Page No.# 1/12 GAHC010248692025 2026:GAU-AS:2778-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/649/2026 BAHARUDDIN S/O LATE KADIR SHEIKH ALIAS ABDUL KADIR ALIAS KADIR MIYA, R/O VILL. BARAPATIA GAON, P.S. KAMPUR, DIST. NAGAON, PIN 782426, ASSAM. VERSUS THE UNION OF INDIA AND 6 ORS THROUGH THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF POLITICAL AND HOME AFFAIRS, SHASTRI BHAWAN, TILAK MARG, NEW DELHI-110001 2:THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI 110001 3:THE STATE CO-ORDINATOR NATIONAL REGISTRATION OF CITIZEN ASSAM BHANGAGARH GUWAHATI- 781005 4:THE STATE OF ASSAM THROUGH THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM HOME AND POLITICAL DEPARTMENT DISPUR GUWAHATI 781006 5:THE CHIEF ELECTION OFFICER ASSAM HOUSEFED COMPLEX BELTOLA ROAD Page No.# 2/12 GUWAHATI 781006 6:THE DISTRICT COMMISSIONER NAGAON P.O. AND P.S. NAGAON DIST. NAGAON ASSAM PIN 782001 7:THE SUPERINTENDENT OF POLICE (BORDER) NAGAON P.O. AND P.S. NAGAON DIST. NAGAON ASSAM PIN 78200 Advocate for the Petitioner : MR. S C BISWAS, MS. U NANDA,MR. F A HASSAN,MS. S. CHANDA,MS. J GHOSH Advocate for the Respondent : DY.S.G.I., SC, ECI,GA, ASSAM,SC, NRC,SC, F.T BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 23.02.2026 (K.R. Surana, J) Heard Mr. S.C. Biswas, learned counsel for the petitioner. Also heard Ms. B. Sarma, learned CGC for respondent no.1; Ms. S. Katakey, learned standing counsel for respondent no.2; Mr. G. Sarma, learned standing counsel for the respondent nos. 3, 4 and 7; Mr. P. Sarmah, learned Addl. Senior Govt. Advocate for respondent no.6. 2. It may be stated that none appears for the respondent no.5 as no advance copy of the writ petition has been served on the learned standing counsel for the said respondent. Page No.# 3/12 3. By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Baharuddin, has assailed the impugned ex parte opinion dated 30.07.2022, passed by the learned Member, Foreigners Tribunal- 9th, Nagaon, in F.T. Case No. FT(9th) 616/2004, arising out of Ref. F.T. Case No. 560/ 2004, 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. 4. This writ petition was filed on 07.11.2025 to assail the ex parte opinion dated 30.07.2022, i.e. after there has been an extraordinary delay of 3 years, 3 months, 8 days (or 1196 days). Moreover, there were several defects while filing the writ petition, but the defects were rectified only on 05.02.2026, i.e. after nearly three months. Hence, the matter was heard on delay and laches on part of the petitioner to assail the ex parte opinion. 5. The learned counsel had submitted that in paragraphs 6 and 7 of the writ petition, the petitioner has taken a stand that after receipt of notice, by engaging a learned counsel, he had appeared before the learned Tribunal on 27.10.2016 and was represented till 18.04.2022. It was submitted that the petitioner had provided all documents to his learned counsel, who had assured him that the written statement and evidence would be filed by him. Therefore, the petitioner was under a bona fide belief that his engaged learned counsel would do the needful as he was ignorant of the procedure, being illiterate. Moreover, he had left his native place to earn livelihood and there was a communication gap with his learned counsel. However, only after the police came to his place on 21.06.2025, in his absence, the family members came to know about the ex parte opinion. It was submitted that only after receiving a copy of the said opinion, the petitioner came to learn that his engaged learned counsel did not file the written statement or evidence. It was further submitted Page No.# 4/12 that the petitioner has all the relevant documents and therefore, the matter be remanded back to the learned Tribunal by giving the petitioner an opportunity to contest the proceeding. 6. Per contra, the learned standing counsel for the FT, Border matters and NRC had submitted that the explanation given is vague, and not supported by any documents or any other cogent and reliable materials. It is submitted that the petitioner is not alleging that the petitioner had signed his written statement and evidence-on-affidavit and swore the affidavits before the Notary Public, but his advocate had maliciously not filed the same before the learned Tribunal. Thus, it was submitted that in this case, the petitioner was apparently negligent. 7. 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. 8. The petitioner has not annexed a copy of the order-sheet. As per the contents of the impugned ex parte opinion dated 30.07.2022, the process server had duly served the notice of the proceeding to the petitioner, who had entered appearance before the learned Tribunal on 27.10.2016 and prayed for time to file a written statement. The learned counsel for the petitioner represented the petitioner till 18.04.2022. Thereafter, since 12.05.2022, neither the petitioner nor his learned counsel appeared in the proceeding. Thus, the learned Tribunal heard the Asstt. Govt. Pleader on 21.07.2022 and the impugned opinion was passed on 31.07.2022. 