Repeated default despite sufficient opportunity bars remand in a third round of Article 226 proceedings.

The petitioner challenged the opinion dated 20 December 2018 of the Foreigners Tribunal, Jorhat, in FT Case No. 428 of 2005, declaring him a foreigner who had entered Assam from the specified territory after 25 March 1971.

An earlier ex parte opinion dated 3 March 2008 had been set aside by the High Court in WP(C) No. 782 of 2017, with a direction to the petitioner to appear before the Tribunal on 15 March 2017 and file his written statement.

Although the petitioner sought an adjournment on 15 March 2017 and the matter was fixed for 6 April 2017, he thereafter failed to appear or file his written statement.

A subsequent notice, including a specially prescribed notice stated to have been personally received by him, required his appearance on 13 December 2018; he again remained absent.

The Tribunal consequently barred further filing of the written statement and passed the impugned ex parte opinion on 20 December 2018.

The petitioner sought remand to enable him to produce evidence of Indian citizenship, while the respondents opposed remand on the ground of repeated default and delay.

Whether the petitioner was entitled to another opportunity and remand of the proceedings to the Foreigners Tribunal despite his repeated failure to appear and file a written statement after the earlier ex parte opinion had been set aside.

Whether the High Court should exercise its discretionary jurisdiction under Article 226 of the Constitution in favour of a litigant guilty of prolonged inaction, delay and laches.

Whether the Tribunal’s declaration could be sustained on the petitioner’s failure to discharge the burden under Section 9 of the Foreigners Act, 1946.

Section 9 of the Foreigners Act, 1946 places the burden upon the person proceeded against to establish that he is not a foreigner.

Article 226 confers discretionary and equitable jurisdiction, which may be refused where the applicant is negligent, inactive or guilty of delay and laches.

Applying the maxim vigilantibus non dormientibus jura subveniunt—the law assists the vigilant, not those who sleep over their rights—the Court relied on Moon Mills Ltd. v. M.R. Meher, AIR 1967 SC 1450, and Karnataka Power Corporation Ltd. v. K. Thangappan, (2006) 4 SCC 322, for the principle that unexplained delay and conduct causing prejudice may disentitle a litigant to writ relief.

The Court also relied on Chennai Metropolitan Water Supply & Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108, which reiterates that delay diminishes the efficacy of equitable remedies.

The Court also relied on Ramjas Foundation v. Union of India, 1993 Supp (2) SCC 20, for the requirement that a person invoking Article 226 must approach the Court with clean hands.

The Court held that the petitioner had not merely suffered an unavoidable ex parte order.

The earlier ex parte opinion had been set aside with a specific direction to appear and file his written statement on 15 March 2017, but the petitioner sought an adjournment and thereafter failed to participate.

The Tribunal nevertheless granted further time and issued subsequent notices, including a personally served special notice, yet the petitioner neither appeared nor filed his defence.

In these circumstances, the Tribunal had afforded sufficient, and even additional, opportunities.

Since the petitioner failed to produce any material to discharge the statutory burden under Section 9, and his conduct demonstrated prolonged inaction, the Court declined to exercise its equitable writ jurisdiction or order a third round of proceedings.

It held that he was not entitled to a further opportunity or remand because the Tribunal had provided adequate opportunities and his repeated defaults were attributable to him.

The writ petition was dismissed, the Foreigners Tribunal’s opinion dated 20 December 2018 was left undisturbed, and the original Tribunal Case Record was directed to be returned to the Tribunal.