Anjan Moni Kalita, J.

1. Heard Mr. M. U. Ahmad, learned counsel for the petitioner. Also heard Mr. K. Gogoi, learned CGC; Ms. S. Katakey, learned Standing counsel for the ECI; Mr. G. Sarma, learned Standing counsel for the FT and Border matters and Mr. P. Sarmah, learned Addl. Sr. Govt. Advocate, Assam.

2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Arab Ali has assailed the impugned opinion dated 19.05.1990 passed by the learned Foreigners’ Tribunal, Nagaon in IMDT Case No.436/1988, whereby Musstt. Haibaton Nessa and others, which includes the petitioner were declared as illegal immigrants under the IMDT Act, 1983.

3. It is the case of the petitioner that he is the son of Musstt. Haibaton Nessa and resident of village Dighaliati, PS.-Raha, District-Nagaon, Assam. It is stated that the petitioner was arrested in the year, 2019 in connection with IMDT Case No. 436/1988 which was registered without the knowledge of the petitioner as well as his family members. It is also stated that neither the petitioner nor any of his family members were aware about any notice issued to them by the Illegal Migrants (Determination) Tribunal (for short, ‘IMDT’), Nagaon to appear before the IMDT, Nagaon on 21.09.1988.

4. It is the case of the petitioner that though a notice seems to have been issued by the learned IMDT, Nagaon in the name of his mother and other family members including him, the same was, in fact, not received by any of them. It is stated that though a notice was shown to have been received by his mother, Musstt. Haibaton Nessa by putting her Left Thumb Impression (for short, ‘LTI’), the same was not known to any of his family members. It is stated that the petitioner was arrested in the year, 2019 and he had been detained in the Tezpur Central Jail for more than 5 (five) years. Thereafter, he was released in the year, 2023 from the jail due to the order passed by the Hon’ble Apex Court since he had already spent more than 3 (three) years in the detention centre during COVID-19 Pandemic. After his release in the year, 2023, he had to go through certain medical treatments and since he was suffering from financial hardship, he could not immediately approach this Court. It was also stated that after one year of consulting with some Advocates, he has decided to contest the case and therefore, approached this Court by filing the instant writ petition. Therefore, it is the case of the petitioner that there was no intentional delay in filing the instant writ petition and the delay so caused, if any, was due to lack of knowledge of the petitioner.

5. Since the impugned opinion was rendered by the IMDT, Nagaon, ex parte, this Court on an agreement of the counsel appearing for the parties, has decided to dispose of the matter at the motion stage itself without issuing any notice as the contesting parties are being duly represented by the respective engaged counsel.

6. It is seen that the learned IMDT, Nagaon issued a notice under Section 10 of the IMDT Act, 1983 to Musstt. Haibaton Nessa and 6 (six) other persons who are sons and daughters of her which includes the petitioner.

7. Vide the aforesaid notice dated 06.07.1988, the petitioner along with aforesaid persons were directed to make their representations within 30 days from the date of receipt of the notice and produce such evidence that they may think fit in their support. It was further mentioned that in the event of their failure to make representations within the time prescribed, it would be deemed that they had no representations to make and the reference would be disposed of in their absence. It is also seen that the process server, vide his report recorded that the aforesaid notice in connection with IMDT Case No. 436/1988 was duly served to the procedee and the descriptions of the notice were explained to the procedee. It is also seen that the notice was received by Musstt. Haibaton Nessa by putting her LTI in the copy of the aforesaid report of the Process Server.

8. From the order sheets of the IMDT, it is seen that during the year, 1988- 1990 on several dates, i.e. 02.07.1988, 22.09.1988, 11.11.1988, 05.01.1989, 22.03.1989, 22.05.1989, 04.08.1989, 16.10.1989, 18.12.1989, 05.02.1990, 04.04.1990 and 05.05.1990, the petitioner and or any of his family members as mentioned in the notice dated 06.07.1988, was present before the Tribunal. During the course of the trial, the State examined the Investigating Officer as well as another witness, namely, Ajijur Rahman, a resident of Deghaliati. On examination of the Investigating Officer, the IMDT recorded that the Investigating Officer made the necessary investigation against the persons mentioned in the aforesaid notice and recorded the facts collected by him in Ext. 2, wherein, Ext. 2 (1) is his signature. The learned IMDT also recorded that from Ext. 2 and Ext.3, the persons named in the notice were actually the residents of Bangladesh. The learned IMDT further recorded that the aforesaid persons have been staying in the present address without any valid document. It was also recorded that there was nothing to show that the aforesaid persons became Indian citizens or they came to India prior to 25.03.1971. It is also seen that the other witness, namely, Ajijur Rahman stated that he knew the aforesaid persons and they had been residing in the place for the last 15-16 years. However, he stated that he did not know as to where were they living before coming to the place.

