[Cites 22, Cited by 0]
Gauhati High Court
Page No.# 1/2 vs The Union Of India on 20 March, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/21
GAHC010000642026
2026:GAU-AS:4074-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./2/2026
RAHAM ALI
S/O LATE ABDUL MABUT @ ABDUL MAMUD, VILL. MAHAGURI, P.O. AND
P.S. JURIA, DIST. NAGAON, ASSAM.
VERSUS
THE UNION OF INDIA
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY
OF HOME AFFAIRS,NEW DELHI 1
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECY.
HOME AND POLITICAL (B) DEPTT.
DISPUR
GUWAHATI 6
3:SUPERINTENDENT OF POLICE (BORDER)
NAGAON
ASSAM.
4:THE DIST. COMMISSIONER
DIST. NAGAON.
5:THE OFFICER IN CHARGE
JURIA
POLICE STATION
DIST. NAGAON
Advocate for the Petitioner : MS. R CHOUDHURY, S RAHMAN,MS. B. HAZARIKA
Advocate for the Respondent : DY.S.G.I., SC, ECI,SC, F.T,SC, NRC,GA, ASSAM
Page No.# 2/21
Linked Case : WP(C)/7581/2016
RAHAM ALI
S/O. LT. ABDUL MABUT @ ABDUL MAMUD
VILL. MAHAGURI
MOUZA and P.S. JURIA
DIST. NAGAON
ASSAM.
VERSUS
UNION OF INDIA and 4 ORS.
REP. BY THE SECRETARY
GOVT. OF INDIA
DEPTT. OF HOME AFFAIRS
NEW DELHI.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER and SECRETARY
HOME and POLITICAL B DEPTT.
DISPUR.
3:SUPERINTENDENT OF POLICE BORDER
NAGAON
ASSAM.
4:THE DEPUTY COMMISSIONER
DISTRICT- NAGAON.
5:OFFICER-IN-CHARGE
JURIA POLICE STATION
DIST. NAGAON.
------------
Advocate for : MR.D K DAS
Advocate for : ASSTT.S.G.I. appearing for UNION OF INDIA and 4 ORS.
Page No.# 3/21
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 20.03.2026
(K.R. Surana, J)
Heard Mrs. R. Choudhury, learned counsel for the review
petitioner. Also heard Mr. B. Deka, learned CGC for respondent no.1; Mr. G.
Sarma, learned standing counsel for FT matters, Border matters and NRC,
respondent nos. 2, 3 and 5; and Ms. R.B. Bora, learned Govt. Advocate for
respondent no.4.
2) The facts of the case of the petitioner, namely, Raham Ali are as
follows:-
a. A reference was made suspecting that he was a doubtful citizen and
had got his name enrolled as a voter in the Draft Electoral Roll of 1997
in Rupahihat LAC from village- Mahguri, under Juria Police Station of
Nagaon District. The said reference was registered before the
Foreigners Tribunal 1st, Nagaon, as F.T. Case No. 825/2007.
b. Though the petitioner had filed his written statement, but he had
failed to adduce any evidence to prove the contention made in his
written statement. Accordingly, the learned Tribunal had held that the
petitioner had failed to discharge his burden of proving himself to be
not a foreigner as required under Section 9 of the Foreigners Act,
1946. Resultantly, vide ex parte opinion dated 01.07.2010, passed by
the learned Member, Foreigners Tribunal 1st, Nagaon, in F.T. Case No.
Page No.# 4/21
825/2007, the petitioner was declared to be a foreigner from
Bangladesh of post 25.03.1971 stream.
c. After a long delay of about 5 (five) years, on 06.10.2015, the
petitioner had filed a review petition in respect of ex parte opinion
dated 01.07.2010, before the learned Foreigners Tribunal 4 th, Nagaon,
under the provisions of Section 114 read with section 151 and Order
XLVII CPC, and Order 3(2) of the Foreigners (Tribunals) Order, 1964.
The said review petition was registered as Misc. Case No.1/2015 [in
connection with F.T. Case No. 825/07]. Along with the said review
petition, the petitioner had filed a separate application on 06.10.2015,
under Section 5 of the Limitation Act, 1963 for condoning the delay in
filing the review petition. The said review petition was also registered
as Misc. Case No.1/2015 [in connection with F.T. Case No. 825/07].
d. The explanation for not adducing evidence in the proceedings of F.T.
