Gauhati High Court
Amisa Khatun vs The Union Of India And 5 Ors on 3 September, 2021
Author: Soumitra Saikia
Bench: N. Kotiswar Singh, Soumitra Saikia
Page No.# 1/8
GAHC010034402021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1262/2021
AMISA KHATUN
D/O LATE TAMIZ UDDIN
W/O SAMIR ALI
VILLAGE SHYAMPUR NO. 4, PS SHYAMPUR, DIST DARRANG, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA,
NEW DELHI 110001
2:THE ELECTION COMMISSION OF INDIA
GOVT. OF INDIA
NEW DELHI 110001
3:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI 781006
4:THE STATE CO ORDINATOR
NATIONAL REGISTER OF CITIZENS (NRC) BHANGAGARH
GUWAHHATI 05
5:THE DEPUTY COMMISSIONER
DARRANG
DARRANG
ASSAM
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6:THE SUPERINTENDENT OF POLICE (B) DARRANG
DARRANG
ASSA
Advocate for the Petitioner : MR H R A CHOUDHURY
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
03.09.2021 (Soumitra Saikia, J) Heard Mr. H. Ali, learned counsel for the petitioner.
2. Also heard Mr. B. Deka, learned Standing counsel, CGC appearing for the respondent No. 1; Ms. B. Das, learned Standing Counsel, ECI appearing for the respondent No. 2. A. Verma, learned Special Counsel, FT appearing for respondent Nos. 3, 5 & 6 and Ms. L. Devi, learned counsel, NRC appearing for the respondent No 4.
3. This writ petition has been filed by the petitioner being aggrieved by the order dated 16.08.2017 passed by the Foreigners' Tribunal 4 th, Darang, Mangaldai in F.T. Case No. FT(4 th) 291/2015, answering the reference in favour of the State and holding that the opposite party/petitioner is an illegal migrant/foreigner of the stream of post 25.03.1971 and is liable to be pushed back.
4. The petitioner claims to be an Indian Citizen by birth and a permanent resident of Village- Shyampur No. 4 under Shyampur Police Station in the district Page No.# 3/8 of Darrang, Assam. The petitioner stats that she was born in Village-Ujagaon and brought up under Village-Shyampur under Mangaldai Police Station in the district of Darrang, Assam. The petitioner's father Late Tamiz Sk. had three wives, namely i) Langri Bhan Nessa (who is stated to be the petitioner's mother)
ii) Basaron Nessa and iii) Fuljan. Out of their wedlock three (3) sons, namely i) Jamat Ali, ii) Nur Nabi and iii) Nolikat Ali and two daughters, namely i) Tamirun Bewa and ii) Amisa Khatun (who is the petitioner) were born. The petitioner was married to one Samir Ali, S/o Late Afaz Uddin of Village No. A, Arimari under Dalgaon LAC in the district of Darrang and petitioner has four (4) sons, namely
i) Siddique Ali, ii) Iddrish Ali, iii) Insan Ali and iv) Rfiqul Islam and daughters, namely i) Monowar Begum, ii) Jarimon Khatun and iii) Minara Begum. The petitioner states that all her ancestors and family members are Citizen of India therefore, there is no question of the petitioner being an illegal migrant from Bangladesh. The petitioner submits that before making the reference to the Foreigners Tribunal, the petitioner was never put to notice by the police. The police never visited her parents house or maternal house at any point of time for making any such enquiry.
5. In support of her contentions, the petitioner refers to Voters lists of 1966, 1971, 1977, 2009 and 2017 to submit that the petitioner's parents and other family members name appear in the said Voters lists. The petitioner submits her name along with her husband appeared in the Voters list of 1997 at Village No. 1 Arimari vide the Sl. Nos. 542 & 544, House No. 47 under Dalgaon LAC, in the district of Darrang, Assam. She however, mentions that her name was shown as Amida Khatun instead of Amisa Khatun. The petitioner also relies upon the Certificates issued by the local Gaonburah and Gaon Panchayat to contend that she is the daughter of Late Tamiz Sk. and Langri Bhan Nessa Page No.# 4/8
6. The petitioner states that pursuant to the notice issued by the Foreigners' Tribunal, she appeared before the Tribunal with her counsel and sought for time for filling written statement. Subsequently, the petitioner was found absent and thereafter, the Tribunal vide the impugned ex-parte order dated 16.08.2017 declared the petitioner as a foreigner of post 25.03.1971 stream. The petitioner submits that she being an illiterate lady was completely dependent on her counsel. To her utter surprise, she was arrested on 21.11.2020 in connection with the FT Case No. FT (4th) 291/2015 in pursuance to the impugned order dated 16.08.2017 and since then the petitioner has been in the Central Jail in Tezpur. The petitioner submits that she has sufficient documents to prove that she is a Citizen of India and the fact that the Foreigners' Tribunal proceeded ex- parte and passed impugned order dated 16.08.2017 against the petitioner, cannot be attributed to her as she was entirely dependent on her counsel who was expected to give her appropriate advice and or represent her before the Tribunal.
7. The records of the Foreigners' Tribunal called for by this Court, while issuing Notice, has been received.
8. We have heard the learned counsel for the petitioner as well as the learned counsel appearing for the respondents.
9. The learned counsel for the respondents submits that the petitioner deliberately did not take part in the proceedings and consequently, the matter was decided ex-parte. Therefore, this Court ought not to interfere with this order which is impugned.
