Gauhati High Court
Page No.# 1/13 vs The Union Of India And Ors on 5 March, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/13
GAHC010137982025
2026:GAU-AS:3360-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3602/2025
MUSST JUBEDA BEGUM
D/O- LATE ABDUL KHALEK,
R/O VILL SARUCHOLA, P.O- OKORABARI, MOUZA- LAHORIGHAT, P.S-
MOIRABARI, DIST- MORIGAON, ASSAM
VERSUS
THE UNION OF INDIA AND ORS
REP. BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF
INDIA, SASTRI BHAWAN, NEW DELHI- 110001.
2:THE ELECTION COMMISSION OF INDIA
NEW DELHI-110001
3:THE STATE OF ASSAM
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6
4:THE DIRECTOR GENERAL OF POLICE
ULUBARI
GUWAHATI-07
5:THE STATE COORDINATOR
NATIONAL REGISTER OF CITIZENS
ASSAM
1ST FLOOR
ACHYUT PLAZA
G.S ROAD.
BHANGAGARH
Page No.# 2/13
GUWAHATI-05
DIST- KAMRUP (M)
6:THE DISTRICT COMMISSIONER
MORIGAON
ASSAM
7:THE SUPERINTENDENT OF POLICE (B)
MORIGAON
ASSA
Advocate for the Petitioner : MR. A M DUTTA,
Advocate for the Respondent : DY.S.G.I., GA, ASSAM,SC, NRC,SC, F.T,SC, ECI,SC, NRC
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 05.03.2026
(K.R. Surana, J)
Heard Mr. Z. Hammad, learned counsel for the petitioner. Also
heard Ms. K. Phukan, learned CGC; Mr. A.I. Ali, learned standing counsel for the
ECI; Mr. G. Sarma, learned standing counsel for the FT and Border matters; Mr.
P. Sarmah, 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, Mustt. Jubeda Begum, has assailed the
impugned ex parte opinion dated 13.06.2016, passed by the learned Member,
Foreigners Tribunal No.3rd, Morigaon, in Case No. F.T. 06/2016, arising out of
F.T. Case No. 232/2009, dated 21.07.2009, by which she was declared to be a
foreigner who had entered into India illegally from Bangladesh after 25.03.1971.
3. This writ petition was filed on 20.06.2025, to assail the ex parte
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opinion dated 13.06.2016, i.e. after there has been an extraordinary delay of 9
years, 7 days (or 3294 days). Hence, the learned counsel for the petitioner was
heard on delay and laches on part of the petitioner to assail the ex parte
opinion.
4. The learned counsel for the petitioner has submitted that the
petitioner is an Indian citizen by birth, born on or about the year 1957 at Village
Hatimuria, Mouza Moirabari, P.S. Lahorighat, District Morigaon, Assam. Her
parents were Late Abdul Khalek and Late Rabia Khatun, and her grandfather
Nasruddin was also a resident of the same village. The petitioner comes from a
family long residing in the said locality. The petitioner married Md. Dil
Mohammad around 1985 and has three children, namely, Gias Uddin Ahmed,
Md. Jahur Ali, and Shahida Begum. Certificates issued by the Village Headman
as well as the Secretary of Borchola Gaon Panchayat to confirm her place of
residence and that she is the daughter of Late Abdul Khalek. The petitioner has
relied on voters lists of 1971 (father), 1989 (mother), and 2005 & 2010 (herself)
to establish citizenship. It is also submitted that her grandfather had also
purchased land in 1949, which was duly mutated and recorded in the
Jamabandi.
5. In 2016, the petitioner received a notice from the Foreigners’
Tribunal, Morigaon, pertaining to FT Case No. 06/2016, naming her and her
three children. Being unaware of the legal implications, she approached a
lawyer, submitted all the documents, attended the learned Tribunal regularly,
and paid legal fees. At that time, her sons were working in Kerala and since
there was no telephone with the petitioner, she could not inform anything about
the case to her sons. At that time, the daughter of the petitioner was also a
minor.
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6. However, the case proceeded ex parte against all the
proceedees, i.e. the petitioner and her three children, thereby declaring them
foreigners. The petitioner came to know about the ex parte opinion only when
the police personnel of Mikirbheta P.S. came to the residence of the petitioner
on 06.05.2017. It is submitted that the petitioner was present at the learned
Tribunal on various dates, but perhaps owning to the fact that her advocate did
not file hazira or any application, the case was proceeded ex parte, which was
not a fault of the petitioner.
