Gauhati High Court
Amena Khatun @ Amena Bibi @ Amina Bibi vs The Union Of India And 5 Ors on 7 December, 2021
Bench: N. Kotiswar Singh, Malasri Nandi
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GAHC010046962020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1682/2020
AMENA KHATUN @ AMENA BIBI @ AMINA BIBI
W/O- MAJIBAR ALI, D/O- MIRJAN ALI (FATHER) SOJIRAN BIBI (MOTHER),
R/O- VILL- BANIAMARI PART-II, P.O. MAKRIJHORA, P.S. BAGRIBARI, IN
THE DHUBRI DIST. OF ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECY. TO THE GOVT. INDIA, MINISTRY OF HOME AFFAIRS,
NEW DELHI- 110001
2:THE ELECTION COMMISSION OF INDIA
REP. BY THE CHIEF ELECTION COMMISSIONER
NEW DELHI- 110001
3:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-06
4:THE DY. COMMISSIONER
DHUBRI
783301
ASSAM
5:THE SUPERINTENDENT OF POLICE (B)
DHUBRI
783301
ASSAM
6:COORDINATOR
NATIONAL REGISTER OF CITIZENS
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BHANGAGHAR
GHY-
Advocate for the Petitioner : SYED BURHANUR RAHMAN
Advocate for the Respondent : ASSTT.S.G.I. (R1)
BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MRS. JUSTICE MALASRI NANDI order (oral) 07-12-2021 [N. Kotiswar Singh, J] Heard Mr. J. Abbas, learned counsel for the petitioner. Also heard Ms. L. Devi, leraned counsel appearing on behalf of Mr. R.K.D. Choudhury, learned Asstt. SGI, for respondent No.1 & 6; Mr. G. Sarma, learned Special Counsel, F.T. appearing for respondent Nos. 5; Mr. A. I. Ali, learned Standing Counsel, ECI, appearing for respondent No.2 and Ms. U. Das, learned State Counsel, Assam, appearing for the respondent no.3 & 4.
2. LCR as called for, has been received and we have perused the same. 3 . In this petition the petitioner has challenged the ex parte order dated 07.12.2015 passed by the Foreigners Tribunal No.7, Dhubri at Bilasipara, Assam, in F.T.7 th Dhubri Case No.128/BBR/15, by which the petitioner was declared a foreigner of the 1971 stream. The Tribunal held that in spite of giving adequate opportunities, the petitioner failed to produce any reliable and trustworthy document before the Tribunal to prove her citizenship and Page No.# 3/6 accordingly, declared her foreigner who had entered to India through Assam after 25.03.1971.
4. The learned counsel for the petitioner claims that the petitioner duly appeared before the Foreigners Tribunal after receiving notice from the Tribunal but because of lack of proper documents at the relevant time and also as the petitioner was not keeping well, she could not appear before the Tribunal on the fixed dates and as such, the ex-parte order was passed by the Tribunal. The learned counsel for the petitioner submits that otherwise the petitioner has sufficient documents to prove that she is an Indian citizen and not a foreigner.
5. Mr. G. Sarma, learned Special Counsel, F.T., has submitted that the petitioner is herself to be blamed for the consequence she is suffering from as she was given adequate opportunities to appear before the Tribunal to prove her citizenship but she did not appear before the Tribunal.
6. We have gone through the order dated 07.12.2015 passed by the Tribunal. The said order indicates that the petitioner did appear before the Tribunal on 28.09.2015 after receiving notice and the matter was thereafter fixed on 03.10.2015 for filling written statement. On that date the petitioner appeared before the Tribunal and prayed again for time to file written statement along with the relevant documents. Accordingly, the Tribunal granted her time till 08.10.2015 for filling written statement but on 08.10.2015 the petitioner did not appear and remained absent without taking steps and no written statement was filed. Accordingly, the matter was proceeded ex-parte against the petitioner and 16.10.2015 was fixed for ex-parte hearing. On subsequent dates also, the petitioner remained absent. Finally, on 07.12.2015 the ex -parte order was passed declaring the petitioner a foreigner.
