Gauhati High Court
Sandip Rai vs The Union Of India And 8 Ors on 20 July, 2022
Author: Parthivjyoti Saikia
Bench: Manash Ranjan Pathak, Parthivjyoti Saikia
Page No.# 1/5
GAHC010009932019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1238/2019
SANDIP RAI
S/O LATE SUREN CH. RAI @ SURENDRA RAI @ SURENDRA NATH RAI,
R/O HONGKRAM UNDER BAITHALANGSU P.S. IN THE DIST. OF KARBI
ANGLONG, ASSAM
VERSUS
THE UNION OF INDIA AND 8 ORS.
THROUGH HOME SECRETARY, MINISTRY OF HOME AFFAIRS, GOVT. OF
INDIA, SHASTRI BHAWAN, NEW DELHI-1.
2:THE STATE OF ASSAM
REP. BY THE SECRETARY
DEPARTMENT OF HOME AFFAIRS
GOVT. OF ASSAM
DISPUR
GUWAHATI -6.
3:THE ELECTION COMMISSIONER
ASSAM
DISPUR
GUWAHATI-6.
4:THE STATE-CO-ORDINATOR
NATIONAL REGISTRATION OF CITIZEN (NRC)
BHANGAGARH
GUWAHATI-5.
Page No.# 2/5
5:THE DEPUTY COMMISSIONER
KARBI ANGLONG
ASSAM.
6:THE SUPERINTENDENT OF POLICE (B)
KARBI ANGLONG
ASSAM
7:FOREIGNERS TRIBUNAL KARBI ANGLONG DIPHU
ASSAM
8:THE OFFICER-IN-CHARGE OF KARBI ANGLONG POLICE STATION
DIST. KARBI ANGLONG
ASSAM.
9:FOREIGNERS REGISTRATION OFFICE
KARBI ANGLONG
Advocate for the Petitioner : MR. H A SARKAR
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
O R D E R
20.07.2022 (Parthivjyoti Saikia, J) Heard the learned counsel Mr. H.A. Sarkar appearing for the petitioner. Also heard Ms. U. Das, learned Government Advocate; Ms. L. Devi, learned Standing Counsel, NRC; Ms. A. Gayan, learned Central Government Counsel; Mr. A.I. Ali, learned Standing Counsel, Election Page No.# 3/5 Commission of India and Mr. G. Sarma, learned Standing Counsel, Foreigners' Tribunal, Assam.
2. This is an application under Article 226 of the Constitution of Indian whereby the ex parte order dated 04.05.1988 passed by the Foreigners' Tribunal, Karbi Anglong, Diphu in F.T. Case No.185/1986 is put to challenge.
3. On a reference made by the Superintendent of Police, Karbi Anglong, notice was issued to the petitioner asking him to prove his Indian citizenship. The notice was received by the petitioner but he did not appear before the Tribunal. Therefore, the Tribunal heard the matter ex parte and declared the petitioner to be a foreigner of 01.01.1966 - 24.03.1971 stream.
4. The petitioner contended that the service of notice upon him was not proper and therefore he was deprived of contesting the proceeding before the Tribunal.
5. We have gone through the LCR.
6. We find that on 30.11.1987, the Tribunal passed the order for issuing notice to the petitioner. The record shows that one notice was issued to the petitioner on 21st day of March, 1987 in respect of the Case No.185/1986 and that notice was accepted by Shri Sadhana Bala Rai. It goes to show that this notice was issued prior to taking cognizance of the reference by the Tribunal because the Tribunal took cognizance of the reference on 30.11.1987.
7. The ex parte judgment was passed against the petitioner in respect Page No.# 4/5 of Case No.185/1986. This is the case where notice was issued to the petitioner before the Tribunal actually took cognizance of the reference.
8. On 06.01.1988, the Tribunal held that the notice issued to the petitioner was served and for that reason the Tribunal proceeded for ex parte hearing. The Tribunal never gave any explanation, as to why the notice that was served upon Sadhana Bala Rai who accepted the notice on behalf of the petitioner, was accepted by the Tribunal.
9. We are of the opinion that the entire process of service of notice upon the petitioner is defective and therefore, the petitioner does not deserve to suffer for that.
10. The petitioner claims that he is an Indian citizen by birth and he has sufficient documents to prove his Indian citizenship.
11. For the aforesaid reasons, this Court has decided to set aside the impugned judgment dated 04.05.1988 passed by the Foreigners Tribunal, Karbi Anglong, Diphu in F.T. Case No.185/1986. The petitioner deserves to be given an opportunity to prove his case. Therefore, we direct the petitioner to appear before the Tribunal on 9 th of August, 2022 along with a written statement and the evidence of witnesses. For that purpose, the petitioner shall produce a certified copy of this order.
12. Since the citizenship of the petitioner is under cloud, he will continue to remain on bail till culmination of the proceeding before the Tribunal subject to furnishing a bail bond of Rs.5,000/- with one surety of like amount to the satisfaction of the Superintendent of Police (Border), Karbi Anglong, Diphu. The Superintendent of Police (Border), Karbi Anglong, Page No.# 5/5 Diphu shall take steps for capturing the fingerprints of both hands of the petitioner and the biometrics of the iris of his eyes. For the said purpose, the petitioner shall appear before the Superintendent of Police (Border), Karbi Anglong, Diphu before 9th of August, 2022 during office hours.
13. The petitioner shall not leave the jurisdiction of the Karbi Anglong district without giving details of the place of destination and his place of stay to the Superintendent of Police (Border), Karbi Anglong, Diphu and without obtaining prior written permission from the said authority.
14. With the aforesaid direction the present writ petition stands disposed of.
Send back the LCR.
The Registry shall inform the Superintendent of Police (Border), Karbi Anglong, Diphu about this order forthwith.
JUDGE JUDGE Comparing Assistant