Case No. 825/2007 was not found acceptable and thus, the said two
petitions/applications were dismissed by order dated 17.12.2015 and
as per the said order, the petitioner was absent before the learned
Tribunal even on 17.12.2015.
e. The petitioner had unsuccessfully assailed (i) the ex parte opinion
dated 01.07.2010, passed in F.T. Case No. 825/2007; and (ii) the order
dated 17.12.2015, passed in Misc. Case No.1/2015 before this Court by
filing a writ petition, which was registered and numbered as W.P.(C)
No. 7581/2016. It may be stated that the said writ petition was filed on
05.12.2016, after a lapse of 6 years, 5 months, 4 days (or 2349 days)
from the date of the opinion dated 01.07.2010, and after a lapse of 11
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months, 18 days (or 354 days) from the order dated 17.12.2015,
passed in Misc. Case No.1/2015. The said writ petition was dismissed
by order dated 05.01.2017.
f. Aggrieved by all the above, the petitioner then filed a Petition for
Special Leave to Appeal (Civil) before the Supreme Court of India, and
the matter was registered as Petition for Special Leave to Appeal (Civil)
Diary No.15205/2017, which was dismissed by order dated 24.07.2017.
g. On 23.05.2025, the petitioner was taken into custody by the police
personnel from Juria Police Station. Accordingly, the wife of the
petitioner approached this Court by filing a habeas corpus petition,
which was registered and numbered as W.P.(Crl.) 30/2025. On
27.06.2025, when the matter was listed, the learned CGC had informed
the Court that the petitioner herein, i.e. Raham Ali, was handed over to
the Sector Headquarter, BSF, Cooch Behar and thereafter, the 157 Bn.
BSR, had sent back the said declared foreign national to Bangladesh
from the AOR (Area of Responsibility), Border Outpost Tilak, Dist.
Cooch Behar, on the intervening night of 26/27 May, 2025. Accordingly,
the said habeas corpus petition was closed.
3) The present review petition has been filed on 05.01.2026 to
assail the order dated 05.01.2017, passed in W.P.(C) No. 7581/2016, i.e. after a
lapse of 9 years (or 3287 days). In this writ petition it has been stated that he
was arrested and taken to the border area by the Indian Border Force, but later
on he again returned back from the area where he was sent by the police and in
the morning he had returned back to his place.
4) The learned counsel for the petitioner, by referring to all the 11
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(eleven) grounds for review, has submitted that (i) the impugned order suffers
both in law and on facts; (ii) the impugned order is bad in law and passed in
ignorance of some facts, which were discovered by the petitioner after obtaining
certified copies of the documents; (iii) the impugned order suffers from illegality
as it was held that there was no endeavour from the side of the petitioner to
prove his Indian citizenship by cogent and reliable evidence and failed to
consider that the petitioner had prayed for review before the learned Tribunal to
set aside the impugned opinion and to allow him to adduce evidence and as
such, the impugned order requires reconsideration; (iv) it was never brought to
the notice of the Court that the statements made in the written statement
remained unproved due to his inability to adduce evidence as such all factual
aspects were never argued before this Court; (v) the Court had dismissed the
writ petition at the motion stage without calling for and seeing the records,
which has caused injustice to the petitioner; (vi) the written statement of the
petitioner had remained unshaken by the State and no objection was filed by
the State and that no date was fixed before the learned Tribunal for giving
evidence; (vii) the writ petition was decided on merit without calling for the
records; (viii) after disposal of the proceedings, the petitioner had filed review
petition before the learned Tribunal, but the Tribunal committed jurisdictional
error by not providing any opportunity to adduce evidence; (ix) the petitioner
was declared a foreigner despite the fact that there was no proceedings against
any member of his family; the review petition discloses valid grounds to review
the impugned order; in any view of the matter, the impugned order was liable to
be reviewed. It may be stated that no case has been cited in support of any
grounds for review.
5) As this review petition has been filed after 9 years on
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05.01.2026, the learned counsel for the petitioner was also asked to address the
Court on the point of delay and laches, to which it was submitted that the
petitioner had obtained a certified copy of the order-sheet of the learned
Tribunal on 04.12.2025, and came to learn for the first time that the learned
Tribunal never gave any opportunity to the petitioner to adduce evidence and
thus, the petitioner had suffered injustice.
