Page No.# 1/10 GAHC010128722026 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Civil)/2482/2026 THANDU MIYA SON OF LATE TAHUR UDDIN AHMED @ TAHUR UDDIN MIYA, RESIDENT OF VILLAGE- KAWAIMARI 12 NO. BLOCK (KARAGARI NONKE 12 NO. BLOCK), P.O.- GOLIBANDHA, P.S.- SARTHEBARI, DISTRICT- BARPETA, ASSAM- 781301. VERSUS THE UNION OF INDIA AND 5 ORS. REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, TRILOK MARG, NEW DELHI- 110001. 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI- 781006. 3:THE ELECTION COMMISSION OF INDIA THROUGH ITS SECRETARY NIRVACHAN BHAWAN ASHOKA ROAD NEW DELHI- 110001. 4:THE STATE COORDINATOR NATIONAL REGISTER OF CITIZENS ASSAM 1ST FLOOR ACHYUT PLAZA G.S. ROAD Page No.# 2/10 BHANGAGARH GUWAHATI- 05 DISTRICT- KAMRUP (M). 5:THE DISTRICT COMMISSIONER BARPETA P.O. P.S. AND DIST- BARPETA ASSAM- 781301. 6:THE SUPERINTENDENT OF POLICE (B) BARPETA P.O P.S. AND DIST- BARPETA ASSAM- 78130 Advocate for the Petitioner : MR SAURADEEP DEY, J S YADAV Advocate for the Respondent : DY.S.G.I., SC, ECI,SC, NRC,SC, F.T,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE PRANJAL DAS ORDER Date : 25.08.2026 (K.R. Surana, J) Heard Mr. D.K. Agarwala, learned counsel for the applicant. Also heard Mr. B. Chakravorty, learned CGC; Ms. S. Katakey, learned standing counsel for Election Commission of India; Mr. P. Sarmah, learned Addl. Senior Govt. Advocate; and Mr. G. Sarma, learned standing counsel for the FT and Border Matters and NRC. 2) By filing this interlocutory application under Section 5 of the Limitation Act, 1963, the applicant, namely, Thandu Miya, has prayed for condoning the delay of 340 days in filing the connected un-numbered review petition. The said review petition is filed against the judgment and order dated Page No.# 3/10 03.06.2025, passed by this Court in W.P.(C) No. 878/2025, thereby dismissing the said writ petition against challenge made to the ex parte opinion dated 09.03.2022, passed by the learned Member, Foreigners-III, Barpeta, in F.T. Case No. 606(III) of 2013 [arising out of Ref. IMDT Case No. 269/10, made by the Superintendent of Police (B), Barpeta. By the said opinion, as the applicant did not appear and contest the reference in spite of service of notice, declared the applicant to be a foreigner under the Foreigners Act, 1946. 3) The learned counsel for the applicant, by referring to the case of Sabitri Dey @ Swasthi Dey v. Union of India and Ors., 2026 INSC 694 : 2026 Supreme (SC) 786 : 2026 (4) GLT (SC) 1, has submitted that though the applicant did not appear in the proceeding, but the learned Tribunal should have answered the reference by referring to the materials disclosed by the State. It was submitted that the applicant has sufficient documents to show that he is a citizen of India and not a foreigner. It was submitted that the reference was made without any pre-reference investigation. Moreover, the applicant was not furnished with the main grounds of suspecting him to be a foreigner and he was not served with a copy of the enquiry report, local verification report or any other material which was available with the State. 4) It was submitted that the applicant was suffering from serious illness for which he could not appear before the learned Tribunal. It was submitted that members of a local NGO informed the applicant that they would take steps in the case and he need not worry and they would take up the matter free of cost before the higher and the Highest Court. Accordingly, the applicant, by relying on them did not appear, without any intent to evade the proceeding. 5) After the said ex parte opinion dated 09.03.2022, the applicant Page No.# 4/10 was taken into custody on 07.08.2024 by the Border Branch of Barpeta Police and he is currently lodged at the Transit Camp, Matia, Goalpara. Accordingly, it was submitted that as the applicant is in custody since 07.08.2024, he was entitled to be released on bail. 6) It was submitted that aggrieved by the judgment and order dated 03.06.2025, passed by this Court in W.P.(C) No. 878/2025, the applicant had approached the Supreme Court of India and the said Hon’ble Court, by an order dated 27.01.2026, passed in Special Leave Petition (Civil) Diary No(s). 66226/2025, and after some deliberation, the learned counsel for the applicant was allowed to withdraw the petition and to approach this Court with review application. 7) Per contra, the learned standing counsel for the FT and Border matters and NRC has submitted as follows:- a. It was submitted that the reference against the applicant was made by the Superintendent of Police (Border), Barpeta on 2010. However, the proceeding was registered in the year 2013. The impugned opinion reflects that on service of notice, the applicant had appeared before the learned Tribunal along with his engaged learned counsel on 05.05.2021, and since then, he failed to appear and take any steps in the proceeding. However, the learned Tribunal waited for about 1 (one) year for the applicant to appear and only on 09.03.2022, the ex parte opinion was passed. b. It was submitted that under Section 9 of the Foreigners Act, 1946, the reference can only be as to whether or not the applicant was a foreigner. It was submitted that the Foreigners Act, 1946 did not Page No.