Page No.# 1/8 GAHC010167442025 2025:GAU-AS:13913-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4579/2025 MUSSTTT AJUFA KHTOON W/O MD. ABUL KALAM VILL- GOREMATIKHOWA, P.S. RUPAHIHAT, DIST. NAGAON, ASSAM VERSUS THE STATE OF ASSAM AND 6 ORS. REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, HOME DEPARTMENT, DISPUR, GUWAHATI-781006. 2:THE UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS GOVT. OF INDIA NEW DELHI PIN-110001. 3:THE DISTRICT COMMISSIONER NAGAON IN THE DISTRICT OF NAGAON ASSAM PIN-782002. 4:THE SUPERINTENDENT OF POLICE (BORDER) NAGAON IN THE DISTRICT OF NAGAON ASSAM Page No.# 2/8 5:THE CHIEF ELECTION OFFICER THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI DELHI-110001. 6:THE STATE CO-CORDINATOR OF NATIONAL REGISTRATION (NRC) ASSAM REPRESENTED BY ITS CO-ORDINATOR 1ST FLOOR ACHYUT PLAZA BHANGAGARH GUWAHATI-781005 IN THE DISTRICT OF KAMRUP (M) ASSAM 7:THE ASSISTANT JAILOR TEMPORARY JAIL MALLA GOALPARA ASSAM PIN-78312 Advocate for the Petitioner : MR. P BORAH, MRS K M SAIKIA Advocate for the Respondent : GA, ASSAM, SC, F.T,SC, NRC,SC, ECI,DY.S.G.I. BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 16.10.2025 (K.R. Surana, J) Heard Mr. P. Borah, learned counsel for the petitioner. Also heard Mr. G. Sarma, learned standing counsel for FT and Border matters, Page No.# 3/8 representing respondent nos. 1, 4, 6 and 7; Mr. M.R. Adhikari, learned CGC for the respondent no.2; and Mr. H.K. Hazarika, learned Govt. Advocate, representing respondent no. 3. 2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Musstt. Ajufa Khatoon, has assailed the ex parte opinion dated 18.01.2021, passed by the learned Member, Foreigners Tribunal 3rd, Nagaon, in F.T. Case No. NFT.(No.3) F.T.567/2016 [corresponding to Police Case No. 449/12], thereby declaring the petitioner to be a foreigner as she had failed to discharge her burden of proving herself to be not a foreigner. 3) The learned counsel for the petitioner, by referring to the statements made in the writ petition, has submitted that the petitioner has all the relevant documents which would establish that she is a bona fide citizen of the Country. 4) The learned counsel for the petitioner has submitted that though she has all the relevant documents which would prove that she was a citizen of India and born to Indian parents, she could not file her written statement before the learned Tribunal despite adjournment taken on four occasions. It was submitted that the petitioner was ill, which was informed to her learned counsel, but as no steps was taken by her learned counsel, the petitioner remained absent without steps. In the meantime Covid-19 Pandemic had set in and the petitioner could not appear for the same. However, to the utter shock and surprise of the petitioner, the learned Tribunal had declared her to be a foreigner by the impugned opinion. It was further submitted that petitioner had no knowledge of the passing of the impugned opinion dated 18.01.2021. It was submitted that the impugned opinion was passed with a predetermined mind, as the learned Tribunal failed to discharge its duty to Page No.# 4/8 provide reasonable opportunity to the petitioner to prove her case and thus, the learned Tribunal had failed to exercise jurisdiction vested on it by law and caused failute of justice. 5) It was submitted that the petitioner was taken into custody by the police in the month of May, 2025 and thereafter, on coming to learn about the impugned opinion, the family members of the petitioner had applied for the certified copy of the impugned opinion on 31.05.2025, which was handed over on 03.06.2025 and accordingly, this writ petition was filed on 28.07.2025. 6) Pursuant to the order dated 27.08.2025, the Tribunal’s record has been received and accordingly, the learned counsel for the petitioner has prayed for a direction to release the petitioner on bail. 7) Per contra, the learned standing counsel for the FT and Border matters has made his submissions in support of the ex parte opinion and it was submitted that the inordinate delay and laches in assailing the impugned opinion has disentitled the petitioner to any relief. 8) On a perusal of the Tribunal’s record, it is seen that upon service of notice, the petitioner had entered appearance through her learned counsel and by filing petition dated 28.08.2019, the petitioner had prayed for adjournment to file written statement, which was allowed. Similar prayer for adjournment made on 07.09.2019, 21.10.2019 and 20.11.2019 were allowed. Thereafter, the petitioner had remained absent without any steps on 03.12.2019, 26.12.2019, 17.01.2020, 30.01.2020 and 15.02.2020. However, by adjourning the proceeding vide order dated 15.02.2020, the next date was fixed on 07.03.2020 for passing ex parte opinion. Nonetheless, the matter was adjourned on 07.03.2020, 21.04.2020, 16.05.2020, 19.06.2020, 03.08.2020, 23.09.2020 and 18.11.2020. However, as per the impugned opinion, due to Page No.# 5/8 lockdown, opinion could not be delivered and therefore, after the lockdown was lifted, the impugned ex parte opinion was rendered on 18.01.2021. 9) It is a trite law that after service of notice of the proceeding before the learned Foreigners Tribunal, it was the responsibility of the petitioner to take steps before the learned Tribunal. No duty is case by law on the learned Foreigners Tribunal to communicate the ex parte opinion to the petitioner. Rather, it was the duty of the petitioner to appear and take steps in the proceeding after service of notice. It was the duty of the petitioner to obtain a certified copy of the opinion rendered by the learned Foreigners Tribunals. There is no requirement of law for the said learned Tribunal to send a copy of the opinion to the petitioner at her last place of residence. 