6) Per contra, the learned standing counsel for the FT, Border
matters and NRC, has opposed the issuance of notice on this review petition on
the ground of extraordinary delay and laches in filing this review petition.
Moreover, it was submitted that review would not be maintainable after 9 years,
after the Supreme Court of India had dismissed the Petition for Special Leave to
Appeal.
7) At the outset, it is seen that there is a total absence of any
cogent and reliable explanation of delay in filing this review petition after a
lapse of 9 years.
8) The learned counsel for the petitioner had submitted that the
learned Tribunal did not fix any date for submitting evidence. The said
submission is somewhat misconceived and exposes ignorance of facts and law
on the petitioner's side. As per the photocopy of the learned Tribunal's order-
sheet, it is seen as follows:-
a. As per order dated 08.07.2009, the notice was returned after service.
The petitioner entered appearance and prayed for time to file written
statement. The case was fixed on 11.08.2009.
b. On 11.08.2009, the petitioner had filed his written statement and the
case was fixed for hearing on 17.09.2009.
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c. On 17.09.2009, 07.11.2009, 31.12.2009, 08.02.2010, 26.03.2010,
and 13.05.2010, though the case was fixed for hearing, the petitioner
had remained absent without any steps.
d. On 13.05.2010, the learned Tribunal had taken note of the fact that
the petitioner was absent without steps and as such, ordered that the
case would proceed ex parte against the petitioner and fixed the case
for ex parte hearing on 01.07.2010.
e. On 01.07.2010, the ex parte opinion was passed, thereby holding the
petitioner to be a foreigner.
9) Thus, on the dates fixed for hearing, the petitioner had
remained absent for 10 months, 20 days (or 324 days) between 11.08.2009 to
01.07.2010. As per the prescription of Order 4 of the Foreigners (Tribunals)
Order, 1964, the Foreigners Tribunal is a civil court for the purpose of evidence.
Under Order XVIII of the CPC, the said provision is for hearing for the suit and
examination of witnesses. Therefore, if the proceeding before the learned
Foreigners Tribunal is fixed for hearing, it inheres in it, the power to accept
evidence-on-affidavit and/or oral examination of witness, as the case may be.
The petitioner never appeared on any dates on or after 11.08.2009, when the
case was fixed for hearing. It is not the case of the petitioner that he had filed
his evidence-on-affidavit or was present before the learned Tribunal as witness,
but acceptance of his evidence-on-affidavit and/or the recording of his evidence
was refused by the learned Tribunal and such a complaint was not made in the
review petition filed by the petitioner before the learned Tribunal, nor such a
plea was taken in the writ petition.
10) Thus, when the petitioner had remained absent and
Page No.# 9/21
unrepresented before the learned Foreigners Tribunal on 11.09.2009,
17.09.2009, 07.11.2009, 31.12.2009, 08.02.2010, 26.03.2010, 13.05.2010 and
01.07.2010, it is not open for the petitioner to urge that he was prejudiced only
because the order-sheet does not make a mention that the next date was fixed
for evidence of the petitioner.
11) The petitioner is aware that he is facing an allegation that he is
not an Indian but a foreigner, who has entered into India from specified territory
(i.e. Bangladesh) illegally after 25.03.1971, but the delays attributable to him
are as follows:-
a. The petitioner remained absent without steps before the learned
Tribunal for 10 months, 20 days (or 324 days) between 11.08.2009 to
01.07.2010.
b. Against opinion dated 01.07.2010, the review petition was filed on
06.10.2015, i.e. after 5 years, 3 months, 5 days (or 1923 days).
c. Review petition was dismissed on 17.12.2015. However, W.P.(C) No.
7581/2016, to assail the ex parte opinion dated 01.07.2010 and review
order dated 17.12.2015, filed on 05.12.2016, i.e. after a delay of 6
years, 5 months, 4 days (or 2349 days) from the date of the opinion
dated 01.07.2010, and after a lapse of 11 months, 18 days (or 354
days) from the order dated 17.12.2015, passed in Misc. Case
No.1/2015.
d. The writ petition was dismissed on 05.01.2017.
e. Petition for Special Leave to Appeal (Civil) Diary No.15205/2017, was
dismissed by order dated 28.07.2017.
f. After dismissal of the SLP, the instant review petition was filed on
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05.01.2026, i.e. after 8 years, 5 months, 8 days (or 3087 days).
