Page No.# 1/ vs The Union Of India And 5 Ors on 9 March, 2026

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    Gauhati High Court

    Page No.# 1/ vs The Union Of India And 5 Ors on 9 March, 2026

    Author: K.R. Surana

    Bench: Kalyan Rai Surana

                                                                    Page No.# 1/10
    
    GAHC010025462026
    
    
    
    
                                                          2026:GAU-AS:3618-DB
    
                          THE GAUHATI HIGH COURT
      (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
    
                             Case No. : WP(C)/1333/2026
    
             MARIYAM BIBI @ MARIYAM BEWA @ MORIUM BEWA @ MARIAN BIBI
             D/O- LT. MAMAR ALI SHEIKH @ MAMUR ALI, W/O- NOWSAD ALI
             VILLAGE- HARBHANGA GOSSAIGAON, P.O. TULSHIBIL, P.S. GOSSAIGAON
             DIST. KOKRAJHAR, ASSAM, PIN- 783337
    
    
    
             VERSUS
    
             THE UNION OF INDIA AND 5 ORS
             REPRESENTED BY THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA,
             NEW DELHI. 110001
    
             2:THE ELECTION COMMISSION OF INDIA
              REPRESENTED BY THE CHIEF ELECTION COMMISSIONER
              INDIA
              NEW DELHI. 110001
    
             3:THE STATE OF ASSAM
              REPRESENTED BY THE GOVT. OF ASSAM
              HOME DEPARTMENT
              DISPUR
              GHY-6.
    
             4:THE STATE COORDINATOR
              NATIONAL REGISTER OF CITIZENS
             ASSAM
              BHANGAGARH
              GHY-5.
    
             5:THE SUPERINTENDENT OF POLICE (B)
              KOKRAJHAR
              DIST. KOKRAJHAR
             ASSAM. PIN-783370.
                                                                                  Page No.# 2/10
    
    
                6:THE DISTRICT COMMISSIONER
    
                 KOKRAJHAR
                 DIST. KOKRAJHAR
                 ASSAM. PIN-783370
    
    Advocate for the Petitioner   : MD. A HUSSAIN, MR. K ALOM,MR. T ISLAM
    
    Advocate for the Respondent : DY.S.G.I., SC, ECI,GA, ASSAM,SC, NRC,SC, F.T
    
    
    
    
                                      BEFORE
                      HONOURABLE MR. JUSTICE KALYAN RAI SURANA
                    HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA
    
                                             ORDER
    

    Date : 09.03.2026
    (K.R. Surana, J)

    Heard Mr. A. Hussain, learned counsel for the petitioner. Also heard
    Ms. S. Baruah, learned CGC; Mr. G. Sarma, learned standing counsel for the FT
    & Border matters; Ms. S. Katakey, learned standing counsel for the ECI; and Mr.
    H.K. Hazarika, learned Govt. Advocate for the State respondent.

    SPONSORED

    2. By filing this writ petition under Article 226 of the Constitution
    of India, the petitioner, namely, Mariyam Bibi @ Mariyam Bewa @ Morium Bewa
    @ Marian Bibi, has assailed the impugned ex parte opinion dated 27.03.1998,
    passed by the learned Member, Foreigners’ Tribunal, Dhubri, in FT Case No.
    3102/K/87, by which she was declared to be a foreigner of 1966-71 stream.

    3. This writ petition was filed on 09.02.2026 to assail the ex parte
    opinion dated 27.03.1998, i.e. after there has been an extraordinary delay of 27
    years, 10 months, 13 days (or 10181 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.

    Page No.# 3/10

    4. The learned counsel for the petitioner submits that the
    petitioner had no knowledge of the reference made against her or of the notice
    dated 03.01.1998 issued in F.T. Case No. 3102/K/87, as no notice was ever
    served upon her. It is submitted that the petitioner came to know about the
    impugned ex parte opinion dated 27.03.1998 only in the last week of December
    2025, when the Border Police visited her residence and informed her family
    members that she had been declared a foreigner.

    5. It is further submitted that upon acquiring such knowledge, the
    petitioner immediately contacted an advocate in the first week of January 2026
    and, upon verification of the records in the second week of January 2026, it was
    ascertained that the learned Foreigners’ Tribunal, Dhubri had passed the ex
    parte opinion declaring the petitioner to be a foreigner of the 1966-1971
    stream. Thereafter, on the advice of her learned counsel, the petitioner filed a
    review petition before the learned Tribunal on 28.01.2026 seeking to set aside
    the said ex parte opinion. However, the learned Tribunal refused to entertain the
    same and returned the petition without passing any formal order.

    6. The learned counsel for the petitioner further submits that
    thereafter the petitioner applied for certified copies of the relevant records on
    29.01.2026 and obtained the same on the very day. Subsequently, the petitioner
    came to Guwahati on 05.02.2026 and the present writ petition was drafted and
    finalized on 08.02.2026 and filed before this Court on 09.02.2026. It is therefore
    submitted that there has been no deliberate delay in approaching this Court,
    and the petitioner acted promptly upon gaining knowledge of the impugned
    opinion.

