Gauhati High Court
Page No.# 1/5 vs The Union Of India And 4 Ors on 22 June, 2022
Page No.# 1/5
GAHC010240762017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5556/2017
ALPANA SARKAR and 4 ORS.
R/O VILL- MALPUTA P.S. MORIGAON, DIST. MORIGAON, ASSAM
2: SRIKALACHAN SARKAR
R/O VILL- MALPUTA P.S. MORIGAON DIST.MORIGAON
ASSAM
3: SMTI. RINKU SARKAR
R/O VILL- MALPUTA P.S. MORIGAON
DIST. MORIGAON
ASSAM
4: SRI JINTU SARKAR
R/O VILL- MALPUTA P.S. MORIGAON
DIST. MORIGAON
ASSAM
5: SRI SUDEEP SARKAR
R/O VILL- MALPUTA P.S. MORIGAON
DIST. MORIGAON
ASSA
VERSUS
THE UNION OF INDIA and 4 ORS.
REP. BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA,
SHASTRI BHAWAN, NEW DELHI.
2:THE STATE OF ASSAM
THROUGH THE SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI - 781006.
Page No.# 2/5
3:THE SUPERINTENDENT OF POLICE BORDER
MORIGAON
ASSAM
4:THE DEPUTY COMMISSIONER
DEPUTY COMMISISONER'S OFFICE
MORIGAON
ASSAM
PIN - 782105.
5:THE OFFICER-IN-CHARGE
MORIGAON POLICE STATION
MORIGAON
ASSA
Advocate for the Petitioner : MR.N DEKA
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HON'BLE THE CHIEF JUSTICE (ACTING) MR. N. KOTISWAR SINGH
HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR
ORDER
22.06.2022 [N. Kotiswar Singh, (C.J. (Acting)] Heard Ms. D. Ghosh, learned counsel for the petitioner. Also heard Mr. K.K. Parashar, learned CGC, who appears on behalf of Mr. R.K.D. Choudhury, learned ASGI; Mr. G. Sharma, learned Special Counsel, FT; Mr. A. I. Ali, learned Standing Counsel, Election Commission of India; Ms. K. Phookan, learned Government Advocate, Assam and Mr. K.K. Parashar, learned counsel for the NRC.
2. In this petition, the petitioners have challenged the impugned order dated 29.05.2017 passed by the Foreigners Tribunal No.3, Morigaon in Case No. FT(C) 04/2016 by which the petitioners were declared to be foreigners.
3. The petitioner No.1 in this petition has sought for intervention of this Court by allowing her to adduce further evidence to show that her father, Kanailal Shil, was a migrant from the then East Pakistan, now, Bangladesh, and was given Refugee Registration Certificate, which, unfortunately, could not be filed by her in course of the proceeding as the said Certificate was Page No.# 3/5 in the custody of her brother with whom she had a strained relationship.
4. It has been submitted that on the basis of the said certificate, her younger sister, Lakshmi Das, has been declared to be an Indian.
5. Under the circumstances, it has been submitted that a grave prejudice will be caused to her if the petitioner is not allowed to file the said crucial document, i.e., the Refugee Registration Certificate issued in the name of her father and other documents in support of that.
6. It has been submitted that if the petitioner is allowed to file the said certificate, she can definitely prove that she, being the daughter of aforesaid Kanailal Shil, is an Indian and not a foreigner.
7. We have requisitioned the record in respect of Smt. Lakshmi Das from the Foreigners Tribunal, Kamrup (Metro) in FT Kamrup (Metro) DV Case No.8809/2011, who the petitioner claims to be her younger sister and perused the same.
8. We have gone through the original record in respect of the present proceeding also.
9. In the original record pertaining to Smt. Lakshmi Das, it is seen that the said Lakshmi Das had taken a specific plea that her father, Kanailal Shil, was initially a resident of village- Makkati, Thana-Munshiganj, district-Dacca in the erstwhile East Pakistan. However, because of communal violence, which erupted in the said country, the petitioner's father and other family members had migrated to India in 1953 and took shelter in the State of Assam and, thereafter, her father was given a Refugee Registration Certificate by the office of the Deputy Commissioner, Nowgong on 27.11.1953, which was exhibited as Ext.B in the said proceeding. A copy of the said certificate is available at page 41, which is annexed as Annexure-4 I(A) to this petition.
