Page No.# 1/11 GAHC010225202025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7005/2025 RAJIB HUSSAIN ALIAS MD RAJIB HUSSAIN RO MODHUPUR , PS NAGAON SADAR , DIST NAGAO ,ASSAM VERSUS THE UNION OF INDIA AND OTHRS REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, SHASTRI BHAWAN, NEW DELHI-110001 2:THE STATE OF ASSAM REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI. PIN-781006 3:THE ELECTION COMMISSION OF INDIA REPRESENTED BY THE CHIEF ELECTION COMMISSION NIRVACHANSADAN ASHOKA ROAD NEW DELHI-110001 4:THE STATE COORDINATOR NATIONAL REGISTRATION OF CITIZENS ASSAM 1ST FLOOR ACHYUT PLAZA G.S. ROAD BHANGAGARH GUWAHATI ASSAM PIN-781005. Page No.# 2/11 5:THE DISTRICT COMMISSIONER NAGAON DIST NAGAO ASSAM 6:THE SUPERINTENDENT OF POLICE BORDER NAGAON DIST NAGAON ASSAM 7:THE OFFICER IN CHARGE NAGAON DIST NAGAON ASSA Advocate for the Petitioner : MR. S. K. CHAKMA, MS. D GHOSH Advocate for the Respondent : DY.S.G.I., GA, ASSAM,SC, NRC,SC, ECI,SC, F.T BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA ORDER Date : 09-03-2026 (K.R. Surana, J) Heard Ms. D. Ghosh, learned counsel for the petitioner. Also heard Ms. S. Baruah, learned CGC; Mr. A.I. Ali, learned standing counsel for the ECI; Ms. A. Verma, learned standing counsel for the Foreigners Tribunal and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Rajib Hussain Alias Md. Rajib Hussain, has assailed the impugned ex parte opinion dated 15.12.2017, passed by the Page No.# 3/11 learned Member, Foreigners Tribunal 1st, Nagaon, Assam, in F.T. Case No. 106/15, arising out of S.P. (B) vide Case No. 577/14, by which he was declared to be a foreigner as defined under Section 2(a) of the Foreigners Act, 1946 of the stream of post 25.03.1971. 3. This writ petition was filed on 03.10.2025 to assail the ex parte opinion dated 15.12.2017, i.e. after there has been an extraordinary delay of 7 years, 9 months, 18 days (or 2849 days). Hence, the matter was heard on the issue of delay and laches on the part of the petitioner in assailing the ex parte opinion. 4. The learned counsel had submitted that though as per the impugned ex parte opinion dated 15.12.2017, the petitioner was absent on three consecutive dates i.e. on 21.11.2017, 16.12.2017 and 15.12.2017, but on perusal of the order sheets it can be seen that the ex parte opinion was passed against the petitioner only after two dates of non-appearance. It is submitted that the petitioner had failed to appear before the learned Tribunal due to his extreme poverty. He used to go to other States for earning as a daily wage labourer and as such, he failed to appear before the learned Tribunal on the dates fixed for his appearance. It is also submitted that due to his financial hardships he could not even engage any counsel for defending his case. Eventually, with the help of some well-wishers, the petitioner could approach the Gauhati High Court Legal Services Committee for assistance and the present writ petition could be filed. Hence, the learned counsel for the petitioner prays that the absence of the petitioner before the learned Tribunal was neither wilful nor deliberate and prays for one last chance to prove his citizenship. 5. Per contra, the learned standing counsel for the FT, Border Page No.# 4/11 matters and NRC had submitted that the explanation given is vague, and not supported by any documents or any other cogent and reliable materials. Thus, it was submitted that in this case, the petitioner was apparently negligent. 6. The learned CGC and the learned Addl. Senior Govt. Advocate for the other appearing respondents have adopted the submissions made by the learned standing counsel for the FT, Border matters and NRC. 7. As per the contents of the impugned ex parte opinion dated 15.12.2017, it is seen that notice was issued to the petitioner and as per the service report of the notice dated 21.11.2017, the notice was received by the petitioner personally under his signature. But inspite of that, the petitioner did not appear on all the three dates i.e. on 21.11.2017, 16.12.2017 and 15.12.2017 and the petitioner also did not take any steps to file his written statement nor did he take any steps to prove his nationality. Thus, the case proceeded ex parte against the petitioner. 8. As per the provisions of Order 3 (14) of the Foreigners (Tribunals) Order, 1964, the reference was required to be disposed of within 60 days from the date of receipt of the reference, yet the petitioner did not bother to file his written statement or prove his case. Under Section 9 of the Foreigners Act, 1946, the burden is on the proceedee to prove that he is not a foreigner but an Indian. 9. It may be stated that there is no period of limitation 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. Page No.# 5/11 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 delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment." 10. In this case, the delay and laches of the petitioner are in two phases. Firstly, the non-submission of his written statement from 21.11.2017 to 15.12.2017 i.e. for nearly 24 (twenty four) days. The second phase of delay is Page No.