Gauhati High Court
Page No.# 1/22 vs The Union Of India And 5 Ors on 25 March, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/22
GAHC010046202026
2026:GAU-AS:4296-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1488/2026
SALEHA KHATUN
D/O- A.GAFUR @ ABDUL GAFUR, VILL. SIMALUATI, P.S. JURIA, DIST.
NAGAON, ASSAM, PIN- 782124
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OFINDIA, HOME DEPARTMENT, NEW DELHI-1,INDIA,
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6
3:THE STATE CO-ORDINATOR
NATIONAL REGISTER OF CITIZENS (NRC)
ASSAM
ACHYUT PLAZA
BHANGAGARH
GUWAHATI-5
ASSAM
4:THE ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI- 110001
5:THE DISTRICT COMMISSIONER
Page No.# 2/22
NAGAON
DIST. NAGAON
ASSAM
6:THE SUPERINTENDENT OF POLICE (B)
NAGAON
DIST.- NAGAON
ASSA
Advocate for the Petitioner : MR. Z HAMMAD, R DAS
Advocate for the Respondent : GA, ASSAM, GA, ASSAM,SC, NRC,SC, F.T,SC, ECI
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 25.03.2026
(K.R. Surana, J)
Heard Mr. Z. Hammad, 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. Borah, learned Additional Senior Govt. Advocate for the State
respondent.
2. By filing this writ petition under Article 226 of the Constitution
of India, the petitioner, namely, Saleha Khatun, has assailed the impugned
opinion dated 02.08.2019, passed by the learned Member, Foreigners Tribunal,
4th, Nagaon, in F.T. Case No. 412/16, arising out of Police Reference ‘D’ Case
No. 2848/98, by which she was declared to be a foreigner.
3. This writ petition was filed on 05.03.2026, to assail the opinion
dated 02.08.2019, i.e. after there has been an extraordinary delay of 6 years, 7
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months, 3 days (or 2407 days). Hence, the matter was also heard on delay and
laches on part of the petitioner to assail the impugned opinion.
4. The learned counsel for the petitioner submits that the
petitioner is a bona fide citizen of India by birth, having been born and brought
up in village Simaluati under Juria Police Station in the district of Nagaon,
Assam. It is contended that the petitioner is the daughter of Late A. Gafur @
Abdul Gafur and Rupjan Bibi, and the name of her grand-father is Late Miya
Hussain, who were Indian citizens, and her lineage is clearly traceable through
documentary evidence.
5. It is further submitted that the petitioner had produced reliable
and admissible documents before the learned Foreigners’ Tribunal, including
certified copies of voter lists of the years 1965 and 1970, wherein the name of
her father appears, thereby establishing the presence of her family in India prior
to the cut-off date of 25.03.1971. Additionally, land documents such as the
registered sale deed dated 21.01.1954, kaccha patta, and jamabandi were also
exhibited to show that her father was a landholder and that the petitioner
inherited land from him, thereby establishing her linkage.
6. The learned counsel also submits that the petitioner had duly
discharged her burden under Section 9 of the Foreigners Act, 1946 by proving
(i) the existence of her ancestors in India prior to 25.03.1971 and (ii) her
linkage with such ancestors through documentary as well as oral evidence.
7. The petitioner, on receipt of the notice of the proceeding,
appeared before the learned Tribunal, filed her written statement also examined
witnesses including herself as DW-1; Md. Abdul Kadir, the Gaonburah of Village-
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Simaluati as DW-2, Tahir Uddin, her elder brother, as DW-3, all of whom
supported her case and established her linkage with her projected father. The
petitioner also examined one Yunus Ali, Lot Mandal to prove the jamabandi.
8. The learned counsel for the petitioner further submits that the
learned Tribunal failed to properly appreciate the evidence on record. The
Gaonburah certificate was discarded for the use of the State Emblem, without
considering the oral testimony of the Gaonburah, which remained unshaken
during cross-examination. Similarly, the jamabandi was rejected without proper
reasoning, despite being supported by the testimony of the Lot Mandal.
