Gauhati High Court
Rukiya Begum vs The Union Of India And 5 Ors on 4 March, 2022
Bench: N. Kotiswar Singh, Malasri Nandi
Page No.# 1/7
GAHC010262302019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/8027/2019
RUKIYA BEGUM
W/O- ABDUL MANNAN, D/O- ABDUL MATIN, R/O- VILL- DIDARKUSH
PART-III, P.O. MATINAGAR, P.S. KACHUDARAM, DIST- CACHAR, ASSAM,
PIN- 788099
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY HOME SECY., MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW
DELHI- 110001
2:THE STATE OF ASSAM
REP. BY COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME AND POLITICAL DEPTT. CM BLOCK (THIRD FLOOR)
ASSAM SECRETARIAT
GHY
DIST- KAMRUP (M)
ASSAM
PIN- 781006
3:THE DY. COMMISSIONER
CACHAR
SILCHAR
DIST- CACHAR
ASSAM
PIN-788001
4:THE SUPERINTENDENT OF POLICE (B)
CACHAR
SILCHAR
DIST- CACHAR
ASSAM
Page No.# 2/7
PIN-788001
5:THE ELECTORAL REGISTRATION OFFICER
DHOLAI CONSTITUENCY
P.O. DHOLAI DIST- CACHAR
ASSAM
PIN- 788030
6:THE STATE COORDINATOR OF NATIONAL REGISTRATION (NRC)
ASSAM
1ST FLOOR
ACHYUT PLAZA
G.S.ROAD
BHANGAGARH
GHY
ASSAM
PIN- 78100
Advocate for the Petitioner : MR. O LASKAR
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MRS. JUSTICE MALASRI NANDI order (oral) 04-03 -2022 [N. Kotiswar Singh, J] Heard Mr. O. Laskar, learned counsel for the petitioner. Also heard Mr. U.K. Goswami, learned CGC appearing for respondent no.1; Ms. A. Verma, learned Special Standing Counsel, F.T. appearing for respondent no.4; Mr. A. Bhuyan, learned Standing Counsel, ECI, appearing for respondent no.5; Ms. L. Devi, learned Standing Counsel, NRC, appearing for respondent no.6 and Ms. K. Phukan, learned Government Advocate, Assam, appearing for respondent Page No.# 3/7 nos.2 & 3.
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 petitioner has challenged the ex parte order dated 18.06.2018 passed by the Foreigners Tribunal No.6 th, Silchar in F.T.6th (D) Case No.1669/16, declaring the petitioner as a foreigner of post 1971 stream. The Foreigners Tribunal in the impugned order has mentioned that the petitioner remained absent on various occasions, though notice was duly served to her and accordingly, the Tribunal proceeded ex parte against the petitioner vide impugned ex parte order dated 18.06.2018. The Tribunal on the basis of the materials available on record held that the petitioner is a foreigner of post 1971 stream.
4. Learned counsel for the petitioner submits that the petitioner duly received notice from the Tribunal and appeared before the Tribunal on 15.09.2017 and sought time from the Tribunal to file written statement. However, the petitioner could not appear before the Tribunal on the next dates fixed i.e. on 13.10.2017, 22.11.2017 and 07.12.2017 respectively resulting in passing of the ex parte order dated 18.06.2018. Learned counsel for the petitioner submits that the petitioner could not appear before the Tribunal as she was unable to collect all the required documents to file the written statement and therefore, she remained absent before the Tribunal on those fixed dates. However, on 07.12.2017 the Tribunal proceeded against her ex parte and after coming to know about the ex parte proceeding, the petitioner filed an application praying for setting aside the said order and to give her an opportunity to file written statement and to lead evidence but the same was Page No.# 4/7 rejected by the Tribunal and vide order dated 18.06.2018 the Tribunal passed the impugned ex parte order dated 18.06.2018 holding that the petitioner is a foreigner and a doubtful voter.
5. 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 and as such, she has submitted that she may be given another opportunity to appear before the Court as the absence of the petitioner before the Tribunal was not deliberate but for reasons beyond her control as she was trying to collect relevant documents.
