BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE RAJESH MAZUMDAR JUDGMENT & ORDER (Oral) Date : 06-08-2025 (Rajesh Mazumdar, J) Heard Mr. A.R. Sikdar, learned counsel appearing for the petitioner. Also heard Ms. S. Baruah, learned CGC; Mr. M. Islam, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for the ECI; Mr. G. Sarma, learned standing counsel for the FT matters and NRC and Mr. H.K. Hazarika, learned Govt. Advocate for the respondents.

2. The present writ petition has been preferred by the writ petitioner under Article 226 of the Constitution of India assailing the opinion rendered on 27-09-2019 by the learned Member, Foreigners Tribunal (4 th), Nagaon, Juria, Assam in F.T. Case No. 145/2016 arising out of Police Reference FT Case No. 75/2016.

3. The facts of the case, briefly stated, are that the Superintendent of Police (Border), Nagaon had made a reference vide FT Case No. 75/2016 to the Foreigners Tribunal No. 1, Nagaon for a decision as to whether the petitioner had entered Assam on or after 25-03- 1971 without any valid documents and whether she is a foreigner after 25-03-1971 as per Page No.# 3/14 Foreigners Tribunal Act, 1964 . The reference was transferred to the Foreigners Tribunal (4th), Nagaon as per notification issued by the Govt. and was registered as FT Case No. 145/2016. Upon receipt of notices which were issued on 23-05-2016, the writ petitioner/ proceedee appeared through her counsel and submitted written statement.

4. The order dated 27-09-2019 records that the examination of the prosecution side was dispensed by the learned Tribunal in order to speed up disposal of the reference case.

5. The writ petitioner/ proceedee had submitted her examination-in-chief and had also produced affidavits of witnesses. She exhibited a certificate issued by the Gaon Burah of Melekadhing and Goria Kawoimari village as Exhibit-1; Certified copy of the Voters List of 1965 as Exhibit-2; Certified copy of the Voters List of 1970 as Exhibit-3 and land deeds as Exhibit-4, Exhibit- 5 and Exhibit-6. The Gaon Burah, who had issued the Exhibit-1, adduced evidence as DW-1. Record reveals that on 19-05-2017, after consideration of entire materials on record, the learned Tribunal opined that the proceedee/ writ petitioner was not a foreigner or illegal migrant of any stream. The reference was accordingly answered in the negative. It was noted in the order dated 19-05-2017 that the opinion would follow in separate sheets.

6. In the meantime, this Court in W.P.(Suo-Motu) Case No. 01/2018 passed an order with regard to around 218 references of the Foreigners Tribunal (4 th), Nagaon at Juria and Foreigners Tribunal (5th), Nagaon at Dhing to the effect that the order of disposal in those cases would be treated to be non est in the eye of law and such orders were Page No.# 4/14 accordingly set aside. It was further directed that all the above 218 references were now required to be heard afresh from the respective stages. The FT Case No. 145/2016 was listed at Sl. No. 70 of the said order in respect of the 188 references disposed of by the Foreigners Tribunal (4th), Nagaon at Juria.

7. Pursuant to memo No. HC-XXI/1528/1532 dated 22-06-2018 issued by the Gauhati High Court, the learned Tribunal again issued notice to the writ petitioner/ proceedee and fixed the matter for argument. Accordingly, the proceedee appeared and submitted arguments and the then Member also put signature on the exhibited documents which were not signed by the erstwhile Member.

8. The learned Tribunal excluded Exhibit-1 from being considered since the Gaon Burah had issued the certificate on a letter-head carrying the State Emblem of India. Exhibit-2 was negated on doubting the signature of issuing authority. Though other exhibits were referred to, no discussion regarding them was made while arriving at the impuged opinion. The learned Tribunal went ahead to hold that the petitioner could not discharge her burden under Section 9 of the Foreigners Act to prove that she is not a foreigner and therefore, the reference was answered in the affirmative in favour of the State.

9. The present writ petition thereafter came to be filed on 27-06-2025 and when the matter was first taken up on 21-07-2025, this Court had noticed delay in preferring the writ petition to assail an opinion rendered on 27-08-2019 and time was afforded to the learned counsel for the petitioner to address on the maintainability of the writ petition.