9. It is also submitted that the Tribunal erred in holding that the
petitioner failed to establish linkage merely because her own name did not
appear in earlier voter lists. It is explained that the petitioner was married at a
young age and, therefore, could not have been included in electoral rolls prior to
attaining majority, which is a plausible and acceptable explanation. Thus, it was
submitted that the entire proceeding was vitiated due to a defective and illegal
reference. It was also submitted that the enquiry report was prepared behind
the back of the petitioner without any proper verification or opportunity of
hearing, thereby violating principles of natural justice. Accordingly, the
impugned opinion/order dated 02.08.2019 is not sustainable in law, being
arbitrary, illegal, and passed without proper appreciation of evidence.
10. Accordingly, the learned counsel for the petitioner prays that the
impugned order be set aside and quashed, and the petitioner be declared to
have successfully established her Indian citizenship.
11. Per contra, the learned standing counsel for the FT, Border
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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. Moreover, it has been submitted that there is
also no case on merit.
12. 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.
13. In the written statement, the petitioner has only disclosed that
she was born at village- Simaluati, Mouza- Alitangani, P.S. Juria, Dist. Nagaon
and stayed there since her childhood. She is married to Md. Kaddus Ali, son of
Mansur Ali of village- Dhing Gaon. She had disclosed the name of her father as
Abdul Gafur and name of her mother as Rupjan Bibi and name of her
grandfather as Miya Hussain. She has a certificate given by Abdul Kadir, the
village headman. Her parents had casted their vote as Indian citizens and the
name of her parents appear in the certified copy of the voters list of 1965 and
1970. The name of her father has been included in the land purchase deed
dated 21.01.1954.
14. However, in the absence of pleadings, in her evidence-on-
affidavit, the petitioner has stated that her father’s brother and sister are Sabed
Ali, Abdul Gaffur (her father) and Morjan and her brothers and sisters are (1)
Joynal Abedin, (2) Aisha Khatun, (3) Samarta Banu, (4) Amir Uddin, (5) Nesa
Begum, (6) Late Halima Khatun, (7) Nur Uddin, (8) Kulsuma Khatun, (9) Tahir
Uddin and (10) Saleha Khatun (herself). Her children are (1) Nur Jahan Begum,
(2) Muklesur Rahman, (3) Wabur Rahman and (4) Minhajul. She is married to
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Kaddus Ali, son of Mansur Ali of village- Dhing Gaon. Apart from above, the
petitioner has also reiterated the statements made in her written statement. As
per the contents of her evidence-on-affidavit, the DW-1 had exhibited
Gaonburah’s certificate as Ext.1 and his signature and seal as Ext.1(i); certified
copy of voter’s list of 1965 (Ext.2); certified copy of voter’s list of 1970 as Ext.3;
and land deed of 21.01.1954 as Ext.4. In her cross-examination, the petitioner
has stated that her father had inherited land from grandfather and she had
inherited land from her father vide Case No. 412/16 and got mutation in the
year 2016, but she does not know the dag and patta number.
15. The petitioner had examined Md. Abdul Kadir, the Govt.
Gaonburah, as DW-2. He had reiterated the statements made in the evidence-
on-affidavit filed by the petitioner. DW-2 had exhibited Gaonburah’s certificate as
Ext.1 and his signature as Ext.1(i). In his cross-examination, the DW-2 had
stated that he had not brought the copy/khata of resident’s name of his village.
He knows that the father of the petitioner has not come from Bangladesh and
he is an old resident of the area having landed property. In the name of Saleha,
there is land inherited from her father and Ext.1 is the certificate issued by him
and he knows his signature.
16. The petitioner has examined one Tahir Uddin, her projected
brother as DW-3. He has reiterated the statements made by the petitioner in
her evidence-on-affidavit. DW-3 had exhibited kacha miyadi patta as Ext.5 and
kheraj miyadi patta as Ext.6. In his cross-examination, DW-3 had stated that the
petitioner did not cast her vote in the matrimonial home. He does not know how
many years ago she got married. His father died after 1991 and he had not
produced voters lists after 1965 and 1970. He had also stated that Jainal and
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Amir Uddin had cast their vote with his father, but those voters list could not be
submitted. The land was mutated six month’s back on 10.08.2018.
