Page No.# 1/9 GAHC010271972025 2025:GAU-AS:17715 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7018/2025 ABUL ALI ALIAS ABDUL HUSSAIN SON OF LATE DARAJ ALI ALIAS DARAJ UDDIN VILLAGE- BORPATHAR GAON P.S. BORPATHAR DISTRICT- GOLAGHAT ASSAM PIN - 785602. VERSUS THE UNION OF INDIA AND 5 ORS REPRESENTED BY THE THE MINISTRY OF HOME AFFAIRS NEW DELHI-110001. 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-781006. 3:THE DISTRICT COMMISSIONER GOLAGHAT DIST. GOLAGHAT ASSAM PIN- 785621. 4:THE SUPERINTENDENT OF POLICE (B) GOLAGHAT ASSAM PIN- 785621. Page No.# 2/9 5:THE ELECTION COMMISSION OF INDIA NEW DELHI-110001. 6:THE STATE CO-ORDINATOR NATIONAL REGISTRAR OF CITIZENS (NRC) BHANGAGARH PIN- 781032. ------------ Advocate for : MR. A M AHMED Advocate for : DY.S.G.I. appearing for THE UNION OF INDIA AND 5 ORS BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SHAMIMA JAHAN ORDER Date : 18.12.2025 (K.R. Surana, J) Heard Mr. I. Hussain, learned counsel for the petitioner. Also heard Mr. H. Gupta, learned CGC for respondent no.1; Mr. H.K. Hazarika, learned Govt. Advocate for respondent no.3; Mr. J. Payeng, learned standing counsel for the FT and Border matters, respondent nos. 2 and 4; Mr. H. Kuli, learned counsel, appearing on behalf of Mr. A.I. Ali, learned standing counsel for respondent no.5; Mr. G. Sarma, learned standing counsel for NRC, respondent no. 6. 2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Abul Ali @ Abdul Hussain, has assailed the ex parte opinion dated 19.06.2012, passed by the learned Member, Foreigners Tribunal, Golaghat in Case No. FTG. 476/07 [Corresponding to IM(D)T Police Case No. 18/04], by which the petitioner was declared to be a foreigner as per Section 2(a) of the Foreigners Act, 1946, who has entered Assam illegally on or after 25.03.1971. 3) The hereinbefore referred case was registered upon reference Page No.# 3/9 made by the Superintendent of Police (Border), Golaghat. 4) From the impugned order, it appears that the notice of the proceeding was served on the petitioner. He appeared before the learned Tribunal and prayed for time to file his written statement and documents and on the next date, i.e. 18.12.2009. Thereafter, the petitioner failed to appear on 02.02.2010, 31.03.2010, 19.05.2010, 28.06.2010, 11.08.2010, 22.09.2010, 15.11.2010, 07.01.2011, 05.03.2011, 23.05.2011, 05.08.2011, 01.10.2011, 03.12.2011, 09.03.2012 and 11.05.2012 respectively, i.e. 15 (fifteen) dates. Thus, with full knowledge of the proceeding, the petitioner did not contest the proceeding. The learned Tribunal had examined the Enquiry Officer, who had stated that the petitioner did not produce any document during enquiry. Thus, by the impugned ex parte opinion dated 19.06.2012, the petitioner was declared to be a foreigner as per Section 2(a) of the Foreigners Act, 1946, who had entered into Assam (India) after 25.03.1971 from Bangladesh. 5) As the present writ petition to assail the impugned ex parte opinion dated 19.06.2012, has been filed after about 131/2 years on 04.11.2025, the learned counsel for the petitioner was asked to address the Court on huge and inordinate delay and laches. 6) The learned counsel for the petitioner, by referring to the statements made paragraphs 6 to 8 and 10 to 12 in the writ petition, has submitted that the petitioner is a poor and illiterate person belonging to indigenous Muslim community of Assam. He had engaged an advocate and paid some fees and provided him with documents. The said advocate assured him to take all steps and asked the petitioner not to worry because he belonged to indigenous Muslim community. Therefore, the petitioner was sitting silently. The Page No.# 4/9 petitioner came to know about the ex parte opinion only after he was taken into custody on 24.05.2025 and sent to Temporary Jail/ Transit Camp at Matia Goalpara and thereafter, shifted to Holding Area under 7th AP Bn., Charaikhola, Kokrajhar, Assam. 7) It has been submitted that the learned Tribunal had exceeded its jurisdiction by deciding the reference ex parte because the Foreigners (Tribunals) Order, 1964 mandated that a reasonable opportunity has to be given to the proceedee to prove his case and therefore, it was the duty of the learned Tribunal to issue and serve a fresh notice of the proceeding. It has been submitted that the learned Tribunal failed to act in accordance with law by not appointing Legal Aid Counsel. It has been submitted that the learned Tribunal had not considered the facts and did not examine the matter with utmost caution and by exercising due diligence. The learned counsel for the petitioner has also submitted that the petitioner belongs to indigenous Muslim community from Assam, whose ancestry is deep rooted in Assam. It is also submitted that the petitioner has all the relevant documents to prove that he is a citizen of India and therefore, the case of petitioner may be given an opportunity to be heard on merit. It has been submitted that if no opportunity is granted to the petitioner, he would suffer great injustice and his valuable citizenship right would be irreversibly lost forever. It has also been submitted that the petitioner has no other efficacious remedy available to him. 8) It has also been submitted that his brother, namely, Md. Zamir Ali has been declared as not a foreigner by ex parte opinion dated 27.11.2015, passed by the Foreigners Tribunal, Jorhat in Case No. FTG/392/07 [arising out of IM(D)T Enquiry No. 161/04 (Golaghat)], which has to be considered by this Court. Page No.# 5/9 9) Per contra, the learned standing counsel for the FT, Border matters and NRC had opposed this writ petition on ground of delay and laches. 10) In this case, the opinion was rendered on 19.06.2012. As per the statement made by the petitioner in paragraph 6 of the writ petition, he had appeared before the learned Tribunal on 24.09.2009 and 31.10.2009 and it is admitted that he had remained absent thereafter. From the statements made in the writ petition, it is admitted that the petitioner did not take any steps to contact his engaged counsel on or after 31.10.2009 till the ex parte opinion was passed on 19.06.2012, or till he was apprehended on 24.05.2025. 