Gauhati High Court
Hashmat Ali vs The Union Of India And 5 Ors on 18 June, 2025
Author: M. Nandi
Bench: Kalyan Rai Surana, Malasri Nandi
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GAHC010268692024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/302/2025
HASHMAT ALI
S/O- JAYENUDDIN @ JAYNADI SHEIKH, VILL- KHOLABANDHA, P.S.
TARABARI, DISTRICT- BARPETA (ASSAM)
VERSUS
THE UNION OF INDIA AND 5 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY
OF HOME AFFAIRS, SHASTRI BHAWAN, TRILOK MARG, NEW DELHI-
110001
2:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTION COMMISSIONER
NEW DELHI- 110001
3:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI- 781006
4:THE STATE COORDINAOR OF NATIONAL REGISTER OF CITIZENS
ASSAM
1ST FLOOR
ACHYUT PLAZA
GUWAHATI SHILLONG ROAD
BHANGAGARH
GUWAHATI
ASSAM
PIN- 781005
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5:THE DISTRICT COMMISSIONER OF BARPETA DISTRICT
P.O.
P.S. AND DIST.- BARPETA
ASSAM
PIN- 781301
6:THE SUPERINTENDENT OF POLICE (BORDER)
BARPETA DISTRICT
P.O.
P.S. AND DIST.- BARPETA
ASSAM
PIN- 78130
Advocate for the Petitioner : MR. A T SARKAR, AMINUR RAHMAN
Advocate for the Respondent : DY.S.G.I., SC, ELECTION COMMISSION.,GA, ASSAM,SC, F.T
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
18.06.2025
(M. Nandi, J)
Heard Mr. A.T. Sarkar, learned counsel for the petitioner. Also heard Mr. P.
Sarmah, learned Additional Senior Government Advocate; Mr. P.S. Lahkar,
learned CGC; Mr. M. Islam, learned Advocate for Mr. A.I. Ali, learned Standing
Counsel, ECI; and Ms. A. Verma, learned Standing Counsel, FT matters.
2. By filing this writ petition under Article 226 of the Constitution of India, the
petitioner has assailed the ex parte order dated 17.09.2022, passed by the
learned Member, Foreigners Tribunal 7th, Barpeta in F.T Case No.768/2017
(Reference Case No.8218/98), whereby the petitioner was declared as an illegal
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migrant.
3. The case of the petitioner is that he is a citizen of India by birth. He was
born in the year 1961 at village – Kholabandha, P.S – Tarabari in the district of
Barpeta, Assam. His name was enrolled in the voter list for the first time in the
year 1997 but subsequently, he was identified as “D Voter”. Thereafter, in
pursuant to the notice issued by the Tribunal, he appeared before the Tribunal
and sought time to file written statement but subsequently, he realized that he
was not having the certified copy of voter list of 1955 containing his father’s
name as his father’s name was not enrolled in any other voter list after 1955
from the said village till his death i.e. 1969.
4. Accordingly, the petitioner applied for the certified copy of voter list of
1955, but the same was not furnished to him by saying that the said voter list
was not available in the Election Office, Barpeta. Meanwhile, the proceeding of
the case was substantially progressed and after giving enough opportunities to
the petitioner, the learned Tribunal passed the impugned ex parte order
declaring the petitioner as an illegal migrant.
5. Learned counsel for the petitioner has stressed his argument on the point
that the name of his father Jaynuddin Sheikh @ Jayenuddin was enlisted in the
voter list of 1955 along with other family members from village – Lohorapam
under Tarabari P.S in the then district of Kamrup (at present Barpeta) and since
then he has been casting vote in all the elections held in Assam and his
citizenship was never suspected by any authority at any point of time till his
death.
6. According to learned counsel for the petitioner, in spite of best effort, the
petitioner could not collect the certified copy of voter list of 1955 of his father.
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Subsequently, he collected voter list of 1955 from Panchayat Office which is
annexed in this writ petition. It is further submitted that the name of the
petitioner was enlisted in the voter list of 1997 along with other family
members. But he was identified as “D Voter”. Similarly, the name of the
petitioner appeared in the voter lists of 2005, 2010, 2011 and 2017 from the
same village.
7. It is further contended that no any foreigner’s case have been initiated
against any family members of the petitioner and all the family members have
been enjoying the citizenship rights of India and as such, initiation of the
foreigner’s case against the petitioner is not at all acceptable. Hence, the
impugned order/opinion dated 17.09.2022 is liable to be set aside. The
alternative submission of learned counsel for the petitioner is to remand the
matter before the Tribunal for fresh adjudication giving one more chance to the
petitioner to exhibit the relevant documents to prove his citizenship.
8. In support of his submission, the learned counsel for the petitioner has
relied on the following case vide (2023) 4 GLT 425 [Pranati Hazong Vs. Union of
India and Ors.)
9. In response, the learned counsel for the FT matters, Ms. Verma has
vehemently opposed either to set aside the order of the Tribunal or remand the
matter for fresh adjudication. It is submitted that notice was duly served to the
petitioner and the petitioner has also appeared before the Tribunal seeking time
for filing written statement. It transpires that he has knowledge that the case is
pending before the Tribunal. In spite of having knowledge for taking necessary
steps to proceed with the case, he did not appear before the Tribunal for a long
time. As a result of which, ex parte opinion was rendered by the Tribunal.
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10. Learned counsel has also submitted that sufficient opportunity was given
to the petitioner by the Tribunal, however, the petitioner has failed to take such
opportunity. As such, the case was rightly decided by the Tribunal as ex parte.
