Gauhati High Court
Maya Chetri vs Union Of India And 7 Ors on 20 January, 2020
Bench: Manojit Bhuyan, Nani Tagia
Page No.# 1/5
GAHC010233892018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 7316/2018
1:MAYA CHETRI
W/O- SRI GOPAL CHETRI, R/O- ADIMGIRI, DURGASAROBAR, GHY, P.S.
BHARALUMUKH, DIST- KAMRUP (M), ASSAM, PIN- 781009
VERSUS
1:UNION OF INDIA AND 7 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, HOME DEPTT./MINISTRY OF
HOME AFFAIRS, NEW DELHI, PIN- 110001
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-6
ASSAM
3:THE ELECTION COMMISSION OF INDIA
OFFICE OF THE ELECTION COMMISSION OF INDIA REP. BY THE SECY. TO
THE COMMISSION
NEW DELHI- 110001
4:THE STATE CO-ORDINATOR
NRC
ACHYUT PLAZA
BHANGAGARH
GHY-5
ASSAM
5:THE REGIONAL FOREIGNERS REGISTRATION OFFICER
ULUBARI
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GHY
KAMRUP (M)
ASSAM
PIN- 781007
6:THE DY.. COMMISSIONER
GHY
KAMRUP (M)
ASSAM
PIN- 781001
7:THE SUPERINTENDENT OF POLICE (B)
GHY
DIST- KAMRUP (M)
ASSAM
PIN- 781001
8:THE OFFICER-IN-CHARGE
BHARALUMUKH P.S.
GHY
DIST- KAMRUP (M)
ASSAM
PIN- 78100
Advocate for the Petitioner : MR S KHOUND
Advocate for the Respondent : SC, NRC
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE NANI TAGIA
O R D E R
20.01.2020 (Manojit Bhuyan, J) Heard Mr. S. Khound, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no.1. Also heard Mr. U.K. Nair, learned senior counsel represents Page No.# 3/5 respondent nos.2, 5, 6, 7 and 8; Ms. B. Das, learned counsel represents respondent no.3 and Ms. A. Verma, learned counsel for respondent no.4.
Petitioner assails order/opinion dated 28.11.2013 passed by the Foreigners' Tribunal, Kamrup (Metro), Guwahati in F.T.Kamrup (Metro), D.V. Case No.7822/2011, declaring her to be a foreigner of 1971 stream.
Petitioner admits that notice was duly served and she also made appearance before the Tribunal through her engaged counsel and that she failed to file written statement despite opportunities being granted, whereupon the impugned opinion was rendered.
Notwithstanding the above, the petitioner raises a fundamental issue and submits that having regard to the case records, the provisions of Section 6-A of the Citizenship Act, 1955 is not applicable to her, in that, she is not a person having come into Assam (India) from the "specified territory", within the meaning of Section 6-A(1)(c) of the aforesaid Act. She claims to belong to the Gorkha community of Nepali origin and to this end submits that her case is squarely covered by the judgment and order of this Court dated 29.11.2019 passed in a bunch of writ petitions, the lead case being WP(C) 8490/2018.
We have carefully examined the case records received from the Tribunal. It is seen from the Report of the Local Verification Officer that the petitioner is described as the wife of one Gopal Chetri and that she was born on 01.01.1969 at Guwahati. At Sl. No. 12 of the Report it is recorded that the mother tongue of the petitioner is 'Nepali'. Further, at Sl. Nos.15 and 16 of the said Report, which pertains to queries as to whether the proceedee has migrated into Assam and, if so, the place from where migrated, the Local Verification Officer have recorded in the negative, meaning thereby that the petitioner has not migrated into Assam, leading to a further endorsement that with regard to the place from where migrated, the same does not arise for consideration. Neither in the impugned opinion dated 28.11.2013 nor in the Referral Order of the Superintendent of Police (B), City Guwahati, there are any findings or suspicion recorded that the petitioner came to Assam from the 'specified territory'.