17. The petitioner had also examined Khandakar Faruk Ahmed, Lot
Mandal, as DW-4 by issuing summons to him. In his examination-in-chief, he
had stated that he has brought the jamabandi copy of village- Simaluati, Mouza-
Alitangani, Revenue Circle, Dhing, bearing miyadi patta no. 74, in the name of
Abdul Gaffur, son of Miya Hussain, who is the original settlement holder. On last
22.01.2016, the names of inheritors of Abdul Gaffur has been included and in
the said jamabandi copy, name of Saleha Khatun is there. He had stated that
the signature of Circle Officer, Dhing Revenue Circle appears in Ext.6. The dag
number of the said patta is 52. In his cross-examination, he had stated that his
designation is Lot Mandal. He had brought his identity card. He had not brought
documents of mutation case.
18. The learned Tribunal had rejected the evidence of the petitioner
as she had not exhibited any voters list though as per her affidavit, her age was
37 years. In the voters list of 1965 (Ext.2), voters list of 1970 (Ext.3), land deed
of 21.01.1954 (Ext.4), and kacha patta (Ext.5), the name of the person is A.
Gaffur. The link document, being the Gaonburah’s certificate (Ext.1) was
discarded as State Emblem was unauthorizedly used, which makes the
document inadmissible in evidence. The kheraj miyadi patta and jamabandi
(Ext.6) was rejected because, the petitioner’s link with her projected father is
only since 2016. It was held that such type of evidence does not improve the
case of the petitioner, for which reliance was placed on the case of Babul Islam
v. Union of India & Ors., W.P.(C) 3547/2016, decided on 09.05.2018 .
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19. The petitioner, in her written statement, has not pleaded about
the date of death of her father, date of her own marriage, names of her siblings
or their date of birth. The petitioner had exhibited only four documents. Being
Ext.1 to Ext.4. The DW-3 had exhibited Ext.5 and Ext.6. However, none of the
entries contained in any of the exhibits have been proved. The voters lists of
1965 (Ext.2) and voters list of 1970 (Ext.3), does not contain the name of any
other family members. The petitioner had not proved any document showing all
members of her father or her siblings together. Though the projected brother of
the petitioner was examined as DW-3, he had not exhibited his own name in the
land record (Ext.5 and Ext.6) and he had also not exhibited his own proof of
identity. Therefore, the DW-3 had failed to prove through documentary exhibits
that he is the brother of the petitioner, or that they are the children of their
projected parents.
20. This Court, in the case of Afuja Begum @ Afruja Begum v. Union
of India & Ors., W.P.(C) 7340/2016, decided on 19.04.2018 , has held that a
Gaonburah is not a person authorized to use State Emblem and moreover, it
was held that the use of State Emblem by an unauthorized user would make the
document inadmissible in evidence. Notwithstanding the decision in the case of
Afuja Begum @ Afruja Begum (supra) , in the case of Basiron Nessa v. Union of
India & Ors., 2018 (4) GLT 692, the proceedee had relied on a certificate by
Gaonburah stating that Basiron Nessa is the daughter of Late Abdul Barek and
Rabia Khatun. In the said context, this Court had held that documentary
evidence must be proved from record and not solely by oral testimony.
Moreover, in the case of Jabeda Begum v. Union of India & Ors., (2021) 1 GLR
59: 2020 (2) GLT 603, this Court had held, that a certificate issued by the
Gaonburah can never be the proof of citizenship of a person. Such certificate
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can only be used by a married woman to prove that after marriage, she had
shifted to her matrimonial home. [see Rupajan Begum v. Union of India & Ors.,
(2018) 1 SCC 579.]