# 5/10 envisage any stream of time-period when the applicant had illegally migrated into India. The stream between 01.01.1966 and 25.03.1971 and post 1971 is prescribed under Section 6-A of the Citizenship Act, 1955, which is special provisions for the State of Assam. c. It was submitted that ex parte opinion dated 09.03.2022 clearly disclosed that the reference by the Superintendent of Police (Border), Barpeta, was an IMDT Reference. Accordingly, it was submitted that after the Supreme Court of India had struck down the Illegal Migrants (Determination by Tribunals) Act, 1983 and Rules framed thereunder in the case of Sarbananda Sonowal v. Union of India & Ors., (2005) 5 SCC 665, by the order passed in the said case, all pending references under the erstwhile IM(DT) Act, 1983 were transferred to the Foreigners Tribunals having jurisdiction. Therefore, it was submitted that the investigation was carried out under the erstwhile IM(DT) Act, 1983 by using forms prescribed in the Rules framed thereunder. Thus, the transfer of the reference cannot be questioned by the applicant because the Supreme Court of India had transferred those references. d. It was submitted that in the writ petition, the applicant did not raise any plea against the manner of reference or deficiencies in the filling up of forms by the Local Verification Officer. e. It was submitted that once the applicant has been declared to be a foreigner of post 25.03.1971, under Section 4 of the Foreigners Act, 1946, the appropriate authority can detain or confine or keep the declared foreign national in designated areas and the applicant, like any other declared foreign national, cannot enjoy other Constitutional rights like an Indian citizen to live freely anywhere in the Country and Page No.# 6/10 to obtain employment or work for his livelihood. f. It was submitted that the applicant’s explanation for not contesting the writ petition has been duly addressed by this Court in the order dated 03.06.2025, passed in W.P.(C) No. 878/2025 and the new grounds of review is a presentation of a totally new set of facts, by which the applicant is changing the stand which he had taken in the writ petition, which is not permissible. 8) The learned CGC, State and learned standing counsel for the ECI have supported the submissions made by the learned standing counsel for the FT and Border matters and NRC. 9) Considered the submissions and perused the materials available on record. 10) It may be stated that though the Court finds merit in the stand taken by the learned standing counsel for the FT and Border matters and NRC, but the Court has its limitations to enter into the merit, if any, in the connected review petition. It may be stated that it is trite that in order to invoke the review jurisdiction, the spirit of Section 114 read with Order XLVII, Rule 1 of the Civil Procedure Code is normally followed. There is no statement in this interlocutory application to show that this Court, while dismissing W.P.(C) 878/2025, had erred in law or on facts while deciding the writ petition. The Supreme Court of India, in the case of Mukesh v. State (NCT of Delhi), (2018) 8 SCC 149, had held that a review application is not to be lightly entertained and that review is not an appeal in disguise and that for reviewing an order there has to be an error apparent on the face of the record leading to miscarriage of justice. The learned counsel for the applicant has made lengthy submissions, but not a word was Page No.# 7/10 submitted as to how the order passed on 03.06.2025, in W.P.(C) No. 878/2025 is vitiated by error apparent on the face of the record. No submission was made by the learned counsel for the applicant as to which plea taken in the writ petition was not considered, or what was the error apparent on the face of the record in the said order dated 03.06.2025. It is also not the case of the applicant that this Court had not judicially appreciated the opinion under challenge in the writ petition. It is also trite that in guise of review, the writ petition cannot be re-heard on new points which were never taken up in the writ petition without showing why despite exercise of due diligence the points taken in the connected review petition could not be urged while the writ petition was being heard. However, be that as it may, as the Court is now taking up the application for condonation of delay and has not taken up the review petition on merit, the points as stated in this paragraph is without examining the un- numbered review petition on merit. 11) Be that as it may, the fact remains that the Court, while dismissing the writ petition, took notice the fact that the notice issued to the applicant was duly served upon the applicant. Accordingly, he had entered appearance before the learned Tribunal on 05.05.2021 and filed a petition seeking time to file his written statement, which was allowed and the next date of the proceeding was fixed on 12.07.2021. On subsequent dates, i.e. 12.07.2021, 11.08.2021, 18.09.2021, 02.11.2021 and 13.12.2021, the prayer made by the learned counsel for the applicant for adjournment were allowed. But since 24.01.2022, the applicant and his engaged learned counsel had remained absent. In this interlocutory application, the applicant has not taken a plea that his engaged learned counsel did not inform the applicant about the dates fixed in the proceeding. Page No.