Page No.# 1/22 GAHC010046202026 2026:GAU-AS:4296-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/1488/2026 SALEHA KHATUN D/O- A.GAFUR @ ABDUL GAFUR, VILL. SIMALUATI, P.S. JURIA, DIST. NAGAON, ASSAM, PIN- 782124 VERSUS THE UNION OF INDIA AND 5 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OFINDIA, HOME DEPARTMENT, NEW DELHI-1,INDIA, 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6 3:THE STATE CO-ORDINATOR NATIONAL REGISTER OF CITIZENS (NRC) ASSAM ACHYUT PLAZA BHANGAGARH GUWAHATI-5 ASSAM 4:THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI- 110001 5:THE DISTRICT COMMISSIONER Page No.# 2/22 NAGAON DIST. NAGAON ASSAM 6:THE SUPERINTENDENT OF POLICE (B) NAGAON DIST.- NAGAON ASSA Advocate for the Petitioner : MR. Z HAMMAD, R DAS Advocate for the Respondent : GA, ASSAM, GA, ASSAM,SC, NRC,SC, F.T,SC, ECI BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 25.03.2026 (K.R. Surana, J) Heard Mr. Z. Hammad, learned counsel for the petitioner. Also heard Mr. B. Deka, learned CGC; Mr. G. Sarma, learned standing counsel for the FT and Border matters; Ms. S. Katakey, learned standing counsel for the ECI; and Ms. R.B. Borah, learned Additional Senior Govt. Advocate for the State respondent. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Saleha Khatun, has assailed the impugned opinion dated 02.08.2019, passed by the learned Member, Foreigners Tribunal, 4th, Nagaon, in F.T. Case No. 412/16, arising out of Police Reference ‘D’ Case No. 2848/98, by which she was declared to be a foreigner. 3. This writ petition was filed on 05.03.2026, to assail the opinion dated 02.08.2019, i.e. after there has been an extraordinary delay of 6 years, 7 Page No.# 3/22 months, 3 days (or 2407 days). Hence, the matter was also heard on delay and laches on part of the petitioner to assail the impugned opinion. 4. The learned counsel for the petitioner submits that the petitioner is a bona fide citizen of India by birth, having been born and brought up in village Simaluati under Juria Police Station in the district of Nagaon, Assam. It is contended that the petitioner is the daughter of Late A. Gafur @ Abdul Gafur and Rupjan Bibi, and the name of her grand-father is Late Miya Hussain, who were Indian citizens, and her lineage is clearly traceable through documentary evidence. 5. It is further submitted that the petitioner had produced reliable and admissible documents before the learned Foreigners’ Tribunal, including certified copies of voter lists of the years 1965 and 1970, wherein the name of her father appears, thereby establishing the presence of her family in India prior to the cut-off date of 25.03.1971. Additionally, land documents such as the registered sale deed dated 21.01.1954, kaccha patta, and jamabandi were also exhibited to show that her father was a landholder and that the petitioner inherited land from him, thereby establishing her linkage. 6. The learned counsel also submits that the petitioner had duly discharged her burden under Section 9 of the Foreigners Act, 1946 by proving (i) the existence of her ancestors in India prior to 25.03.1971 and (ii) her linkage with such ancestors through documentary as well as oral evidence. 7. The petitioner, on receipt of the notice of the proceeding, appeared before the learned Tribunal, filed her written statement also examined witnesses including herself as DW-1; Md. Abdul Kadir, the Gaonburah of Village- Page No.# 4/22 Simaluati as DW-2, Tahir Uddin, her elder brother, as DW-3, all of whom supported her case and established her linkage with her projected father. The petitioner also examined one Yunus Ali, Lot Mandal to prove the jamabandi. 8. The learned counsel for the petitioner further submits that the learned Tribunal failed to properly appreciate the evidence on record. The Gaonburah certificate was discarded for the use of the State Emblem, without considering the oral testimony of the Gaonburah, which remained unshaken during cross-examination. Similarly, the jamabandi was rejected without proper reasoning, despite being supported by the testimony of the Lot Mandal. 9. It is also submitted that the Tribunal erred in holding that the petitioner failed to establish linkage merely because her own name did not appear in earlier voter lists. It is explained that the petitioner was married at a young age and, therefore, could not have been included in electoral rolls prior to attaining majority, which is a plausible and acceptable explanation. Thus, it was submitted that the entire proceeding was vitiated due to a defective and illegal reference. It was also submitted that the enquiry report was prepared behind the back of the petitioner without any proper verification or opportunity of hearing, thereby violating principles of natural justice. Accordingly, the impugned opinion/order dated 02.08.2019 is not sustainable in law, being arbitrary, illegal, and passed without proper appreciation of evidence. 