10) It is seen that the petitioner has not taken steps to avail the benefit of the provision for review prescribed under Order 3-C of the Foreigners (Tribunals) Order, 1964, which could have been filed within 30 (thirty) days from the date of the ex parte opinion. Thus, after being declared foreign national, and after the petitioner had been detained by the law enforcing agency of the State, she has now woken up from deep slumber to assail the impugned ex parte opinion dated 18.01.2021, by filing this writ petition on 28.07.2025, i.e. after 4 years, 6 months, 10 days (or, 1652 days). In support of a vague statement in the writ petition that the petitioner was not well, no document has been submitted and no attempt has been made by the petitioner to give any explanation regarding her non-appearance before the learned Tribunal or regarding the inordinate delay and laches in approaching the Court. 11) By entertaining the writ petition after a huge unexplained delay, in the opinion of the Court, it would amount to giving premium to the petitioner for making initial appearance before the learned Tribunal and thereafter, not Page No.# 6/8 contesting the proceeding. 12) The learned counsel for the petitioner has submitted that the petitioner has all the requisite documents to prove that she is a citizen of the Country and not a foreigner. In this regard, the petitioner had an opportunity to file her written statement with all her documents to discharge his burden under Section 9 of the Foreigners Act, 1946, which she has failed to discharge. 13) The Court, in exercise of certiorari jurisdiction, cannot examine any record that was not produced and proved by the petitioner before the learned Tribunal. 14) In the case of Musstt. Anowara Begum v. UoI, (2017) 5 GLR 308, this Court had referred to a Full Bench decision of this Court in the case of State of Assam v. Moslem Mondal, 2013 (1) GLT 809, and had stated that in the said decision, it has been clarified that if the proceedee does not contest the reference before the Tribunal, it would amount to failure to discharge his statutory burden under Sec.9 of the Foreigners Act, 1946 and in such an eventuality, the Tribunal would be justified in answering the reference in favour of the State. 15) In respect of delay and laches, we may refer to the case of State of M.P. & Anr. v. Bhailal Bhai (Constitution Bench), 1964 0 AIR (SC) 1006 : 1964 0 Supreme (SC) 8. Para 17 and 21 (from Supreme Today) is quoted below: “17. At the same time we cannot lose sight of the fact that the special remedy provided in Art. 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions. It has been made clear more than once that the power to give relief under Art. 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion Page No.# 7/8 is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. Thus, where, as in these cases, a person comes to the court for relief under Art. 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, theCourt, if it finds that the assessment was void, being made under a void provision of law, and the payment was made by mistake, is still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any rule for universal application. It may however be stated as a general rule that if there has been unreasonable delay the Court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is not such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the Court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and to refuse to exercise in his favour the extraordinary remedy under Art. 226 of the Constitution. * * * 21. The learned Judges appear to have failed to notice that the delay in these petitions was more than the delay in the petition made in Bhailal Bhai s case, 1960 M. P. C. 304 out of which Civil Appeal No. 362 has arisen. On behalf of the respondents-petitioners in these appeals (C. A. Nos. 861 to 867 of 1962) Mr. Andley has argued that the delay in these cases even is not such as would justify refusal of the order for refund. We argued that assuming that the remedy of recovery by action in a civil court stood barred on the date these applications were made that would be no reason to refuse relief under Art. 226 of the Constitution. Learned Counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art. 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed Page No.# 8/8 for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known. If the mistake was known in these cases on or shortly after January 17, 1956 the delay in making these applications should be considered unreasonable. If, on the other hand, as Mr. Andley seems to argue, that the mistake discovered much later this would be a controversial fact which cannot conveniently be decided in writ proceedings. In either view of the matter we are of opinion the orders for refund made by the High Court in these seven cases cannot be sustained.” 16) Hence, this writ petition fails on the ground of delay and laches of 4 years, 6 months, 10 days (or, 1652 days) in assailing the impugned opinion. Resultantly, this writ petition is dismissed. 17) There shall be no order as to cost. 18) The Registry shall return back the Tribunal’s records along with a copy of this order so as to enable the learned Tribunal to make it a part of the record for future reference. 19) The learned standing counsel for the petitioner shall also transmit a downloaded copy of this order to the Superintendent of Police (Border), Nagaon. JUDGE JUDGE Comparing Assistant