10. We have heard the learned counsels for the parties and the records were Page No.# 5/8 called for, are also perused.
11. Upon perusal of the records, it is seen that the matter was initially forwarded to the IM(D)T. Subsequently, it was transferred to the F.T (4 th), Darrang. Notice on the petitioner was issued on 02.05.2016 which was shown to have been received by the husband of the petitioner, namely, Samir Ali. The petitioner and her authorized counsel appeared before the Foreigner' Tribunal (4th), Darrang on 19.01.2017. Subsequently, on 24.02.2017, it is seen that she appeared with her counsel who filed a petition for further time. Thereafter, it is seen from the order-sheets that the Opposite party/petitioner was absent on 23.03.2017, 28.04.2017, 09.08.2017, 16.08.2017. On 16.08.2017, it is seen from the order-sheet that the reference was disposed of on contest in favour of the State. The impugned order dated 16.08.2017 reads as under:
"BEFORE THE COURT OF THE MEMBER, FOREIGNERS TRIBUNAL (4TH) DARRANG MANGALDAI Case No. F.T. (4th) 291/2015 S P Enquiry No. NIL Present SHRI DEEPAK BORA Member Foreigners Tribunal 4TH Darrang, Mangaldai State of Assam..........1st Party
--Vs--
Amisa W/O - Samir Vill - Shyampur Chapari P.S. - Shyampur Dist. - Darrang (Assam)......... Opposite Party. ORDER 16-08-2017 The reference is received from the S.P (B), Darrang, Mangaldai, against Amina, W/O - Samir of village Shyampur Chapari under Shyampur Police Station, alleging her to be a foreigner The Opposite Party is absent. The case is fixed for necessary Order. After receiving the notice the Opposite Party appeared before the Court along with her legal counsel and prayed time to file the w/s and the case was fixed on 24/02/2017 for w/s. On 24/02/2017 the Opposite Party is present along with the legal counsel and prayed further time to file the w/s and the case was fixed on 23/03/2017. On 23/03/2017 and 28/04/2017 the Opposite Party remained absent without steps and the Page No.# 6/8 case was fixed on 30/05/2017 for filing the w/s. On 30/05/2017 and 09/08/2017 the Opposite Party again remained absent without steps and hence the case was fixed for necessary order on 16/08/2017. Today also the Opposite Party is absent without steps and therefore, the case is decided accordingly. In view of the above, I am of the opinion that inspite of giving her reasonable opportunityies the Opposite Party failed to prove her claim by adducing primary and secondary evidence. So I think that the Opposite Party has no case to prove. Hence, in my opinion, the Opposite Party is an illegal migrant/foreigner of stream of post 25 th March, 1971 and is liable to be pushed back.
Reference stands disposed of on contest in favour of State. Inform the S.P(B), Darrang. He is directed to restrain the free movement of the Opposite Party through his sub-ordinate agencies.
The Election Officer, Darrang shall delete the name of the Opposite Party from the Electoral Roll.
Sd/-
Member Foreigners Tribunal (4TH) Darrang : Mangaldai"
12. In the impugned order, the Tribunal noted that pursuant to the notice of the opposite party/petitioner appeared along with her legal counsel and prayed for time to file written statement. Subsequently, she appeared again along with the legal counsel and prayed for further time and thereafter, she failed to appear without steps and written statement was not filed and accordingly the matter was disposed of on 16.08.2017. Although the Tribunal held that the reference made to the Tribunal in respect of the petitioner, was disposed of "on contest", perusal of the impugned order dated 16.08.2017 does not reveal that any arguments and/or evidences even by the State was led before the Tribunal during the course of hearing. It effectively, appears to be an order passed ex- parte the petitioner. Although, we do not approve of the petitioner approaching this court in 2021 challenging the ex-parte order dated 16.08.2017, however, considering that citizenship is a valuable right of the petitioner, in the interest of justice, this petition is disposed of by setting aside the impugned order dated 16.08.2017 passed by the Foreigners Tribunal (4th), Darrang. The petitioner will appear before the Foreigners' Tribunal (4 th), Darrang and thereafter the Tribunal will proceed to hear the matter after giving the petitioner all opportunities as provided for in law. Accordingly, the petitioner will appear before the Foreigners' Page No.# 7/8 Tribunal (4th), Darrang on 5th of October, 2021 positively, whereupon the Foreigners' Tribunal will proceed with the matter as per provisions of law.
13. However, since the citizenship of the petitioner is under a cloud, the petitioner will also appear before the Superintendent of Police (B), Darrang, within 15 (fifteen) days from today and furnish a bail bond of Rs.5,000/- (Rupees five thousand) only with one local surety of the like amount to the satisfaction of the said authority. A direction is also made to the Superintendent of Police (Border), Darrang that as and when the petitioner appears within the period indicated above, the biometrics of the iris of both eyes, the fingerprints of both hands and photograph of the petitioner shall be obtained.
14. Since, we do not approve of the conduct of the petitioner in not pursuing the matter in right earnest, we deem it proper to impose a cost of Rs.3,000/- (Rupees three thousand) only on the petitioner to be deposited before District Legal Services Authority, Darrang prior to her appearance before the Foreigners' Tribunal as directed.
15. In the event, the petitioner fails to comply with the directions of this Court regarding appearance before the Foreigners' Tribunal (4th), Darrang, the impugned order dated 16.08.2017 will stand revived without further reference to this court and the bail if any granted by the Superintendent of Police (B), Darrang will stand cancelled without further reference to this court.
16. With the above observations and directions, the present writ petition is disposed of.
17. Remit the records to the Foreigners' Tribunal (4 th), Darrang immediately.
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JUDGE JUDGE
Comparing Assistant