10. Accordingly, the learned counsel for the petitioner prays that the impugned order be set aside and quashed, and the petitioner be declared to have successfully established her Indian citizenship. 11. Per contra, the learned standing counsel for the FT, Border Page No.# 5/22 matters and NRC had submitted that the explanation given for the inordinate delay is vague and insufficient and not supported by any documents or any other cogent and reliable material. Moreover, it has been submitted that there is also no case on merit. 12. 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. 13. In the written statement, the petitioner has only disclosed that she was born at village- Simaluati, Mouza- Alitangani, P.S. Juria, Dist. Nagaon and stayed there since her childhood. She is married to Md. Kaddus Ali, son of Mansur Ali of village- Dhing Gaon. She had disclosed the name of her father as Abdul Gafur and name of her mother as Rupjan Bibi and name of her grandfather as Miya Hussain. She has a certificate given by Abdul Kadir, the village headman. Her parents had casted their vote as Indian citizens and the name of her parents appear in the certified copy of the voters list of 1965 and 1970. The name of her father has been included in the land purchase deed dated 21.01.1954. 14. However, in the absence of pleadings, in her evidence-on- affidavit, the petitioner has stated that her father’s brother and sister are Sabed Ali, Abdul Gaffur (her father) and Morjan and her brothers and sisters are (1) Joynal Abedin, (2) Aisha Khatun, (3) Samarta Banu, (4) Amir Uddin, (5) Nesa Begum, (6) Late Halima Khatun, (7) Nur Uddin, (8) Kulsuma Khatun, (9) Tahir Uddin and (10) Saleha Khatun (herself). Her children are (1) Nur Jahan Begum, (2) Muklesur Rahman, (3) Wabur Rahman and (4) Minhajul. She is married to Page No.# 6/22 Kaddus Ali, son of Mansur Ali of village- Dhing Gaon. Apart from above, the petitioner has also reiterated the statements made in her written statement. As per the contents of her evidence-on-affidavit, the DW-1 had exhibited Gaonburah’s certificate as Ext.1 and his signature and seal as Ext.1(i); certified copy of voter’s list of 1965 (Ext.2); certified copy of voter’s list of 1970 as Ext.3; and land deed of 21.01.1954 as Ext.4. In her cross-examination, the petitioner has stated that her father had inherited land from grandfather and she had inherited land from her father vide Case No. 412/16 and got mutation in the year 2016, but she does not know the dag and patta number. 15. The petitioner had examined Md. Abdul Kadir, the Govt. Gaonburah, as DW-2. He had reiterated the statements made in the evidence- on-affidavit filed by the petitioner. DW-2 had exhibited Gaonburah’s certificate as Ext.1 and his signature as Ext.1(i). In his cross-examination, the DW-2 had stated that he had not brought the copy/khata of resident’s name of his village. He knows that the father of the petitioner has not come from Bangladesh and he is an old resident of the area having landed property. In the name of Saleha, there is land inherited from her father and Ext.1 is the certificate issued by him and he knows his signature. 16. The petitioner has examined one Tahir Uddin, her projected brother as DW-3. He has reiterated the statements made by the petitioner in her evidence-on-affidavit. DW-3 had exhibited kacha miyadi patta as Ext.5 and kheraj miyadi patta as Ext.6. In his cross-examination, DW-3 had stated that the petitioner did not cast her vote in the matrimonial home. He does not know how many years ago she got married. His father died after 1991 and he had not produced voters lists after 1965 and 1970. He had also stated that Jainal and Page No.# 7/22 Amir Uddin had cast their vote with his father, but those voters list could not be submitted. The land was mutated six month’s back on 10.08.2018. 