11. By referring the case of Ijjat Ali Vs. Union of India vide WP(C) 8361/2009 ,
the learned counsel has submitted that a proceeding before the Foreigners’
Tribunal cannot be an endless exercise. Accordingly, learned counsel has prayed
for dismissal of the writ petition.
Ms. Verma has also relied on some other case laws in support of
her submission –
a) WP(C) 291/2024 [Baharul Islam Vs. Union of India and
Others]
b) WP(C) 1293/2020 [ Sajiran Nessa Vs. Union of India
and Others]
c) WP(C) 82/2024 [ Baten Paramanik Vs. Union of India
and Others]
d) (2023) SCC Online SC 996 [Central Council for Research
in Ayurvedic Sciences and another Vs. Bikartan Das and
Others]
12. Ms. Verma has also stated that the ex parte opinion was rendered by the
Tribunal on 17.09.2022 but the petitioner has approached before this Court in
the year 2025 i.e. after three years of passing of the order. In this regard, she
referred another case law vide (2024) Live Law (SC 318) [Mrinmoy Maiti Vs.
Chhanda Koley and others] wherein it was held by the Hon’ble Supreme Court
that for filing a writ petition, there is no fixed period of limitation prescribed but
the High Court will have to necessarily take into consideration the delay and
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latches of the application in approaching a writ court.
Accordingly, the learned counsel has contended that the petitioner has
not come with clean hands and prayed for dismissal of the writ petition.
13. We have considered the submissions of the learned counsel for the parties
and we have also perused the trial court record. It appears that on receipt of
the notice, the petitioner appeared before the Tribunal in person along with his
engaged counsel on 18.04.2022 and filed a petition seeking time for filing
written statement which was allowed by the Tribunal and the next date was
fixed on 07.05.2022. On 07.05.2022, the petitioner was present along with his
counsel and again filed a petition praying for another date for filing written
statement and which was accordingly allowed fixing a date on 21.05.2022 for
filing written statements along with relevant documents. On subsequent date
i.e. on 21.05.2022, the petitioner was absent but his counsel filed a petition
seeking time for filing written statement which was allowed.
14. On the next date i.e. on 08.06.2022, though petitioner was present along
with his counsel, but failed to submit the written statement and prayed for
another date which was allowed. On subsequent dates i.e. on 20.07.2022,
12.08.2022 and 23.08.2023, the petitioner was absent before the Tribunal but
his counsel filed petitions on such dates seeking time which was also allowed by
the Tribunal for ends of justice. But ultimately, on 17.09.2022, neither the
petitioner nor his counsel was present and took any steps in the case and the
Tribunal finding no other alternative passed the ex parte opinion declaring the
petitioner as a foreigner of post 25.03.1971.
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15. Having regard to the undisputed facts, as above, we find that sufficient
opportunities were granted to the petitioner to establish his claim as not being a
foreigner or to refute the allegation that he had illegally entered into the
Territory of India after 25.03.1971.
16. In this context, we may observe that although the procedure of
identification or for declaring an individual to be a foreign national cannot be
relegated to a mechanical exercise and that fair and reasonable opportunity
must be afforded to a proceedee to establish the claim that he/she is a citizen of
India. However, such grant of fair and reasonable opportunity cannot be
enlarged to an endless exercise. A person who is not diligent and is negligent in
taking steps to safeguard his interest, he does so at his own risk. In the instant
case, several opportunities were granted to the petitioner to establish his claim
which he utterly failed to do so.
17. In this context, we also observe that in a proceeding under the Foreigners
Act, 1946 and the Foreigners (Tribunals) Order 1964, the primary issue for
determination is whether a proceedee is a foreigner or not. The relevant fact
being specially within the knowledge of the proceedee as such, the burden of
proving citizenship absolutely rests upon the proceedee, notwithstanding,
anything contained in the Indian Evidence Act, 1872. This is mandated u/s 9 of
the aforesaid Act, 1946. The said position would not change even in an ex parte
proceeding before the Tribunal as the burden never shifts but continues to be
upon the proceedee.
18. In a situation where no evidence is adduced or the burden is not
discharged, the only option left to the Tribunal, would be to declare the
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proceedee to be a foreigner, based on the grounds of reference upon which
appropriate proceeding was initiated, notice was duly issued and duly served
upon the proceedee.
19. In the case in hand, on receipt of the notice though the petitioner put his
appearance before the Tribunal, sought several adjournments for filing written
statement but ultimately failed to submit the written statement. The petitioner
neglected to participate/contest the proceedings by way of adducing evidence
or to prove the assertion made in the writ petition.
20. Having noticed as above, another aspect to be noted is that the scope of
interference under Article 226 of the Constitution of India to a decision of the
Tribunal is limited to correcting errors of jurisdiction or when decision is made
by the Tribunal without giving opportunity of hearing or when judgment is
rendered in violation of the principle of natural justice or where there appears to
be an error apparent on the face of the record. None of the above grounds exist
in the present case.
21. To reiterate, sufficient opportunities have been granted to the petitioner to
discharge the burden of proving that he is not a foreigner, which he utterly
failed to discharge. On this ground alone, the writ court would refrain from
interfering with the impugned order.
22. We also hold that the documents enclosed in the writ petition cannot be
looked into, those not having been proved before the Tribunal at the first
instance, despite sufficient opportunities being afforded.
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23. We find no merit in the present writ petition. Accordingly, the writ petition
is dismissed and the order/ opinion of the Tribunal is affirmed. There shall be no
order as to costs.
24. The writ petition is disposed of accordingly.
25. Transmit the records to the Tribunal.
JUDGE JUDGE Comparing Assistant