[Cites 10, Cited by 0]
Gauhati High Court
Fatema Khatoon vs The Union Of India And 8 Ors on 9 March, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
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GAHC010149042019
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4695/2019
FATEMA KHATOON
D/O LT. AMSAR ALI @ AMSAR ALI DEWAN, W/O HARUN @ HARUN
RASHID, R/O- DHAKAI BOSTI (RUPAHI TOWN), P.O. RUPOHI, P.S.
RUPOHIHAT, DIST. NAGAON, ASSAM.
VERSUS
THE UNION OF INDIA AND 8 ORS.
REP. BY THE SECRETARY, HOME DEPTT., NEW DELHI, INDIA.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GUWAHATI-6.
3:THE CHIEF ELECTION COMMISSIONER OF INDIA
NIRVACHAN BHAVAN
NEW DELHI.
4:THE STATE ELECTION COMMISSIONER OF ASSAM
DISPUR
GUWAHATI-6.
5:THE STATE COORDINATOR
NATIONAL REGISTRAR OF CITIZENS (NRC)
ASSAM
GUWAHATI.
6:THE FOREIGNERS REGIONAL REGISTRATION AUTHORITY (FRRA)
NAGAON
ASSAM.
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7:THE DEPUTY COMMISSIONER CUM RETURNING OFFICER
DISTRICT- NAGAON
ASSAM.
8:THE SUPERINTENDENT OF POLICE
NAGAON
9:THE SUPERINTENDENT OF POLICE (B)
NAGAON
DIST. NAGAON
ASSAM
Advocate for the Petitioner : MR. A M BARBHUIYA, MR. B SAHARIA,MS. M MEDHI
Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, NRC,SC, ECI
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.M. Borbhuiya, learned counsel for the petitioner. Also heard
Ms. S. Baruah, learned CGC; Mr. A.I. Ali, learned standing counsel for
respondent no.3; Mr. G. Sarma, learned standing counsel for respondent nos. 2,
5, 6, 8 and 9; and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate for
respondent no.7.
2) It may be stated that no notice or copy of the writ petition is
found to have been served either on the respondent no.4, i.e., the State Election
Commission of Assam or on its learned standing counsel. Therefore, the name
of the said respondent is ordered to be struck off, without affecting the seriatim
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of the respondents.
3) By filing this writ petition under Article 226 of the Constitution
of India, the petitioner, namely, Musstt. Fatema Khatoon, has assailed the ex
parte opinion dated 15.09.2016, passed by the learned Member, Foreigners
Tribunal 3rd, Nagaon, in F.T. Case No. NFT.(No.3)(D) 450/2015 [Corresponding
to D/ Case No. 2831/98], by which the petitioner was declared to be a foreign
national as per Section 2(a) of the Foreigners Act, 1946, by holding that the
petitioner had failed to discharge her burden of proof under Section 9 of the
Foreigners Act, 1946 to dispel the doubt that she is not a foreigner.
4) Aggrieved by the said ex parte opinion, the petitioner had filed
a review petition for vacating the said ex parte opinion, being Petition No.
1953/2018 of NFT (No.3) Misc. Case No. (M) 9/18 [FT (No.3) Case No.
450/15(D) and FT (No.1) Case No. 3149/12 (D)]. It may be stated that the
Misc. Case was filed under Order 3(1)(a) of the Foreigners (Tribunals) Order,
1964 read with Order IX, Rule 13 and 19 read with Section 151 CPC for vacating
the ex parte opinion. Petition No. 1953/2018 was filed for condoning the delay
in filing the petition to vacate the ex parte opinion. The said application was
dismissed by order dated 30.03.2019.
5) It transpires from the ex parte opinion dated 15.09.2016 and
the order dated 30.03.2019 that the petitioner had entered appearance in the
proceeding on 11.09.2012, and she had filed her written statement on
15.12.2012 with photocopies of a few documents. Thereafter, on the next two
dates, by filing Petition Nos. 179/15 and 143/16, the petitioner sought for time,
which was allowed. However, the petitioner remained absent without steps on
and from 29.03.2016. Thereafter, the ex parte opinion was passed on
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15.09.2016.
