Gauhati High Court
Bimala Khatun vs The Union Of India 6 Ors on 16 May, 2025
Author: M. Nandi
Bench: Kalyan Rai Surana, Malasri Nandi
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GAHC010023492025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/831/2025
BIMALA KHATUN
DAUGHTER OF LATE AJGAR ALI @ ASGAR ALI,
WIFE OF MOKADDES KHAN,
RESIDENT OF VILLAGE- MAIRAMARA,
POLICE STATION- HOWLY,
DISTRICT- BARPETA, ASSAM.
VERSUS
THE UNION OF INDIA 6 ORS.
REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS,
GOVERNMENT OF INDIA, SHASTRI BHAWAN, NEW DELHI-110001.
2:THE STATE OF ASSAM
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI- 781006.
3:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTION COMMISSION
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI- 110001.
4:THE STATE COORDINATOR
NATIONAL REGISTRATION OF CITIZENS
ASSAM
1ST FLOOR
ACHYUT PLAZA
G.S. ROAD
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BHANGAGARH
GUWAHATI
ASSAM
PIN- 781005.
5:THE DISTRICT COMMISSIONER
BARPETA
POST OFFICE- BARPETA
DISTRICT- BARPETA
ASSAM
PIN- 781301.
6:THE SUPERINTENDENT OF POLICE(BORDER)
BARPETA
POST OFFICE- BARPETA
DISTRICT- BARPETA
ASSAM
PIN- 781301.
7:THE OFFICER-IN-CHARGE OF HOWLY POLICE STATION
POST OFFICE- HOWLY
DISTRICT- BARPETA
ASSAM
PIN- 781316
Advocate for the Petitioner : MS N DEKA, MR A.K. HAJONG,MR. S. K. CHAKMA,MR I
CHAKMA
Advocate for the Respondent : DY.S.G.I., SC, NRC,SC, ECI,SC, F.T,GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
16.05.2025
(M. Nandi, J)
Heard Ms. D. Ghosh, learned counsel for the petitioner. Also heard Mr. P.
Sarmah, learned Additional Senior Government Advocate; Ms. S. Baruah,
learned CGC; Mr. M. Islam, learned counsel for Mr. A.I. Ali, learned Standing
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Counsel, ECI; and Mr. G. Sarma, learned Standing Counsel, F.T. matters.
2. Though the case is fixed at the motion stage, however, with the consent of
both sides, the matter is taken up for final disposal.
3. By filing this application under Article 226 of the Constitution of India, the
petitioner has challenged the order dated 20.12.2021, passed by the learned
Foreigners Tribunal 10th, Barpeta, Assam in F.T. Case No.585/2017 [I.M(D)T
Case No.4766/98], declaring the petitioner to be a foreigner of post 25.03.1971.
4. The case of the petitioner is that in compliance with the notice so served
to the petitioner, the petitioner appeared before the Tribunal but failed to submit
her written statement and as such, the case was proceeding ex-parte against
the petitioner.
5. The further case of the petitioner is that the petitioner belongs to very
poor family with a little financial assistance obtained from the co-villages, the
petitioner had somehow engaged one local counsel for defending herself in the
case before the Tribunal. But the petitioner could not afford the requisite money
to obtain the certified copies of various voter lists and other documents. As
such, the petitioner had to seek accommodation of time on multiple occasions
before the learned Tribunal.
6. Moreover, during the pendency of the F.T. case before the Tribunal, the
normal court proceedings were twice affected due to the outbreak of Covid-19
pandemic as well as its consequential nationwide lockdown imposed by the
Government. Due to the existence of the then complications caused by various
restrictions imposed at the time of Covid-19 pandemic, the petitioner failed to
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obtain the requisite documents to establish her citizenship, as such, the
petitioner could not submit her written statement before the learned Tribunal.
Moreover on various dates, the petitioner even failed to manage the requisite
fee of her engaged counsel. As a result of which, the case was proceeded ex-
parte on failure on her part to submit the written statement.
7. According to learned counsel for the petitioner, as the petitioner failed to
submit her written statement despite multiple opportunities given to her,
however, it is to be noted that the failure to submit the written statement as
well as the non-appearance of the petitioner on multiple dates was neither
willful nor deliberate. It is also submitted that the petitioner has sufficient
documents to prove her linkage with her parents and grandparents who had
casted votes since 1965 in the Indian soil. The name of the petitioner along with
her husband is recorded in the voter lists of 1997, 2005, 2010, 2015 and 2019.
The petitioner was a student of Kaya Kuchi Pathar M.E. School where she
studied upto class VII, as such, one school leaving certificate was issued in
favour of the petitioner, wherein the name of the parents of the petitioner was
recorded.
8. Further submission of learned counsel for the petitioner is that on attaining
her age of majority, the petitioner got married with one Mokaddes Khan of
Village - Khandakar Para in the district of Barpeta. After the marriage of the
petitioner, the petitioner enrolled herself as voter at the address of her in-laws.
As such, the name of the petitioner along with her husband has appeared in the
voter list since 1997.
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9. Subsequently in the year 1999, the petitioner along with her family had
shifted from village - Khandakar Para to village - Mairamara under Howly P.S in
the district of Barpeta. As such, the name of the petitioner along with her
husband is enlisted in the voter list of 2005 pertaining to village - Mairamara
and subsequent voter lists of 2010, 2015 and 2019.
