Page No.# 1/5 GAHC010013552017 2025:GAU-AS:5235-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/1031/2017 MD. SIRAJ UDDIN S/O AZIM UDDIN R/O VILL- BORCHAPARI P.S. MOIRABARI DIST. MORIGAON, ASSAM PIN - 782126 VERSUS THE UNION OF INDIA and 4 ORS. REP. BY THE SECRETARY OF HOME AFFAIRS, GOVT.OF INDIA, NEW DELHI-1. 2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6. 3:THE SUPERINTENDENT OF POLICE B MORIGAON P.O. and P.S. MORIGAON DIST.MORIGAON ASSAM 4:THE DEPUTY COMMISSIONER MORIGAON P.O. and P.S. MORIGAON DIST. MORIGAON ASSAM. 5:THE OFFICER-IN-CHARGE Page No.# 2/5 OF MOIRABARI POLICE STATION P.O. and P.S. MOIRABARI DIST. MORIGAON ASSAM Advocate for the Petitioner : MRM H AHMED, MR.N ISLAM,MR.P P SUT Advocate for the Respondent : , ASSTT.S.G.I.,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 30.04.2025 (K.R. Surana, J) Heard Mr. M.H. Ahmed, learned for the petitioner. Also heard Mr. G. Sarma, learned standing counsel for the FT matters and NRC; Mr. M. Islam, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for the ECI; and Mr. H.K. Hazarika, learned Additional Senior Govt. Advocate for the State respondent. There is no representation for the Union of India. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 04.07.2013, passed by the learned Member, Foreigners Tribunal (2nd), Morigaon in Case No. F.T.(D) 784/10, corresponding to Police reference D/N case No. 2611/98 dtd. 04.07.1998, E.R.O. reference No. 83/81/6 dtd. 17.10.1997, by which the petitioner was declared to be a foreigner, who had illegally entered into Assam from Bangladesh after 25.03.1971. 3. In view of the reasons hereinafter assigned, we do not consider it necessary to burden this order with the background facts. It would suffice to Page No.# 3/5 mention that a reference against the petitioner was made by the Superintendent of Police (Border), Morigaon to the then IM(D)T, Nagaon. However, after the IM(D)T Act was declared ultra vires, this reference was transferred to the Foreigners Tribunal (2nd), Morigaon. Though the petitioner had filed his written statement, he did not appear for recording of his evidence. Therefore, an ex parte opinion was passed on 04.07.2013, purportedly, due to lack of any evidence. 4. The petitioner has belatedly filed this writ petition 17.02.2017, which is nearly 4 (four) years after the opinion was rendered and therefore, the learned standing counsel for the FT matters and NRC has raised the issue of maintainability of this writ petition on the ground of delay and laches. 5. On issues of notice vide order dated 01.03.2017, on behalf of the Deputy Commissioner, Morigaon (respondent no.4.), an affidavit-in-opposition was filed by the Additional Deputy Commissioner, Morigaon on 26.05.2017, and the following statement is made in paragraph 4 of the said affidavit: “4. That with regard to the statements made in paragraphs 4, 5, 6 and 7 of the writ petition, the deponent states that as per records available in this office (1) Father’s name of the petitioner appears in the voter list of 1965 in the village of Goroimari Pathar of P.S. No. 76, Sl. No.25, House No.2, under 84-Laharighat L.A. Constituency (2) Father’s name of the petitioner appears in the voter list of 1970 in the village Goroimari Pathar of P.S. No.44, Sl. No.28, House No.5 under 84-Laharighat L.A. Constituency.” 6. Regarding the issue of delay and laches, it may be mentioned that in this writ petition, the petitioner has relied on a medical certificate, dated 02.12.2013 (Annexure11), where the concerned doctor has certified that the petitioner was under his treatment for chronic gastritis and melina w.e.f. 01.07.2013 to 30.11.2013. But in this writ petition, there is no explanation for Page No.# 4/5 any delay between 30.11.2013 to 17.02.2017, when this writ petition was filed. Thus, we find that neither the petitioner filed this evidence before the learned Tribunal, nor the explanation of delay in this writ petition is found to be satisfactory. Nonetheless, though the statement made on behalf respondent no.4 in the affidavit-in-opposition is not supported by any document or record, but in view of the statement made in paragraph-4 of the affidavit-in-opposition filed by respondent no.4, the Court is constrained to observe that in view of the specific statement made on behalf of the respondent no.4, the petitioner deserves an opportunity to prove his case. 7. Therefore, the Court is compelled to conditionally set aside the opinion dated 04.07.2013, passed by the learned Member, Foreigners Tribunal (2nd), Morigaon in Case No. F.T.(D) 784/10. 8. The conditions on which the opinion is set aside are as follows: a. That the petitioner would appear before the said learned Tribunal within 30 (thirty) days from the date of this order, without any requirement of issuance of any notice for appearance. b. On the date of appearance, the petitioner shall submit his evidence-on-affidavit, along with all documentary evidence on which he desires to rely on. c. If any document, which was earlier not filed, is relied upon, the petitioner shall also file an additional written statement. d. In the event the petitioner does not appear before the concerned Tribunal within the time allowed, the learned Tribunal shall be at liberty to treat the petitioner as absent on call, and pass a fresh ex parte Page No.# 5/5 opinion on the basis of materials available on record. 9. We also make it clear that the fresh opinion shall be passed by the learned Tribunal, strictly on the basis of merit, based on the evidence so produced by the petitioner. The learned Tribunal shall not be influenced by any observation made in this order or by the contents of paragraph-4 of the affidavit-in-opposition filed by the respondent no.4 in this writ petition, as extracted above. 10. This order has been passed under unique circumstances of this case. Therefore, this order is not intended to be cited as a precedent in any other matter. 11. The Registry shall send back the records expeditiously to the concerned Tribunal. 12. The writ petition stands allowed to the extent as indicated above. 13. There shall be no order as to cost. JUDGE JUDGE Comparing Assistant