21. The mutation of the name of the petitioner in land revenue
records, is not sufficient to prove that the petitioner is the daughter of that
Abdul Gaffur, in whose name the land stood. The reason is that the projected
father of the petitioner, as per the evidence of DW-3, had died in the year 1991,
but the mutation order is dated 22.01.2016, i.e. 25 years after death and during
the pendency of the proceeding of FT Case No. 412/2016. Moreover, the
petitioner has not exhibited any document to prove her own identity.
22. The petitioner had not filed additional written statement to bring
on record her pleading about the members of her family. Only thereafter,
material facts could have been proved by adducing cogent and admissible
evidence. This Court, in the case of Rashminara Begum v. Union of India & Ors.,
2017 (4) GLT 346, and Saru Sheikh v. Union of India & Ors., (2017) 4 GLR 295 ,
has held to the effect that material facts pleaded in the written statement would
have to be proved by adducing cogent and admissible evidence. Moreover, in
the case of Ayesha Khatun v. Union of India & Ors., (2017) 3 GLR 820 , this
Court has held that failure to disclose material facts would lead to adverse
presumption.
23. The petitioner has relied on the testimony of her projected
brother to prove that she is the daughter of Abdul Gafur @ A. Gafur. In this
regard, this Court, in the case of Aziz Miya @ Md. Aziz Mia v. Union of India &
Ors., 2024 (4) GLT 246, has held that a mere claim by a suspected person by
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referring to voters list, claiming that person to be his father, is not a conclusive
proof and by doing so he has discharged his burden that he is not a foreigner.
There is further requirement to prove that the person who is reflected in the
voters list is actually the father who makes the claim will have to be further
substantiated with further material record.
24. The learned counsel for the petitioner had urged that the
investigation form was blank and therefore, proper investigation was not made
before reference was made. In respect of the said point that has been urged by
the learned counsel for the petitioner, it may be mentioned that it appears from
the contents of paragraph 1 of the impugned opinion that upon report of the
Electoral Registration Officer of 83 No. Dhing LAC, Police Reference ‘D’ Case No.
2848/98 was registered. Thereafter, the Superintendent of Police (Border),
Nagaon had submitted the reference to the erstwhile Illegal Migrants
(Determination) Tribunal, Nagaon [IM(D)T, Nagaon for short] for trial. The said
Tribunal was set up under the Illegal Migrants (Determination by Tribunals) Act,
1983 [IM(DT) Act for short]. The said Act was declared ultra vires by the
Supreme Court of India in the case of Sarbananda SOnowal v. Union of India,
(2005) 5 SCC 665. Be that as it may, the Election Commission of India had
ordered revision of draft electoral roll which was published on 24.07.1997, with
reference to qualifying date of 01.01.1997. Accordingly, house-to-house
enumeration was conducted between 16.01.1997 to 15.04.1997. Accordingly, as
doubt was expressed about the citizenship of the petitioner, whose name was
enumerated in the draft roll published on 24.07.1997, the Electoral Registration
Officer of 83 No. Dhing LAC had entrusted the Local Verification Officer to do
the enquiry. The said Verification Officer had submitted his report in Annexure-B
format to the Electoral Registration Officer. The said authority, thereafter, vide
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Annexure-A format, expressed his doubt about the citizenship of the petitioner.
Accordingly, the Electoral Registration Officer had referred the matter to the
Superintendent of Police (Border), Nagaon and the reference was made. The
Superintendent of Police (Border) was the competent authority under the
IM(DT) Act and the Foreigners Act, 1946 and Rules made thereunder to submit
reference. Accordingly, reference was before the then Chairman, IM(D)T,
Nagaon, where IM(D)T Case was registered.
25. It may also be stated that by virtue of the judgment and order
passed by the Supreme Court of India in the case of Sarbananda Sonowal
(supra), all the proceedings that were then pending before the IM(D)Ts, were
transferred to the Foreigners Tribunal having jurisdiction. The transferred
reference was received by the learned Member, Foreigners Tribunal, 4 th,
Nagaon, and registered as F.T. Case No. 412/2016. Therefore, as evident from
the decision of the Supreme Court of India, in the case of Sarbananda Sonowal
(supra), the matter was transferred by the Supreme Court of India. Therefore,
no further determination can be made by this Court regarding making of and/or
registration of the reference.