9. It is seen that after providing sufficient dates and opportunities to the aforesaid persons mentioned in the notice, the learned IMDT after finding no other option, went ahead with the hearing on 05.05.1990 and the learned IMDT thereafter, delivered the impugned opinion on 19.05.1990 ex parte by opining that the opposite parties (the persons named in the notice) were actually foreigners from Bangladesh entered India on or after 25.03.1971 without any permission and as such, they were declared illegal immigrants within the meaning of the Act of 1983. Accordingly, the case was disposed of in terms of the aforesaid opinion.

10. The learned counsel appearing for the petitioner submits that the petitioner including his family members did not receive any notice about the pendency of the IMDT Case before the IMDT, Nagaon. He submits that though a notice was shown to have been received by his mother, namely, Musstt. Haibaton Nessa, the same was not actually received by her and therefore, there was no knowledge amongst the family members about any such pendency of case before the learned IMDT, Nagaon. He submits that the petitioner had come to know about the case only when he was suddenly arrested by the Border Police in the year, 2019 and thereafter, he had been detained for 5 (five) years in Tezpur Central Jail. He submits that during the petitioner’s detention period at the time of COVID-19 Pandemic, the medical and Health Officer-I Central Jailcum- Detention Centre, Tezpur issued a medical certificate dated 26.04.2020 regarding his travel history and other sever acute illnesses. He submits that the petitioner was released as he completed 3 (three) years in the detention centre on bail as per the directions of the Hon’ble Apex Court and the petitioner was directed to appear before the Officer-in-Charge of Raha Police Station every week regularly w.e.f. 06.11.2023. He submits that the petitioner, since then, has been appearing before the Officer-in-Charge of Raha Police Station regularly.

11. The learned counsel for the petitioner submits that after his release in the year, 2023, the petitioner had to undergo medical treatment as he was suffering from certain illness and due to his financial hardship, he could not approach this Court earlier, though, he had consulted with some Advocates for a year, for which, he did not get proper advise at that point of time. Therefore, the learned counsel appearing for the petitioner submits that since the petitioner has approached this Court, this Court should give him an opportunity to contest his case by directing the relevant Foreigners’ Tribunal to hear the matter afresh. He submits that since there is no intentional delay in filing of the instant writ petition and the delay that has occurred only due to lack of knowledge about passing of the impugned opinion dated 19.05.1990, this Court may set aside the impugned opinion and thereby, allow the petitioner to contest the case under the Foreigners’ Tribunal Act, 1946.

12. On the other hand, the learned Standing Counsel for the FT and Border matters has submitted that notice issued to the petitioner and his other family members was duly recived by his mother, i.e. Musstt. Haibaton Nessa, therefore, it cannot be contended by the petitioner, at this stage, that no notice was received. He further submits that the learned IMDT had given sufficient time, i.e. almost two and half years to the petitioner and his family members to be present before the learned IMDT and to contest the case. However, since nobody appeared before the learned IMDT, the learned IMDT was compelled to pass the opinion ex parte. He further submits that while passing the opinion ex parte, the learned IMDT had taken into consideration the evidence provided by the Process Server as well as one resident of the village, wherein, the petitioner and his family members were residing at that point of time. He submits that even after the petitioner’s arrest and release from the detention centre in the year, 2023, the petitioner did not come to the Court at the earliest opportunity, but took it leisurely to approach this Court by filing the instant writ petition. He further submits that the delay that has occurred in filing the instant writ petition has not been explained properly in the instant writ petition and the same is not convincing at all. In view of the aforesaid, he submits that delay defeats equity and in the instant case, this Court may not entertain the petition filed by the petitioner and the same should be dismissed at once.

13. In this case, no statement has been made as to when the petitioner had applied for the certified copy and when actually, he received the certified copy of the impugned opinion dated 19.05.1990. It is also a fact that the petitioner was released from the detention centre in the year, 2023 and had been regularly appearing before the Officer-in-Charge of Raha Police Station every week since 06.11.2023. Therefore, it is discernable that though the petitioner was released before 06.11.2023, for the last 3 years, he did not take any active step to file the instant writ petition seeking relief against the opinion passed by the learned IMDT long back on 19.05.1990. The explanation which has been given for such delay in the instant writ petition is vague and non-convincing. Though, the petitioner has denied receipt of notice by any of his family members, the same cannot be accepted as can be seen from the report of the Process Server that the notice was, in fact received by the petitioner’s mother who was also named in the notice dated 06.07.1988 by putting her LTI on the Process Server’s Report. Therefore, the aforesaid Musstt. Haibaton Nessa, the mother of the petitioner being an adult who had received the notice, the same cannot be denied by the petitioner, at this stage, after passing of long 25 years.