9. It ex facie appears that the statement made by the petitioner is not wholly true because out of the documents annexed to this writ petition, the Page No.# 5/12 certified copy of jamabandi (a land revenue record) (Annexure-1) was obtained on 19.07.2025. Print-out of jamabandi (Annexure-2) was obtained on 11.03.2025. Certified copies of electoral rolls for the years 1993, 2010, 2013 and 2025 were never obtained. Thus, it is apparent that no cogent, admissible and reliable document was provided by the petitioner to his learned counsel, as alleged, to establish his presence in India (Assam) prior to the cut-off date of 25.03.1971. The documents were examined only to test the stand of the petitioner that all his documents were provided to his learned counsel, who is being now blamed for professional misconduct, which is apparently found to be false and baseless. Thus, the petitioner is not found to have approached this writ Court with clean hands. It is not the case of the petitioner that either he or his family members were in constant touch with his learned counsel and that he had been paying the learned counsel’s fees from time to time. Thus, when the petitioner remained absent without steps from 12.05.2022, the ex parte opinion was passed on 30.07.2022. 10. In the said context, it may also 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 Tribunals 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 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 Page No.# 6/12 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 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.” 11. 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. 12. 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 Page No.# 7/12 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. 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." 13. Thus, except for an absolute vague statement that the petitioner had provided all his documents to his learned counsel, no other good, cogent Page No.# 8/12 and acceptable reason has been assigned by the petitioner for his negligence in not filing his written statement and evidence before the learned Tribunal. No reason has been assigned for his failure to appear before the learned Tribunal since 12.05.2022. 14. The petitioner has not pleaded that after 12.05.2022, he had contacted his learned counsel, who had provided him with false information regarding the case. 15. In this case, the delay and laches of the petitioner are in two phases. Firstly, the non-submission of his written statement from 27.10.2016 to 30.07.2022 i.e. for nearly 6 (six) years. The second phase of delay is from 30.07.2022, the date of the opinion till the filing of this writ petition on 07.11.2025. On both counts, the delay is not properly explained. 16. 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 his first appearance before the learned Tribunal on 27.10.2016 till date. 17. 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 Page No.# 9/12 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.” 18. In respect of the legal proposition that delay and laches is fatal to 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 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." 19. 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 Page No.# 10/12 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. 20. 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. 21. 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 (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. Page No.# 11/12 22. In this case, the stand of the petitioner is that he was completely in dark about the impugned ex parte opinion declaring him as a foreigner, and it is only when the local police came to his house in his absence on 21.06.2025 and informed his family members that he had been declared a foreigner, it was only then his family members applied for a certified copy of the impugned ex parte 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 Tribunals. 23. 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 served. 24. The Court is of the considered opinion that if such belated petitions are entertained after 3 years, 3 months, 8 days (or 1196 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. 25. Thus, the challenge to the impugned ex parte opinion dated 30.07.2022, passed by the learned Member, Foreigners Tribunal- 9th, Nagaon, in F.T. Case No. FT(9th) 616/2004, arising out of Ref. F.T. Case No. 560/ 2004, by which the petitioner, namely, Baharuddin, was declared to be a foreigner as Page No.# 12/12 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. 26. There shall be no order as to cost. 27. 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 Comparing Assistant