26. Be that as it may, the issue of blank Verification Officer’s Report
has been considered and decided by this Court in the case of Shukurjan Nessa
@ Sukurjan v Union of India & Ors., W.P.(C) 245/2019, decided on 28.02.2025.
In the said case, the issue relating to reference made at the instance of the
Electoral Registration Officer (ERO for short) has been clarified.
27. It is not the case of the petitioner that she had given all
information to the Local Verification Officer. It must be understood that the
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LVO’s were not police officers, but civilian officials who were merely entrusted
with house-to house enumeration duty. Therefore, if the LVO is not provided
with information, he/she has no option, but to leave a few of the columns of the
format blank or with words “NIL” or just strike out those columns.
28. Hence, it is apparent that in this case in hand, the enquiry by the
Verification Officer was not made under the provisions of Foreigners Act, 1946
or Rules framed thereunder. In an enquiry that is initiated under the Foreigners
Act, 1946, the investigation is done by the Border Branch of Police under the
authority of the Superintendent of Police (Border) and/or Deputy Commissioner
of Police (Border), as the case may be, of the concerned district. However, the
jurisdictional Superintendent of Police (Border) is the prescribed authority to
make reference before the IM(D)T constituted under the erstwhile IM(DT) Act,
1983 and Rules framed thereunder.
29. There is an important facet, which is contained in the judgment
and order of this Court in the case of Sayam Uddin v. Union of India & Ors.,
2019 (4) GLT 456, as affirmed by the Division Bench in the case of Sayam Uddin
v. Union of India & Ors., W.A. 170/2019, decided on 29.07.2019 , is deemed
appropriate to be referred to. As this Bench is in respectful agreement with the
said judgment therefore, paragraphs 11 to 22 thereof are quoted below:-
11. In the year 1997, Election Commission of India had undertaken an intensive revision of
electoral rolls in the State of Assam as apprehensions were expressed from various quarters
that the electoral rolls were infested with the names of foreigners/illegal migrants. In the
course of this exercise citizenship status of as many as 3,13,046 persons whose names were
in the draft voters lists were found to be doubtful and accordingly they were marked as
doubtful “D” voters in the electoral rolls after local verification.
12. Legality of this exercise was challenged before this Court in HRA Choudhury Vs
Election Commission of India, reported in 2002 (1) GLT 1. The challenge made was
rejected by a Division Bench of this Court. In HRA Choudhury (supra) this Court examined
Page No.# 13/22the guidelines dated 17.07.1997 of the Election Commission of India laying down the
procedure to carry out the exercise.
12.1. As per paragraph 3.8 of the guidelines the Electoral Registration Officer
was required to consider the verification report received from the Local Verification
Officer. If he was satisfied on such report and such other material/information as may
be available about the eligibility of a person, he should allow his name to continue
on the electoral roll. Where, however, he was not so satisfied and had reasonable
doubt about the citizenship of any person, he was required to refer such doubtful
cases to the competent authority under the then Illegal Migrants (Determination by
Tribunals) Act, 1983 or the Foreigners Act, 1946 as the case may be. For
convenience of the Electoral Registration Officers, Election Commission devised
proformas.
12.2. As per paragraph 3.9, after the case of a person was referred by the
Electoral Registration Officer to the competent authority, he should wait for the
decision of the relevant Tribunal in relation to that person and act according to such
decision.
12.3. As per paragraph 3.10, where the relevant Tribunal decided that any such
person was not a citizen of India, Electoral Registration Officer should proceed
under Rule 21 A of the Registration of Electors Rolls, 1960 to have the name of such
person deleted from the electoral roll before it was finally published.
12.4. This Court in HRA Choudhury (supra) held that such guidelines and
decision of the Election Commission were in accordance with Article 324 of the
Constitution of India besides conforming to the principles of natural justice. It was
held that such guidelines cannot be held to be arbitrary or vitiated by mala fide or
partiality.