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10. We have heard Mr. A.R. Sikdar, learned counsel for the petitioner and also Mr. G. Sarma, learned standing counsel, FT matters. Since issue of delay and laches in preferring a writ petition is one of the important facets, the said aspects is being dealt with first. We have gone through the writ petition meticulously and it is seen that the only attempt to justify the delay in approaching the Court is made at paragraph 17, which is as follows:-

11. We found this to be an extremely vague explanation and therefore, opportunity was granted to the petitioner to explain or justifiy the delay. The learned counsel for the petitioner has submitted that the petitioner belongs to a very humble background and it is only due to the extreme financial hardship from the period when she was opined to be a foreigner to till recently that she could not approach this Court at an earlier date. In his endeavour to convince the Court that delay on the ground of financial constraints deserves to be condoned, he has referred to the judgment and order dated 02-01-2025 delivered by the Hon'ble Apex Court in the case of Mahesh Singh Banzara Vs. State of MP [Crl. Appeal No. _ _ _ of 2025 arising out of SLP (Crl.) No. 18045/2024] . He has drawn our attention to paragraph 6 of the said order to emphasize that when a litigant furnishes reasons for delay in approaching the Court, the Court would not dismiss the appeal as time barred without examining the reasons for delay. He emphasized that the Hon'ble Apex Court had interfered with the High Court's order in dismissing the appeal therein solely due to delay without properly examining the reasons for delay.

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12. Mr. A.R. Sikdar, learned counsel for the petitioner has also drawn our attention to the judgment and order rendered in the case of Collector, Land Acquisition, Anantnag & Anr. Vs. Mst . Katiji & Ors ., reported in (1987) 2 SCC 107 to emphasize that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

13. On the other hand, Mr. G. Sarma, learned standing counsel, FT matters has drawn our attention to the fact that the petitioner had not offered any explanation except a passing reference to "financial hardship" to justify the delay in approaching the Court. He has submitted that the privilege of citizenship is an extremely valuable privilege for a bonafide citizen which is to be well guarded and no prudent person would sleep for 06 (six) years over an opinion rendered against him regarding his citizenship. He argues that challenge to such an opinion would hold primacy in the mind of a citizen and a passing reference to "financial crisis" would not stop a bonafide citizen from assailing such an order. He has further argued that the ground of financial crisis is not a genuine ground for the petitioner, who admittedly was pursuing a mutation case bearing No. NAG/RUP/2020- 21/608/FMUT in Dag No. 111, Patta No. 168. He submits that therefore, it cannot be said that she was in any financial crisis which could stop her from pursuing her valuable right of citizenship atleast on and after the year 2020. The learned standing counsel, FT Page No.# 7/14 matters has referred to judgment and order rendered by the Hon'ble Apex Court in the case of Mrinmoy Maity Vs. Chhanda Koley & Ors. reported in 2024 LiveLaw (SC) 318 to convince us that the Court may refuse to invoke any extra ordinary powers conferred by jurisdiction under Article 226 of the Constitution of India if the laxity of the applicant to assert his right has allowed the cause of action to drift away and that the Court ought to dismiss a belated petition on that sole ground itself so that an indolent litigant can be stopped from taking advantage of his own wrong.

14. We have heard the learned counsel for the parties and given our anxious consideration to the pleadings and to the case law referred to by the counsel. Chronology of events as is reflected from the records available with us in the writ petition may be summarized as follows.

15. The writ petitioner/ proceedee had been served with a notice issued on 23-05-2016 by the Foreigners Tribunal (4th), Nagaon requiring the petitioner to appear before the learned Tribunal on 17-06-2016. It is stated by the petitioner that she appeared before the Tribunal on receipt of notice and filed her written statement on 02-07-2016. The petitioner/ proceedee thereafter filed her written evidence-in-chief on 08-09-2016 and the DW-2 also filed evidence on the same date. Records also reveal that erstwhile Member of the learned Tribunal disposed of the reference by answering it in the negative on 19-05- 2017, declaring the petitioner not to be a foreigner or illegal migrant of any stream.

16. On the matter being taken up afresh pursuant to the Gauhati High Court's memo No. HC-XXI/1528/1532 dated 22-06-2018, notices were received by the writ petitioner/ Page No.# 8/14 proceedee and proceedee appeared through her counsel and submitted arguments. The proceedee had also filed petition to sign the exhibited documents which were not signed by the erstwhile Member of the Tribunal. Record reveals that the arguments were heard on 16-08-2019 and the opinion which is impugned in this writ petition was delivered on 27-09-2019.

17. A perusal of the contents of the statements and submissions of the writ petitioner/ proceedee do not reveal any attempt on the part of the petitioner to assail the aforesaid opinion in the last 06 (six) years. Giving a margin for the period when the Country reeled under the disastrous effects of Covid-19 pandemic, even then the petitioner had taken nearly 04 years thereafter to prefer the present writ petition. It is interesting to note that at paragraph 18, the petitioner has made a statement that she is apprehending arrest as a consequence of the opinion which is assailed herein. Therefore, we are constrained to note that there is no acceptable explanation to the delay by the petitioner in assailing the opinion of the learned Tribunal.