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7. What we have noticed from the above is that it is not the case that the petitioner totally ignored the summons from the Tribunal or was wholly negligent towards the proceedings of the Tribunal. From the records it appears that attempts were made on the part of the petitioner to collect some documents because of which the petitioner took time. As regards subsequent dates when the petitioner remained absent, it has been submitted by the learned counsel for the petitioner that because of certain illness the petitioner could not appear before the Tribunal on the fixed dates. We have also noted that the Tribunal passed the ex-parte order without considering any material but merely on the ground that the petitioner failed to discharge the burden cast upon her under Section 9 of the Foreigner Act, 1956. Though, technically the order of the Tribunal could not be faulted with, however, we are aware that this is a very important proceeding dealing with the citizenship of a person and in the present case the petitioner has annexed a number of documents to show that she is indeed an Indian by tracing her ancestry through one Sekandar Ali.
8. In this regard, we have seen the voters lists of 1966 and 1970 where the name of one Sekandar Ali appeared under the village No.78 Chamcharanerkuti Pt.III , P.S. Dhubri under the then Goalpara district. We have also noted that in the 1997 voters list, the name of the petitioner's father, Mirjafar Ali appeared as son of Sekandar under the same village. In the voters lists of 2005 and 2019, the name of her father (Mirjafar Ali) as the son of Sekandar Ali (Grandfather) also appeared under the same address. The petitioner has also drawn attention of this Court to the two other documents, i.e. (i) certificate issued by the Secretary of Geramari Gaon Panchayat, Dhubri and (ii) marriage certificate in support of her claim that she is a daughter of Mirjafar Ali.
In our view if the aforesaid documents can be proved by the petitioner, she can make Page No.# 5/6 a legitimate claim that she is an Indian not a foreigner. However, since the matter was proceeded ex-parte, she could not substantiate her claim that she is an Indian and not a foreigner.
8. Citizenship is one of the most important rights of a person in today's world. It is the key to enjoyment of the rights guaranteed by law of the land. It is through citizenship that a person can enjoy and enforce fundamental rights and other legal rights conferred by the Constitution and other statutes, without which a person cannot lead a meaningful life with dignity. A person stripped of citizenship could be rendered a stateless person, if any other country refuses to accept him or her as its citizen. Such is the overarching significance and importance of citizenship to a person. Therefore, any such proceeding which has the potential of depriving citizenship ought to be in our view examined from that perspective also. In a normal proceeding before a court of law, in spite of any adverse finding, the person will continue to enjoy the rights as a citizen. Though a proceeding under the Foreigners' Tribunal, is merely quasi-judicial in nature, yet an adverse opinion by the Tribunal that the proceedee is a foreigner almost seals the fate of the proceedee as far as the issue of citizenship is concerned, as the authorities are expected to declare such a person a foreigner in terms of the opinion of the Tribunal and he would be liable to be detained and deported. Thus, ordinarily, such an opinion of the Tribunal, in our view, ought to be given after analyzing all the relevant evidence that may be produced by the proceedee and not by way of default as has been done in the present case.
9. Be that as it may, Mr. G. Sarma has fairly submitted before this Court that he has no objection if the case is remanded to the Tribunal for a fresh consideration, subject to payment of some cost.
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10. In view of the above, we are inclined to remand this matter to the concerned Tribunal for a fresh consideration by setting aside the impugned order dated 07.12.2015 passed by the Foreigners Tribunal No.7th, Dhubri at Bilasipara in F.T.7 th Dhubri Case No.128/BBR/15, which we do.
11. Accordingly, the petitioner shall appear before the Foreigners Tribunal No.7 th, Dhubri at Bilasipara, on 17.01.2022, however, subject to payment of Rs.3000 to the District Legal Service Authority, Dhubri and thereafter, the learned Tribunal will proceed with the matter in accordance with law and shall pass an opinion afresh in the light of the written statement and documents that may be filed and evidence that may be adduced by the petitioner in that regard.
12. Since the petitioner has already been granted bail by this Court on 25.02.2021, she would continue to remain on bail on similar terms and conditions till the appropriate fresh opinion is rendered by the Foreigners Tribunal No.7th, Dhubri at Bilasipara.
13. The writ petition stands disposed of accordingly.
14. Copy of this order be furnished to the Superintendent of Police (B), Dhubri for doing the needful.
15. Let the LCR of the Foreigners Tribunal No.7 th, Dhubri at Bilasipara, be remitted immediately.
JUDGE JUDGE Comparing Assistant