Page No.# 1/9 GAHC010268692024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/302/2025 HASHMAT ALI S/O- JAYENUDDIN @ JAYNADI SHEIKH, VILL- KHOLABANDHA, P.S. TARABARI, DISTRICT- BARPETA (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 COORDINAOR OF NATIONAL REGISTER OF CITIZENS ASSAM 1ST FLOOR ACHYUT PLAZA GUWAHATI SHILLONG ROAD BHANGAGARH GUWAHATI ASSAM PIN- 781005 Page No.# 2/9 5:THE DISTRICT COMMISSIONER OF BARPETA DISTRICT P.O. P.S. AND DIST.- BARPETA ASSAM PIN- 781301 6:THE SUPERINTENDENT OF POLICE (BORDER) BARPETA DISTRICT P.O. P.S. AND DIST.- BARPETA ASSAM PIN- 78130 Advocate for the Petitioner : MR. A T SARKAR, AMINUR RAHMAN Advocate for the Respondent : DY.S.G.I., SC, ELECTION COMMISSION.,GA, ASSAM,SC, F.T BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER 18.06.2025 (M. Nandi, J) Heard Mr. A.T. Sarkar, learned counsel for the petitioner. Also heard Mr. P. Sarmah, learned Additional Senior Government Advocate; Mr. P.S. Lahkar, learned CGC; Mr. M. Islam, learned Advocate for Mr. A.I. Ali, learned Standing Counsel, ECI; and Ms. A. Verma, learned Standing Counsel, FT matters. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the ex parte order dated 17.09.2022, passed by the learned Member, Foreigners Tribunal 7th, Barpeta in F.T Case No.768/2017 (Reference Case No.8218/98), whereby the petitioner was declared as an illegal Page No.# 3/9 migrant. 3. The case of the petitioner is that he is a citizen of India by birth. He was born in the year 1961 at village – Kholabandha, P.S – Tarabari in the district of Barpeta, Assam. His name was enrolled in the voter list for the first time in the year 1997 but subsequently, he was identified as “D Voter”. Thereafter, in pursuant to the notice issued by the Tribunal, he appeared before the Tribunal and sought time to file written statement but subsequently, he realized that he was not having the certified copy of voter list of 1955 containing his father’s name as his father’s name was not enrolled in any other voter list after 1955 from the said village till his death i.e. 1969. 4. Accordingly, the petitioner applied for the certified copy of voter list of 1955, but the same was not furnished to him by saying that the said voter list was not available in the Election Office, Barpeta. Meanwhile, the proceeding of the case was substantially progressed and after giving enough opportunities to the petitioner, the learned Tribunal passed the impugned ex parte order declaring the petitioner as an illegal migrant. 5. Learned counsel for the petitioner has stressed his argument on the point that the name of his father Jaynuddin Sheikh @ Jayenuddin was enlisted in the voter list of 1955 along with other family members from village – Lohorapam under Tarabari P.S in the then district of Kamrup (at present Barpeta) and since then he has been casting vote in all the elections held in Assam and his citizenship was never suspected by any authority at any point of time till his death. 6. 6. According to learned counsel for the petitioner, in spite of best effort, the petitioner could not collect the certified copy of voter list of 1955 of his father. Page No.# 4/9 Subsequently, he collected voter list of 1955 from Panchayat Office which is annexed in this writ petition. It is further submitted that the name of the petitioner was enlisted in the voter list of 1997 along with other family members. But he was identified as “D Voter”. Similarly, the name of the petitioner appeared in the voter lists of 2005, 2010, 2011 and 2017 from the same village. 7. It is further contended that no any foreigner’s case have been initiated against any family members of the petitioner and all the family members have been enjoying the citizenship rights of India and as such, initiation of the foreigner’s case against the petitioner is not at all acceptable. Hence, the impugned order/opinion dated 17.09.2022 is liable to be set aside. The alternative submission of learned counsel for the petitioner is to remand the matter before the Tribunal for fresh adjudication giving one more chance to the petitioner to exhibit the relevant documents to prove his citizenship. 8. In support of his submission, the learned counsel for the petitioner has relied on the following case vide (2023) 4 GLT 425 [Pranati Hazong Vs. Union of India and Ors.) 9. In response, the learned counsel for the FT matters, Ms. Verma has vehemently opposed either to set aside the order of the Tribunal or remand the matter for fresh adjudication. It is submitted that notice was duly served to the petitioner and the petitioner has also appeared before the Tribunal seeking time for filing written statement. It transpires that he has knowledge that the case is pending before the Tribunal. In spite of having knowledge for taking necessary steps to proceed with the case, he did not appear before the Tribunal for a long time. As a result of which, ex parte opinion was rendered by the Tribunal. Page No.# 5/9 10. Learned counsel has also submitted that sufficient opportunity was given to the petitioner by the Tribunal, however, the petitioner has failed to take such opportunity. As such, the case was rightly decided by the Tribunal as ex parte. 11. By referring the case of Ijjat Ali Vs. Union of India vide WP(C) 8361/2009, the learned counsel has submitted that a proceeding before the Foreigners’ Tribunal cannot be an endless exercise. Accordingly, learned counsel has prayed for dismissal of the writ petition. Ms. Verma has also relied on some other case laws in support of her submission – a) WP(C) 291/2024 [Baharul Islam Vs. Union of India and Others] b) WP(C) 1293/2020 [ Sajiran Nessa Vs. Union of India and Others] c) WP(C) 82/2024 [ Baten Paramanik Vs. Union of India and Others] d) (2023) SCC Online SC 996 [Central Council for Research in Ayurvedic Sciences and another Vs. Bikartan Das and Others] 12. Ms. Verma has also stated that the ex parte opinion was rendered by the Tribunal on 17.09.2022 but the petitioner has approached before this Court in the year 2025 i.e. after three years of passing of the order. In this regard, she referred another case law vide (2024) Live Law (SC 318) [Mrinmoy Maiti Vs. Chhanda Koley and others] wherein it was held by the Hon’ble Supreme Court that for filing a writ petition, there is no fixed period of limitation prescribed but the High Court will have to necessarily take into consideration the delay and Page No.