13. At this stage, it may be mentioned that the Illegal Migrants (Determination by
Tribunals) Act, 1983 is no longer in existence, the same having been declared
unconstitutional by the Supreme Court in Sarbananda Sonowal Vs Union of India reported
in (2005) 5 SCC 665. Therefore, in so far paragraph 3.8 of the guidelines dated 17.07.1997
is concerned, the reference would be under the Foreigners Act, 1946.
14. The above exercise was repeated in the year 2005 with the Election Commission of
India again going for intensive revision of electoral rolls in the State of Assam taking
01.01.2005 as the qualifying date. In this connection, guidelines dated 17.06.2004 were
issued by the Election Commission of India. Paragraph 2.2 of the guidelines dealt with
“D” voters. It was mentioned that the guidelines issued in 1997 would be followed while
dealing with such category of persons. Paragraph 8 dealt with verification by Electoral
Registration Officers. It laid down the procedure while carrying out such verification
including verification by Local Verification Officer. As per paragraph 8.6, Local
Verification Officer would conduct the verification by making an on the spot visit and the
person concerned could adduce any one or more of the documents mentioned therein in
support of his claim as a citizen of India. After due verification, the Local Verification
Officer was required to submit his report in the prescribed format. Under paragraph 8.8,
Electoral Registration Officer on receipt of the verification report from the Local
Verification Officer should consider the same. Where he was satisfied about the eligibility
of a person, he should allow the name of such person to continue on the electoral roll but
Page No.# 14/22where he was not so satisfied and had reasonable doubt about the citizenship of any person
he should refer such doubtful cases to the competent authority under the then Illegal
Migrants (Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946 in a prepared
format (Annexure-B to the guidelines dated 17.06.2004) to the competent authority for
making reference to the Tribunal and await the decision of such Tribunal.
15. As pointed out by Mr. Barua, in Mameja Khatun (supra) a Single Bench of this Court
directed that “D” voters should not be allowed to cast their votes with the clarification that
“D” voters would include persons whose names were included in the electoral rolls but
their citizenship was doubted or disputed and also those whose cases were pending before
the Foreigners Tribunals. This decision of the learned Single Bench was confirmed by the
Division Bench in Writ Appeal No. 114/2011 (State Vs Mameja Khatun). By the judgment
and order dated 13.10.2015, the Division Bench directed Election Commission of India and
other authorities to implement the directions of the Single Bench in letter and spirit.
16. At this stage, it may also be mentioned that in WP(C) No. 274/2009 filed by Assam
Public Works which is pending before the Supreme Court of India wherein NRC updation
exercise in the State of Assam is being monitored by the Supreme Court of India, on
25.10.2013, Supreme Court clarified that as far as persons in the “D” list are concerned,
undoubtedly they were doubtful voters and therefore their names could not be included
unless the NRC is updated and unless the Foreigners Tribunals declared them to be Indian
citizens.
17. The Foreigners Act, 1946 is an act to confer upon the Central Government certain
powers in respect of foreigners. This Act provides for the exercise of certain powers by the
Central Government in respect of the entry of foreigners into India; their presence in India
and their departure therefrom. Section 2 (a) defines a “foreigner” to mean a person who is
not a citizen of India. Section 3 confers power to the Central Government to make orders
making provision either generally or with respect to all foreigners or with respect to any
particular foreigner or any prescribed class or description of foreigners, for prohibiting,
regulating or restricting the entry of foreigners into India or their departure therefrom or
their presence or their continued presence therein.
17.1. In exercise of the powers conferred by Section 3 of the Foreigners Act, 1946,
Central Government made the Foreigners (Tribunals) Order, 1964. As per order 2
(1), the Central Government may by order refer the question as to whether a person
is or is not a foreigner within the meaning of the Foreigners Act, 1946 to a Tribunal
to be constituted for the purpose for its opinion.
