Page No.# 1/9 GAHC010246652024 2025:GAU-AS:9879-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No: WP(C)/5640/2024 SIRAJUL HOQUE @ CHIRAJUL HOQUE S/O LATE BINCHED ALI KHANDAKAR @ BINSAD ALI KHANDAKAR VILL- HALDIA P.S. SORBHOG DIST. BARPETA ASSAM PIN-761301 VERSUS THE UNION OF INDIA AND 5 ORS REPRESENTED BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS GOVERNMENT OF INDIA SASTRI BHAWAN NEW DELHI PIN-110001. 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6. 3:THE SUPERINTENDENT OF POLICE (B) BARPETA DIST. BARPETA ASSAM Page No.# 2/9 PIN-781301 4:THE DEPUTY COMMISSIONER BARPETA P.O. AND DIST. BARPETA ASSAM PIN-781301 5:THE ELECTION COMMISSION OF INDIA REPRESENTED BY THE CHIEF ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI INDIA PIN-110001. 6:THE NATIONAL REGISTER OF CITIZEN REPRESENTED BY THE STATE COORDINATOR ASHYUT PLAZA BHANGAGARH KAMRUP (M) ASSAM PIN-781006 ------------ Advocate for : MR. M A SHEIKH Advocate for : DY.S.G.I. appearing for THE UNION OF INDIA AND 5 ORS BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE RAJESH MAZUMDAR ORDER Date : 30.07.2025 (Rajesh Mazumdar, J) Heard Mr. H. Ali, learned counsel, appearing on behalf of Mr. M.A. Sheikh, the learned counsel on record for the petitioner. Also heard Mr. M.R. Adhikari, learned CGC; Mr. G. Sarma, learned standing counsel for the FT Page No.# 3/9 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, Sirajul Hoque @ Chirajul Hoque, has assailed the ex parte opinion dated 19.09.2022, passed by the learned Member, Foreigners Tribunal No.11th, Barpeta at Sarbhog in Case No. (Bpt/11th) FT 1707/2017 [arising out of P.E. No. IM(D)T 283/04], by which the reference was answered in favour of the State and against the petitioner, thereby declaring him to be a foreigner of post 25.03.1971 stream. 3) The Superintendent of Police (Border), Barpeta had made a reference before the erstwhile Illegal Migrants (Determination) Tribunal, Barpeta [hereinafter referred to as IM(D)T for brevity] for determination of his nationality under Section 3(I) of the Illegal Migrants (Determination by Tribunals) Act, 1983 [hereinafter referred to as IM(DT) Act for brevity]. In the case of Sarbananda Sonowal v. Union of India & Ors., (2005) 5 SCC 665, the Supreme Court of India had declared the said IM(DT) Act as ultra vires and all proceedings pending before the erstwhile IM(D)T were transferred to the Foreigners Tribunals. Accordingly, on receipt of the records of IM(D)T 283/04, (Bpt/11th) FT 1707/2017 was registered and notice was issued vide order dated 22.03.2021, passed by the said learned Foreigners Tribunal. 4) On receipt of summons, the petitioner had entered appearance in the matter and submitted petitions for adjournment on 28.04.2021. Though the petitioner was absent without steps, the learned Tribunal had adjourned the proceedings on 29.05.2021, 21.08.2021, 28.09.2021, 27.10.2021, 29.11.2021, Page No.# 4/9 29.12.2021 and 20.01.2022. The matter was fixed on 14.02.2022. However, on a petition filed by the learned counsel for the petitioner on 14.02.2022, the matter was adjourned and re-fixed on 11.03.2022 for filing of written statement and documents. Once again, the petitioner was absent without steps on 11.03.2022, however, for ends of justice, the learned Tribunal had adjourned the proceedings and re-fixed the matter on 19.04.2022. Thereafter, on 19.04.2022, 19.05.2022, 22.06.2022, and 20.07.2022, the case was adjourned on the prayer made by the learned counsel for the petitioner and after giving last chance to the petitioner to submit his written statement and documents, the case was fixed on 17.08.2022 for submitting written statement and document. On 17.08.2022, the learned counsel appearing for the petitioner had submitted before the learned Foreigners Tribunal that the petitioner was not in contact with her. Accordingly, the learned Foreigners Tribunal had fixed the matter on 19.09.2022, on which date, the ex parte opinion was pronounced in favour of the State and against the petitioner. 5) The learned counsel for the petitioner had submitted that the petitioner has all the relevant papers to show that he was not a foreigner who had illegally entered into India (Assam) from the specified territory. It has been submitted that on receiving summons from the learned Foreigners Tribunal, the petitioner had engaged one Ismail Uddin Ahmed, Advocate of Barpeta Bar to conduct his case, however, due to Covid-19 pandemic, the State authorities failed to supply any documents to the petitioner. 6) By referring to the statement made in paragraph 18 of the writ petition, it has been submitted that the petitioner is a staunch supporter of a particular political party and therefore, he had met the local MLA, who assured Page No.# 5/9 the petitioner that he could take care of the case and nothing would happen to him and thus, on being so assured, the petitionerabstained from takingany steps in the proceeding before the learned Tribunal. 7) It was also submitted that on 02.09.2024, the petitioner was taken into custody by the Border Branch of Kalgachia P.S. and he is presently held in Transit Camp at Matia, Goalpara. 8) It was also submitted that the impugned opinion violates the principles of natural justice, equity and administrative fair-play. It was also submitted that the learned counsel engaged by the petitioner to conduct the case before the learned Tribunal did not inform the petitioner that he would not take steps. Thus, it was submitted that this writ petition has been filed as there is no alternative or efficacious remedy. Accordingly, it has been submitted that the Court would grant one opportunity to the petitioner to contest the proceeding. 9) Although the learned counsel for the petitioner has not cited any case-laws, but as per order dated 21.01.2025, the learned counsel for the petitioner had cited the case of Smt. Shefali Rani Das v. Union of India & Ors., W.P.