6) In her application for condonation of delay and in the
application for setting aside the ex parte opinion, the petitioner had stated that
from 28.03.2016 till the ex parte opinion was passed, the petitioner could not
appear before the learned Tribunal due to illness and her doctor had advised her
complete bed rest. It was projected that as there was no person in the family,
she could not inform about her illness to her engaged counsel. It was also
projected that her 'herb' treatment continued from 28.03.2016 to 24.07.2018. In
support of her applications, the petitioner had examined the concerned doctor
as PW-1 and she had also examined herself as PW-2.
7) The learned Tribunal, after examining materials available on
record, took note of the statement made by PW-1 in his cross-examination that
the disease was periodical. The learned Tribunal had also taken note of the fact
that the medical certificate was from 28.03.2016 to 24.07.2018, and that there
was no explanation for non-appearance on 24 out of 28 dates after 24.01.2013.
Thus, by holding that there was negligence on part of the petitioner, the said
Misc. cases were dismissed.
8) The learned counsel for the petitioner, apart from reiterating the
statements made in the said two applications, had submitted that the petitioner
had enough documents to prove that she was a citizen of India and not a
foreigner and therefore, prayed that one opportunity be granted to the
petitioner to discharge her burden of proof.
9) The learned standing counsel for the FT, Border matters and
NRC has opposed the interference with the impugned ex parte opinion on the
ground that the explanation of non-appearance was too vague. It has been
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submitted that the medical certificate issued by the medical practitioner is not
supported with medical prescriptions and therefore, not believable.
10) Perused the pleadings and documents annexed to this writ
petition and also considered the materials available in the Tribunal's records,
which were called for. It is noted that except for 5 (five) exhibited prescriptions,
there are no medical prescriptions covering the period from 28.03.2016 to
24.07.2018. There is no diagnostic report in respect of any illness. Thus, there
are no medical documents which support the medical certificate dated
24.07.2018 (Ext.4) and no cash memos of purchasing medicines have been
produced. The concerned doctor who had given the medical certificate (Ext.4)
was examined as PW-1. In his examination-in-chief, he had stated that the
petitioner was advised to remove her uterus, but she had not undergone the
operation. However, in his cross-examination, the doctor had admitted that the
disease was a periodical disease. But, the doctor had advised compete bed rest
and also stated that the petitioner is now fully cured. Thus, without any
diagnostic report, the doctor had advised removal of the uterus, which does not
lend any credibility to the medical certificate (Ext.4).
11) It is seen from the impugned ex parte opinion that the petitioner
had appeared before the learned Tribunal on 17.10.2012 and filed her written
statement on 15.12.2012. Thereafter, on 28 dates between 24.01.2013 to
15.09.2016, the petitioner had either sought for time through her engaged
learned counsel or remained absent without any steps.
12) As per the requirement of Order 3(14) of the Foreigners
(Tribunals) Order, 1964, the proceeding should be disposed of within a period of
sixty days from the date of receipt of reference. Thus, there was total
negligence on the part of the petitioner to participate in the proceedings before
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the learned Foreigners Tribunal between 24.01.2013 to 15.09.2016, the date
when ex parte opinion was rendered.
13) The application for setting aside the ex parte opinion dated
15.09.2016, was filed on 25.07.2018, i.e. after a lapse of 1 year, 10 months, 10
days (or 678 days). As mentioned hereinbefore, continuous prescriptions for the
period from 24.01.2013 to 25.07.2018 are not produced. Moreover, no
diagnostic reports have been produced to support the medical advice to the
petitioner to have her uterus removed. There is no cogent and reliable
explanation why for a periodical disease, the petitioner will require total bed rest
from her first date of default, i.e. 24.01.2013 to 25.07.2018, the date when the
application for setting aside the ex parte opinion was filed.
14) In respect of inordinate delay and laches in contesting the
proceeding from 24.01.2013 to 15.09.2016 (i.e. for 3 years, 7 months, 22 days,
or 1330 days), is found to be without any cogent and believable reasons. The
application for setting aside the ex parte opinion dated 15.09.2016, was filed on
25.07.2018, i.e. after a lapse of 1 year, 10 months, 10 days (or 678 days), which
is also not found to be supported by any cogent and believable reasons. The
medical certificate, relied upon by the petitioner is not supported by (a)
prescriptions, (b) proof of purchase of medicines, and (c) diagnostic reports.