# 8/10 12) It has been projected that the applicant was suffering from illness, but no prescriptions or medical reports have been produced to support his statement that he was suffering from any illness whatsoever. 13) On behalf of the applicant, the affidavit in support of the writ petition, i.e. W.P.(C) No. 878/2025, was sworn by the applicant’s son. The affidavit in support of this interlocutory application is sworn by the sister of the applicant. Accordingly, the applicant has immediate family members to take steps, which they did not do.. 14) The ex parte opinion was passed against the applicant on 09.03.2022, but he had assailed the said opinion by filing W.P.(C) No. 878/2025, after a lapse of about 3 years. 15) The Supreme Court of India had dismissed S.L.P.(Civil) Diary No(s). 66226/2025 by order dated 27.01.2026, but the connected un-numbered review petition was filed on 20.06.2026. On being asked to address the Court regarding delay in filing the connected review petition after a lapse of about 5 (five) months, the learned counsel for the applicant had submitted that the applicant was taken into custody on 07.08.2024, pursuant to the ex parte opinion and therefore, there was some inadvertent delay in filing the review petition. 16) The said plea cannot be accepted because when the applicant had approached the Supreme Court of India, he was in custody. Moreover, when the Supreme Court of India had allowed the applicant’s learned counsel to withdraw the Special Leave to Appeal petition by order dated 27.01.2026, and to approach this Court to file review petition, the applicant should have filed this review petition within a reasonable time, which was not done. Page No.# 9/10 17) It may be mentioned that the Supreme Court of India had not condoned the delay on part of the applicant in filing S.L.P.(Civil) Diary No(s). 66226/2025. Therefore, the applicant will have to explain the delay of 340 days in filing the un-numbered review petition. However, except for the submission that the applicant was in custody, no cogent explanation has been tendered by the learned counsel for the applicant to explain the delay. The applicant had filed the writ petition before this Court while in Transit Camp and moreover, when the applicant had approached the Supreme Court of India, and when this application has been filed, the applicant was in Transit Camp. 18) The learned counsel for the applicant had cited the case of Collector, Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors., (1987) 2 SCC 107, in paragraph 6 of the interlocutory application. It was submitted that the applicant would not stand to benefit by delay. In this case, the reference against the applicant was made in the year 2010 by the Superintendent of Police (Border), Barpeta. The proceeding was registered in the year 2013; ex parte opinion was passed on 09.03.2022, writ petition to challenge the opinion was filed in the year 2025 and this review petition was filed on 20.06.2026. Thus, in the process, the applicant been able to prolong his stay in India and has been able to successfully stall his expulsion from the Country for 16 (sixteen) years from 2010. Therefore, in this case in hand, the delay has benefitted the applicant. 19) Accordingly, the applicant has not been able to make out any case for condoning the delay and laches in filing the connected review petition after 340 days from the date of order in the writ petition and 144 days from 27.01.2026, the date when the Supreme Court of India had passed its order. The explanation is found insufficient and lacking in material particulars which Page No.# 10/10 could generally explain the delay without requiring arithmetical precision on explanation of the delay. 20) Therefore, this interlocutory application is found to be without merit and accordingly, the same is dismissed. There shall be no order as to cost. 21) Consequently, the un-numbered review petition under Filing No. 7397/26 dated 20.06.2026, stands dismissed. The consequences of the ex parte opinion dated 09.03.2022, passed by the learned Member, Foreigners Tribunal- III, Barpeta, in F.T. Case No. 606(III) of 2013 [arising out of Ref. IMDT Case No. 269/2010] shall follow. 22) The learned standing counsel for the FT and Border matters and NRC shall transmit a downloaded copy of this order to the concerned authority in the Home and Political (B) Department, Govt. of Assam for their record. 23) Before parting with the records, it may be mentioned that the writ petition was filed by the applicant through one set of counsel and the present application and the accompanying review petition has been filed by another set of counsel. The Supreme Court of India, in the case of T.N. Electricity Board v. N. Raju Reddiar, AIR 1977 SC 1005, had deprecated the practice of arguing the matter by one counsel and review by another counsel and had observed that review application ought to have been field by same counsel who had argued the matter. JUDGE JUDGE Comparing Assistant