Interest of justice justifies remanding ex parte citizenship case despite significant unexplained delay and laches.

In brief

The question

1. Whether the gross delay and laches of nine years and four months disentitle the petitioner from seeking relief under Article 226.

The court held

The High Court conditionally set aside the ex parte opinion dated 12.05.2010 and remanded the matter to the Foreigners Tribunal, Golaghat.

It also directed

The holding is subject to the condition that the petitioner must appear before the Tribunal within 30 days and file her evidence-on-affidavit; failure to appear within this timeframe will result in the automatic revival and restoration of the original order declaring her a foreigner.

The petition was conditionally allowed with no order as to costs.

01Facts

The petitioner, an illiterate resident of Golaghat, Assam, was declared a foreigner of the post-25.03.1971 stream via an ex parte opinion dated 12.05.2010 by the Foreigners Tribunal (FT), Golaghat.

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The petitioner alleged that although she attended proceedings, her counsel failed to cross-examine witnesses or take necessary steps due to her illness.

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She claimed Indian citizenship through her grandfather, Umeshram Suklabaidya, who was registered as a citizen in 1956, and noted that her uncle was declared "not a foreigner" by the FT Jorhat in 2017.

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The State opposed the petition on the grounds of an unexplained delay of over nine years in challenging the 2010 order.

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02Issues

i.1. Whether the gross delay and laches of nine years and four months disentitle the petitioner from seeking relief under Article 226.

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ii.2. Whether the petitioner should be granted a fresh opportunity to prove her citizenship based on the documented status of her lineage.

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03Law Applied

The court acknowledged the principle that unexplained delay and laches generally disentitle a petitioner from discretionary relief, citing Mrinmoy Maity v. Chhanda Koley and U.P. Power Corporation Ltd. v. Ram Gopal.

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The core statutory rule applied was Section 9 of the Foreigners Act, 1946, which mandates that the burden of proving citizenship lies upon the person so claiming.

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The court also referenced the Bharatiya Sakshya Adhiniyam, 2023 (specifically Section 168 regarding the court's power to put questions) regarding the conduct of a fresh hearing.

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Provisions in the judgment · 2 · Linked ones open on LawLens

Citizenship Act, 1955 Section 5

Bharatiya Sakshya Adhiniyam, 2023 Section 168

04Reasoning

The court observed that while a delay of over nine years would "ordinarily" preclude relief, the specific merits of the petitioner's claim—namely her grandfather’s 1956 citizenship certificate and her uncle’s favorable tribunal verdict—necessitated a departure from strict procedural finality.

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The court reasoned that since the burden of proof under Section 9 of the Foreigners Act lies on the individual, the petitioner "deserves a chance to prove her contention" lest a genuine citizen be disenfranchised.

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The court decided to remand the case without finding fault in the original Tribunal's ex parte order, framing the relief as a conditional opportunity to ensure the petitioner's right to prove her status.

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