(C) 2068/2018, decided on 20.07.2024. After the hearing was concluded, the learned counsel for the petitioner had handed over a copy of the order dated 03.10.2023, passed by the Supreme Court of India in the case of Aditya Khaitan & Ors. V. IL and FS Financial Services Limited, Civil Appeal Nos. 6411- 6418 of 2023 [Arising out of SLP(C) Nos. 4789-4796 of 2021]. 10) The prayer is seriously opposed by the learned standing counsel for the FT and Border matters and in support of his objection, reliance is placed on the case of Dhan Das v. The State of Assam & Ors., (2018) 5 GLT 492. Page No.# 6/9 11) Considered the materials on record, as well as the submissions made and cases cited at the Bar. 12) The admitted case of the petitioner is that he had received summons of the proceedings before the learned Tribunal and he had entered appearance in the matter by engaging his counsel. However, during the pendency of the proceeding, he had approached the local MLA, who had assured the petitioner that nothing would happen to him and thereafter, as per statement made in paragraph 18 of the writ petition, he had “abstained” from taking steps in the proceeding. The word “abstain” as per Cambridge Dictionary, amongst others, means “not do”, “to not do something”. Thus, the decision of the petitioner not to defend himself in the proceedings before the learned Foreigners Tribunal was awell considered step, voluntary, taken as per the advice allegedly given to him by an MLA, whose name is disclosed in the writ petition. 13) The petitioner has not produced an affidavit sworn by the said local MLA that he had given advice to the petitioner not to file his written statement and any documents before the learned Foreigners Tribunal and that he would ensure that nothing would happen to the petitioner. Thus, if the petitioner has abstained from filing his written statement, documents and evidence-on-affidavit in the proceeding against him, it is his deliberate and willful default, which he did at his own risk as to consequences arising therefrom. 14) Therefore, this is not a case where the petitioner’s learned counsel, engaged to conduct the proceeding before the learned Foreigners Tribunal, can be said to have committed any wrong or professional misconduct, whatsoever. It is not the pleaded case of the petitioner that he had provided all Page No.# 7/9 relevant instructions to his engaged counsel, but the engaged counsel committed professional misconduct. On the contrary, upon receiving advice from a political person, perhaps better and wiser than his engaged counsel, the petitioner had “abstained’ from defending himself in the proceeding against him, where his status as an Indian citizen is doubtful. Thus, this is a case where the Court can draw presumption under Section 119, Illustration (g) of the BharatiyaSakshyaAdhiniyam, 2023 [corresponding to Section 114, Illustration (g) of the Evidence Act, 1872] that “evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.” 15) In the case of Jonali Das v. Union of India, 2018 (5) GLT 492: (2018) 0 Supreme(Gau) 1186, the coordinate Bench of this Court has held to the effect that there is no doubt that citizenship of a person is a very valuable right and should jealously be guarded, and 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. It was further held that 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. 16) It would also be relevant to refer to the observations made by the Full Bench of this Court in the case of State of Assam v. Moslem Mondal, 2013 (1) GLT 809, to the effect that ex parte orders can only be recalled on special and exceptional circumstances and not in a routine manner. 17) The case of Shefali Rani Das (supra) and Aditya Khaitan & Ors.are not the authority on the point that though the proceedee before the Page No.# 8/9 Foreigners Tribunal abstains from defending himself before the learned Tribunal and allows an ex parte opinion to come on record, yet he must be given further opportunity to contest the proceeding. In this case, the proceeding was not decided within Covid-19 pandemic period, as more specifically referred to hereinafter. Moreover, the said two cases are also not the authority on the point that the Foreigners Tribunals need not adhere to the provisions of Paragraph 3(14) of the Foreigners (Tribunals) Order, 1964. Therefore, the said two cases do not help the petitioner in any manner whatsoever. 18) Thus, considering the matter in its entirety, the Court is of the considered opinion that due to willful and deliberate “abstaining” on part of the petitioner, he has not filed his written statement despite the fact that his case was adjourned by the learned Tribunal on about 13 (thirteen) occasions, as morefully mentioned in the impugnedex parte opinion, which was spread over a period of 2 (two) years between 28.04.2021 to 17.08.2022, which extends even beyond the extension of limitation granted by the Supreme Court of India from 15.03.2020 to 14.03.2021 due to Covid-19 Pandemic, the petitioner has not been able to make out any case for any interference whatsoever in respect of the opinion impugned herein. 19) The petitioner has miserably failed to demonstrate that the ex parte opinion dated 19.09.2022, passed by the learned Member, Foreigners Tribunal No.11th, Barpeta at Sarbhog, in Case No. (Bpt/11th) FT 1707/2017 [arising out of P.E. No. IM(D)T 283/04] is vitiated by any reason whatsoever. 20) The learned counsel for the petitioner has not been able to satisfy the query of the Court as to whether, in exercise of certiorari jurisdiction under Article 226 of the Constitution of India, the High Court can substitute its Page No.# 9/9 view over the well considered decision of the learned Tribunal, which is not vitiated for any error whatsoever. 21) Resultantly, this writ petition fails and the same is dismissed. However, there shall be no order as to cost. 22) The Registry shall send back the records to the concerned Tribunal along with a copy of this order to be made a part of the record by the said learned Tribunal. JUDGE JUDGE Comparing Assistant