15) 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 quoted below:-
"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:-
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"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."
16) In the case of Ajbahar Ali v. Union of India, (2025) 0 Supreme
(Gau) 763, this Court had 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 has also been expressed by this
Court in the case of Abu Bokkor Siddique v. Union of India, 2019 (1) GLT 813 .
17) The Supreme Court of India, in the case of Sarbananda Sonowal
v. Union of India, (2005) 5 SCC 665 , in paragraph 73, had held to the effect that
the procedure under the Foreigners Act, 1946 and the Foreigners (Tribunals)
Order, 1964 is just, fair and reasonable 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
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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.
18) The petitioner, who was aware that she is accused of being a
foreigner, yet she had not filed her evidence to discharge her burden of proof as
envisaged under Section 9 of the Foreigners (Tribunals) Order, 1964.
19) It may be stated that it was noticed from the contents of
paragraph 5 of the order dated 30.03.2019 that the petitioner had projected
that her 10 year old son was dumb and handicapped. Accordingly, on
02.02.2026 and 18.02.2026, the matter was adjourned to enable the learned
counsel to obtain instructions. It may be stated that in the order dated
18.02.2026, this Court had recorded that the explanation for non-appearance of
the petitioner before the learned Tribunal was not found satisfactory. However,
the learned counsel for the petitioner could not produce any document to
support the projection of the petitioner regarding the disabilities of her son.
20) Thus, with the legal proposition, as discussed hereinbefore, on a
careful examination of the materials available in this writ petition and in the
Tribunal's records, the impugned (i) ex parte opinion dated 15.09.2016, and (ii)
the order dated 30.03.2019, passed by the learned Tribunal cannot be faulted
with on any count. Thus, the challenge to the same are found without any
merit.
21) If vague explanations are accepted to condone the delay,
negligence and laches on the part the petitioner to contest the proceeding
before the learned Foreigners Tribunal, it would mean as if the time prescribed
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in Order 3(14) of the Foreigners (Tribunals) Order, 1964 has been rendered
redundant and/or not mandatory. In the considered opinion of the Court, the
proceedee(s) before the Foreigners Tribunals are required to adhere to the
compliance of the provisions of Order 3(14) of the Foreigners (Tribunals) Order,
1964. If this is not adhered to, the illegal migrants from the specified territory
would get unlimited time to prolong their illegal stay in the Country for years
together. In this case, the reference against the petitioner was made in the year
1998. The case against the petitioner was registered in the year 2015, and the
petitioner, due to her willful negligence and laches in contesting the proceedings
before the learned Foreigners Tribunals, has been able to prolong her illegal stay
in the Country till date. This practice of remaining casually absent in the
proceedings before the learned Foreigners Tribunal for a long time without any
cogent and genuine reason cannot be given the imprimatur of the Court.
22) Resultantly, the ex parte opinion dated 15.09.2016, passed by
the learned Member, Foreigners Tribunal 3rd, Nagaon, in F.T. Case No. NFT.
(No.3)(D) 450/2015 [Corresponding to D/ Case No. 2831/98], and the
impugned order dated 30.03.2019, passed in Petition No. 1953/2018 of NFT
(No.3) Misc. Case No. (M) 9/18 [FT (No.3) Case No. 450/15(D) and FT (No.1)
Case No. 3149/12 (D)], are not found to warrant any interference of this Court.
The consequences of the impugned ex parte opinion dated 15.09.2016, would
follow.
23) Resultantly, this writ petition stands dismissed.
24) The Registry shall send back the Tribunal's record along with a
copy of this order, to be made a part of the record by the said learned Tribunal
for future reference.
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25) The learned standing counsel for FT, Border matters and NRC
shall send a downloaded copy of this order to the Home and Political (B)
Department for information.
26) The parties are left to bear their own cost.
JUDGE. JUDGE.
Comparing Assistant
