[Cites 11, Cited by 0]
Gauhati High Court
Page No.# 1/ vs The Union Of India And 5 Ors on 9 March, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/10
GAHC010025462026
2026:GAU-AS:3618-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1333/2026
MARIYAM BIBI @ MARIYAM BEWA @ MORIUM BEWA @ MARIAN BIBI
D/O- LT. MAMAR ALI SHEIKH @ MAMUR ALI, W/O- NOWSAD ALI
VILLAGE- HARBHANGA GOSSAIGAON, P.O. TULSHIBIL, P.S. GOSSAIGAON
DIST. KOKRAJHAR, ASSAM, PIN- 783337
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA,
NEW DELHI. 110001
2:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTION COMMISSIONER
INDIA
NEW DELHI. 110001
3:THE STATE OF ASSAM
REPRESENTED BY THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GHY-6.
4:THE STATE COORDINATOR
NATIONAL REGISTER OF CITIZENS
ASSAM
BHANGAGARH
GHY-5.
5:THE SUPERINTENDENT OF POLICE (B)
KOKRAJHAR
DIST. KOKRAJHAR
ASSAM. PIN-783370.
Page No.# 2/10
6:THE DISTRICT COMMISSIONER
KOKRAJHAR
DIST. KOKRAJHAR
ASSAM. PIN-783370
Advocate for the Petitioner : MD. A HUSSAIN, MR. K ALOM,MR. T ISLAM
Advocate for the Respondent : DY.S.G.I., SC, ECI,GA, ASSAM,SC, NRC,SC, F.T
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA
ORDER
Date : 09.03.2026
(K.R. Surana, J)
Heard Mr. A. Hussain, learned counsel for the petitioner. Also heard
Ms. S. Baruah, learned CGC; Mr. G. Sarma, learned standing counsel for the FT
& Border matters; Ms. S. Katakey, learned standing counsel for the ECI; and Mr.
H.K. Hazarika, learned Govt. Advocate for the State respondent.
2. By filing this writ petition under Article 226 of the Constitution
of India, the petitioner, namely, Mariyam Bibi @ Mariyam Bewa @ Morium Bewa
@ Marian Bibi, has assailed the impugned ex parte opinion dated 27.03.1998,
passed by the learned Member, Foreigners' Tribunal, Dhubri, in FT Case No.
3102/K/87, by which she was declared to be a foreigner of 1966-71 stream.
3. This writ petition was filed on 09.02.2026 to assail the ex parte
opinion dated 27.03.1998, i.e. after there has been an extraordinary delay of 27
years, 10 months, 13 days (or 10181 days). Hence, the learned counsel for the
petitioner was heard on delay and laches on part of the petitioner to assail the
ex parte opinion.
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4. The learned counsel for the petitioner submits that the
petitioner had no knowledge of the reference made against her or of the notice
dated 03.01.1998 issued in F.T. Case No. 3102/K/87, as no notice was ever
served upon her. It is submitted that the petitioner came to know about the
impugned ex parte opinion dated 27.03.1998 only in the last week of December
2025, when the Border Police visited her residence and informed her family
members that she had been declared a foreigner.
5. It is further submitted that upon acquiring such knowledge, the
petitioner immediately contacted an advocate in the first week of January 2026
and, upon verification of the records in the second week of January 2026, it was
ascertained that the learned Foreigners' Tribunal, Dhubri had passed the ex
parte opinion declaring the petitioner to be a foreigner of the 1966-1971
stream. Thereafter, on the advice of her learned counsel, the petitioner filed a
review petition before the learned Tribunal on 28.01.2026 seeking to set aside
the said ex parte opinion. However, the learned Tribunal refused to entertain the
same and returned the petition without passing any formal order.
6. The learned counsel for the petitioner further submits that
thereafter the petitioner applied for certified copies of the relevant records on
29.01.2026 and obtained the same on the very day. Subsequently, the petitioner
came to Guwahati on 05.02.2026 and the present writ petition was drafted and
finalized on 08.02.2026 and filed before this Court on 09.02.2026. It is therefore
submitted that there has been no deliberate delay in approaching this Court,
and the petitioner acted promptly upon gaining knowledge of the impugned
opinion.
7. It is also submitted that at the relevant time, there was a
matrimonial dispute between the petitioner and her husband, Late Nowsad Ali,
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since the year 1996, due to which the petitioner had been residing separately
from him. As per the service report, the notice dated 03.01.1998 was allegedly
received by her husband on 20.01.1998. However, as the petitioner was residing
separately owing to the matrimonial dispute, her husband did not inform her
about the said notice. It is further submitted that her husband subsequently
died on 12.12.1998. As a result of the aforesaid circumstances, the petitioner
could not appear before the learned Tribunal and contest the proceeding, which
ultimately resulted in the passing of the ex parte opinion declaring her to be a
foreigner of the 1966-1971 stream.
8. Per contra, the learned standing counsel for the FT, Border
matters and NRC had submitted that the explanation given is vague, and not
supported by any documents or any other cogent and reliable material.
9. 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.
10. This Court has considered the explanation tendered by the
petitioner that due to matrimonial disputes with her husband, Late Nowsad Ali,
since the year 1996, she had been residing separately from him and, therefore,
she had no knowledge of the notice allegedly received by her husband in
connection with the proceeding before the learned Foreigners' Tribunal.
11. However, on perusal of the ration card (Annexure- 13) placed on
record by the petitioner herself, it appears that the said ration card was issued
on 09.02.2021 and the family details recorded therein show the following ages
of the petitioner's sons: Jakir Hussain - 26 years, Khairul Hussain - 22 years,
Mofidur Hussain - 28 years and Mamur Hussain - 33 years.
