Page No.# 1/9 vs The Union Of India
2025 Latest Caselaw 775 Gua

Gauhati High Court

Page No.# 1/9 vs The Union Of India on 3 June, 2025

Author: M. Nandi

Bench: Kalyan Rai Surana, Malasri Nandi

                                                                 Page No.# 1/9

GAHC010028502025




                                                           2025:GAU-AS:7199

                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/878/2025

         THANDU MIYA
         S/O- LATE TAHURUDDIN MIYA, VILL- KAWAIMARI 12 NO BLOCK
         (KARAGARI NONKE 12 NO BLOCK), P.O- GOLIBANDHA, P.S- SARTHEBARI,
         DIST- BARPETA, ASSAM



         VERSUS

         THE UNION OF INDIA
         REP BY THE SECY TO THE GOVT OF INDIA, MIN OF HOME AFFAIRS,
         SHASTRI BHAWAN, TRILOK MARG, NEW DELHI- 01

         2:THE STATE OF ASSAM
          REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          HOME DEPARTMENT
          DISPUR
          GUWAHATI-6

         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.
          BHANGAGARH
          GUWAHATI-05
          DIST- KAMRUP (M)
                                                                              Page No.# 2/9


            5:THE DISTRICT COMMISSIONER
             BARPETA
            ASSAM
             PIN-781301

            6:THE SUPERINTENDENT OF POLICE (B)
             P.O
             P.S AND DIST-BARPETA
            ASSAM
             PIN-78130

Advocate for the Petitioner   : MR H A AHMED, MR. R ALI

Advocate for the Respondent : DY.S.G.I., SC, F.T,GA, ASSAM,SC, ECI,SC, NRC

BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI

JUDGMENT & ORDER (CAV)

Date : 03-06-2025 (M. Nandi, J)

Heard Mr. R. Ali, learned counsel for the petitioner. Also heard Mr. S.K. Medhi, learned CGC; Mr. G. Sarma, learned Standing Counsel, FT matters; Mr. H. Kuli, learned counsel appearing on behalf of Mr. A.I. Ali, learned Standing Counsel, ECI; and Mr. P. Sarmah, learned Additional Senior Government Advocate.

2. The petitioner has preferred this writ petition under Article 226 of the Constitution of India assailing the order of the Foreigners Tribunal dated Page No.# 3/9

09.03.2022, passed in F.T. Case No.606(III)/2013 [Ref: IM(D)T Case No.269/10], declaring the petitioner to be a foreigner under the provisions of Foreigners Act, 1946.

3. The case of the petitioner is that the instant writ petition is filed challenging the impugned ex parte order dated 09.03.2022, passed by the learned Member, Foreigners Tribunal No.III, Barpeta, whereby the petitioner has been declared as an foreigner. In terms of the said ex parte order dated 09.03.2022, the petitioner was arrested on 07.08.2024 and since then he has been detained in the Transit Camp/Detention Camp, Matia, Goalpara.

4. It is submitted by learned counsel for the petitioner that on receipt of the notice, the petitioner appeared before the learned Tribunal on 05.05.2021. Thereafter the petitioner could not obtain the necessary documents/voter lists etc. from the concerned office at the relevant point of time and as such he could not submit his written statement. Subsequently the petitioner did not appear before the learned Tribunal as because some members of NGO assured the petitioner that they would contest the case of the petitioner before Higher Court on free of cost and the petitioner is not required to appear before the Tribunal.

5. It is further submitted that the petitioner being ignorant about the fact, having no knowledge about court proceeding, and as such on good faith, the petitioner did not appear before the learned Tribunal and accordingly, the learned Tribunal passed an ex parte order dated 09.03.2022, declaring the petitioner as foreigner.

6. According to learned counsel for the petitioner, the petitioner has no knowledge about the said ex parte order. On 07.08.2024, when the petitioner has been taken into custody by the Barpeta Border Police and sent him to the Page No.# 4/9

Detention Camp, then he came to know that the Tribunal had passed an ex parte order in connection with the case on which he received the notice.

7. Accordingly, learned counsel for the petitioner has prayed to set aside the ex parte order and to release the petitioner from Matia Detention Camp. The further submission of learned counsel for the petitioner is that the matter be remanded to the learned Tribunal by giving one opportunity to the petitioner to decide his case on merit for the interest of justice.

8. By relying on the judgment of this Court vide WP(C) 635/2025 (Rokman Khan Vs. Union of India and Ors.), the learned counsel for the petitioner has

submitted that the instant case is of similar nature and the matter be remanded back to the Tribunal on the basis of the observation of this Court in the case of Rokman Khan (supra).

9. In response, learned Standing Counsel, F.T matters, Mr. G. Sarma has submitted that the notice was properly served to the petitioner. After that the petitioner has appeared before the Tribunal and filed several petitions praying for time to file written statement. Subsequently, he did not appear before the Tribunal in spite of giving sufficient opportunity to the petitioner to prove his case which he failed to do so. Under such backdrop, the question of interfering the order of the Tribunal does not arise as the petitioner is negligent in taking subsequent steps in his case.