14. The petitioner by referring to the case of Md. Anowar Ali and 3 (three) others-vs- State of Assam and 2 (two) others decided by this Court on 13.06.2014 submits that the order passed by the learned IMDT can be assailed by way of a writ petition and on consideration of the materials on record, if the Writ Court finds that the matter requires to be remanded for a fresh consideration, in that event, case could be remanded to the Foreigners’ Tribunal for disposal in accordance with law, i.e. under the Foreigners’ Act, 1946 and Foreigners’ (Tribunal) order 1964. The submission of the learned counsel appearing for the petitioner is irrelevant in the instant case as the petitioner has filed the instant case challenging the ex parte opinion dated 19.05.1990 after 25 years without actually providing any convincing reasons for such long delay. As discussed above, this Court has already seen that the notice issued by the learned IMDT, Nagaon, was duly received by the mother of the petitioner who was also named under the notice to appear before the IMDT, Nagaon.

15. In this connection, it may be relevant to refer to the case of Azmat Ali @ Amzad Ali-vs-Union of India & Ors, reported in 2018 (4) GLT 623, wherein, this Court has held as under:-

                   “15. It is more than three decades that the issue of influx of foreign nationals has been in public domain in the state of Assam and has engaged the attention of the people. Interest of the State is of paramount importance in that unabated influx has the potential to affect the integrity and sovereignty of the Country. Citizenship of a person, no doubt, is a very valuable right and should be zealously guarded. There is no gainsaying the fact that a person who is alleged to be a foreigner must given due and reasonable opportunity to establish that he is a citizen of India. However, if a person does not take steps for safeguarding his interest, he does so at his own risk and peril as grant of opportunity cannot be an endless exercise. Right to a fair hearing or principles of natural justice cannot be permitted to a farcical situation and to be an engine to defeating the very object of identification and deportation of foreigners”.

16. From the above discussions, it is clear that there is a huge delay in filing of the instant writ petition by the petitioner which cannot be easily ignored by this Court while exercising the power of writ jurisdiction. In this connection, it may be relevant to refer to the case decided by the Hon’ble Supreme Court in the case of Karnataka Power Corporation Ltd. and Another-vs-K. Thangappan and Another, reported in (2006) 4 SCC 322, wherein, it was held by the Hon’ble Supreme Court that High Court may refuse to exercise extraordinary jurisdiction if there is negligence or omissions on the part of the applicant to assert his right. It may be relevant to reproduce hereinbelow the relevant paragraphs:-

                   “6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports [(1969) 1 SCC 185 : (AIR 1970 SC 769). Of course, the discretion has to be exercised judicially and reasonably”.

                   “7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurd [(1874) 5 P.C. 221 :22 WR 492]) was approved by this Court in Moon Mills Ltd. v. Industrial Courts (AIR 1967 SC 1450) and Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service [(1969) 1 SCR 808 : (AIR 1969 SC 329). Sir Barnes had stated:

                   "Now, the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy."

                   “8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation with Article 32 of the Constitution. It is apparent that what has been stated as regards that Article would apply, a fortiori, to Article 226. It was observed in Rabindranath Bose v. Union of India [(1970) 1 SC 84 : AIR 1970 SC 470) that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution-makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.

                   “9. It was stated in State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566 : AIR 1987 SC 251] that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction”.

17. Reference can also be made to the case of Chennai Metropolitan Water Supply & Sewerage Board and Other-vs-T.T. Murali Babu, reported in (2014) 4 SCC 108, which held as under:

                   “16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant– a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis”.

18. Taking into account the ratios laid down by the Hon’ble Apex Court and having found that the principle of delay and latches is squarely applicable in the instant case as the petitioner has approached this Court after more than 25 years of passing of the impugned opinion by the learned IMDT, Nagaon, vide its order dated 19.05.1990, this Court is not keen to entertain the instant writ petition. This Court is of the opinion that the instant writ petition is devoid of any merit on the ground of unexplained delay and latches in challenging the impugned opinion dated 19.05.1990 passed by the learned IMDT, Nagaon in IMDT Case No. 436/1988.

19. In consequence, the instant writ petition is dismissed as the same is being devoid of any merit.

20. In view of the aforesaid findings, this Court is of the opinion that since the learned IMDT, Nagaon declared the petitioner along with other family members i.e. (1) Musstt. Haibaton Nessa, (2) Joinal Ali, (3) Haff Ali, (4) Barek Ali, (5) Khalek Ali, (6) Arab Ali (petitioner herein) and (7) Khairan Nessa as illegal migrants, the authorities are at liberty to take action against them as per law.

21. The Writ Petition stands disposed of in aforesaid terms.