18. We have given our anxious consideration to the judgments cited by the learned counsel for the writ petitioner. We have noticed that in the case of Mahesh Singh Banzara (Supra), the same related to a delay in preferring a criminal appeal against an order of conviction and sentence. The Hon'ble Supreme Court had referred to the judgment of Dilip S. Dahanukar Vs. Kotak Mahindra Co. Ltd. , reported in (2007) 6 SCC 528 and noted that an appeal is indisputably a statutory right and the right of appeal from a judgment of conviction affecting the liberty of a person is a Fundamental Right. Referring to another judgment rendered in the case of Rajendra Vs. State of Page No. # 9/14 Rajasthan, reported in (1982) 3 SCC 382 (2), the Hon'ble Supreme Court observed that an appeal would not deserve dismissal as time barred without examining the reasons for delay. The necessity of examining the reasons for delay in filing an appeal without substantive assessment of the appellant's reasons was held to be erroneous.

19. In connection with the present writ petition, we notice that no appeal lies from an opinion rendered by the Foreigners Tribunal and therefore, it cannot be said that the proceedee would suffer a loss of Fundamental Right or right of appeal as observed in Dilip S. Dahanukar (Supra). An opinion rendered by a Foreigners Tribunal can be assailed by preferring a petition invoking extra ordinary jurisdiction under Article 226 of the Constitution of India, praying for a writ of certiorari. It is also settled position that the Court, while considering application under Article 226 of the Constitution of India, would not act as an appellate authority. In our considered opinion therefore, aforesaid two judgments do not come to the rescue of the petitioner to convince us to condone the extra ordinary delay of nearly 04 years.

20. Even then we have tried to find out if the petitioner has been able to give any reasons for the delay in her approaching the Court. Though a passing reference has been made to "extreme financial hardship", we find that the same may not be wholly reliable since she was pursuing Mutation Case No. NAG/RUP/2020-21/608/FMUT in respect of a plot of land covered by Dag No. 111, Patta No. 168 to have her name mutated as a legal heir to the said property. It is difficult for us to fathom that the petitioner would be solvent enough to pursue a right in her property while neglecting to assail an opinion which deprived her of citizenship status in the Country. Therefore, we do not find the Page No.# 10/14 reference to extreme financial hardship to be a reason in this particular case to convince us to condone the delay.

21. We have also taken note of the judgment rendered in Mst. Katiji (Supra) where the Hon'ble Apex Court has held that when substantial justice and technical consideration are pitted against each other the cause of substantial justice deserves to be preferred. To see as to whether any substantial justice would be denied to the petitioner in case her approach to this Court is curtailed on the ground of delay and laches, we have to look into the opinion which is assailed and we also have to look into as to whether the proceedee suffered any prejudice during the decision making process before the learned Tribunal. For this we have referred to the contents of the writ petition. The petitioner has raised a grievance mainly in the manner in which the different exhibits placed by the petitioner before the learned Tribunal had been appreciated or rejected and the petitioner has not alleged anywhere that there was any flaw in the procedure adopted by the learned Tribunal. We, therefore, find that the petitioner has not been able to make out a prima facie case that she suffered any denial of substantial justice and therefore, we do not find that the judgment relied upon by the learned counsel for the petitioner in manner assists her. The petitioner has sought to invoke the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India after a long lapse and the delay and laches on the part of the petitioner have not been explained to the satisfaction of the Court.

22. In this regard, we find that the law laid down by the Hon'ble Supreme Court in the case of Mrinmoy Maity (Supra) which has also been relied upon by the learned standing counsel for the FT matters applies to the present case. Paragraphs 11 and 12 of Page No.# 11/14 the said decision is extracted here-in-below for a ready reference:

12. It is apposite to take note of the dicta laid down by this Court in Karnataka Power Corporation Ltd. and another v. K. Thangappan and another , (2006) 4 SCC 322 whereunder it has been held that the High Court may refuse to exercise extraordinary jurisdiction if there is negligence or omissions on the part of the applicant to assert his right. It has been further held thereunder:

8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of the Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article 226. It was observed in Rabindranath Bose Page No.# 13/14 v. Union of India [(1970) 1 SCC 84: AIR 1970 SC 470] that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution-makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.

9. It was stated in State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566 :

Having regard to the absence of any reason worth consideration being put forward by the proceedee/ writ petitioner for the enormous delay of 2100 days in assailing the opinion dated 27-09-2019, we do not find it a fit case to entertain the writ petition. We, therefore, reject the writ petition on the ground of unexplained delay and laches on the part of the writ petitioner.

The consequence of the dismissal of this writ petition shall follow. There shall, however, be no order as to cost.