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12. It is noticed that if the age of Khairul Hussain is shown as 22 years in
the year 2021, his year of birth would be around 1999. The petitioner has,
however, claimed that she had been residing separately from her husband since
1996 due to matrimonial disputes and her husband had died on 12.12.1998. If
that were so, the birth of her son in the year 1999 raises a serious doubt
regarding the correctness of the said statement.
13. In such circumstances, it appears that even if there existed some
dispute between the petitioner and her husband, the parties were not
completely estranged and were maintaining contact with each other with
visitation and conjugal rights, which ultimately resulted in the birth of their child
in the year 1999.
14. In view of the above circumstances, the explanation furnished by the
petitioner that she had been residing separately from her husband since 1996
and therefore, had no knowledge of the notice allegedly served upon him does
not inspire confidence. Rather, her statement appears to be vague and not
wholly credible, and therefore the same cannot be accepted by this Court as a
satisfactory explanation for her non-appearance before the learned Foreigners'
Tribunal.
15. In this case, the delay and laches of the petitioner are in two phases.
Firstly, from the date of service of notice in accordance with the provisions of
Order 3(5)(c) of the Foreigners (Tribunals) Order, 1964 till the passing of the ex
parte opinion; and secondly, from 27.03.1998, the date of the impugned ex
parte opinion till 09.02.2026, the date of filing of this writ petition. On both
counts, the delay is not properly explained.
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16. The notice of the proceeding was served on her husband. Thus, the
petitioner is deemed to have due knowledge that he was being accused of being
a foreigner who had illegally entered into India (Assam) from the specified
territory and thus, not an Indian. Yet, the petitioner had not contested the
proceeding.
17. It may also be mentioned that 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 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."
18. 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,
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
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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."
19. 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.
20. Moreover, this Court, in the case of Ajbahar Ali v. Union of India,
(2025) 0 Supreme (Gau) 763, has held to the effect that the plea of compliance
with the 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. A similar opinion was also expressed by this Court in
the case of Abu Bokkor Siddique v. Union of India, 2019 (1) GLT 813 .
21. It must be taken note of the fact that the Supreme Court of
India, in the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665,
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
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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.
22. By showering sympathy in this particular case, this Court would
be encouraging unscrupulous practice of not appearing before Courts and
Tribunals, despite notice being duly served on an adult member of the family.
23. The Court is of the considered opinion that if such belated
petitions are entertained after 27 years, 10 months, 13 days, all delays,
irrespective of the number of days, will have to be condoned at the drop of a
hat. It would also render the provisions of Order 3(8) and Order 3(14) of the
Foreigners (Tribunals) Order, 1964 otiose.
24. It may also be stated that the learned counsel for the petitioner
had submitted that the petitioner has all the documents to prove that she is an
Indian citizen. In the said context, this Court is reminded of the fact that this
Court is exercising certiorari jurisdiction and thus, cannot act as a Court of
original jurisdiction so as to convert itself into a Foreigners Tribunals and start
examining and appreciating the documents annexed to the writ petition, which
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were hitherto not presented before the learned Foreigners Tribunal. This Court
is not exercising appellate jurisdiction. The petitioner has failed to show that the
impugned opinion is vitiated by any error apparent on the face of the record.
Accordingly, the Court is of the considered the opinion that in exercise of
certiorari jurisdiction under Article 226 of the Constitution of India, the High
Court ought not to substitute its view over opinion of the learned Foreigners
Tribunal, which is not found to be vitiated by any error whatsoever. If one needs
any authority on the point, the decision of the Supreme Court of India in the
case of Central Council for Research in Ayurvedic Sciences v. Bikartan Das, 2023
INSC 733: (2023) 0 Supreme(SC) 763 , may be referred to. Paragraph 77 thereof
is quoted below:-
"77. The purpose of certiorari, as we understand, is only to confine the inferior
tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non-
exercise or the illegal assumption of it and not to correct errors of finding of fact or
interpretation of law committed by them in the exercise of powers vested in them
under the statute. The accepted rule is that where a Court has jurisdiction it has a
right to decide every question which crops up in the case and whether its decision
is correct or otherwise, it is bound to stand until reversed by a competent Court.
This Court in G. Veerappa Pillai v. Messrs Raman and Raman Ltd. Kumbakonam,
Tanjore District and Others, (1952) 1 SCC 334 observed:
"26. Such writs as are referred to in Article 226 are obviously intended to
enable the High Court to issue them in grave cases where the subordinate
tribunals or bodies or officers act wholly without jurisdiction, or in excess of
it, or in violation of the principles of natural justice, or refuse to exercise a
jurisdiction vested in them, or there is an error apparent on the face of the
record, and such act, omission, error, or excess has resulted in manifest
injustice. However extensive the jurisdiction may be, it seems to us that it is
not so wide or large as to enable the High Court to convert itself into a court
of appeal and examine for itself the correctness of the decision impugned
and decide what is the proper view to be taken or the order to be made."
25. Thus, the challenge to the impugned ex parte opinion dated
27.03.1998, passed by the learned Member, Foreigners' Tribunal, Dhubri, in FT
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Case No. 3102/K/87, by which the petitioner, namely, Mariyam Bibi @ Mariyam
Bewa @ Morium Bewa @ Marian Bibi, was declared to be a foreigner of 1966-71
stream, fails. Resultantly, this writ petition is dismissed at the "motion stage"
without issuing notice upon the respondents. The consequences of the said
opinion shall follow.
26. There shall be no order as to cost.
27. 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
