[Cites 15, Cited by 0]
Gauhati High Court
Page No.# 1/9 vs The Union Of India And Othrs on 18 March, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/9
GAHC010022622026
2026:GAU-AS:4058-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1392/2026
MD HUSSAIN ALI
S/O LATE NIRASHA SHEIKH, R/O VILL.- BIHUDIA PS- KHARUPETIA DIST.-
DARANG, ASSAM.
VERSUS
THE UNION OF INDIA and othrs
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF INDIA, HOME AFFAIRS DEPARTMENT, NEW DELHI-01.
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI 06.
3:THE ELECTION COMMISSION OF INDIA
NEW DELHI-01
INDIA.
4:THE STATE CO ORDINATOR
NRC
ASSAM
BHANGAGARH
GUWAHATI 05
5:THE DISTRICT COMMISSIONER
DARRANG
MONGALDAI
DIST.- DARRANG
Page No.# 2/9
ASSAM. PIN- 784115
6:THE SUPERINTENDENT OF POLICE DARRANG
DISTRICT- DARRANG
ASSAM. PIN- 78411
Advocate for the Petitioner : MS K TAYE, MS. M KHATUN,MR A ALI
Advocate for the Respondent : DY.S.G.I., GA, ASSAM,SC, NRC,SC, ECI,SC, F.T
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 18.03.2026
(K.R. Surana, J)
Heard Mr. A. Ali, learned counsel for the petitioner. Also heard
Mr. B. Deka, learned CGC; Mr. G. Sarma, learned standing counsel for the FT
and Border matters; Ms. S. Katakey, learned standing counsel for the ECI; and
Ms. R.B. Bora, learned Jr. Govt. Advocate for the State respondent.
2. By filing this writ petition under Article 226 of the Constitution
of India, the petitioner, namely, Md. Hussain Ali, has assailed the impugned ex
parte opinion dated 30.07.2019, passed by the learned Member, Foreigners
Tribunal (3rd), Darrang, Mangaldai, in F.T. (3rd) Case No. 3282/2012, arising out
of Ref- IM(D)T Case No. 960/2004, by which he was declared to be a foreigner
of post 25.03.1971 stream.
3. The learned counsel for the petitioner has submitted that the is
a bona fide Indian citizen by birth, permanently residing in Village Bihudia under
Kharupetia Police Station in the district of Darrang, Assam. It is submitted that
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the petitioner has never shifted his residence and belongs to a family whose
citizenship is well established through historical records. His father's name
appears in the voter lists of 1958, 1966, and 1971, and subsequent electoral
rolls, thereby establishing legacy data prior to the cut-off period. The petitioner
has also pointed out a minor discrepancy in the spelling of his father's name in
official records, clarifying that the actual name is Nirasha Sk, but the same is
incorrectly recorded in the case record as Nirosha Sk. It is further submits that
his own name, along with those of his family members, appears continuously in
voter lists from 1985 up to 2018, and that they have exercised their voting
rights in their constituency. In addition to electoral records, he relies on multiple
supporting documents such as NRC records, Aadhaar card, PAN card, School
Leaving Certificate, and land revenue payment receipts to establish his identity,
linkage, and citizenship. The petitioner states that he initially appeared before
the learned Tribunal and filed his written statement. However, he failed to
appear in subsequent dates due to a bona fide misunderstanding that the
matter had been concluded, compounded by lack of communication from his
engaged advocate. Additionally, the intervening COVID-19 pandemic and his
migration to Karnataka for livelihood further prevented him from following up on
the case.
4. Accordingly, the learned Tribunal proceeded ex parte and
passed the opinion dated 30.07.2019 declaring the petitioner to be a foreigner.
The petitioner claims that he remained unaware of this development until
November 2025, when he returned to his native village. Thereafter, he promptly
applied for and obtained a certified copy of the impugned order in January 2026
and has filed the present writ petition without intentional delay.
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5. It is submitted that there is no other efficacious or alternative
remedy available to the petitioner and that denial of relief would result in grave
prejudice and hardship to him and his family. The petition is stated to have been
filed bona fide and in the interest of justice.
6. This writ petition was filed on 05.02.2026, to assail the ex parte
opinion dated 30.07.2019, i.e. after there has been an extraordinary delay of 6
years, 6 months, 6 days (or 2382 days). Hence, the matter was heard on delay
and laches on part of the petitioner to assail the impugned ex parte opinion.
7. Per contra, the learned standing counsel for the FT, Border
matters and NRC had submitted that the explanation given for the inordinate
delay is vague and insufficient and not supported by any documents or any
other cogent and reliable material.
8. 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.
9. The learned Tribunal, vide impugned ex parte opinion has held
that the petitioner had failed to submit any document in support of his
citizenship before the Enquiry Officer during the spot verification. The petitioner
had also remained absent in the proceeding after filing written statement.