18. Ministry of Home Affairs, Govt. of India had issued notification dated 19.04.1958 in
exercise of powers conferred by Clause-(1) of Article 258 of the Constitution of India
whereby the President with the consent of the State Government concerned entrusted to the
Governments of each of the States mentioned therein including the State of Assam the
functions of the Central Government in making orders of the nature specified in Section 3
of the Foreigners Act, 1946. Another notification dated 17.02.1976 was issued by the
Government of India, Ministry of Home Affairs in the exercise of the powers conferred by
Article 258 (1) of the Constitution entrusting the Superintendents of Police and Deputy
Commissioners (In-charge of Police) under the Government of Assam the functions of the
Central Government in making orders of the nature specified in Section 3 of the Foreigners
Act, 1946 within their respective jurisdictions subject to the conditions mentioned therein
which included the condition that exercise of such functions would be in respect of
Page No.# 15/22nationals of Bangladesh and that while exercising such functions, Superintendents of
Police and Deputy Commissioners (In-charge of Police) shall comply with such general or
special directions as the Government of Assam or the Central Government may issue from
time to time.
19. Article 258 of the Constitution deals with power of the Union to confer powers etc on
States in certain cases. Clause (1) of Article 258 starts with a non-obstante clause. It says
that notwithstanding anything in the Constitution, President may with the consent of the
Government of a State entrust either conditionally or unconditionally to that Government
or to its officers, functions in relation to any matter to which the executive power of the
Union extends. Clause (3) provides for making of payment by the Government of India to
the State concerned such sum as may be agreed upon or in default of agreement through
arbitration in respect of any extra-cost of administration incurred by the State in
connection with the exercise of powers and duties of the Government of India conferred or
imposed upon a State Government.
20. Thus, under the Central Government notifications dated 19.04.1958 and 17.02.1976,
Government of Assam, Superintendents of Police and Deputy Commissioners (In-charge of
Police) have been delegated the power to make reference to the Foreigners Tribunal under
order 2 (1) of the Foreigners (Tribunals) Order, 1964 to seek opinion as to whether the
proceedee is a foreigner or not within the meaning of the Foreigners Act, 1946.
21. Thus from the above, what transpires is that there are two categories of “D” voters:-
(i). those who were marked as “D” voters in the electoral roll by the Electoral Registration
Officer following enquiry by Local Verification Officer; and (ii). those whose references are
pending before the Foreigners Tribunals.
22. In so far Electoral Registration Officer is concerned the exercise undertaken by him
while marking a person as a “D” voter in the electoral roll is a quasi judicial exercise. If
he holds the view after examining the enquiry report of the Local Verification Officer that
the concerned person is not a citizen of India he is required to forward the case of that
person to the competent authority i.e., the Superintendent of Police. If it is so forwarded by
the Electoral Registration Officer, the jurisdictional Superintendent of Police has to make a
reference to the competent Foreigners Tribunals under order 2(1) of the Foreigners
(Tribunals) Order, 1964 based on the report received from the Electoral Registration
Officer. Question of making further enquiry by the Superintendent of Police in such a case
would not arise because enquiry has already been made by the Electoral Registration
Officer by exercising quasi judicial powers and the Superintendent of Police cannot sit
over such decision of the Electoral Registration Officer. He has to forward the same by
making the reference to the competent Foreigners Tribunal for its opinion.
30. The said judgment by the learned Single Judge in the case of
Sayam Uddin (supra), has stood affirmed by the virtue of judgment and order
dated 29.07.2019, passed by the Division Bench of this Court in the writ appeal
of Sayam Uddin (supra).
