Gauhati High Court
Page No.# 1/7 vs The Union Of India And 5 Ors on 27 January, 2022
Bench: N. Kotiswar Singh, Malasri Nandi
Page No.# 1/7
GAHC010196322021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6844/2021
MISHTI NESSA BIBI AND 9 ORS
D/O LT. ASU SHEIKH @ MD. ASHU SHEIKH @ ACHU SHEIKH, W/O LT.
NURUDDIN, VILL. HARUAFUTA, P.O. DHARAI, P.S. LAKHIPUR, DIST.
GOALPARA, ASSAM, PIN - 783132
2: DULO KHATUN BIBI
D/O LT. ASU SHEIKH @ MD. ASHU SHEIKH @ ACHU SHEIKH
W/O NUR HUSSAIN
VILL. HARUAFUTA
P.O. DHARAI
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM
PIN - 783132
3: JAHAN UDDIN SHEIKH
S/O LT. ASU SHEIKH @ MD. ASHU SHEIKH @ ACHU SHEIKH
VILL. HARUAFUTA
P.O. DHARAI
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM
PIN - 783132
4: ABBAS ALI
S/O LT. ASU SHEIKH @ MD. ASHU SHEIKH @ ACHU SHEIKH
VILL. HARUAFUTA
P.O. DHARAI
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM
PIN - 783132
5: SABIYA BIBI
Page No.# 2/7
D/O LT. ASU SHEIKH @ MD. ASHU SHEIKH @ ACHU SHEIKH
W/O SANOWAR ALI
VILL. HARUAFUTA
P.O. DHARAI
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM
PIN - 783132
6: AKKAS ALI
S/O LT. ASU SHEIKH @ MD. ASHU SHEIKH @ ACHU SHEIKH
VILL. HARUAFUTA
P.O. DHARAI
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM
PIN - 783132
7: SAMEJ ALI
S/O LT. ASU SHEIKH @ MD. ASHU SHEIKH @ ACHU SHEIKH
VILL. HARUAFUTA
P.O. DHARAI
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM
PIN - 783132
8: SUKUR ALI
S/O LT. ASU SHEIKH @ MD. ASHU SHEIKH @ ACHU SHEIKH
VILL. HARUAFUTA
P.O. DHARAI
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM
PIN - 783132
9: TARA MIAH @ TARA MIYAN
S/O LT. ASU SHEIKH @ MD. ASHU SHEIKH @ ACHU SHEIKH
VILL. HARUAFUTA
P.O. DHARAI
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM
PIN - 783132
10: IMAN ALI
S/O LT. ASU SHEIKH @ MD. ASHU SHEIKH @ ACHU SHEIKH
VILL. HARUAFUTA
Page No.# 3/7
P.O. DHARAI
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM
PIN - 78313
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE SECRETARY OF THE MINISTRY OF HOME AFFAIRS,
NEW DELHI - 01.
2:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTION COMMISSIONER
NEW DELHI - 01.
3:THE STATE OF ASSAM
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
HOME AND POLITICAL DEPARTMENT
DISPUR
GUWAHATI - 6.
4:THE DEPUTY COMMISSIONER
GOALPARA
DIST. GOALPARA
ASSAM
PIN - 783331.
5:THE SUPERINTENDENT OF POLICE (B) GOALPARA
DIST. GOALPARA
ASSAM
PIN - 783331.
6:THE STATE CO-ORDINATOR
NATIONAL REGISTER OF CITIZENS
BHANGAGARH
GHY - 05
Advocate for the Petitioner : MR. A F N U MOLLAH
Advocate for the Respondent : ASSTT.S.G.I.
Page No.# 4/7
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MRS. JUSTICE MALASRI NANDI
order
(oral)
27-01 -2022
[N. Kotiswar Singh, J]
Heard Mr. A.F.N.U. Mollah, learned counsel for the petitioners. Also heard Ms. L. Devi,
learned Standing Counsel, NRC, who is also appearing on behalf of Mr. R.K. Dev Choudhury,
learned Asstt. SGI, for respondent nos.1 & 6; Mr. J. Payeng, learned Special Standing
Counsel, F.T. appearing for respondent no.5; Mr. A. Bhuyan, learned Standing Counsel, ECI,
appearing for respondent no.2 and Ms. U. Das, learned Government Advocate, Assam,
appearing for respondent nos.3 & 4.
2. Considering the nature of the case and after hearing the learned counsel for the
parties, this court is of the view that the present petition can be disposed of at the Motion
stage itself without issuing any formal notice to the respondents.
