Gauhati High Court
Sahanur Ali @ Sahinur Islam vs The Union Of India And 5 Ors on 5 May, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/8
GAHC010087112025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2337/2025
SAHANUR ALI @ SAHINUR ISLAM
S/O LT. MONSER ALI, VILL- CHAGOLCHARA PART-I, P.O.- HOWRAPAR, P.S.-
DHUBRI, DIST- DHUBRI (ASSAM), PIN-783324
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA,
MINISTRY OF HOME AFFAIRS, NEW DELHI, PIN-110001
2:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTION COMMISSIONER
NEW DELHI-110001
3:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-781006
4:THE DISTRICT COMMISSIONER
DHUBRI
PIN-783301
5:THE SUPERINTENDENT OF POLICE
DHUBRI
PIN-783301
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6:THE COORDINATOR
NATIONAL REGISTER OF CITIZENS
BHANGAGARH
GUWAHATI-0
Advocate for the Petitioner : MR. SURAJIT DAS, MS. H G DAS,MS. B LASKAR,MR. J ABBAS
Advocate for the Respondent : DY.S.G.I., SC, NRC,SC, F.T,SC, ECI,GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 05.05.2025
(K.R. Surana, J)
Heard Mr. J. Abbas, learned counsel for the petitioner. Also heard Mr. G.
Sarma, learned Standing counsel, F.T.; Ms. N. Bedi, learned counsel, appears on
behalf of Ms. P. Barua, learned Standing, ECI; Mr. P. Sarmah, learned Additional
Senior Government Advocate, Assam; and Mr. K.K. Parasar, learned CGC.
2. By filing this writ petition under Article 226 of the Constitution of India, the
petitioner has assailed the ex parte opinion dated 24.06.2024, passed by the
learned Member, Foreigner's Tribunal No. 1, Dhubri, in F.T. Case No. 5107/D/11,
bearing Reference F.T. Case No. 338/D/07, by which the petitioner was declared
to be a foreigner who was illegally entered into the State after 25.03.1971.
3. The learned counsel for the petitioner has referred to the statement made
in the writ petition and it is submitted that there was a communication gap with
his engaged counsel and therefore, his written statement could not file within
time. It is also projected that the petitioner is an illiterate person but he has
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several documents to establish that he is not a foreigner but an Indian citizen.
In this regard, it is projected that the names of the grandfather and
grandmother of the petitioner appeared in the Electoral Roll of 1966 of village
Chagolchara Part-I No. 33, Dhubri LAC and their names also appeared in the
Electoral Roll of 1970. The names of the father and grandfather of the petitioner
appeared in the Electoral Roll of 1975 that the name his parents appeared in the
Electoral Roll of 1979, 1989 and in the Electoral Roll of 1997. The names of his
parents appeared along with two brothers of the petitioner and the name of the
petitioner appeared in the Electoral Roll of 2005 along with his parents, three
brothers and sister-in-laws and that in the Electoral Roll of 2011 and 2018, the
name of the petitioner appears along with brothers and sister-in-laws.
4. The learned counsel for the petitioner has submitted that the petitioner is
a resident of village Chagolchara Part-I and he is not a resident of village
Adabari Part-I. The learned counsel for the petitioner has further submitted that
the name of the petitioner is Sahanur Ali, however, the reference was made
against one Sahinur Islam. Accordingly, it is submitted that the petitioner, being
a person from the economically weaker section of society, be given an
opportunity to contest the proceeding by filing his written statement of defence.
5. The prayer is opposed by the learned Standing counsel for the FT matters.
6. Considered the materials available on record.
7. It is seen that the learned Tribunal had issued a notice dated 19.05.2023
to the petitioner to appear and contest the proceedings, fixing the next date of
appearance on 05.07.2023. As per the contents of the impugned opinion, the
petitioner appeared along with his engaged counsel on 05.07.2023 and prayed
for time, which was allowed. On behalf of the petitioner, prayer for
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adjournments were made on 21.07.2023, 14.08.2023, 03.10.2023, 16.11.2023,
07.12.2023, 08.01.2024, 19.02.2024, 16.03.2024 and 29.05.2024, which were
all allowed. However, it is seen that the petitioner as well as his learned counsel
remained absent in the proceedings that was taken up on 16.04.2024 and
11.06.2024. Thereafter, the ex parte opinion was passed on 24.06.2024.
Therefore, the prayer for adjournment was made and allowed on 10(ten)
occasions and on 2(two) occasions, the petitioner remained unrepresented. The
petitioner appears to be present in the Tribunal when the opinion dated
24.06.2024 was passed.