    7. It is also submitted that at the relevant time, there was a
    matrimonial dispute between the petitioner and her husband, Late Nowsad Ali,
    Page No.# 4/10

    since the year 1996, due to which the petitioner had been residing separately
    from him. As per the service report, the notice dated 03.01.1998 was allegedly
    received by her husband on 20.01.1998. However, as the petitioner was residing
    separately owing to the matrimonial dispute, her husband did not inform her
    about the said notice. It is further submitted that her husband subsequently
    died on 12.12.1998. As a result of the aforesaid circumstances, the petitioner
    could not appear before the learned Tribunal and contest the proceeding, which
    ultimately resulted in the passing of the ex parte opinion declaring her to be a
    foreigner of the 1966-1971 stream.

    8. 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.

    9. 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.

    10. This Court has considered the explanation tendered by the
    petitioner that due to matrimonial disputes with her husband, Late Nowsad Ali,
    since the year 1996, she had been residing separately from him and, therefore,
    she had no knowledge of the notice allegedly received by her husband in
    connection with the proceeding before the learned Foreigners’ Tribunal.

    11. However, on perusal of the ration card (Annexure- 13) placed on
    record by the petitioner herself, it appears that the said ration card was issued
    on 09.02.2021 and the family details recorded therein show the following ages
    of the petitioner’s sons: Jakir Hussain – 26 years, Khairul Hussain – 22 years,
    Mofidur Hussain – 28 years and Mamur Hussain – 33 years.

    Page No.# 5/10

    12. It is noticed that if the age of Khairul Hussain is shown as 22 years in
    the year 2021, his year of birth would be around 1999. The petitioner has,
    however, claimed that she had been residing separately from her husband since
    1996 due to matrimonial disputes and her husband had died on 12.12.1998. If
    that were so, the birth of her son in the year 1999 raises a serious doubt
    regarding the correctness of the said statement.

    13. In such circumstances, it appears that even if there existed some
    dispute between the petitioner and her husband, the parties were not
    completely estranged and were maintaining contact with each other with
    visitation and conjugal rights, which ultimately resulted in the birth of their child
    in the year 1999.

    14. In view of the above circumstances, the explanation furnished by the
    petitioner that she had been residing separately from her husband since 1996
    and therefore, had no knowledge of the notice allegedly served upon him does
    not inspire confidence. Rather, her statement appears to be vague and not
    wholly credible, and therefore the same cannot be accepted by this Court as a
    satisfactory explanation for her non-appearance before the learned Foreigners’
    Tribunal.

    15. In this case, the delay and laches of the petitioner are in two phases.
    Firstly, from the date of service of notice in accordance with the provisions of
    Order 3(5)(c) of the Foreigners (Tribunals) Order, 1964 till the passing of the ex
    parte opinion; and secondly, from 27.03.1998, the date of the impugned ex
    parte opinion till 09.02.2026, the date of filing of this writ petition. On both
    counts, the delay is not properly explained.

    Page No.# 6/10

    16. The notice of the proceeding was served on her husband. Thus, the
    petitioner is deemed to have due knowledge that he was being accused of being
    a foreigner who had illegally entered into India (Assam) from the specified
    territory and thus, not an Indian. Yet, the petitioner had not contested the
    proceeding.

    17. It may also be mentioned that 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 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.”

    18. 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
    Page No.# 7/10

    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.”

    19. 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.

    20. Moreover, this Court, in the case of Ajbahar Ali v. Union of India,
    (2025) 0 Supreme (Gau) 763, has 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 .

    21. 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
    Page No.# 8/10

    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.

    22. By showering sympathy in this particular case, this Court would
    be encouraging unscrupulous practice of not appearing before Courts and
    Tribunals, despite notice being duly served on an adult member of the family.

    23. The Court is of the considered opinion that if such belated
    petitions are entertained after 27 years, 10 months, 13 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(8) and Order 3(14) of the
    Foreigners (Tribunals) Order, 1964 otiose.

    24. 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
    Court is exercising certiorari jurisdiction and thus, cannot act as a Court of
    original jurisdiction so as to convert itself into a Foreigners Tribunals and start
    examining and appreciating the documents annexed to the writ petition, which
    Page No.# 9/10

    were hitherto not presented before the learned Foreigners Tribunal. This Court
    is not exercising appellate 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 the 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 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
    and decide what is the proper view to be taken or the order to be made.”

    25. Thus, the challenge to the impugned ex parte opinion dated
    27.03.1998, passed by the learned Member, Foreigners’ Tribunal, Dhubri, in FT
    Page No.# 10/10

    Case No. 3102/K/87, by which the petitioner, namely, Mariyam Bibi @ Mariyam
    Bewa @ Morium Bewa @ Marian Bibi, was declared to be a foreigner of 1966-71
    stream, fails. Resultantly, this writ petition is dismissed at the “motion stage”

    without issuing notice upon the respondents. The consequences of the said
    opinion shall follow.

    26. There shall be no order as to cost.

    27. 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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