Gauhati High Court
Page No.# 1/13 vs The Union Of India And 5 Ors on 18 August, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/13
GAHC010230052019
2025:GAU-AS:10997
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7250/2019
ABDUL KARIM @ A. KARIM @ KARIM
S/O. LT. SAYED ALI @ SAYED @ SAYED SHEIKH, VILL., P.S. AND P.O.
MOIRABARI, PIN-782126, DIST. MORIGAON, ASSAM.
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF INDIA, HOME DEPTT.,
NEW DELHI-01, INDIA.
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GUWAHATI-06.
3:THE STATE CO-ORDINATOR
NATIONAL REGISTER OF CITIZENS (NRC)
ASSAM
ACHYUT PLAZA
BHANGAGARH
GUWAHATI-05
ASSAM.
4:THE ASSAM STATE ELECTION COMMISSION
BELTOLA BASISTHA ROAD
HOUSEFED COMPLEX
GUWAHATI-06
ASSAM.
Page No.# 2/13
5:THE DY. COMMISSIONER
MORIGAON
DIST. MORIGAON
ASSAM.
6:THE SUPDT. OF POLICE (B)
MORIGAON
DIST. MORIGAON
ASSAM
Advocate for the Petitioner : MR E AHMED, MR. Z HAMMAD,MR. R A CHOUDHURY
Advocate for the Respondent : ASSTT.S.G.I., SC, NRC,SC, ECI,SC, F.T
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE RAJESH MAZUMDAR
ORDER
Date : 18.08.2025
(K.R. Surana, J)
Heard Mr. Z. Hammad, learned counsel for the petitioner. Also
heard Ms. S. Baruah, learned CGC for the respondent no.1; Ms. A. Verma,
learned standing counsel for FT and Border matters, representing respondent
nos. 2, 4 and 6; and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate,
representing respondent nos. 4 and 5.
2) By filing this writ petition under Article 226 of the Constitution
of India, the petitioner, namely, Abdul Karim @ A. Karim @ Karim, has assailed
the ex parte opinion dated 03.06.2014, passed by the learned Member,
Foreigners Tribunal (2nd), Morigaon, in Case No. F.T.(D) 758/2011 [arising out of
Police Ref. D/N Case No. 2757/98 dtd. 04.07.1998 and E.R.O. Ref. No. 83/80/34
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dated 17.10.1997], thereby holding the petitioner has failed to discharge his
burden as required under Section 9 of the Foreigners Act, 1946 and accordingly,
the petitioner abovenamed was held to be a foreigner under Section 2(a) of the
Foreigners Act, 1946, who has illegally entered into India (Assam) after the cut-
off date of 25.03.1971.
3) In this writ petition, it has been pleaded that pursuant to the
said opinion, the petitioner has been taken into custody on 22.05.2018 and is
presently lodged in the Transit Camp at Matia, Goalpara. However, the present
writ petition has been filed on 17.09.2019.
4) The learned counsel for the petitioner has strenuously
submitted that during the relevant time, the petitioner had suffered medical
condition of CVA (i.e. cerebrovascular accident) with left sided hemiparesis. It
has been submitted that the said condition means stroke with weakness on the
left side of the body. Therefore, the petitioner could not contest the proceeding.
In this regard, the learned counsel for the petitioner has referred to various
medical prescriptions and documents annexed to the writ petition. It has further
been submitted that when this writ petition was filed, the age of the petitioner
was 64 years and now he is aged about 70 years.
5) Accordingly, the learned counsel for the petitioner has prayed
that the petitioner has all the relevant documents to show that he is a bona fide
citizen of India and therefore, one opportunity be granted to the petitioner to
contest the case, otherwise, he would lose a valuable citizenship right and his
right under Article 21 of the Constitution of India would be violated and lost. In
support of his submissions, the learned counsel for the petitioner has placed
reliance on the case of (i) Fakaruddin v. The Union of India & Ors., W.P.(C)
3070/2025, decided on 09.06.2025, (ii) Amran Hussain @ Md. Amran Hussain v.
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The Union of India & Ors., W.P.(C) 3248/2019, decided on 10.06.2019 , and (iii)
Akkas Ali @ Akash Ali @ Akus Ali & 2 Ors. v. The Union of India & Ors., W.P.(C)
2209/2019, decided on 05.04.2019.