10. Perusal of the said certificate would go to show that the said certificate was issued in the name of Kanailal Shil, s/o. Ishar Durgaprasad Shil with his five family members who came from village Mokkhati, Thana-Munshigong, district-Dacca and residing in village-Dhing Bhakatgaon, Nowgong and that the certificate was issued on 27.11.1953.
11. We are satisfied that it is the same certificate, which the petitioner is seeking to rely Page No.# 4/5 on, which was earlier relied by said Lakshmi Das to prove that she was an Indian, which was accepted by the Foreigners Tribunal, Kamrup (Metro) in FT Kamrup (Metro) DV Case No.8809/2011 whereunder vide opinion dated 02.06.2014, said Lakshmi Das was declared to be an Indian on the ground that the parents of Lakshmi Das had migrated from the erstwhile East Pakistan prior to 01.01.1966 and Lakshmi Das was born in the house of her parents in 1978 and, as such, not a foreigner.
12. Accordingly, we are satisfied that if the petitioner is allowed to file the said certificate before the Tribunal, she will have a legitimate claim that she is an Indian being the daughter of said Kanailal Shil as in the case of her younger sister, Lakshmi Das.
13. We, accordingly, without going into the other issues, allow this petition by remanding the matter to the Foreigners Tribunal No.3, Morigaon and allow the petitioner to file the said Refugee Registration Certificate in the name of her father, Kanailal Shil, issued by the Deputy Commissioner, Nowgong on 27.11.1953 along with such supporting documents relating to Lakshmi Das and other linkage documents to enable her to prove that she is an Indian and not a foreigner and, thereafter, the Tribunal shall pass an appropriate order.
14. Learned counsel for the petitioners submits that though there was a reference against the petitioner No.1, Smt. Alpana Sarkar, there was no reference against the remaining petitioners, namely, Kalachan Sarkar, Smt. Rinku Sarkar, Jintu Sarkar and Sudeep Sarkar.
15. We have also gone through the records relating to the present proceeding and we find that the enquiry was only against Smt. Alpana Sarkar and no enquiry was held against the remaining petitioners.
Under the circumstances, no reference could have been made against the remaining petitioners without having a proper enquiry as held by this Court in a number of cases including Sudhir Roy and others Vs. Union of India and others, 2019 (1) GLT 353, wherein it has been held as under:-
"9. As regards the declaration of the wife, sons and daughters of the petitioner to be foreigners, we have perused the records and have taken note of that the reference was made only against the petitioner and not against his wife, sons and daughters. Although the law in this respect has been settled by this Court in Aktara Khatun Vs. State of Assam & Ors., reported in 2017(2)GLT 974 that a presumption can also be drawn against the family members of the proceedee Page No.# 5/5 who has been declared as foreigner, but at the same time we are also of the view that such presumption would by itself not lead to a conclusion that the family members of a proceedee who has been declared to be a foreigner are also foreigners. The same may be a good cause for initiating an enquiry and making a reference against the family members, but without following the due procedure of law of conducting an enquiry and making a reference and being adjudicated by the Tribunal, the family members cannot be declared to be foreigners."
16. Accordingly, we are of the view that the proceeding against the petitioner Nos.2 to 5 cannot be sustained in law. The impugned order is, therefore, set aside as far as petitioner Nos.2 to 5 are concerned.
17. The impugned order is set aside in respect of petitioner No.1 also for the purpose of reconsideration by the Tribunal on the plea of the petitioner No.1 that she being the daughter of Kanailal Shil and, as such, will be an Indian as in the case of Lakshmi Das, who was declared to be an Indian on the plea of being the daughter of Kanailal Shil in respect of which said Lakshmi Das had relied on various documents including the Refugee Registration Certificate issued in favour of her father.
18. The petitioner No.1 will, accordingly, appear before Tribunal on 22.07.2022 and file the said Refugee Registration Certificate and other supporting documents and the Tribunal, after hearing the petitioner and on appreciation of evidences that may be adduced, will pass a fresh opinion as regards the citizenship status of the petitioner No.1.
As far as petitioner Nos.2 to 5 are concerned, they need not appear before the Tribunal as the impugned opinion stands quashed as far as they are concerned also.
19. LCR be remitted forthwith to the concerned Tribunal.
20. The writ petition is, accordingly, disposed of.
JUDGE CHIEF JUSTICE (ACTING) Comparing Assistant