17. The petitioner had also examined Khandakar Faruk Ahmed, Lot Mandal, as DW-4 by issuing summons to him. In his examination-in-chief, he had stated that he has brought the jamabandi copy of village- Simaluati, Mouza- Alitangani, Revenue Circle, Dhing, bearing miyadi patta no. 74, in the name of Abdul Gaffur, son of Miya Hussain, who is the original settlement holder. On last 22.01.2016, the names of inheritors of Abdul Gaffur has been included and in the said jamabandi copy, name of Saleha Khatun is there. He had stated that the signature of Circle Officer, Dhing Revenue Circle appears in Ext.6. The dag number of the said patta is 52. In his cross-examination, he had stated that his designation is Lot Mandal. He had brought his identity card. He had not brought documents of mutation case. 18. The learned Tribunal had rejected the evidence of the petitioner as she had not exhibited any voters list though as per her affidavit, her age was 37 years. In the voters list of 1965 (Ext.2), voters list of 1970 (Ext.3), land deed of 21.01.1954 (Ext.4), and kacha patta (Ext.5), the name of the person is A. Gaffur. The link document, being the Gaonburah’s certificate (Ext.1) was discarded as State Emblem was unauthorizedly used, which makes the document inadmissible in evidence. The kheraj miyadi patta and jamabandi (Ext.6) was rejected because, the petitioner’s link with her projected father is only since 2016. It was held that such type of evidence does not improve the case of the petitioner, for which reliance was placed on the case of Babul Islam v. Union of India & Ors., W.P.(C) 3547/2016, decided on 09.05.2018. Page No.# 8/22 19. The petitioner, in her written statement, has not pleaded about the date of death of her father, date of her own marriage, names of her siblings or their date of birth. The petitioner had exhibited only four documents. Being Ext.1 to Ext.4. The DW-3 had exhibited Ext.5 and Ext.6. However, none of the entries contained in any of the exhibits have been proved. The voters lists of 1965 (Ext.2) and voters list of 1970 (Ext.3), does not contain the name of any other family members. The petitioner had not proved any document showing all members of her father or her siblings together. Though the projected brother of the petitioner was examined as DW-3, he had not exhibited his own name in the land record (Ext.5 and Ext.6) and he had also not exhibited his own proof of identity. Therefore, the DW-3 had failed to prove through documentary exhibits that he is the brother of the petitioner, or that they are the children of their projected parents. 20. This Court, in the case of Afuja Begum @ Afruja Begum v. Union of India & Ors., W.P.(C) 7340/2016, decided on 19.04.2018, has held that a Gaonburah is not a person authorized to use State Emblem and moreover, it was held that the use of State Emblem by an unauthorized user would make the document inadmissible in evidence. Notwithstanding the decision in the case of Afuja Begum @ Afruja Begum (supra), in the case of Basiron Nessa v. Union of India & Ors., 2018 (4) GLT 692, the proceedee had relied on a certificate by Gaonburah stating that Basiron Nessa is the daughter of Late Abdul Barek and Rabia Khatun. In the said context, this Court had held that documentary evidence must be proved from record and not solely by oral testimony. Moreover, in the case of Jabeda Begum v. Union of India & Ors., (2021) 1 GLR 59: 2020 (2) GLT 603, this Court had held, that a certificate issued by the Gaonburah can never be the proof of citizenship of a person. Such certificate Page No.# 9/22 can only be used by a married woman to prove that after marriage, she had shifted to her matrimonial home. [see Rupajan Begum v. Union of India & Ors., (2018) 1 SCC 579.] 21. The mutation of the name of the petitioner in land revenue records, is not sufficient to prove that the petitioner is the daughter of that Abdul Gaffur, in whose name the land stood. The reason is that the projected father of the petitioner, as per the evidence of DW-3, had died in the year 1991, but the mutation order is dated 22.01.2016, i.e. 25 years after death and during the pendency of the proceeding of FT Case No. 412/2016. Moreover, the petitioner has not exhibited any document to prove her own identity. 22. The petitioner had not filed additional written statement to bring on record her pleading about the members of her family. Only thereafter, material facts could have been proved by adducing cogent and admissible evidence. This Court, in the case of Rashminara Begum v. Union of India & Ors., 2017 (4) GLT 346, and Saru Sheikh v. Union of India & Ors., (2017) 4 GLR 295, has held to the effect that material facts pleaded in the written statement would have to be proved by adducing cogent and admissible evidence. Moreover, in the case of Ayesha Khatun v. Union of India & Ors., (2017) 3 GLR 820, this Court has held that failure to disclose material facts would lead to adverse presumption. 