7. Thereafter, the petitioner and her children had filed a Misc. Case
under section 3(A) of the Foreigners (Tribunals) Amendment Order, 2013 for
setting aside the ex parte opinion, which was registered as Misc. Case No.
12/2017. The same was dismissed by order dated 27.06.2017. It is also stated
that after the dismissal of the Misc. Case, the petitioner was staying away from
her children and lost contact and therefore, she could not file any case before
this Court.
8. The dismissal of the Misc. Case was challenged by the children
of the petitioner, namely, (1) Gias Uddin; (2) Jahur @ Jahur Ali; and (3) Shahida
Begum by filing WP(C) No. 4963/2019, which was allowed by this Court by
order dated 01.11.2019, by setting aside the ex parte opinion dated 13.06.2016
insofar as it relate to the three children of the petitioner herein because there
was no enquiry or reference against them. It was also stated in the said order
dated 01.11.2019 that if the concerned authorities are inclined to proceed
against (1) Gias Uddin; (2) Jahur @ Jahur Ali; and (3) Shahida Begum, the
same be done by initiating proceeding as required under the law.
9. It is also submitted that the petitioner belongs to lower statra of
the society and financially weak background to engage a lawyer in time. It was
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only when the petitioner meet the instant learned counsel, she could file the
present writ petition.
10. Per contra, the learned standing counsel for the FT, Border
matters and NRC had submitted that the explanation given is vague, and not
supported by any documents or any other cogent and reliable material.
11. The learned CGC and the learned Junior Govt. Advocate for the
other appearing respondents have adopted the submissions made by the
learned standing counsel for the FT, Border matters and NRC.
12. As per the contents of the impugned ex parte opinion dated
13.06.2016, the notice of the proceeding was duly received by the petitioner on
19.11.2014. The petitioner appeared through learned counsel but repeatedly
sought for adjournments on various grounds such as lack of documents and
illness, filing multiple petitions between 20.12.2014 and 25.05.2015 without
filing the written statement. On 02.06.2015, the petitioner remained absent
without taking any steps, and the case proceeded with summons issued to the
V.O. i.e. Verification Officer, for prosecution witness. The petitioner again
remained absent on 15.07.2015. Subsequently, on 21.09.2015, the case was
transferred to the Foreigners Tribunal pursuant to Government Notification
dated 10.08.2015 on jurisdictional grounds. After transfer, the case was
renumbered as F.T. 06/2016 and fixed on 05.03.2016 for filing written
statement. However, the petitioner remained absent on several dates thereafter,
i.e., 05.03.2016, 21.03.2016, 05.04.2016 and 20.04.2016, without taking any
steps. Consequently, the matter was fixed for Necessary Order and is taken up
today, i.e., 13.06.2016, for Final Order.
13. As mentioned hereinbefore, this writ petition has been filed after
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9 years, 7 days (or 3294 days) after the ex parte opinion was passed. It may
also be stated that no period of limitation is prescribed for filing a writ petition.
But, unless the petitioner demonstrates good and cogent reason, delay and
laches would disentitle the petitioner to equitable relief on the principle that
“delay defeats equity”. If one needs any authority on the point, the decision of
the Supreme Court of India in the case of Mrinmoy Maity v. Chhanda Koley,
2024 INSC 314: (2024) 0 Supreme(SC) 351 , and Chairman/Managing Director,
U.P. Power Corporation Ltd. V. Ram Gopal, (2020) 13 SCC 225: (2020) 0
Supreme(SC) 93 (Full Bench). In the later case, while approving the decision of
the Supreme Court of India in the case of P.S. Sadasivaswamy v. State of Tamil
Nadu, (1975) 1 SCC 152 and S.S. Balu v. State of Kerala, (2009) 2 SCC 479 , it
was held to the effect that limitation does not strictly apply to a proceeding
under Articles 32 and 226 of the Constitution of India, nevertheless, such rights
cannot be enforced after an unreasonable lapse of time and the High Courts
were cautioned by observing that prolonged delay of many years ought not to
have been overlooked or condoned. Paragraph 16 thereof [as extracted from
(2020) 0 Supreme(SC) 93 ] is quoted below:-
16. Whilst it is true that limitation does not strictly apply to proceedings under
Articles 32 or 226 of the Constitution of India, nevertheless, such rights cannot be
enforced after an unreasonable lapse of time. Consideration of unexplained delays
and inordinate laches would always be relevant in writ actions, and writ courts
naturally ought to be reluctant in exercising their discretionary jurisdiction to
protect those who have slept over wrongs and allowed illegalities to fester. Fence-
sitters cannot be allowed to barge into courts and cry for their rights at their
convenience, and vigilant citizens ought not to be treated alike with mere
opportunists. On multiple occasions, it has been restated that there are implicit
limitations of time within which writ remedies can be enforced. In SS Balu vs.