# 6/9 latches of the application in approaching a writ court. Accordingly, the learned counsel has contended that the petitioner has not come with clean hands and prayed for dismissal of the writ petition. 13. We have considered the submissions of the learned counsel for the parties and we have also perused the trial court record. It appears that on receipt of the notice, the petitioner appeared before the Tribunal in person along with his engaged counsel on 18.04.2022 and filed a petition seeking time for filing written statement which was allowed by the Tribunal and the next date was fixed on 07.05.2022. On 07.05.2022, the petitioner was present along with his counsel and again filed a petition praying for another date for filing written statement and which was accordingly allowed fixing a date on 21.05.2022 for filing written statements along with relevant documents. On subsequent date i.e. on 21.05.2022, the petitioner was absent but his counsel filed a petition seeking time for filing written statement which was allowed. 14. On the next date i.e. on 08.06.2022, though petitioner was present along with his counsel, but failed to submit the written statement and prayed for another date which was allowed. On subsequent dates i.e. on 20.07.2022, 12.08.2022 and 23.08.2023, the petitioner was absent before the Tribunal but his counsel filed petitions on such dates seeking time which was also allowed by the Tribunal for ends of justice. But ultimately, on 17.09.2022, neither the petitioner nor his counsel was present and took any steps in the case and the Tribunal finding no other alternative passed the ex parte opinion declaring the petitioner as a foreigner of post 25.03.1971. Page No.# 7/9 15. Having regard to the undisputed facts, as above, we find that sufficient opportunities were granted to the petitioner to establish his claim as not being a foreigner or to refute the allegation that he had illegally entered into the Territory of India after 25.03.1971. 16. In this context, we may observe that although the procedure of identification or for declaring an individual to be a foreign national cannot be relegated to a mechanical exercise and that fair and reasonable opportunity must be afforded to a proceedee to establish the claim that he/she is a citizen of India. However, such grant of fair and reasonable opportunity cannot be enlarged to an endless exercise. A person who is not diligent and is negligent in taking steps to safeguard his interest, he does so at his own risk. In the instant case, several opportunities were granted to the petitioner to establish his claim which he utterly failed to do so. 17. In this context, we also observe that in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order 1964, the primary issue for determination is whether a proceedee is a foreigner or not. The relevant fact being specially within the knowledge of the proceedee as such, the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding, anything contained in the Indian Evidence Act, 1872. This is mandated u/s 9 of the aforesaid Act, 1946. The said position would not change even in an ex parte proceeding before the Tribunal as the burden never shifts but continues to be upon the proceedee. 18. In a situation where no evidence is adduced or the burden is not discharged, the only option left to the Tribunal, would be to declare the Page No.# 8/9 proceedee to be a foreigner, based on the grounds of reference upon which appropriate proceeding was initiated, notice was duly issued and duly served upon the proceedee. 19. In the case in hand, on receipt of the notice though the petitioner put his appearance before the Tribunal, sought several adjournments for filing written statement but ultimately failed to submit the written statement. The petitioner neglected to participate/contest the proceedings by way of adducing evidence or to prove the assertion made in the writ petition. 20. Having noticed as above, another aspect to be noted is that the scope of interference under Article 226 of the Constitution of India to a decision of the Tribunal is limited to correcting errors of jurisdiction or when decision is made by the Tribunal without giving opportunity of hearing or when judgment is rendered in violation of the principle of natural justice or where there appears to be an error apparent on the face of the record. None of the above grounds exist in the present case. 21. To reiterate, sufficient opportunities have been granted to the petitioner to discharge the burden of proving that he is not a foreigner, which he utterly failed to discharge. On this ground alone, the writ court would refrain from interfering with the impugned order. 22. We also hold that the documents enclosed in the writ petition cannot be looked into, those not having been proved before the Tribunal at the first instance, despite sufficient opportunities being afforded. Page No.# 9/9 23. We find no merit in the present writ petition. Accordingly, the writ petition is dismissed and the order/ opinion of the Tribunal is affirmed. There shall be no order as to costs. 24. The writ petition is disposed of accordingly. 25. Transmit the records to the Tribunal. JUDGE JUDGE Comparing Assistant