Gauhati High Court grants final opportunity to man declared foreigner, remands case to Foreigners Tribunal after seven-year delay

The petitioner challenged, under Article 226 of the Constitution, the opinion dated 03.01.2012 passed by Foreigners Tribunal No. 1, Goalpara in F.T. Case No. 1928/G/08, declaring him a foreigner belonging to the post-1971 stream.

The petitioner had received notice, appeared before the Tribunal, and filed a written statement; however, he thereafter took no further steps, including filing evidence by affidavit, allegedly due to miscommunication.

He claimed that he subsequently learned of the Tribunal’s order through the local Gaonburah and instituted the writ petition after approximately seven years.

The State opposed the petition on the grounds of negligence, abandonment of the proceedings, and delay and laches.

The High Court had earlier called for the records and granted interim protection on 12.05.2020.

Whether the writ petition challenging the 03.01.2012 opinion was liable to be rejected on the grounds of delay, laches, and the petitioner’s failure to participate in the Tribunal proceedings after filing his written statement.

Whether, notwithstanding the petitioner’s default, the matter should be remanded to the Foreigners Tribunal to provide him a further opportunity to establish his citizenship in the interest of justice.

Whether the remand should be made subject to the petitioner appearing before the Tribunal and filing evidence by affidavit within the time fixed by the Court.

The Court exercised jurisdiction under Article 226 of the Constitution to examine the impugned opinion of the Foreigners Tribunal.

Under Section 9 of the Foreigners Act, 1946, the burden lies on the person proceeded against to establish that he is not a foreigner; the Tribunal had found that the petitioner failed to discharge this burden because he did not adduce evidence.

The Court applied Order 3(14) of the Foreigners (Tribunals) Order, 1964, which requires proceedings before the Tribunal to be completed within the prescribed time frame.

It further relied on Sabitri Dey @ Swasthi Dey v. Union of India, 2026 INSC 694, for the principle that a person whose citizenship is in doubt should ordinarily receive a fair opportunity to contest the proceeding, subject to the interests of justice and appropriate conditions.

The Court found no procedural fault in the Tribunal’s decision because the petitioner had been served, had appeared, and had filed a written statement, but thereafter failed to participate or produce evidence; consequently, the burden under Section 9 of the Foreigners Act remained undischarged.

The Court also recognised the substantial delay of approximately seven years and the absence of any satisfactory explanation for the petitioner’s non-appearance.

Nevertheless, balancing the petitioner’s default against the serious consequences of an adverse citizenship determination, and guided by the Supreme Court’s emphasis on a fair opportunity in Sabitri Dey, the Court concluded that the interests of justice warranted one further opportunity.

The relief was strictly conditional and designed to ensure expeditious disposal under Order 3(14).

The petitioner was directed to appear and file evidence by affidavit of all his witnesses on 09.09.2026.

Upon compliance, the Tribunal was directed to proceed with and expeditiously dispose of the matter in accordance with Order 3(14) of the Foreigners (Tribunals) Order, 1964.

The Court expressly held that if the petitioner failed to appear and file the required evidence on the specified date, the original opinion dated 03.01.2012 declaring him a post-1971 foreigner would become effective.

The records were directed to be sent back forthwith.