23. The petitioner has relied on the testimony of her projected brother to prove that she is the daughter of Abdul Gafur @ A. Gafur. In this regard, this Court, in the case of Aziz Miya @ Md. Aziz Mia v. Union of India & Ors., 2024 (4) GLT 246, has held that a mere claim by a suspected person by Page No.# 10/22 referring to voters list, claiming that person to be his father, is not a conclusive proof and by doing so he has discharged his burden that he is not a foreigner. There is further requirement to prove that the person who is reflected in the voters list is actually the father who makes the claim will have to be further substantiated with further material record. 24. The learned counsel for the petitioner had urged that the investigation form was blank and therefore, proper investigation was not made before reference was made. In respect of the said point that has been urged by the learned counsel for the petitioner, it may be mentioned that it appears from the contents of paragraph 1 of the impugned opinion that upon report of the Electoral Registration Officer of 83 No. Dhing LAC, Police Reference ‘D’ Case No. 2848/98 was registered. Thereafter, the Superintendent of Police (Border), Nagaon had submitted the reference to the erstwhile Illegal Migrants (Determination) Tribunal, Nagaon [IM(D)T, Nagaon for short] for trial. The said Tribunal was set up under the Illegal Migrants (Determination by Tribunals) Act, 1983 [IM(DT) Act for short]. The said Act was declared ultra vires by the Supreme Court of India in the case of Sarbananda SOnowal v. Union of India, (2005) 5 SCC 665. Be that as it may, the Election Commission of India had ordered revision of draft electoral roll which was published on 24.07.1997, with reference to qualifying date of 01.01.1997. Accordingly, house-to-house enumeration was conducted between 16.01.1997 to 15.04.1997. Accordingly, as doubt was expressed about the citizenship of the petitioner, whose name was enumerated in the draft roll published on 24.07.1997, the Electoral Registration Officer of 83 No. Dhing LAC had entrusted the Local Verification Officer to do the enquiry. The said Verification Officer had submitted his report in Annexure-B format to the Electoral Registration Officer. The said authority, thereafter, vide Page No.# 11/22 Annexure-A format, expressed his doubt about the citizenship of the petitioner. Accordingly, the Electoral Registration Officer had referred the matter to the Superintendent of Police (Border), Nagaon and the reference was made. The Superintendent of Police (Border) was the competent authority under the IM(DT) Act and the Foreigners Act, 1946 and Rules made thereunder to submit reference. Accordingly, reference was before the then Chairman, IM(D)T, Nagaon, where IM(D)T Case was registered. 25. It may also be stated that by virtue of the judgment and order passed by the Supreme Court of India in the case of Sarbananda Sonowal (supra), all the proceedings that were then pending before the IM(D)Ts, were transferred to the Foreigners Tribunal having jurisdiction. The transferred reference was received by the learned Member, Foreigners Tribunal, 4th, Nagaon, and registered as F.T. Case No. 412/2016. Therefore, as evident from the decision of the Supreme Court of India, in the case of Sarbananda Sonowal (supra), the matter was transferred by the Supreme Court of India. Therefore, no further determination can be made by this Court regarding making of and/or registration of the reference. 26. Be that as it may, the issue of blank Verification Officer’s Report has been considered and decided by this Court in the case of Shukurjan Nessa @ Sukurjan v Union of India & Ors., W.P.(C) 245/2019, decided on 28.02.2025. In the said case, the issue relating to reference made at the instance of the Electoral Registration Officer (ERO for short) has been clarified. 27. It is not the case of the petitioner that she had given all information to the Local Verification Officer. It must be understood that the Page No.# 12/22 LVO’s were not police officers, but civilian officials who were merely entrusted with house-to house enumeration duty. Therefore, if the LVO is not provided with information, he/she has no option, but to leave a few of the columns of the format blank or with words “NIL” or just strike out those columns. 