6. Ms. A. Verma, learned Special Counsel, F.T. has submitted that the petitioner is herself to be blamed for the consequence as she was given adequate opportunity to appear before the Tribunal to prove her citizenship but she did not appear before the Tribunal.
7. We have perused the order dated 18.06.2018 passed by the Foreigners Tribunal No.6th, Silchar in F.T.6th (D) Case No.1669/16, which clearly indicates that the petitioner had appeared before the Tribunal and sought time to file her written statement but she could not appear before the Tribunal on several occasions and could not file her written statement. Though she had filed an application before the Tribunal praying for some time to file written statement along with the documents, the Tribunal did not consider the same and passed the impugned ex parte order dated 25.01.2021.
8. Though, technically the order of the Tribunal may not be faulted with, however, we are aware that this is a very important proceeding dealing with the citizenship of a person and as such a more liberal view may be adopted about the timeline for concluding the proceeding.
9. In the present case the petitioner has annexed a number of documents to show that Page No.# 5/7 she is indeed an Indian which the petitioner could not produce before the Tribunal during the proceeding, as she was proceeded ex-parte. The petitioner also claims that at the relevant time she was suffering from certain illness preventing her from attending the proceeding regularly.
10. In this regard, we have seen the voters lists of 1965 and 1970 annexed by the petitioner in the present petition where the name of the petitioner's projected father, Abdul Matin appeared as the son of Astor Ali and resident of 13 No. Electoral Circle-Dholai, village Didarkush 1st Part, P.S. Sonai, Sub-Division-Silchar, Dist.-Cachar. The petitioner has also submitted the voters' lists of 1997 & 2010 where the name of the petitioner's father appeared. The petitioner has also submitted the NRC document of her father Abdul Matin and one certificate issued by the President of Didarkush Gaon Panchayat, Motinagar where the petitioner was shown as the daughter of Abdul Motin.
11. We are of the view that if the aforesaid documents can be proved by the petitioner, she can make a legitimate claim that she is an Indian and not a foreigner. Accordingly, since the matter was proceeded ex-parte, in the interest of justice, we are inclined to grant another opportunity to the petitioner to appear before the Tribunal to prove her case that she is an Indian and not a foreigner.
12. 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 the 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 Page No.# 6/7 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 accordingly, 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 evidences that may be produced by the proceedee and not by way of default as has been done in the present case.
13. In the present case, we are satisfied that it is not a case of deliberate avoidance of the proceeding but for reasons which we find not to be unreasonable, particularly, considering the fact that the citizenship is an important right which ought to be decided after hearing the person concerned and not by way of default as has been done in the present case. In the present case, we find that there was no effective hearing of the petitioner before the ex parte order was passed. Under these circumstances, we are of the opinion that the petitioner may be given another opportunity to prove that she is an Indian and not a foreigner.
14. Accordingly, for the reasons discussed above, we allow this petition by setting aside the impugned opinion dated 18.06.2018 passed by the Foreigners Tribunal No.6 th, Silchar, Cachar in F.T.6th (D) Case No.1669/16.
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15. The petitioner shall accordingly appear before the concerned Foreigners Tribunal No.6th, on 06.04.2022 and thereafter, the Tribunal will proceed with the matter in accordance with law. The petitioner may file her written statement and produce documents to prove that she is an Indian and not a foreigner.
16. Since the nationality of the petitioner has come under cloud, she will be allowed to remain on bail on furnishing a bail bond of Rs.5,000/- (Rupees five thousand) only with one local surety of the like amount to the satisfaction of the Superintendent of Police (Border), Cachar during the pendency of the proceeding before the Tribunal. The concerned Superintendent of Police (Border) shall also take steps for capturing the fingerprints and biomertrics of iris of the petitioner. The petitioner also shall not leave the jurisdiction of Cachar district without furnishing the details of the place of destination and necessary information including contact number to the Superintendent of Police (Border), Cachar.
17. Copy of this order be furnished to the Superintendent of Police (Border), Cachar for doing the needful.
JUDGE JUDGE Comparing Assistant