Page No.# 16/22
31. It would be appropriate to refer to another decision of this Court
in the case of Amina Khatun v. Union of India & Ors., 2022 (4) GLT 102 (supra) ,
which was decided on 28.04.2022. In the said case, the reference was made by
the Superintendent of Police (Border), based on Local Verification Officer’s
Report, as forwarded by the Elector Registration Officer. But it appears that the
previous decision of the learned Single Judge of this Court in the case of Sayam
Uddin v. The Union of India & Ors., 2019 (4) GLT 456 , as affirmed by the
Division Bench of this Court in the case of Sayam Uddin v. Union of India & Ors.,
W.A. 170/2019, decided on 29.07.2019 , were not brought to the notice of this
Court. Therefore, under such circumstances, the Court is of the considered
opinion that under the well settled principles of stare decisis, the decision in the
case of Amina Khatun (supra) would be per incurium. Accordingly, the decision
rendered in the case of Amina Khatun (supra), though not cited, will also not be
of any help to the petitioner.
32. It may be stated that after the IM(D)T has been disbanded,
reference is presently being made in accordance with the Government
Notification No. PLB.101/2005/Pt/194 dated 02.02.2006. If one needs to verify
as to whether proceeding before IM(D)T was transferred in this case, the said
notification may be referred to. Hence, this Court would exercise restraint on
making any comment on (i) the form of reference; (ii) report of the Verification
Officer; (iii) reference by Electoral Registration Officer (ERO for short); and (iv)
reference by the Superintendent of Police (Border), Nagaon. Moreover, as the
proceedings were transferred by virtue of orders passed by the Supreme Court
of India, the Foreigners Tribunals would also have no power or jurisdiction to
remand the reference back to the Superintendent of Police (Border) for a fresh
enquiry by the Local Verification Officer and/or the Electoral Registration Officer.
Page No.# 17/22
33. Thus, notwithstanding the delay and laches, as the issue of
citizenship has been urged by the learned counsel for the petitioner, the Court
has examined the case of the petitioner on merit.
34. In order to explain the inordinate delay and laches in assailing
the impugned opinion dated 02.08.2019, by filing this writ petition, the learned
counsel has submitted that in paragraph 16 of the writ petition, the petitioner
has taken a stand that due to extreme financial hardship of the husband of the
petitioner and being not able to bear the litigation cost, though certified copy of
the opinion was obtained on 25.07.2025, she could not file the writ petition on
time.
35. The learned Tribunal, in the impugned opinion, by referring to
the exhibited documents and evidence of the witness, arrived at a conclusion
that the petitioner was unable to establish her linkage with her projected father.
Accordingly, it was held that the petitioner had failed to discharge her burden of
proof under Section 9 of the Foreigners Act, 1946 that she is not a foreigner but
an Indian. Resultantly, the opinion was passed against the petitioner, thereby
declaring her to be a foreigner or an illegal migrant of stream of post
25.03.1971.
36. In respect of inordinate delay and laches in assailing the
impugned opinion after a lapse of 6 years, 7 months, 3 days (or 2407 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
Page No.# 18/22
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
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.”
37. On the other hand, it is seen that the petitioner has filed this writ
petition on 05.03.2026 to assail the opinion dated 02.08.2019, i.e. after 6 years,
Page No.# 19/22
7 months, 3 days (or 2407 days). The said delay is explained merely by stating
that the husband of the petitioner is a daily wage earner and unable to manage
the cost and expenditure of approaching this Court. Such a vague statement
cannot be accepted as nothing prevented the petitioner from availing free legal
aid, which she did not. Accordingly, the petitioner is deemed to have accepted
the opinion without any demur, with full knowledge of the fact that she has
been declared to be a foreigner. Thus, the writ petition is also not maintainable
in view of the delay and laches.
38. Thus, the petitioner, despite full knowledge of the consequences
of being declared as a foreigner, has allowed the said opinion to attain finality
for over 6 (six) years. Thus, the delay is found to be not properly explained.
39. 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.”
40. 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,
Page No.# 20/22
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.”
41. 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.
42. 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
Page No.# 21/22
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.
43. 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.
44. 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 opinion dated 02.08.2019, passed by the learned Member,
Foreigners Tribunal, 4th, Nagaon, in F.T. Case No. 412/16, arising out of Police
Reference ‘D’ Case No. 2848/98, by which she was declared to be a foreigner,
Page No.# 22/22
fails.
45. 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 opinion shall follow.
46. There shall be no order as to cost.
47. 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