‘Sympathy will encourage absenteeism’: Gauhati High Court rejects woman’s plea filed 9 years after being declared foreigner

“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,” the Gauhati High Court’s March 5 order read.

The high court further mentioned that though the petitioner had stated that due to financial constraints she could not approach the court earlier, it could not be accepted that court fees are so high as to be beyond the reach of a common person.

Justices Kalyan Rai Surana and Susmita Phukan Khaund noted that despite knowing about a serious inquiry against her, the petitioner did not participate in related proceedings.

‘Delay defeats equity’

• The court stated that no period of limitation is prescribed for filing a petition. However, unless the petitioner demonstrates good and solid reason, “delay and laches” would disentitle the petitioner to equitable relief on the principle that “delay defeats equity”.
• The petitioner has filed this petition after 9 years, 7 days or 3294 days, and the said delay cannot be explained merely by stating that the petitioner is poor and unable to manage the cost and expenditure of approaching this court.
• The petitioner has also mentioned that she was unaware of the legal proceedings and their consequences, but such a vague statement cannot be accepted, as nothing prevented the petitioner from availing the free legal aid, which she did not.
• If such belated petitions are entertained after 9 years, 7 days or 3,294 days, all delays, irrespective of the number of days, will have to be condoned at the drop of a hat. It would also make the provisions of the Foreigners (Tribunals) Order, 1964, ineffective.

• The petitioner could not show which fundamental right would be violated if the ex parte opinion is not set aside.
• 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 endless time to assail the opinion passed by the tribunals.
• It is not the case of the petitioner that neither her nor any person in her family was aware that an inquiry was underway as to whether or not she was an illegal migrant from the specified territory
• Despite knowing of such a serious inquiry, the petitioner did not participate in the proceeding.
• It may also be stated that usually and in the normal course, uniformed police personnel from the border branch of the concerned police station visit the house of the proceedee to serve notice and process for appearance.
• It would be hard to believe that no villager would come to know about the 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 the police to a co-villager’s house.
• The challenge to the said ex parte opinion of June 2016 declaring the petitioner a foreigner who had entered into India illegally from Bangladesh after March 1971 fails.

‘Two phases of delay’

• The high court noted that, 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 the Foreigners (Tribunals) Order, 1964, from November 2014 till passing of the ex parte opinion in June 2016.
• During this period, the petitioner appeared with an engaged lawyer only once in December 2014, and thereafter, she had remained absent on all the dates by showing various reasons and sometimes without any steps.
• It was also noted that she was again absent from the date of the impugned ex parte opinion in 2016 till the filing of this present plea petition in 2025.
• The court noted that the delay is not properly and sufficiently explained by the petitioner in all these counts.

Arguments

• Appearing for the petitioner, advocate A M Dutta argued that his client belongs to the lower strata of society and has a financially weak background to engage a lawyer in time.
• Dutta further added that only when the petitioner met him could she file the present plea before the Gauhati High Court.
• He also mentioned that the petitioner has all the documents to prove that she is an Indian citizen.
• On the contrary, the counsel representing the tribunal and border matters had submitted that the explanation given is vague and not supported by any documents or any other cogent and reliable material.

‘Born and brought up in Assam’

• The petitioner has submitted that she is an Indian citizen by birth, born on or about the year 1957 in Hatimuria village, Assam.
• She claimed her parents were the late Abdul Khalek and the late Rabia Khatun, and her grandfather Nasruddin was also a resident of the same village.
• The petitioner stated that she came from a family that had long resided in the said locality.
• The petitioner claimed to have married Md Dil Mohammad around 1985 and has three children.
• She also added 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 the late Abdul Khalek.
• The petitioner has relied on voters’ lists of 1971 (father), 1989 (mother), 2005 and 2010 (herself) to establish citizenship.
• It was also submitted that her grandfather had purchased land in 1949.
• It was pointed out that in 2016, the petitioner received a notice from the Foreigners Tribunal, naming her and her three children.

• She claimed that she was unaware of the legal implications and approached a lawyer, submitted all the documents, attended the tribunal regularly, and paid legal fees.
• However, the case proceeded ex parte against all of them – the petitioner and her three children, thereby declaring them foreigners.
• The petitioner claimed that she came to know about the ex parte opinion only when the police personnel came to her residence in 2017.
• It was submitted that the petitioner was present at the tribunal on various dates, but perhaps owing to the fact that her advocate did not file hazira (attendance) or any application, the case was proceeded ex parte, which was not a fault of the petitioner.
• It was claimed by the petitioner that she and her children had filed a case for setting aside the ex parte opinion, but the same was dismissed by order of June 2017.
• She further claimed that she was staying away from her children and lost contact, and therefore, she could not file any case before the Gauhati High Court.

‘Country suffers if illegal migrants defeat expulsion’: Gauhati High Court

Noting that it is in the interest of the country that would suffer if declared illegal migrants are allowed to defeat the process of expulsion, the Gauhati High Court has dismissed a plea of a woman challenging a 2018 order that declared her a foreigner.

The same bench ruled that the petitioner’s nearly eight-year delay in approaching the court constituted inordinate laches that could not be overlooked.

“It is in 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 tribunals,” the Gauhati High Court said on February 25.