Pertinent to note that for the purpose of initiating proceeding against a person for examination as to whether he/she is a foreigner or not, in respect of references made under sub-section (3) of Section 6-A of the Citizenship Act, 1955 to a Tribunal constituted under the Foreigners (Tribunals) Order, 1964 having jurisdiction over a district or part thereof in the State of Assam, in terms of Rule 21 of the Citizenship Rules, 2009, the primary and necessary ingredient or the condition precedent is that reference can only be in respect of persons who have come to Assam from the 'specified Page No.# 4/5 territory', meaning the territories included in Bangladesh immediately before the commencement of the Citizenship (Amendment) Act, 1985, and also having regard to the cut-off date of migration into Assam as prescribed under the aforesaid Section 6-A of the Citizenship Act, 1955.
Law being clear, as above, there are neither any suspicion expressed by the Referral Authority nor any findings recorded by the concerned Tribunal that the writ petitioner is a person who has come into Assam from the 'specified territory'. In Section 6-A, particularly at sub-sections (2) and (3), the expression 'specified territory' is predominant.
It would be apposite to make reference to the Notification dated 23.08.1988 of the Government of India in the Ministry of Home Affairs, whereby the misconception noticed by the Central Government about the citizenship at the commencement of the Constitution of India, of certain classes of persons commonly known as Gorkhas, who had settled in India at such commencement, was clarified. Clarification made was that as from the commencement of the Constitution i.e. from 26.01.1950, every Gorkha who had his domicile in the territory of India and who was born in the territory of India or either of whose parents was born in the territory of India or who had been ordinarily been a resident in the territory of India for not less than five years before such commencement, shall be a citizen of India as provided in Article 5 of the Constitution of India. There is yet another Notification dated 24.09.2018 of the Government of India in the Ministry of Home Affairs (Foreigners Division), perhaps as a guidance while making future references in respect of individuals claiming to belong to the Gorkha community of Nepali origin, on the subject of a Memorandum dated 30.07.2018 submitted by the All Assam Gorkha Students' Union to the Hon'ble Home Minister. It is seen that the issues raised in the Memorandum had been examined by the Ministry of Home Affairs and decision thereof was also taken, with approval of the competent authority. While reiterating the conditions of citizenship of classes of persons known as Gorkhas, as specified in the earlier Notification dated 23.08.1988, the later Notification dated 24.09.2018 clearly laid down that "Since the members of the Gorkha community originally hail from Nepal, it may not be appropriate to declare all of them as from the 'specified territory' as defined under Section 6-A (1) (c) of the Citizenship Act, 1955. Only those who have come from Bangladesh and living in the State of Assam can be treated as from the 'specified territory' in accordance with Section 6-A of the Citizenship Act, 1955." Further, "Only cases of members of Gorkha community living in Assam who do not fall in any of the categories mentioned above may be referred to the Foreigners' Tribunal for its opinion as to whether the person is or is not a 'foreigner' within the meaning of the Foreigners Act, 1946." The categories are duly mentioned in the said Notification dated 24.09.2018.
Page No.# 5/5 We may also take notice of the provisions of Section 8 of the Foreigners Act, 1946, which relates to determination of nationality. A reading of said Section 8 in the context of the present case, it is seen that where for any reason it is uncertain what nationality, if any is to be ascribed to a foreigner, in such cases that foreigner may be treated as the national of the country with which he appears to the prescribed authority to be most closely connected for the time being in interest or sympathy or if he is of uncertain nationality, of the country with which he was last so connected. This provision would be relevant to the extent that even if the most extreme view is taken that the petitioner can never claim to be citizen of India, however, having regard to the status of the petitioner as recorded in the Verification Report to be person having her mother tongue and spoken dialect as 'Nepali', she can only be treated as the national of the country to which she appear to be closely connected i.e. Nepal. In the absence of any reports of being a person coming into Assam from the 'specified territory', the provisions of Section 6-A of the Citizenship Act, 1955 cannot be made applicable to the petitioner.
For all the aforesaid reasons, we have no hesitation but to allow the writ petition by setting aside the impugned opinion dated 28.11.2013 passed by the Foreigners' Tribunal, Kamrup (Metro), Guwahati. As a necessary corollary, reference made against the writ petitioner by the Referral Authority is also interfered with.
Office to send back the case records to the respective Tribunal forthwith.
JUDGE JUDGE Comparing Assistant