However, if the delay in filing this review petition is counted from
05.01.2017, the date when writ petition was dismissed, then the delay
is 9 years (or 3287 days).
12) There is no worthwhile explanation for the delay at all stages,
specifically from (a) 05.01.2017, the date of dismissal of the writ petition; and
(b) 28.07.2017, the date on which the SLP was dismissed by the Supreme Court
of India.
13) Despite the delay and laches in filing this review petition, on
examination of the grounds of review, no merit is found, which are elaborated in
the following paragraphs.
a. As per the provision of Order 3(14) of the Foreigners (Tribunals)
Order, 1964, the Foreigners Tribunal is required to dispose of the
reference within a period of 60 (sixty) days from the date of receipt of
reference. Nonetheless, the learned Tribunal did not show any haste in
answering the reference, even after successive and/or consecutive 7
(seven) dates of default in appearing before the learned Tribunal, on
the seventh day, i.e. by order dated 13.05.2010, the learned Tribunal
had fixed the next date for ex parte hearing on 01.07.2010.
b. The plea that statement made in the written statement was not
rebutted by an objection by the state perhaps exposes the lack of
proper legal advice because as per Section 9 of the Foreigners Act,
1946, the burden of proof is on the proceedee to show that he/she is
not a foreigner. This legal position is well settled by the Full Bench of
the Supreme Court of India in the case of Sarbananda Sonowal v.
Page No.# 11/21
Union of India, (2005) 5 SCC 665 . Out of paragraphs 24 to 30, thereof,
which are relevant, paragraphs 24 to 27 are quoted below:-
"24. It needs to be emphasized that the general rule in the leading
democracies of the world is that where a person claims to be a citizen of a
particular country, the burden is upon him to prove that he is a citizen of that
country. In United Kingdom, the relevant provision is contained in the
Immigration Act, 1971 and sub-Section (1), (8) and (9) of Section 3 thereof
read as under :
"3. - General provisions for regulation and control. - (1) Except as
otherwise provided by or under this Act, where a person is not a British
citizen
(a) he shall not enter the United Kingdom unless given leave to do so
in accordance with the provisions of, or made under this Act;
(b) he may be given leave to enter the United Kingdom (or when
already there, leave to remain in the United Kingdom) either for a limited
or for an indefinite period;
(c) if he is given a limited leave to enter or remain in the United
Kingdom, it may be given subject to conditions restricting his
employment or occupation in the United Kingdom, or requiring him to
register with the police, or both.
xxx xxx xxx xxx
(8) When any question arises under this Act whether or not a person is a
British citizen, or is entitled to any exemption under this Act, it shall lie
on the person asserting it to prove that he is.
(9) A person seeking to enter the United Kingdom and claiming to have
the right of abode there shall prove that he has that right by means of
either -m
(a) a United Kingdom passport describing him as a British citizen of the
United Kingdom and Colonies having the right of abode in the United
Kingdom; or
(b) a certificate of entitlement."
Page No.# 12/21
25. Somewhat similar provision is contained in Immigration and Nationality
Act of USA and Section 291 places the burden of proof upon the person
concerned in any removal proceeding. Section 318 provides that no person
shall be naturalized unless he has been lawfully admitted to the United States
for permanent residence in accordance with all applicable provisions of the
Act and the burden of proof shall be upon such person to show that he
entered the United States lawfully. The Immigration and Refugee Protection
Act, 2001 of Canada contains a provision of placing the burden upon the
concerned person to establish his right to have a permanent residence in the
said country. Section 188 of the Migration Act, 1958 of Australia provides that
an officer may require a person whom the officer knows or suspects is a non-
citizen to (a) show the officer evidence of being a lawful non-citizen; or (b)
show the officer evidence of the person's identity.
26. There is good and sound reason for placing the burden of proof upon the
person concerned who asserts to be a citizen of a particular country. In order
to establish one's citizenship, normally he may be required to give evidence
of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their
place of birth and citizenship. Some times the place of birth of his grand
parents may also be relevant like u/s 6-A(1)(d) of the Citizenship Act. All
these facts would necessarily be within the personal knowledge of the person
concerned and not of the authorities of the State. After he has given
evidence on these points, the State authorities can verify the facts and can
then lead evidence in rebuttal, if necessary. If the State authorities dispute
the claim of citizenship by a person and assert that he is a foreigner, it will
not only be difficult but almost impossible for them to first lead evidence on
the aforesaid points. This is in accordance with the underlying policy of
Section 106 of the Evidence Act which says that when any fact is especially
within the knowledge of any person, the burden of proving that fact is upon
him.
