Page No.# 1/22 vs The Union Of India And 5 Ors on 25 March, 2026

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    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.

    SPONSORED

    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
    Page No.# 3/22

    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-

    Page No.# 4/22

    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
    Page No.# 5/22

    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
    Page No.# 6/22

    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
    Page No.# 7/22

    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 .

    Page No.# 8/22

    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
    Page No.# 9/22

    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
    Page No.# 10/22

    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
    Page No.# 11/22

    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
    Page No.# 12/22

    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.# 13/22

    the 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.# 14/22

    where 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.# 15/22

    nationals 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
     



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