28. Hence, it is apparent that in this case in hand, the enquiry by the Verification Officer was not made under the provisions of Foreigners Act, 1946 or Rules framed thereunder. In an enquiry that is initiated under the Foreigners Act, 1946, the investigation is done by the Border Branch of Police under the authority of the Superintendent of Police (Border) and/or Deputy Commissioner of Police (Border), as the case may be, of the concerned district. However, the jurisdictional Superintendent of Police (Border) is the prescribed authority to make reference before the IM(D)T constituted under the erstwhile IM(DT) Act, 1983 and Rules framed thereunder. 29. There is an important facet, which is contained in the judgment and order of this Court in the case of Sayam Uddin v. Union of India & Ors., 2019 (4) GLT 456, as affirmed by the Division Bench in the case of Sayam Uddin v. Union of India & Ors., W.A. 170/2019, decided on 29.07.2019, is deemed appropriate to be referred to. As this Bench is in respectful agreement with the said judgment therefore, paragraphs 11 to 22 thereof are quoted below:- 11. In the year 1997, Election Commission of India had undertaken an intensive revision of electoral rolls in the State of Assam as apprehensions were expressed from various quarters that the electoral rolls were infested with the names of foreigners/illegal migrants. In the course of this exercise citizenship status of as many as 3,13,046 persons whose names were in the draft voters lists were found to be doubtful and accordingly they were marked as doubtful “D” voters in the electoral rolls after local verification. 12. Legality of this exercise was challenged before this Court in HRA Choudhury Vs Election Commission of India, reported in 2002 (1) GLT 1. The challenge made was rejected by a Division Bench of this Court. In HRA Choudhury (supra) this Court examined Page No.# 13/22 the guidelines dated 17.07.1997 of the Election Commission of India laying down the procedure to carry out the exercise. 12.1. As per paragraph 3.8 of the guidelines the Electoral Registration Officer was required to consider the verification report received from the Local Verification Officer. If he was satisfied on such report and such other material/information as may be available about the eligibility of a person, he should allow his name to continue on the electoral roll. Where, however, he was not so satisfied and had reasonable doubt about the citizenship of any person, he was required to refer such doubtful cases to the competent authority under the then Illegal Migrants (Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946 as the case may be. For convenience of the Electoral Registration Officers, Election Commission devised proformas. 12.2. As per paragraph 3.9, after the case of a person was referred by the Electoral Registration Officer to the competent authority, he should wait for the decision of the relevant Tribunal in relation to that person and act according to such decision. 12.3. As per paragraph 3.10, where the relevant Tribunal decided that any such person was not a citizen of India, Electoral Registration Officer should proceed under Rule 21 A of the Registration of Electors Rolls, 1960 to have the name of such person deleted from the electoral roll before it was finally published. 12.4. This Court in HRA Choudhury (supra) held that such guidelines and decision of the Election Commission were in accordance with Article 324 of the Constitution of India besides conforming to the principles of natural justice. It was held that such guidelines cannot be held to be arbitrary or vitiated by mala fide or partiality. 13. At this stage, it may be mentioned that the Illegal Migrants (Determination by Tribunals) Act, 1983 is no longer in existence, the same having been declared unconstitutional by the Supreme Court in Sarbananda Sonowal Vs Union of India reported in (2005) 5 SCC 665. Therefore, in so far paragraph 3.8 of the guidelines dated 17.07.1997 is concerned, the reference would be under the Foreigners Act, 1946. 