27. Though in a criminal case the general rule is that the burden of proof is
on the prosecution but if any fact is especially within the knowledge of the
accused, he has to lead evidence to prove the said fact. In Shambu Nath
Mehra Vs. The State of Ajmer, it was held as follows:
"Section 106 is an exception to S. 101. The latter with its illustration (a)
lays down the general rule that in a criminal case the burden of proof is
on the prosecution and S. 106 is certainly not intended to relieve it of
that duty. On the contrary, it is designed to meet certain exceptional
cases in which it would be impossible, or at any rate disproportionately
Page No.# 13/21
difficult, for the prosecution to establish facts which are "especially"
within the knowledge of the accused and which he could prove without
difficulty or inconvenience. The word "especially" stresses that. It means
facts that are pre- eminently or exceptionally within his knowledge."
c. In respect of ground no. (i) the learned counsel for the petitioner has
not been able to show how and in what manner, the order under
review suffers on account of fact and law.
d. In ground no. (ii) the petitioner claims that some facts were lately
discovered by him, if that be the case, then the petitioner has failed to
show how the impugned order is bad in law and passed in ignorance of
some facts, which were admittedly discovered by the petitioner after
obtaining certified copies of the documents. With this ground, the
Court is really surprised as to how without being acquainted with entire
set of facts, the petitioner could file the earlier writ petition before this
Court as well as a Petition for Special Leave to Appeal before the
highest Court in the Country. Rather, the presumption is that till the
present review was filed everyone knew that when a proceeding is
fixed for hearing, the filing of evidence is inherent in such order.
e. Regarding ground no. (iii), it has already been mentioned
hereinbefore that the petitioner was absent without steps from
11.08.2009 till 01.07.2010, thus, it is evident that there was no
endeavour from the side of the petitioner to prove his Indian
citizenship with cogent and reliable evidence. The review petition was
also filed before the learned Tribunal after enormous delay.
f. It is surprising to note that ground no. (iv) has been urged, despite
discussion on lack of evidence in paragraph nos. 5 to 11 of the
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impugned order dated 05.01.2017.
g. As regards ground no. (v) and (vii), as no case could be made out by
the petitioner, there is no legal bar that a constitutional court cannot
dismiss a writ petition at the motion stage without calling for and
looking into the records. Assuming that the petitioner has suffered
injustice on this account, this would make the order assailable before a
higher Court and it does not make out a ground for review.
h. Ground no. (vi) that the written statement of the petitioner had
remained unshaken by the State and no objection was filed by the
State has been dealt with earlier in paragraph-9 of this order.
i. As regards ground no. (viii), here the petitioner has referred to filing
of a review petition before the learned Tribunal, and it is claimed that
the learned Tribunal had committed jurisdictional error. This allegation
does not show that any ground has been made out in respect of the
impugned order under review.
j. As regards ground no. (ix) that the petitioner was declared a
foreigner despite the fact that there were no proceedings against any
member of his family. If this is the grievance of the petitioner, it is
hoped that the Superintendent of Police (Border), Nagaon, would
examine why only the petitioner was singled out as a foreigner in the
absence of any member of his family being accused of being a
foreigner. Be that as it may, the lack of reference against other family
members does not constitute a ground for review.
k. As regards ground nos. (x) and (xi) that the review petition discloses
valid grounds to review the impugned order, and that for any view of
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the matter, the impugned order calls for review, the Court is
constrained to hold that there are no valid grounds of review in this
petition.
l. Therefore, all the grounds as discussed hereinbefore point out to an
erroneous order, and do not attract the pre-requirements under Order
XVII, Rule 1 to entertain a review petition.
14) It would be apt to quote hereinbelow the provisions of Section
114 and Order XVII, Rule 1 CPC:-
Section 114 of the CPC reads as:-
Subject as aforesaid, any person considering himself aggrieved:-
(a) by a decree or order from which an appeal is allowed by this Code, but
from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply
for a review of judgment to the Court which passed the decree or made the
order, and the Court may make such order thereon as it thinks fit."