6) Per contra, the learned standing counsel for the FT matters has
opposed the maintainability of the writ petition on account of inordinate delay in
assailing the impugned ex parte opinion and it has been submitted that the
petitioner did not seek any adjournment of the proceedings before the learned
Foreigners Tribunal on medical grounds. In support of her submissions, the
learned counsel for the FT and Border matters has cited the following cases,
viz., Babul Islam v. Union of India & Ors., W.P.(C) 291/2024, decided by this
Court on 23.02.2024, and Ayub Ali (Md.) & Ors. v. Union of India & Ors., 2016
(1) GLT 273.
7) Examined the materials available on record as well as the case
records, which was requisitioned from the learned Foreigners Tribunal. Also
considered the submissions made by both sides.
8) In paragraph 7 of this writ petition, the petitioner has stated
that on receiving notice, he had engaged one counsel to contest the case, who
took adjournment on 20.11.2013, 02.01.2014 to file written statement, but the
petitioner remained absent on 17.02.2014, 24.03.2014 and 03.06.2014, without
any steps, as he was suffering from neurological disease and other ailments and
as such, by the said ex parte opinion, the petitioner was declared to be a
foreigner.
9) In contrast, the petitioner has pleaded in paragraph 9 of the
writ petition that he was not aware of any enquiry report or any reference or
the impugned ex parte opinion by the learned Tribunal. It has been pleaded that
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only after the petitioner was taken into custody on 22.05.2019, he became
aware of the impugned ex parte opinion.
10) To show the medical condition of the petitioner, he has annexed
a bunch of medical documents as Annexure-9 (series). Those are doctor's
prescriptions dated 17.02.2014, 28.06.2015, 17.09.2017, medical certificate
dated 10.05.2019, certifying that the petitioner was suffering from "CVA with
left sided Hemiparesis" and he was undergoing treatment and medical advice
w.e.f. 17.02.2014 to 05.02.2018. In none of these three prescriptions and the
aforesaid medical certificate, the petitioner is advised bed-rest so as to prevent
the petitioner from interacting with his learned counsel. Moreover, assuming
that the petitioner did suffer adverse medical condition on 17.02.2014, nothing
prevented the petitioner to instruct his engaged counsel to produce his medical
prescription and to file a petition before the learned Foreigners Tribunal for
adjournment. Rather, the petitioner has remained absent without steps on
17.02.2014, 24.03.2014 and 03.06.2014.
11) In the three medical prescriptions dated 17.02.2014, 28.06.2015
and 17.09.2017, medicines were prescribed for 30 days, 60 days and 60 days
respectively. Thus, the said three medical prescriptions do not show continuous
treatment between 17.02.2014 to 05.02.2018 and therefore, the medical
certificate dated 10.05.2019, does not inspire any confidence. Moreover, in the
said medical certificate dated 10.05.2019, the concerned doctor has used an
official rubber stamp of "Sub-Divisional Medical and Health Officer, Morigaon
Civil Hospital". However, no prescription prepared in the stationery of the
Morigaon Civil Hospital has been annexed, containing a patient registration
number of the said Government hospital. It is clarified herein that the
observations above is not intended to be construed that the Court has drawn a
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conclusion that the statement of the petitioner about his projected illness is
disbelieved, but the observation is limited to the extent that the medical
documents do not inspire any confidence to accept that the petitioner was
under complete bed-rest for the entire period from 17.02.2014 to 05.02.2018. It
is not the pleaded case of the petitioner that his projected illness incapacitated
him even such an extent that he could not communicate his health status to his
learned counsel.
12) This writ petition was filed on 17.09.2019 and thus, from
05.02.2018, the date till which the petitioner has allegedly projected that he
was under treatment. Be that as it may, there is yet an unexplained delay of
about 19 months in assailing the impugned ex parte opinion.
13) Carefully examined the three cases cited by the learned counsel
for the petitioner. In the case of Fakaruddin (supra), the petitioner was allowed
an opportunity to contest the proceeding because the service of process/notice
was not made in accordance with the provisions of Paragraph 3(5)(f) of the
Foreigners (Tribunals) Order, 1964, which was held to be a good ground to set
aside the ex parte opinion. In the case of Amran Hussain @ Md. Amran Ali
(supra), the ex parte opinion was passed on 24.12.2018, and the order in the
writ petition was passed on 10.06.2019. However, at the same time, it has been
observed in the said order that "...There is no gainsaying that the citizenship is
a valuable right. For making a declaration otherwise, reasonable opportunity has
to be afforded which, of course, cannot be relegated to an endless exercise.