14. The above exercise was repeated in the year 2005 with the Election Commission of India again going for intensive revision of electoral rolls in the State of Assam taking 01.01.2005 as the qualifying date. In this connection, guidelines dated 17.06.2004 were issued by the Election Commission of India. Paragraph 2.2 of the guidelines dealt with “D” voters. It was mentioned that the guidelines issued in 1997 would be followed while dealing with such category of persons. Paragraph 8 dealt with verification by Electoral Registration Officers. It laid down the procedure while carrying out such verification including verification by Local Verification Officer. As per paragraph 8.6, Local Verification Officer would conduct the verification by making an on the spot visit and the person concerned could adduce any one or more of the documents mentioned therein in support of his claim as a citizen of India. After due verification, the Local Verification Officer was required to submit his report in the prescribed format. Under paragraph 8.8, Electoral Registration Officer on receipt of the verification report from the Local Verification Officer should consider the same. Where he was satisfied about the eligibility of a person, he should allow the name of such person to continue on the electoral roll but Page No.# 14/22 where he was not so satisfied and had reasonable doubt about the citizenship of any person he should refer such doubtful cases to the competent authority under the then Illegal Migrants (Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946 in a prepared format (Annexure-B to the guidelines dated 17.06.2004) to the competent authority for making reference to the Tribunal and await the decision of such Tribunal. 15. As pointed out by Mr. Barua, in Mameja Khatun (supra) a Single Bench of this Court directed that “D” voters should not be allowed to cast their votes with the clarification that “D” voters would include persons whose names were included in the electoral rolls but their citizenship was doubted or disputed and also those whose cases were pending before the Foreigners Tribunals. This decision of the learned Single Bench was confirmed by the Division Bench in Writ Appeal No. 114/2011 (State Vs Mameja Khatun). By the judgment and order dated 13.10.2015, the Division Bench directed Election Commission of India and other authorities to implement the directions of the Single Bench in letter and spirit. 16. At this stage, it may also be mentioned that in WP(C) No. 274/2009 filed by Assam Public Works which is pending before the Supreme Court of India wherein NRC updation exercise in the State of Assam is being monitored by the Supreme Court of India, on 25.10.2013, Supreme Court clarified that as far as persons in the “D” list are concerned, undoubtedly they were doubtful voters and therefore their names could not be included unless the NRC is updated and unless the Foreigners Tribunals declared them to be Indian citizens. 17. The Foreigners Act, 1946 is an act to confer upon the Central Government certain powers in respect of foreigners. This Act provides for the exercise of certain powers by the Central Government in respect of the entry of foreigners into India; their presence in India and their departure therefrom. Section 2 (a) defines a “foreigner” to mean a person who is not a citizen of India. Section 3 confers power to the Central Government to make orders making provision either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigners, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or their continued presence therein. 17.1. In exercise of the powers conferred by Section 3 of the Foreigners Act, 1946, Central Government made the Foreigners (Tribunals) Order, 1964. As per order 2 (1), the Central Government may by order refer the question as to whether a person is or is not a foreigner within the meaning of the Foreigners Act, 1946 to a Tribunal to be constituted for the purpose for its opinion. 18. Ministry of Home Affairs, Govt. of India had issued notification dated 19.04.1958 in exercise of powers conferred by Clause-(1) of Article 258 of the Constitution of India whereby the President with the consent of the State Government concerned entrusted to the Governments of each of the States mentioned therein including the State of Assam the functions of the Central Government in making orders of the nature specified in Section 3 of the Foreigners Act, 1946. Another notification dated 17.02.1976 was issued by the Government of India, Ministry of Home Affairs in the exercise of the powers conferred by Article 258 (1) of the Constitution entrusting the Superintendents of Police and Deputy Commissioners (In-charge of Police) under the Government of Assam the functions of the Central Government in making orders of the nature specified in Section 3 of the Foreigners Act, 1946 within their respective jurisdictions subject to the conditions mentioned therein which included the condition that exercise of such functions would be in respect of Page No.