10. Having heard the learned counsel for the parties and on perusal of the trial court record, it reveals that notice issued to the petitioner was duly served to him and accordingly, he appeared before the Tribunal on 05.05.2021 and filed a petition praying for time to submit his written statement which was allowed by the Tribunal and the next date was fixed on 12.07.2021.

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11. On 12.07.2021, learned counsel for the petitioner filed another petition seeking time to submit his written statement which was also allowed by the Tribunal. On subsequent dates i.e. 11.08.2021, 18.09.2021, similar types of petitions were filed with a prayer to fix another date for filing written statement and accordingly, the learned Tribunal allowed the same. On next date i.e. 02.11.2021, 13.12.2021, the petitioner along with her counsel were present before the Tribunal and as usual sought for time vide petitions to file written statement which was also allowed by the Tribunal.

12. Thereafter, since 24.01.2022 neither the petitioner nor his counsel was present before the Tribunal. It appears from the record that the Tribunal fixed three more dates for appearance of the petitioner to submit his written statement and relevant documents to discharge his burden regarding citizenship. As the petitioner did not turn up, there is no alternative before the Tribunal except to pass the ex parte order and accordingly, on 09.03.2022, the Tribunal passed the ex parte order declaring the petitioner to be a foreigner.

13. At the time of filing this writ petition, the petitioner submitted some documents stating that she had enough documents to prove her citizenship before the Tribunal. Accordingly, the learned counsel for the petitioner prayed to consider the case of the petitioner with a prayer to remand the case giving the petitioner an opportunity to exhibit the documents before the Tribunal.

14. Now the question comes whether this Court has such power in exercising writ jurisdiction to consider the documents submitted by the petitioner along with this writ petition which were not produced and exhibited before the Tribunal.

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15. In the case of Central Council for Research in Ayurvedic Sciences and another Vs. Bikartan Das and Others, reported in (2023) SCC Online SC 996, the

Hon'ble Supreme Court has formulated the guidelines to consider the writ of certiorari which reads as follows -

"51. The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari is that in granting such a writ, the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, being a high prerogative writ, should not be issued on mere asking.

52. The second cardinal principle of exercise of extraordinary jurisdiction under Article 226 of the Constitution is that in a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction there under can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising Page No.# 7/9

this flexible power to pass such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal court of appeal which it is not....."

16. Reverting to the case in hand, having regard to the undisputed facts that the notice was duly served to the petitioner and he appeared before the Tribunal seeking several dates for filing written statement and ultimately, he remained absent before the Tribunal. We find that sufficient opportunities were granted to the petitioner to establish his claim as not being a foreigner or to refute the allegation that he had illegally entered into the territory of India after 25.03.1971.

17. In this context, we may observe that although the procedure of identification and for declaring an individual to be a foreign national cannot be relegated to mechanical exercise and that fair and reasonable opportunity must be afforded to a proceedee to establish a claim that he/she is a citizen of India, however, such grant of fair and reasonable opportunity cannot be enlarged to an endless exercise. A person who is not diligent and/or is unmindful in taking steps to safeguard his interest, he does so at his own risk and peril.

18. In the instant case, several opportunities were granted to the petitioner to establish his claim which he utterly failed to do so. In this context, we also Page No.# 8/9

observe that in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964, the primary issue for determination is whether the petitioner is a foreigner or not. The relevant fact being especially within the knowledge of the petitioner, as such, the burden of proving citizenship absolutely rests upon the petitioner, notwithstanding anything contained in the Indian Evidence Act, 1872. This is mandated u/s 9 of the aforesaid Act, 1946. The said position would not change even in an ex parte proceeding before the Tribunal as such the burden never shifts but continues to be upon the petitioner. In a situation where no evidence is adduced or the burden is not discharged, the only option left to the Tribunal would be to declare the petitioner to be a foreigner, based on the grounds of reference upon which the appropriate proceeding was initiated, where notice was issued and duly served upon the petitioner.

19. Having noticed as above, another aspect to be noted is that the scope of interference under Article 226 of the Constitution of India to a decision of the Tribunal is limited to correct errors of jurisdiction or when the decision is made by the Tribunal without giving opportunity of hearing or when judgment is rendered in violation of the principles of natural justice or where there appears to be an error apparent on the face of the record. None of the above grounds exist in the present case.

20. Accordingly, the writ petition is dismissed. There shall be no order as to costs.

21. It is pertinent to mention here that in terms of ex parte order dated 09.03.2022, the petitioner was arrested on 07.08.2024 and since then he has been detained in Detention Camp, Matia, Goalpara. As the petitioner has failed to discharge his burden as observed by the Court, he is not entitled for bail.

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22. With the above observation, the writ petition is disposed of.

23. Transmit the case records to the Tribunal.

                            JUDGE                    JUDGE




Comparing Assistant