Having regard to the facts of the instant case, we are of the opinion that for the
ends of justice an opportunity should be afforded to the petitioner to contest
the reference on merits." Thus, it is trite that a proceedee is only entitled to a
reasonable opportunity, which cannot be an endless exercise so as to condone
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unexplained delay of nearly 5 (five) years in assailing the impugned opinion and
thus render the provisions of Paragraph 3(14) of the Foreigners (Tribunals)
Order, 1964 as otiose.
14) In the case of Akkas Ali @ Akash Ali @ Akus Ali (supra) , was that
upon transfer of the proceeding from Foreigners Tribunal 2 nd, Morigaon to the
Foreigners Tribunal 3rd, Morigaon, no notice was issued to the petitioner.
Moreover, as certified copies of the case record had been provided by the
learned Tribunal to the petitioner in the said writ petition, by dispensing with
issuance of formal notice, the petitioner in the said case was granted an
opportunity to file written statement.
15) Thus, on facts, the three cases cited by the learned counsel for
the petitioner is distinguishable.
16) As mentioned hereinbefore, from the medical prescriptions of the
petitioner, which are annexed to this writ petition, the learned counsel for the
petitioner has not been able to show regular and continuous treatment availed
by the petitioner. Therefore, a medical certificate dated 10.05.2019, certifying
that the petitioner was under the treatment of the said doctor from 17.02.2014
to 05.02.2018, cannot be believed. Surprisingly, from the medical prescriptions
annexed to the writ petition, the doctor under whom the petitioner was
purportedly under treatment for four years has not prescribed any medical tests
for the petitioner though the petitioner has been allegedly diagnosed to be
suffering from "CVA with right sided hemiparesis".
17) In this case, from a perusal of the TCR, it is seen that the
learned Tribunal had given the petitioner sufficient time to contest the
proceeding. However, the petitioner is not found to have diligently pursued the
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proceeding.
18) It would be appropriate to refer to paragraph 13 to 15 of the
case of Ayub Ali (Md.) (supra), cited by the learned counsel for the FT and
Border matters, which are extracted hereinbelow:-
"13. He further submits that section 9 of the F.T. Act 1946 requires that the duty
of proving that a person is an Indian citizen is on the person who claims to be
Indian citizen, and not, on the State. Unfortunately, despite granting several
adjournments, the appellants herein failed to discharge their burden which law
enjoins upon them. Being so, having passed the order declaring the appellants as
foreigner, the Tribunal had committed no wrong whatsoever.
14. We have considered the rival submissions having regard to the judgment
under challenge and the pleadings of the parties. For ready reference the relevant
part of the judgment is reproduced below:-
"7. I have considered the submissions of the learned counsel for the parties
and have perused the materials on record including the records of the
Tribunal, which has been called for.
8. The petitioners herein belong to one family. The petitioner No. 1 is the
husband of petitioner No. 2 and father of petitioner Nos. 3 and 4. It appears
that there was a case registered against the petitioner Nos. 1 and 2 under
the IMDT Act. Consequent upon the Hon'ble Supreme Court striking down
the IMDT Act, 1983 and the Illegal Migrants (Determination by Tribunals)
Rules, 1984, for short, IMDT Rules, 1994, as unconstitutional, in terms of the
directions contained in the said judgment all pending cases stood transferred
to the Tribunal constituted under the Foreigners (Tribunals) Order, 1964, for
short, the Order of 1964 and are to be decided in the manner provided in the
Foreigners Act, 1946, for short, the Act of 1946 and the Rules made there
under and the procedure prescribed under Order of 1964.
9. The Tribunal has issued a notice dated 01.03.2007 to the petitioners
indicating that the Superintendent of Police (Border), Morigaon had
submitted a report that they are suspected to have illegally entered India
after 25.03.1971 and are residing in India in the present address of the
petitioners. By the said notice dated 01.03.2007, the petitioners were
directed to submit written statement on 20.04.2007 failing which, it was
indicated that the case would proceed ex-parte against them.