# 15/22 nationals of Bangladesh and that while exercising such functions, Superintendents of Police and Deputy Commissioners (In-charge of Police) shall comply with such general or special directions as the Government of Assam or the Central Government may issue from time to time. 19. Article 258 of the Constitution deals with power of the Union to confer powers etc on States in certain cases. Clause (1) of Article 258 starts with a non-obstante clause. It says that notwithstanding anything in the Constitution, President may with the consent of the Government of a State entrust either conditionally or unconditionally to that Government or to its officers, functions in relation to any matter to which the executive power of the Union extends. Clause (3) provides for making of payment by the Government of India to the State concerned such sum as may be agreed upon or in default of agreement through arbitration in respect of any extra-cost of administration incurred by the State in connection with the exercise of powers and duties of the Government of India conferred or imposed upon a State Government. 20. Thus, under the Central Government notifications dated 19.04.1958 and 17.02.1976, Government of Assam, Superintendents of Police and Deputy Commissioners (In-charge of Police) have been delegated the power to make reference to the Foreigners Tribunal under order 2 (1) of the Foreigners (Tribunals) Order, 1964 to seek opinion as to whether the proceedee is a foreigner or not within the meaning of the Foreigners Act, 1946. 21. Thus from the above, what transpires is that there are two categories of “D” voters:- (i). those who were marked as “D” voters in the electoral roll by the Electoral Registration Officer following enquiry by Local Verification Officer; and (ii). those whose references are pending before the Foreigners Tribunals. 22. In so far Electoral Registration Officer is concerned the exercise undertaken by him while marking a person as a “D” voter in the electoral roll is a quasi judicial exercise. If he holds the view after examining the enquiry report of the Local Verification Officer that the concerned person is not a citizen of India he is required to forward the case of that person to the competent authority i.e., the Superintendent of Police. If it is so forwarded by the Electoral Registration Officer, the jurisdictional Superintendent of Police has to make a reference to the competent Foreigners Tribunals under order 2(1) of the Foreigners (Tribunals) Order, 1964 based on the report received from the Electoral Registration Officer. Question of making further enquiry by the Superintendent of Police in such a case would not arise because enquiry has already been made by the Electoral Registration Officer by exercising quasi judicial powers and the Superintendent of Police cannot sit over such decision of the Electoral Registration Officer. He has to forward the same by making the reference to the competent Foreigners Tribunal for its opinion. 30. The said judgment by the learned Single Judge in the case of Sayam Uddin (supra), has stood affirmed by the virtue of judgment and order dated 29.07.2019, passed by the Division Bench of this Court in the writ appeal of Sayam Uddin (supra). Page No.# 16/22 31. It would be appropriate to refer to another decision of this Court in the case of Amina Khatun v. Union of India & Ors., 2022 (4) GLT 102 (supra), which was decided on 28.04.2022. In the said case, the reference was made by the Superintendent of Police (Border), based on Local Verification Officer’s Report, as forwarded by the Elector Registration Officer. But it appears that the previous decision of the learned Single Judge of this Court in the case of Sayam Uddin v. The Union of India & Ors., 2019 (4) GLT 456, as affirmed by the Division Bench of this Court in the case of Sayam Uddin v. Union of India & Ors., W.A. 170/2019, decided on 29.07.2019, were not brought to the notice of this Court. Therefore, under such circumstances, the Court is of the considered opinion that under the well settled principles of stare decisis, the decision in the case of Amina Khatun (supra) would be per incurium. Accordingly, the decision rendered in the case of Amina Khatun (supra), though not cited, will also not be of any help to the petitioner. 