3. In this petition the petitioners have challenged the abated order dated 27.10.2017
passed by the Foreigners Tribunal No.6 th, Goalpara in F.T. Case No.F.T.(6) 744/GLP/17
corresponding to IM(D)T Case No.394/2000 against the original proceedee Md. Asu Sheikh @
Md. Ashu Sheikh @ Achu Sheikh, who was the father of the petitioners herein and expired
during the pendency of the proceeding in F.T. Case No.F.T.(6) 744/GLP/17. The Tribunal
accordingly held that upon the expiry of the proceedee, the proceeding stood abated and
Page No.# 5/7
accordingly, closed the proceeding. The learned counsel for the petitioners submits that
though there may not be any legal impediment in closing the proceeding by way of
abatement on the death of the proceedee but the citizenship of the present petitioners may
come under cloud in view of the Section 3 of the Citizenship Act, 1955. As such, the learned
counsel for the petitioners submits that the petitioners may be permitted to contest the said
reference made against their father and clear the doubts over their nationality on the basis of
the documents which the petitioners claim to have in their possession. According to the
petitioners, these documents are sufficient to prove that the their father Md. Asu Sheikh @
Md. Ashu Sheikh @ Achu Sheikh was not a foreigner but an Indian citizen and accordingly,
they have prayed for setting aside the order of abatement.
4. We have heard learned counsel for the parties.
5. Section 3 of the Citizenship Act, 1955 provides for citizenship by birth. Section 3 of the
Act is quoted herein below:
Section 3 in the Citizenship Act, 1955
3. Citizenship by birth.--
(1) Except as provided in sub-section (2), every person born in India,--
(a) on or after the 26th day of January, 1950, but before the 1st day of July, 1987;
(b) on or after the 1st day of July, 1987, but before the commencement of the Citizenship
(Amendment) Act, 2003 and either of whose parents is a citizen of India at the time of his birth;
(c) on or after the commencement of the Citizenship (Amendment) Act, 2003, where--
(i) both of his parents are citizens of India; or
(ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the
time of his birth, shall be a citizen of India by birth.
(2) A person shall not be a citizen of India by virtue of this section if at the time of his birth
--
(a) either his father or mother possesses such immunity from suits and legal process as is accorded to an envoy of a foreign sovereign power accredited to the President of India and he or she, as the case may be, is not a citizen of India; or
(b) his father or mother is an enemy alien and the birth occurs in a place then under Page No.# 6/7 occupation by the enemy.]
6. From Section 3 (1) (c) (ii) of the Citizenship Act, 1955, it is clear that though a person may claim citizenship by birth, one of the parents should not be an illegal immigrant at the time of his birth.
7. In the present case, since there is already a doubt on the citizenship of the petitioners' father by holding him to be an illegal immigrant by the authorities in connection with which the above proceeding was initiated, certain issues may also be raised as regards the citizenship of the petitioners, who are claiming to be the citizens of this country by birth and as such, we are of the view that in order to clear all the doubts over the nationality of the petitioners and as they have volunteered themselves to challenge the said proceeding, which was against their father, on the basis of the documents they claim to have in their possession, we are inclined to allow this petition by setting aside the impugned order dated 27.10.2017 passed by the Foreigners Tribunal No.6 th, Goalpara in F.T. Case No.F.T.(6) 744/GLP/17 corresponding to IM(D)T Case No.394/2000 with the observation that the petitioners will implead themselves as legal heirs of the said Ashu Sheikh in F.T. Case No.F.T.(6) 744/GLP/17 and thereafter, they may be permitted to contest the claim of the State that the said Ashu Sheikh is an illegal immigrant.
8. Accordingly, the petitioners will appear before the Foreigners Tribunal No.6 th, Goalpara on 02.03.2022 and shall implead themselves as legal heirs of the said Ashu Sheikh in F.T. Case No.F.T.(6) 744/GLP/17 corresponding to IM(D)T Case No.394/2000. Thereafter, they may be allowed to file written statement, produce all the necessary documents and adduce evidence in support of their claim that their father was not an illegal immigrant and the Foreigners Tribunal pass a fresh order as regards the nationality of Md. Asu Sheikh @ Md.
Page No.# 7/7 Ashu Sheikh @ Achu Sheikh.
We, however, make it clear that this opinion will be confined to the nationality of the aforesaid Md. Asu Sheikh @ Md. Ashu Sheikh @ Achu Sheikh only.
12. With the above observations and directions, the writ petition stands disposed of.
13. Copy of this order be furnished to the Superintendent of Police (Border), Goalpara for doing the needful.
JUDGE JUDGE Comparing Assistant