10. The petitioners appeared before the Tribunal and presented their written
statement on 20.04.2007. Two witnesses were examined on behalf of the
State. On 14.06.2001, case was posted for evidence of the petitioners. On
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16.08.2011, on the ground of ailment, petition for adjournment was filed and
accordingly, case was posted for evidence on 14.11.2011, after 3 months. On
14.11.2011, a petition was filed on behalf of the petitioners praying for
adjournment on the grounds that they have not been able to collect their
documents as well as due to sickness of the witnesses. On both the
occasions, namely on 16.08.2011 and 14.11.2011, while granting
adjournment, the Tribunal had noted that medical certificates were not
produced. The Tribunal also noted in the order dated 14.11.2011 that the
plea that they have not been able to collect the documents at that distance
of time, could not be considered to be a reasonable ground for granting
adjournment. Nevertheless, one more opportunity was granted to produce
the documents by fixing the matter after more than 3 months on 23.02.2012.
It was also recorded in the said order that if on the next date fixed, the
witnesses were not ready with their documents, the Tribunal will dispose of
the case in accordance with law.
11. Once again a petition was filed on 23.02.2012 praying for adjournment
on the ground that though they had applied for voter list, they had not
received the same. The Tribunal rejected the prayer for adjournment and in
absence of any evidence on the side of the petitioners, proceeded to hold
that petitioners to be illegal migrants entering India after 25.03.1971.
12. Section 9 of the Act of 1946 provids that if in any case not falling under
Section 8 any question arises with reference to the Act or any order made or
direction given there under, whether any person is or not a foreigner of a
particular class or description, the onus of proving that such person is not a
foreigner or is not a foreigner of such particular class or description, as the
case may be, shall notwithstanding anything contained in the Indian
Evidence Act, 1872, shall lie upon such person. A Full Bench of this Court in
the case of State of Assam &Ors., Vs. Moslem Mondal&Ors., reported in
2013(1) GLT (FB) 809, had held that Section 9 of the Act of 1946 imposes a
burden on the proceedee to prove that he is not a foreigner. It was further
held that the State is not required to adduce evidence even in an ex-parte
proceeding as the burden lies on the proceedee to prove to the satisfaction
of the Tribunal that he is not a foreigner.
13. It is also relevant to note that in exercise of powers conferred by Section
3 of the Act of 1946, the Central Government had made certain amendments
in the Order of 1964. Paragraph 3 of Order of 1964 is substituted and
presently, paragraph 3(9) of the said order reads as follows:--
"After the case has been heard, the Tribunal shall submit its opinion as soon
as thereafter as may be practicable, to the officer or the authorities specified
in this behalf in the order of reference. Every case should be disposed of
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within a period of 60 days after the receipt of the reference from the
competent authority."
14. Thus, in view of the above, every case should be disposed of within a
period of 60 days from the date of receipt of the reference from the
competent authority. However, this amendment was effected after the
Tribunal had rendered the impugned judgment. But it goes without saying
even in absence of a time frame, the reference were to be disposed of within
a reasonable period of time having regard to the issue involved. The Full
Bench in Moslem Mondal (supra) had also noted about this aspect of the
matter and had observed that speedy trial is a fundamental right which is
guaranteed under Article 21 of the Constitution of India and that while there
can be no denying of the fact that in the name of detection and deportation
of foreigners, India citizen should not be harassed, it is equally true that the
reference proceeding must also be disposed of at the earliest so that
foreigners can be deported from India immediately as otherwise it would be
against notional interest.
15. That the petitioners did not adduce any evidence is not in dispute. The
thrust of the argument of the learned counsel for the petitioners is that the
petitioners have been denied reasonable opportunity to enable them to
discharge the burden cast upon them by Section 9 of the Act of 1946 and
one more opportunity should be granted to them.
16. Principles of natural justice cannot be put into a strait-jacket formula. It is
more than three decades that the issue of influx of foreign nationals has
been in public domain in the State of Assam. Process of determination of
question of citizenship cannot be a one -way traffic, leaning only in favour of
a person whose citizenship is doubted. Interest of the State is also 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. However, if a person
does not take steps for safeguarding his interest, he does so at his own peril.