32. It may be stated that after the IM(D)T has been disbanded, reference is presently being made in accordance with the Government Notification No. PLB.101/2005/Pt/194 dated 02.02.2006. If one needs to verify as to whether proceeding before IM(D)T was transferred in this case, the said notification may be referred to. Hence, this Court would exercise restraint on making any comment on (i) the form of reference; (ii) report of the Verification Officer; (iii) reference by Electoral Registration Officer (ERO for short); and (iv) reference by the Superintendent of Police (Border), Nagaon. Moreover, as the proceedings were transferred by virtue of orders passed by the Supreme Court of India, the Foreigners Tribunals would also have no power or jurisdiction to remand the reference back to the Superintendent of Police (Border) for a fresh enquiry by the Local Verification Officer and/or the Electoral Registration Officer. Page No.# 17/22 33. Thus, notwithstanding the delay and laches, as the issue of citizenship has been urged by the learned counsel for the petitioner, the Court has examined the case of the petitioner on merit. 34. In order to explain the inordinate delay and laches in assailing the impugned opinion dated 02.08.2019, by filing this writ petition, the learned counsel has submitted that in paragraph 16 of the writ petition, the petitioner has taken a stand that due to extreme financial hardship of the husband of the petitioner and being not able to bear the litigation cost, though certified copy of the opinion was obtained on 25.07.2025, she could not file the writ petition on time. 35. The learned Tribunal, in the impugned opinion, by referring to the exhibited documents and evidence of the witness, arrived at a conclusion that the petitioner was unable to establish her linkage with her projected father. Accordingly, it was held that the petitioner had failed to discharge her burden of proof under Section 9 of the Foreigners Act, 1946 that she is not a foreigner but an Indian. Resultantly, the opinion was passed against the petitioner, thereby declaring her to be a foreigner or an illegal migrant of stream of post 25.03.1971. 36. In respect of inordinate delay and laches in assailing the impugned opinion after a lapse of 6 years, 7 months, 3 days (or 2407 days), 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 Page No.# 18/22 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." 37. On the other hand, it is seen that the petitioner has filed this writ petition on 05.03.2026 to assail the opinion dated 02.08.2019, i.e. after 6 years, Page No.# 19/22 7 months, 3 days (or 2407 days). The said delay is explained merely by stating that the husband of the petitioner is a daily wage earner and unable to manage the cost and expenditure of approaching this Court. Such a vague statement cannot be accepted as nothing prevented the petitioner from availing free legal aid, which she did not. Accordingly, the petitioner is deemed to have accepted the opinion without any demur, with full knowledge of the fact that she has been declared to be a foreigner. Thus, the writ petition is also not maintainable in view of the delay and laches. 38. Thus, the petitioner, despite full knowledge of the consequences of being declared as a foreigner, has allowed the said opinion to attain finality for over 6 (six) years. Thus, the delay is found to be not properly explained. 39. 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.” 40. 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, Page No.# 20/22 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." 41. 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 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. 42. 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 Page No.# 21/22 situation and to be an engine for defeating the very object of identification and deportation of foreigners. A similar opinion has also been expressed by this Court in the case of Abu Bokkor Siddique v. Union of India, 2019 (1) GLT 813. 43. 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. 44. Be that as it may, as the issue of citizenship has been raised, notwithstanding the delay and laches, the Court has carefully examined the materials available in the writ petition and on merit, the opinion expressed by the learned Tribunal cannot be faulted with on any count. Thus, the challenge to the impugned opinion dated 02.08.2019, passed by the learned Member, Foreigners Tribunal, 4th, Nagaon, in F.T. Case No. 412/16, arising out of Police Reference ‘D’ Case No. 2848/98, by which she was declared to be a foreigner, Page No.# 22/22 fails. 45. Resultantly, this writ petition is dismissed on merit as well as on account of delay and laches at the “motion stage” without issuing notice upon the respondents. The consequences of the said opinion shall follow. 46. There shall be no order as to cost. 47. 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