Accordingly, it was held that the petitioner had failed to discharge his burden of
proof under Section 9 of the Foreigners Act, 1946 that he is not a foreigner but
an Indian. Resultantly, the ex parte opinion was passed against the petitioner,
thereby declaring him to be a foreigner of post 25.03.1971 stream.
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10. In respect of inordinate delay and laches in assailing the
impugned ex parte opinion after a lapse of 6 years, 6 months, 6 days (or 2382
days), it may be stated that there is no period of limitation prescribed for filing a
writ petition, but unless the petitioner demonstrates good and cogent reason,
delay and laches would disentitle the petitioner to equitable relief on the
principle that delay defeats equity. If one needs any authority on the point, the
decision of the Supreme Court of India in the case of Mrinmoy Maity v. Chhanda
Koley, 2024 INSC 314: (2024) 0 Supreme(SC) 351 , and Chairman/Managing
Director, U.P. Power Corporation Ltd. V. Ram Gopal, (2020) 13 SCC 225: (2020)
0 Supreme(SC) 93 (Full Bench) . In the later case, while approving the decision
of the Supreme Court of India in the case of P.S. Sadasivaswamy v. State of
Tamil Nadu, (1975) 1 SCC 152 and S.S. Balu v. State of Kerala, (2009) 2 SCC
479, it was held to the effect that limitation does not strictly apply to a
proceeding under Articles 32 and 226 of the Constitution of India, nevertheless,
such rights cannot be enforced after an unreasonable lapse of time and the
High Courts were cautioned by observing that prolonged delay of many years
ought not to have been overlooked or condoned. Paragraph 16 thereof [as
extracted from (2020) 0 Supreme(SC) 93 ] is quoted below:-
16. Whilst it is true that limitation does not strictly apply to proceedings under
Articles 32 or 226 of the Constitution of India, nevertheless, such rights cannot be
enforced after an unreasonable lapse of time. Consideration of unexplained delays
and inordinate laches would always be relevant in writ actions, and writ courts
naturally ought to be reluctant in exercising their discretionary jurisdiction to
protect those who have slept over wrongs and allowed illegalities to fester. Fence-
sitters cannot be allowed to barge into courts and cry for their rights at their
convenience, and vigilant citizens ought not to be treated alike with mere
opportunists. On multiple occasions, it has been restated that there are implicit
limitations of time within which writ remedies can be enforced. In SS Balu vs.
State of Kerala, (2009) 2 SCC 479 this Court observed thus:
"17. It is also well-settled principle of law that "delay defeats equity". ...It
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is now a trite law that where the writ petitioner approaches the High
Court after a long delay, reliefs prayed for may be denied to them on the
ground of delay and laches irrespective of the fact that they are similarly
situated to the other candidates who obtain the benefit of the
judgment."
11. Thus, except for some absolute vague statement that the
petitioner was under the impression that the proceeding was over or the
intervening Covid pandemic or the petitioner went to Kerala for livelihood, no
reason has been assigned for the petitioner's failure approach this Court within
a reasonable time of passing of the impugned ex parte opinion. The ex parte
opinion was passed on 30.07.2019, but the petitioner had applied for and
received the certified copy on 07.01.2026. He has filed this writ petition on
05.02.2026. Thus, the petitioner, despite full knowledge of the consequences of
being declared as a foreigner, has allowed the said ex parte opinion to attain
finality for over 6 years. Moreover, the delay is found to be not properly
explained.
12. 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 [extracted from (2024) 0
Supreme(SC) 1189] 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 ."
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13. 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
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."
14. 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.
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15. Moreover, this Court, in the case of Ajbahar Ali v. Union of India,
(2025) 0 Supreme (Gau) 763, 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.
16. It must be taken note of the fact that the Supreme Court of
India, in the case of Sarbananda Sonowal (supra), 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 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.
17. Be that as it may, as the issue of citizenship has been raised,
notwithstanding the delay and laches, the Court has carefully examined the
materials available in the writ petition and on merit, the opinion expressed by
the learned Tribunal cannot be faulted with on any count. Thus, the challenge to
the impugned ex parte opinion dated 30.07.2019, passed by the learned
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Member, Foreigners Tribunal (3rd), Darrang, Mangaldai, in F.T. (3rd) Case No.
3282/2012, arising out of Ref- IM(D)T Case No. 960/2004, by which the
petitioner was declared to be a foreigner of post 25.03.1971 stream, fails.
18. Resultantly, this writ petition is dismissed on merit as well as on
account of delay and laches at the "motion stage" without issuing notice upon
the respondents. The consequences of the said ex parte opinion shall follow.
19. There shall be no order as to cost.
20. 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
