In citizenship determination proceedings, courts may exercise discretion to set aside ex parte orders despite significant delay and laches, provided the petitioner presents a credible claim and adheres to strict conditions for participation and evidence production to ensure a fair adjudication on merits.

JUDGMENT :

K.R. Surana, J.

Heard Mr. M. Dutta, learned counsel for the petitioner. Also heard, Mr. A.K. Dutta, learned CGC for respondent no.1; Mr. A.I. Ali, learned standing counsel for the Election Commission of India, respondent no.3; Ms. A. Verma, learned standing counsel for the FT and Border matters, representing respondent nos.2, 4, and 6; and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate for respondent no.5.

2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Niva Baidya (as appear in the reference), has assailed the ex parte opinion dated 12.05.2010, passed by the learned Member, Foreigners Tribunal, Golaghat, in Case No. FTG 409/07, by which she was declared to be a foreigner of post 25.03.1971.

3) The case projected by the petitioner is that she is an illiterate lady and unaware of the legal intricacies involved in the proceeding. It was submitted by the learned counsel for the petitioner that though the petitioner was present before the learned Tribunal on the dates fixed for evidence, but due to absence of her learned counsel, the prosecution witnesses including the Enquiry Officer were not cross-examined on her behalf. It was also submitted that she had informed her learned counsel that she was suffering from rheumatic pain, but though her learned counsel had assured her that he would take steps, but no steps was taken and the petitioner was declared as a foreigner by the impugned ex parte opinion.

4) It is the further projected case of the petitioner that by an opinion dated 20.06.2017, passed by the learned Member, Foreigners Tribunal, Jorhat in Case No. FTG 408/07 [corresponding to Police Enquiry No. 500/03], declared her uncle, Biren Sukla Baidya to be not a foreigner. Her further case is that she is the daughter of Late Mira Suklabaidya @ Mirendra, who was the son of Late Umeshram Suklabaidya, who had entered into India from erstwhile East Pakistan and was issued a Certificate of Registration dated 18.11.1956 under Rule 10 of the Citizenship Rules, thereby registering him as an Indian citizen under Section 5(1)(a)/(d) of the Citizenship Act, 1955.

5) Per contra, the learned standing counsel for the FT and Border matters has vehemently opposed the contention of the learned counsel for the petitioner and had submitted that the ex parte opinion was passed on 12.05.2010 and the present writ petition was filed on 01.10.2019, after an unexplained delay and laches which disentitles her for any relief in this writ petition as she had accepted her status as a foreigner for more than 9 years 4 months.

6) Ordinarily, the unexplained delay and laches in approaching this Court would disentitle the petitioner from any relief in this writ petition. If one needs an authority on the point, the cases of Mrinmoy Maity v. Chhanda Koley , 2024 INSC 314: (2024) 0 Supreme(SC) 351, Chairman/ Managing Director, U.P. Power Corporation Ltd. v. Ram Gopal , (2020) 13 SCC 225 may be referred. However, in this case, the petitioner projects that her grandfather was registered as an Indian citizen and her projected uncle was also declared to be not a foreigner by the Foreigners Tribunal. Under such circumstances, the Court is of the considered opinion that the petitioner deserves a chance to prove her contention.

7) Therefore, in light of the discussions above, without finding any fault with the impugned ex parte opinion dated 12.05.2010, passed by the learned Member, Foreigners Tribunal, Golaghat, in Case No. FTG 409/07, the matter is remanded back to the said learned Tribunal for a fresh decision by giving the petitioner one opport