State of Kerala, (2009) 2 SCC 479 this Court observed thus:
“17. It is also well-settled principle of law that “delay defeats equity”. …It 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
Page No.# 7/13delay and laches irrespective of the fact that they are similarly situated to the
other candidates who obtain the benefit of the judgment.”
14. In this case, it is not at all disputed that the petitioner had
received the notice of the proceeding. Thus, for non-appearance of the
petitioner despite service of notice, which is in accordance with the provisions of
the Foreigners (Tribunals) Order, 1964, the petitioner has to assign good, cogent
and acceptable reason for not appearing before the learned Tribunal. Moreover,
from the date of opinion, the petitioner has filed this writ petition after 9 years,
7 days (or 3294 days), as stated hereinbefore. The said delay is sought to be
explained merely by stating that the petitioner is poor and unable to manage
the cost and expenditure of approaching this Court and she was unaware of the
legal proceedings and its consequences. Such a vague statement cannot be
accepted as nothing prevented the petitioner from availing free legal aid, which
she did not.
15. Though the petitioner has stated that due to financial
constraints, she could not approached this Court earlier, it cannot be accepted
that the court fees is so high that it is beyond the approach of the common
man. It is not the case of the petitioner that she had applied for certified copy
as a pauper and that issuance of certified copy was refused to her for non-
payment of court fee.
16. The petitioner had obtained the certified copy of the impugned
ex parte opinion on 02.06.2025. Thus, by virtue of the long delay of over nine
years, the petitioner is deemed to have accepted the ex parte opinion passed
against her without any demur. As notice was served on the petitioner herself, it
must be deemed that the petitioner had full knowledge of the fact that she has
been declared to be a foreigner, who has illegally entered into India (Assam)
Page No.# 8/13
from the specified territory. Thus, the writ petition is also not maintainable in
view of the delay and laches.
17. In this case, the delay and laches of the petitioner are in two
phases. Firstly, after due service of notice in accordance with the provisions of
Order 3(5)(c) of the Foreigners (Tribunals) Order, 1964, i.e. on 19.11.2014, till
passing of the ex parte opinion, i.e. 13.06.2016. during this period, the
petitioner appeared with engaged lawyer only once on 20.12.2014, and
thereafter, she had remained absent on all the dates by showing various reasons
and sometime without any steps; and secondly, from the date of the impugned
ex parte opinion, i.e. 13.06.2016 till filing of this writ petition, i.e. 23.06.2025.
Hence, on all counts, the delay is not properly and/or sufficiently explained.
18. It is not the case of the petitioner that neither the petitioner nor
any person in her family was aware that an inquiry as to whether or not the
petitioner was an illegal migrant from the specified territory was made against
the petitioner by the concerned authorities. Thus, despite having knowledge of
such a serious inquiry regarding the petitioner, wherein she was accused of
being an illegal migrant from the specified territory, the petitioner did not
participate in the proceeding. It may also be stated that usually and/or in the
normal course, the uniformed police personnel from the Border Branch of the
concerned Police Station visit the house of the proceedee to serve notice and/or
process for appearance. It would be hard to believe that no villager would come
to know about police visiting any household in the village to serve process and
that none in the house or in the village would be bothered by the visit of police
in a co-villager’s house.
19. In paragraph 46 of the case of Urban Improvement Trust v. Vidhya
Devi, 2024 INSC 980: (2024) 0 Supreme(SC) 1189 , the Supreme Court of India
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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 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 .”
