes Act, to entertain an application to set aside its ex parte award, has held that there being no statutory prohibition to entertain such an application, the Tribunal has the power to entertain the same in the interest of justice. It has also been held that though there is no express provision in the Industrial Disputes Act or the Rules framed thereunder giving the Tribunal jurisdiction to entertain such application, the Tribunal should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. It has also been held that the power given to the Tribunal under section 11(1) of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 to follow such procedure as the Arbitrator or other authority concerned may think fit, are of widest amplitude and confer anoxic power upon the Tribunal and other authorities to devise its procedure as the justice of the case demands. The Apex Court further opined that the object of giving such wide power being to mitigate the rigour of the technicalities of the law for achieving the object of effective investigation and settlement of the disputes, the Tribunal can entertain an application for setting aside an ex parte award. The Tribunal, however, is required to exercise its discretion relating to the entertainment of such application, in a judicial manner, without caprice and according to the general principle of law and rules of natural justice. The same view has also been reiterated by the Apex Court in Satnam Verma (supra).” 13) In view of the discussions above, the Court is of the considered opinion that due to willful and deliberate abstinence on part of the petitioner to challenge the impugned ex parte opinion within a reasonable time, the petitioner has not been able to make out any case for any interference whatsoever in respect of the ex parte opinion impugned herein. 14) In light of the statement made by the petitioner in paragraph 7 of the writ petition that the petitioner had decided not to challenge the impugned ex parte opinion, if a belated challenge is now accepted after a lapse of 8 years 4 months, it would amount to giving premium to the petitioner for his Page No.# 7/7 decision not to challenge the said opinion. It appears that but for his arrest, the petitioner would not have assailed the impugned opinion. 15) The petitioner has miserably failed to demonstrate that the impugned ex parte opinion is vitiated by any reason whatsoever. 16) In exercise of certiorari jurisdiction under Article 226 of the Constitution of India the High Court ought not to substitute its view over opinion of the learned Foreigners Tribunal, which is not found to be vitiated for any error whatsoever. 17) Resultantly, this writ petition fails and the same is dismissed. The ex parte opinion dated 03.02.2017, passed by the learned Member, Foreigners Tribunal Bongaigaon No.2, Abhayapuri in Case No. BNGN/FT-2/APR/654/2016 [arising out of Ref. FT 469/08], by which the petitioner was held to be a foreigner of post 25.03.1971 stream, does not call for any interference 18) However, there shall be no order as to cost. 19) The Registry shall transmit a copy of this order to the concerned Tribunal to be made a part of the record by the said learned Tribunal. JUDGE JUDGE Comparing Assistant