# 6/11 from 15.12.2017, the date of the ex parte opinion till the filing of this writ petition on 03.10.2025. On both counts, the delay is not properly explained. 11. It may be stated that from the contents of the said opinion, it appears that the enquiry against the petitioner was made under the erstwhile Illegal Migrants (Determination by Tribunals) Act, 1983 regime. Thereafter, pursuant to the directions contained in the decision of the Supreme Court of India in the case of Sarbananda Sonowal v. Union of India & Ors., (2005) 5 SCC 665, all references pending before the IM(D)T were transferred to the jurisdictional Foreigners Tribunals. Thus, in the process, the petitioner has been successful in continuing his stay in the Country from 15.12.2017 till date. 12. The Supreme Court of India, in paragraph 46 of the case of Urban Improvement Trust v. Vidhya Devi, 2024 INSC 980: (2024) 0 Supreme(SC) 1189, 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 [extracted from (2024) 0 Supreme(SC) 1189 ] 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.” 13. 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 Page No.# 7/11 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." 14. The Supreme Court of India, in the case of Shivamma (Dead) by LRs v. Karnataka Housing Board & Ors., 2025 INSC 1104: 2025 Supreme(SC) 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 Tribunal, 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. 15. 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 been expressed by this Court in the case of Abu Bokkor Siddique v. Union of India, 2019 (1) GLT 813. 16. It must be taken note of the fact that the Supreme Court of India, in the case of Sarbananda Sonowal (supra), in paragraph 73, has held to the effect that the procedure under the Foreigners Act, 1946 and the Foreigners Page No.# 8/11 (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 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. 17. In this case, the stand of the petitioner is that he belonged to a very poor background and although the petitioner came to know about the ex parte opinion dated 15.12.2017, but his poverty prevented him from obtaining the certified copies of the order and also he also could not engage a lawyer to file his writ petition to challenge the said ex parte impugned opinion. 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 which 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 Tribunal. 18. By showering sympathy in this particular case, this Court would be encouraging unscrupulous practices of not appearing and/or filing written statement and evidence before Courts and Tribunals, despite notice being duly Page No.# 9/11 served. 19. The Court is of the considered opinion that if such belated petitions are entertained after 7 years, 9 months, 18 days (or 2849 days) without proper explanation of the default, all delays, irrespective of the number of days, will then have to be condoned at the drop of a hat. It would also render the provisions of Order 3(8) and Order 3(14) of the Foreigners (Tribunals) Order, 1964 otiose. 20. The learned counsel for the petitioner had submitted that he has all the documents to support his contention that the petitioner is not a foreigner. In the said context, it may be stated that this Court is exercising certiorari jurisdiction and thus, cannot act as a Court of original jurisdiction so as to convert itself into a Foreigners Tribunal and start examining and appreciating the contents of the documents annexed to the writ petition, which were hitherto not presented before the learned Foreigners Tribunal. This Court is also not exercising appellate or revisional jurisdiction. The petitioner has failed to show that the impugned opinion is vitiated by incorrect appreciation of the documents. 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 start examining documents, as if it were a Tribunal, unless of course, the appreciation of documents can be shown to be perverse. 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 Page No.# 10/11 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 and decide what is the proper view to be taken or the order to be made.” 21. Thus, the challenge to the impugned ex parte opinion dated 15.12.2017, passed by the learned Member, Foreigners Tribunal 1st, Nagaon, Assam in F.T. Case No. 106/15, by which the petitioner, namely, Rajib Hussain Alias Md. Rajib Hussain, arising out of S.P. (B) vide Case no. 577/14, was declared to be a foreigner as defined under Section 2(a) of the Foreigners Act, 1946 of the stream of post 25.03.1971, fails. Resultantly, this writ petition is dismissed at the “motion stage” without issuing notice upon the respondents. The consequences of the said opinion shall follow. 22. There shall be no order as to cost. 23. 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 Page No.# 11/11 Comparing Assistant