11) In view of the stand taken by the petitioner in paragraphs 6 to 8 and 10 to 12, the Court is constrained to hold that the Courts and Tribunals, including the Foreigners Tribunal are under no duty to keep on issuing notices to the proceedee after they commit default in appearing in a proceeding. The Court cannot accept that there can be an endless exercise to keep on issuing notices to a litigant after each and every default committed by a litigant. It was a duty cast on the petitioner to appear and contest the proceeding. Moreover, under Order 3(14) of the Foreigners (Tribunals) Order, 1964 the mandate of law is to the learned Tribunal to dispose of a reference within 60 (sixty) days. 12) The petitioner has taken a stand that his projected brother has been declared to be not a foreigner. On a perusal of the opinion dated 27.11.2015, passed by the learned Foreigners Tribunal, Jorhat in Case No. FTG/392/07 [arising out of IM(D)T Enquiry No. 161/04 (Golaghat)], it is noticed that in the said opinion, there is no reference to the name of the petitioner as a brother or sibling of the proceedee in the said case. Thus, it appears that when the projected brother of the petitioner had contested the proceeding, he did not disclose the petitioner to be his brother and thus, by non-disclosure of material Page No.# 6/9 fact that one of his brothers has been declared to be a foreigner vide presently impugned ex parte opinion dated 19.06.2012, the said opinion dated 27.11.2015, appears to have been passed. However, the Court hastens to clarify, that the remark regarding the opinion dated 27.11.2015, is a mere observation by the Court and should not be construed as an opinion expressed by the Court. The point is that in this case, the previous ex parte opinion dated 19.06.2012, would bind the petitioner as the same was not brought to the notice when the proceeding of Case No. FTG/392/07 [arising out of IM(D)T Enquiry No. 161/04 (Golaghat)] was taken up for hearing by the learned Foreigners Tribunal, Jorhat. Therefore, the subsequent opinion, passed on concealment of the present opinion would not come to the help of the petitioner because in Case No. FTG/392/07 [arising out of IM(D)T Enquiry No. 161/04 (Golaghat)], the said proceedee did not admit that the petitioner in this case is his brother or sibling. 13) 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 of 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. Similar opinion has also been expressed by this Court in the case of Abu Bokkor Siddique v. Union of India, 2019 (1) GLT 813. 14) The Supreme Court of India, in the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665, in paragraph 73, has held to the effect that the procedure under the Foreigners Act, 1946 and the Foreigners (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 Page No.# 7/9 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. 15) Though the petitioner had appeared before the learned Tribunal and took time to file written statement, he defaulted to appear and contest the proceeding on 16 dates after his first appearance. Thus, an ex parte opinion was rendered on 19.06.2012. The petitioner was taken into custody on 24.05.2025, and thereafter he has awakened to assail the said ex parte opinion by filing this writ petition on 04.11.2025, which is about 13 years, 4 months, 16 days or 4886 days after passing of the impugned opinion. 16) Although the petitioner has blamed his learned counsel engaged to represent him before the learned Tribunal, but the petitioner has not disclosed the name of the learned counsel and it appears that the petitioner is not even accusing his said counsel for committing professional misconduct. The learned counsel for the petitioner has failed to show any legal provision and / or existence of arrangement between the petitioner and his engaged counsel which would compel the learned advocates to continue to take steps in a case when the litigant has stopped communicating with him/her. Thus, the allegations made against the learned counsel engaged by the petitioner are just an afterthought to cover-up the default which the petitioner had made by not contacting his engaged counsel and to file his written statement and evidence in Page No.# 8/9 the proceeding. 17) In a recent decision of the Supreme Court of India, in the case of Shivamma (Dead) by LRs v. Karnataka Housing Board & Ors., 2-25 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 Tribunals, 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. 18) A very vague statement by the petitioner that he is poor and that his advocate assured him that nothing would happen cannot be accepted as a good, cogent and acceptable explanation to entertain this writ petition when cause of action to file this writ petition arose on 19.06.2012, when the impugned opinion was passed as the petitioner was aware and conscious of the proceeding against him. It is not the case of the petitioner that his family members suffered with such disabilities which prevented them to visit the learned counsel for the petitioner to enquire about the fate of his case. It is also not alleged that the petitioner’s advocate had given him any misleading information which convinced the petitioner that he was declared as not a foreigner. 19) Therefore, the petitioner is found to be grossly negligent in assailing the impugned order. The default in appearing and to take steps in the proceeding is willful and deliberate, with full knowledge of the consequences that may follow. Page No.# 9/9 20) Accordingly, in light of the discussions above, this writ petition fails and the same is dismissed on the ground of unexplained and enormous delay and laches of approximately 13 years, 4 months, 16 days or 4886 days in assailing the impugned opinion. 21) Hence, this writ petition is dismissed on the ground of delay and laches, which has not been properly explained. 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 Tribunal for future reference. JUDGE JUDGE. Comparing Assistant