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)
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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.
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 was also 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, 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
Page No.# 11/13
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. In this case, the learned counsel for the petitioner could not
show as to which fundamental right of the petitioner would be violated if the ex
parte opinion is not set aside. Rather, it is the interest of the Country that would
suffer if persons who are declared illegal migrants are allowed to defeat the
process of expulsion of detected illegal foreigners/migrants, by allowing such
illegal migrants endless time to assail the opinion passed by the learned
Tribunals.
25. The three children of the petitioner, as stated hereinbefore, had
filed WP(C) No. 4963/2019 to challenge the ex parte opinion and the order
dated 27.06.2017, passed in Misc. Case No. 12/2017, but the petitioner had
accepted the opinion without any challenge.
26. By showering sympathy in this particular case, this Court would
be encouraging the unscrupulous practice of not appearing before Courts and
Tribunals, despite notice being duly served on an adult member of the family.
27. The Court is of the considered opinion that if such belated
petitions are entertained after 9 years, 7 days (or 3294 days), all delays,
irrespective of the number of days, will have to be condoned at the drop of a
hat. It would also render the provisions of Order 3 (5)(c), Order 3(8) and Order
3(14) of the Foreigners (Tribunals) Order, 1964 otiose.
28. It may also be stated that the learned counsel for the petitioner
had submitted that the petitioner has all the documents to prove that she is an
Indian citizen. In the said context, this Court is reminded of the fact that this
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Court is exercising certiorari jurisdiction and thus, cannot act as a Foreigners
Tribunal, having original jurisdiction and start examining and appreciating the
documents annexed to the writ petition, which were hitherto not presented
before the learned Foreigners Tribunal. In this case, the Court is not exercising
appellate or revisional jurisdiction. The petitioner has failed to show that the
impugned opinion is vitiated by any error apparent on the face of the record.
Accordingly, the Court is of the considered opinion that in exercise of certiorari
jurisdiction under Article 226 of the Constitution of India, the High Court ought
not to substitute its view over the opinion of the learned Foreigners Tribunal,
which is not found to be vitiated by any error whatsoever. If one needs any
authority on the point, the decision of the Supreme Court of India in the case of
Central Council for Research in Ayurvedic Sciences v. Bikartan Das, 2023 INSC
733: (2023) 0 Supreme(SC) 763, may be referred to. Paragraph 77 thereof is
quoted below:-
“77. The purpose of certiorari, as we understand, is only to confine the inferior
tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non-
exercise or the illegal assumption of it and not to correct errors of finding of fact or
interpretation of law committed by them in the exercise of powers vested in them
under the statute. The accepted rule is that where a Court has jurisdiction it has a
right to decide every question which crops up in the case and whether its decision
is correct or otherwise, it is bound to stand until reversed by a competent Court.
This Court in G. Veerappa Pillai v. Messrs Raman and Raman Ltd. Kumbakonam,
Tanjore District and Others, (1952) 1 SCC 334 observed:
“26. Such writs as are referred to in Article 226 are obviously intended to
enable the High Court to issue them in grave cases where the subordinate
tribunals or bodies or officers act wholly without jurisdiction, or in excess of
it, or in violation of the principles of natural justice, or refuse to exercise a
jurisdiction vested in them, or there is an error apparent on the face of the
record, and such act, omission, error, or excess has resulted in manifest
injustice. However extensive the jurisdiction may be, it seems to us that it is
not so wide or large as to enable the High Court to convert itself into a court
of appeal and examine for itself the correctness of the decision impugned
Page No.# 13/13and decide what is the proper view to be taken or the order to be made .”
29. Thus, the challenge to the impugned ex parte opinion dated
13.06.2016, passed by the learned Member, Foreigners Tribunal No.3 rd,
Morigaon, in Case No. F.T. 06/2016, arising out of F.T. Case No. 232/2009, dated
21.07.2009, by which the petitioner, namely, Mustt. Jubeda Begum, was
declared to be a foreigner who had entered into India illegally from Bangladesh
after 25.03.1971, fails. Resultantly, this writ petition is dismissed. The
consequences of the said opinion shall follow.
30. There shall be no order as to cost.
31. Registry shall send back the records to the learned Tribunal.
32. 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