8. Although, the learned counsel for the petitioner has submitted that the
petitioner is a person from weaker section of the society, illiterate and therefore,
requires an opportunity to contest the proceeding, what we will notice that in
the present writ petition, the petitioner annexed photocopy of the certified copy
of Electoral Roll of 1966, 1970, 1975, 1979, 1989, 1997. As per its contents, it is
seen that the certified copies were issued on 23.07.2018. Moreover, the
petitioner also annexed photocopy of certified copies of Electoral Roll of 2005,
2011 and 2018 and the certified copies thereof were issued on 10.07.2019.
Therefore, all the documents that the petitioner has annexed to this writ petition
is found to have been procured much prior to the issuance of notice to the
petitioner of commencement of trial against him before the learned Tribunal.
Thus, it is not a case of the petitioner that he could not procure any document
for which written statement could not be filed within time. The petitioner is
projected economic status or illiteracy did not come in his way to obtain certified
copies of several electoral rolls. Thus, he appears to have taken a chance by not
filing his written statement.
9. In this writ petition, it is projected that there was a communication gap
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between the petitioner and his learned counsel which is not acceptable because
the petitioner has not stated about his own conduct by asserting that on each
date fixed, he had met his learned counsel, who in turn did not share any
information about the next date with him. It is also not a case of the petitioner
that the concerned Tribunal did not maintain any register to inform all
concerned the information about the dates on which the case was posted.
Therefore, on the basis of materials available on record, the Court is unable to
arrive at a conclusion that there was any communication gap between the
petitioner and his learned counsel. Moreover, an inquiry regarding conduct of his
learned counsel for the petitioner cannot be a ground to entertain this writ
petition as an alternative forum is available to the petitioner to raise his
grievance against his learned counsel, who is not a party herein.
10. Ordinarily, if there is an adequate explanation for not being able to
contest the proceeding before the learned Foreigners' Tribunal by filing a written
statement, the Court has the power to examine as to whether the learned
Tribunal given adequate opportunity to the petitioner to present his written
statement or defence and/or representation, as referred to in the Foreigners'
(Tribunal) Order, 19.05.2023. In this case, we have found that the learned
Tribunal was too lenient in granting adjournments. Moreover, despite non-
appearance of the petitioner and his engaged counsel appeared before the
learned Tribunal on 2(two) occasions, the Tribunal did not show any haste in
passing the opinion immediately. Therefore, this is not a case where the Court
can arrive at a satisfaction that there was communication gap between the
petitioner and his learned counsel. Moreover, as mentioned hereinbefore, all the
certified copies of the voter lists referred above and/or annexed to this writ
petition were very much available with the petitioner before he was even served
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with a notice of the case before the Foreigners' Tribunal. Therefore, the
petitioner took a calculated chance of not filing his written statement of defence
within the prescribed time and/or extended time granted by the learned
Tribunal.
11. Therefore, though there is no iota of doubt that citizenship is a coveted
fundamental right of a person. However, in this case, the petitioner, despite
being aware of his Constitutional and legal right, has slept over his legal right by
not filing his written statement within the liberally extended time allowed.
12. Under the Para 3(8) of the Foreigners' (Tribunals) Orders, 1964, the
Foreigners' Tribunal is required to give 10(ten) days time to the proceedee to
give reply against the show cause notice and further 10(ten) days time is
allowable to produce evidence in support of his or her case. Under Para-3 (14)
of the said 1964 Orders, a Foreigners Tribunal is required to dispose of the case
within a period of 60(sixty) days from the receipt of reference from the
competent authority. There is no provision for any extension of time beyond 60
(sixty) days, but under Para-3/C of the said 1964 Orders, proceedee can apply
for setting aside and an ex parte opinion if the proceedee can satisfy the
Tribunal that he or she has sufficient cause for not appearing before the
Foreigners' Tribunal. However, the said application is required to be filed within
30(thirty) days from the date of the order. There is no provision for extension of
time to entertain, application for setting aside an ex parte opinion.
13. Therefore, in light of the discussion above, the Court does not find that
the petitioner has been able to show good and cogent reason for not being able
to file his written statement, despite the matter being adjourned on 12(twelve)
occasions between 05.07.2023 to 11.06.2024.
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14. Para 16 of the case of Ayub Ali (Md.) vs. Union of India, 2016(1) GLT
273, is quoted below-
"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."
15. The Court does not find any good reason to take a view different than one
expressed in the judgment rendered in the case of Ayub Ali (Md.) (supra), which
is a binding precedent, in the absence of any cogent and acceptable explanation
from the petitioner for not being able to file his written statement of defence
despite the proceedings being adjourned on 12(twelve) occasions and that too,
when he was already having certified copy of the electoral rolls, which have
been annexed to this writ petition. The impugned opinion is not found to be
erroneous or perverse.
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16. Accordingly, this writ petition fails and the same is dismissed at the motion
stage without issuing of notice on the respondents.
JUDGE JUDGE
Comparing Assistant