Order 47 of the CPC reads as:-
1. Application for review of judgment.-(1) Any person considering himself
aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which
no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who,
from the discovery of new and important matter or evidence which, after the
exercise of due diligence was not within his knowledge or could not be
produced by him at the time when the decree was passed or order made, or
on account of some mistake or error apparent on the face of the record, or
for any other sufficient reason, desires to obtain a review of the decree
passed or order made against him, may apply for a review of judgment to
the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review
of judgment notwithstanding the pendency of an appeal by some other party
except where the ground of such appeal is common to the applicant and the
appellant, or when, being respondent, he can present to the Appellate Court the
Page No.# 16/21
case on which he applies for the review.
Explanation.- The fact that the decision on a question of law on which the
judgment of the Court is based has been reversed or modified by the subsequent
decision of a superior Court in any other case, shall not be a ground for the review
of such judgment."
15) It is reiterated at the cost of repetition that all the grounds urged
by the learned counsel for the petitioner, either refers to the error, if any,
committed by the learned Tribunal and/or regarding erroneous decision of this
Court. Thus, none of the grounds are good grounds to entertain review. It is
also reiterated that aggrieved by the order dated 05.01.2017, passed by this
Court, the petitioner had assailed the said order before the Supreme Court of
India. If the petitioner had filed a writ petition before this Court and SLP before
the Supreme Court of India, without obtaining the Tribunal's records, it only
discloses nothing but the casual manner in which those proceedings were
conducted. Negligence and omission to obtaining certified copies of order-sheet
of the learned Tribunal, before assailing the ex parte opinion before this Court
and before the Supreme Court of India, by any stretch of imagination, would
not constitute exercise of due diligence before approaching this Court.
Therefore, this review cannot be entertained on such flimsy grounds that the
order-sheet was obtained after almost/nearly 16 (sixteen) years from the date
of passing of the ex parte opinion dated 01.07.2010. Moreover, in the guise of
review, the petitioner has sought for a re-hearing of the already decided matter
afresh, which is not permissible in review. Error apparent on the face of record
could not be successfully shown.
16) In the case of Sarbananda Sonowal v. Union of India, (2005) 5
SCC 665, the Supreme Court of India had equated unabated influx from
Bangladesh as an act of external aggression, but despite the petitioner being
Page No.# 17/21
sent back, the petitioner has admitted in this review petition that he was taken
by the BSF, but claims that he does not know where he was released. However,
the stand of the Union of India is that the petitioner was sent back to
Bangladesh. The petitioner claims that he has returned to his address. This
exposes that the border between India and Bangladesh is still porous. Thus, the
learned CGC is directed to send a copy of this order to the Ministry of Home,
Govt. of India to do take notice of the said plea of the petitioner and the
allegation of a porous border and take an appropriate decision in this regard.
17) Before parting with the records, it is also hoped that the
competent authorities in the Government of India and the Home and Political
(Border) Department, Government of Assam are aware of the provisions of
Section 4 of the Foreigners Act, 1946. It is high time that the concerned officials
are sensitized on the said provision of law.
18) In respect of inordinate delay and laches in assailing the
impugned order, it may be stated that there is no period limitation prescribed for
filing a review in respect of orders passed in 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
Page No.# 18/21
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
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." (emphasis supplied)."
19) 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
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exceptional cases, where the impugned action is patently illegal or affects
fundamental rights, the delay must be condoned ."
20) 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."
21) 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.
Page No.# 20/21
22) 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.
23) 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, 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 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.
24) Thus, in light of the discussions above, the challenge to the
impugned the order dated 05.01.2017, passed in W.P.(C) No. 7581/2016, i.e.
after a lapse of 9 years (or 3287 days), fails on the ground delay as well as on
merit.
Page No.# 21/21
25) Resultantly, this review petition filed by Raham Ali is dismissed
without issuing notice upon the respondents. Needless to mention that the
consequences of the opinion dated 01.10.2010, passed by the learned Member,
Foreigners Tribunal 1st, Nagaon, in F.T. Case No. 825/2007, declaring the
petitioner to be a foreigner from Bangladesh of post 25.03.1971 stream, would
follow.
26) As the petitioner is stated to be taken into custody after re-
entering into India after being sent back to Bangladesh, the Court refrains from
imposing exemplary cost.
27) The learned standing counsel for the FT, Border matters and
NRC shall communicate a downloaded copy of this order, dismissing the review,
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