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. The petitioners had known
about the allegations against them that they are foreigners entering India
with any valid documents, at least from 2007, even ignoring the earlier part
under the IMDT Act from 1997. The petitioners, all these years, apparently,
did not take any step to defend their rights in the Court proceedings. In the
circumstances, I am not inclined to grant any further opportunity to the
petitioners as any such course of action, according to the perception to the
Court, would be self-defeating."
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15. On considering the matter in its entirety, we have found no infirmity in the
judgment under challenge since it was found well evident that appellants had been
granted sufficient opportunity to show that they are citizens of India but they fail
to utilize all those opportunities."
19) We are inclined to follow the observations made by this Court in
the said case of Ayub Ali (Md.) (supra). Granting of further opportunity to the
petitioner in this case to contest the proceeding on assailing the opinion after
five years would amount to give premium to the petitioner for such delayed
challenge.
20) This Court, in the case of Jonali Das v. Union of India, 2018 (5)
GLT 492: (2018) 0 Supreme (Gau) 1186, has referred to the earlier decision of
this Court in the case of Azmat Ali @ Amzad Ali v. Union of India &Ors . The
same is quoted below:-
9. In Azmat Ali @ Amzad Ali Vs. Union of India [WP(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."
21) In this case, the petitioner has not been able to show any good
reason for not taking steps before the learned Tribunal on 3 (three) consecutive
dates, being 17.02.2014, 24.03.2014 and 03.06.2014. The ex parte opinion of
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the learned Tribunal was rendered on 03.06.2014, declaring the petitioner to be
a foreigner of post 25.03.1971 stream. However, the petitioner has laid belated
challenge to the said opinion by filing this writ petition on 17.09.2019, after a
lapse of about 5 years 31/2 months (1932 days). Thus, it is apparent that only
after the petitioner was taken into custody on 22.05.2018, this writ petition has
been filed.
22) From the TCR, it further appears that vide application no. 1518,
dated 10.11.2016, application for being given the certified copy of all orders,
V.O Report and all documents, judgment and order, notice, etc. has been made.
As per the endorsement made in the back page of the said application, the
certified copies were collected and received by the learned counsel for the
petitioner on 16.11.2016. The photocopy of impugned ex parte opinion, which is
annexed to this writ petition (Annexure-8; at page 28), clearly contains the
application number 1518, dated 10.11.2016. Therefore, a false statement is
found to be made in paragraph 9 of the writ petition to the effect that the
petitioner was not aware of any such enquiry report or the impugned ex parte
opinion dated 03.06.2014, made against him and that after he was suddenly
arrested on 22.05.2018, by the police, then only he came to know about the
fate of his case. Thus, the petitioner is not found to have approached this Court
with clean hands, but this writ petition is found to be structured on falsehood.
23) Thus, the Court is constrained to hold that the delay and laches
on part of the petitioner in approaching this Court to assail the impugned ex
parte opinion dated 03.06.2014, disentitles the petitioner to any relief in
exercise of certiorari jurisdiction under Article 226 of the Constitution of India.
24) Therefore, the Court is constrained to hold that on the ground of
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delay and laches alone, the petitioner has not been able to make out any case
for interference with the ex parte opinion dated 03.06.2014, passed by the
learned Member, Foreigners Tribunal (2nd), Morigaon, in Case No. F.T.(D)
758/2011 [arising out of Police Ref. D/N Case No. 2757/98 dtd. 04.07.1998 and
E.R.O. Ref. No. 83/80/34 dated 17.10.1997], thereby declaring the petitioner to
have entered into India (Assam) after 25.03.1971.
25) Resultantly, this writ petition fails and is dismissed. However,
there shall be no order as to cost.
26) The Registry shall send back the TCR to the concerned learned
Foreigners Tribunal along with a copy of this order so as to make it a part of the
record.
27) As per order dated 03.02.2020, the Court has recorded that the
petitioner had been taken into custody on 22.05.2018, and is lodged in the
Tezpur Detention Camp. The interim order passed on 03.02.2020, directing that
the petitioner shall not be deported out of the territory of India, stands vacated.
The consequences of the said ex parte opinion dated 03.06.2014, shall follow.
JUDGE JUDGE
Comparing Assistant