10. According to learned counsel for the petitioner, on perusal of the relevant
documents as stated above, it becomes clear that the petitioner is a citizen of
India by birth. As the very vital fundamental right of the petitioner is in
question, therefore the learned counsel for the petitioner has prayed to give one
last opportunity to the petitioner to prove her citizenship by remanding the
matter to the Tribunal for fresh adjudication by adducing relevant documents.
11. Per contra, learned counsel for the F.T. matters, Mr. Sarma, has submitted
that notice was duly served to the petitioner and the petitioner has appeared
before the Tribunal seeking time for filing written statement. Thereafter, the
petitioner took sufficient time to file written statement which was allowed by the
Tribunal. Subsequently, the petitioner remained absent before the Tribunal for a
long time. The record of the Tribunal shows that sufficient opportunity was
given to the petitioner to prove her case that she is not a foreigner. However,
the petitioner has failed to discharge her burden. Hence, learned counsel Mr.
Sarma has submitted that this is not a case to remand the matter for fresh
adjudication.
12. We have considered the submissions of the learned counsel for the parties
and also perused the record received from the Tribunal.
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13. Admittedly, the notice was duly served to the petitioner and she has
entered her appearance before the Tribunal on 23.12.2019 and filed a petition
seeking time to file written statement which was allowed and the next date was
fixed on 17.01.2020. On 17.01.2020, though the petitioner was present but filed
a petition praying for time to file written statement. The next date was fixed on
07.02.2020. On 07.02.2020 also, the petitioner was absent but her counsel filed
a petition seeking time to file written statement and the next date was fixed on
28.02.2020. On 28.02.2020, though the petitioner was present but her counsel
by filling a petition sought for time to file written statement which was allowed
and the next date was fixed on 21.03.2020. On 21.03.2020, the petitioner was
absent without step. Subsequently, on 10.06.2020, 29.06.2020, 22.07.2020,
21.08.2020, 23.09.2020, 28.10.2020, 19.11.2020, 03.12.2020, neither the
petitioner nor her counsel has appeared or filed any petition seeking time to
proceed with the case.
14. However, on 11.12.2020, though the petitioner was absent but her
counsel filed a petition praying for another date for filing written statement on
the ground of lack of communication which was allowed by the Tribunal.
Similarly, on 12.01.2021, 05.02.2021, 16.02.2021, 06.03.2021, 01.04.2021,
26.04.2021, 07.10.2021, 11.11.2021, 30.11.2021, though the petitioner was
absent but her counsel filed petitions on each and every date seeking time for
filling written statement and which was allowed by the Tribunal.
15. Thereafter, since 07.12.2021, the petitioner and her counsel remained
absent without any steps. Then the Tribunal decided to proceed with the case
ex-parte against the petitioner and fixed date on 20.12.2021 for ex-parte order
and accordingly, the opinion was rendered declaring the petitioner to be a
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foreigner of post 25.03.1971.
16. Having regard to the undisputed facts as above, we find that sufficient
opportunities were granted to the petitioner to establish her claim as not being
a foreigner or to refute the allegation that she had illegally entered in to the
territory of India after 25.03.1971. 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 a mechanical exercise and that fair and
reasonable opportunity must be afforded to a proceedee to establish his/her
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. In the instant case, several opportunities
were granted to the petitioner to establish her claim, which she utterly failed to
do so.
17. It is pertinent to mention here that the opinion was rendered by the
Tribunal on 20.12.2021. Though the petitioner collected the relevant documents
like certified copies of voter list in the year 2021 but she filed this writ petition in
the year 2025 that is after 4 years of delivery of rendering opinion. There is no
explanation from the side of the petitioner regarding delay of approaching this
Court. The poor financial condition is not sufficient to prove the fact that she
was not negligent to pursue her case like citizenship.
18. In this context, we also observe that in a proceeding under the Foreigners
Tribunal Act, 1946 and the Foreigners (Tribunal) Order, 1964, the primary issue
for determination is whether the proceedee is a foreigner or not. The relevant
fact being specially within the knowledge of the proceedee as such the burden
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of proving citizenship absolutely rests upon the proceedee, 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 the burden never shifts but continues to be
upon the proceedee. 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
proceedee to be a foreigner, based on the grounds of reference upon which
appropriate proceeding was initiated, notice was duly issued and duly served
upon the proceedee. In the instant case, after receiving the notice from the
Tribunal, the petitioner appeared before the Tribunal and filed several petitions
seeking time for filing written statement but ultimately she remained absent
before the Tribunal for a long time and neglected to participate/contest the
proceedings by way of filing written statement and adducing evidence or to
prove the pleadings made in the writ petition.
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 a
Tribunal is limited for correcting errors of jurisdiction or when decision is made
by the Tribunal without giving opportunity of hearing or when judgment is
rendered in violation of principles of natural justice or where there appears to
be an error apparent on the face of the record. None of the above grounds
exists in the present case. To reiterate, sufficient opportunities have been given
to the petitioner to discharge the burden of proving that she is not a foreigner
which she utterly fails to discharge.
20. On this ground alone, the writ court would refrain from interfering with
the impugned order. We also hold that documents enclosed in the present writ
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petition cannot be looked into, those not having been proved before the
Tribunal at the first instance, despite sufficient opportunities being afforded.
21. Accordingly, we find no merit in the present writ petition.
22. Hence, the writ petition is dismissed. There shall be no order as to costs.
23. Transmit the case records to the Tribunal.
JUDGE JUDGE
Comparing Assistant
