Gauhati High Court
Padma Devi vs The Union Of India And 5 Ors on 17 November, 2022
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh, Ajit Borthakur
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GAHC010048912021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./40/2021
PADMA DEVI
W/O- JOGAT BHADUR, R/O- AMSING, JORABAT, P.O. AND P.S. NOONMATI,
GUWAHATI- 781020, DIST.- KAMRUP(M), ASSAM.
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA,
SHASTRI BHAWAN, NEW DELHI-1, INDIA.
2:THE STATE OF ASSAM
THROUGH THE SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI- 781006.
3:THE DEPUTY COMMISSIONER OF POLICE (BORDER)
PANBAZAR
GUWAHATI- 781001
KAMRUP(M)
ASSAM.
4:THE STATE CO-ORDINATOR
NATIONAL REGISTER OF CITIZENS (NRC)
ZOO ROAD
R.G. BARUAH ROAD
P.O. ZOO ROAD
GUWAHATI- 781024
P.S. GEETA NAGAR
DIST.- KAMRUP(M)
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ASSAM.
5:THE ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI-110001.
6:THE DEPUTY COMMISSIONER
KAMRUP METRO DISTRICT
PANBAZAR
GUWAHATI- 781001
DIST.- KAMRUP(M)
ASSAM
Advocate for the Petitioner : MS. D GHOSH
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 17-11-2022 (N. Kotiswar Singh, J.) Heard Ms. D. Ghosh, learned counsel for the review petitioner. Also heard Mr. U.K. Goswami, learned Central Government Counsel; Mr. J. Payeng, learned Special Counsel, FT; Ms. L. Devi, learned Standing Counsel, NRC; Mr. A. I. Ali, learned Standing Counsel, ECI and Ms. U. Das, learned Additional Senior Government Advocate, Assam.
2. The present review petition has been filed seeking review of the order dated 01.02.2021 passed in WP(C) No.6416/2019 by which the challenge made by the review petitioner to the ex parte order passed by the Foreigners Tribunal, Kamrup (M), Guwahati in FT Kamrup (M) DV Case No.198/2011 declaring the petitioner to be a foreigner was dismissed by this Court primarily on the ground that though the petitioner was afforded sufficient Page No.# 3/8 opportunities to file written statement as many as on four occasions, the petitioner remained absent without taking steps and, as such, the petitioner herself has to be blamed for the situation. It was also observed that it cannot be said that principles of natural justice were violated in the present case inasmuch as all the procedures were followed in accordance with law. Accordingly, the said writ petition was dismissed.
3. Ms. Ghosh, learned counsel for the petitioner, submits that it is not the case that the petitioner was totally negligent of the proceeding inasmuch as the petitioner appeared before the Tribunal for filing written statement but because of the fact that the petitioner being the wife of one Jagat Bahadur, who was travelling from place to place in search of livelihood was to follow her husband resulting in failure of the petitioner to appear before the Tribunal.
4. Ms. Ghosh further submits that in the meantime, this Court passed an order in Indira Newar and others Vs. Union of India and others, reported in 2020 (1) GLT 413, wherein this Court had held that persons belonging to Gorkha community of Nepali origin may not be proceeded under the Foreigners Tribunal and such a proceeding will not lie before the Tribunal. In that case, this Court set aside all the opinions rendered by the Foreigners Tribunals qua persons of Gorkha community of Nepali origin. In this regard, the relevant paragraphs of the aforesaid decision in Indira Newar (supra) may be reproduced:
"We have undertaken the rigorous exercise to look into the facts appearing in each individual writ petition to find out whether in any way any of the writ petitioners are shown to have any connection or origin or traceable to any territories included in Bangladesh, within the meaning of "specified territory‟ under Section 6-A (1) (c) of the Citizenship Act, 1955. In the case of each of the writ petitioners they are shown to belong to places within the State of Assam, as variously recorded in the Reports of the Local Verification Officer. The mother tongue of the writ petitioners is "Nepali‟, which Page No.# 4/8 is the language spoken by the citizens of the neighbouring country Nepal, and which language is also specified in the Eighth Schedule to the Constitution of India. This is not to say that a Nepali speaking individual can only have his/her origin at Nepal and not at Bangladesh. However, for the purpose of initiating proceeding against a Nepali speaking person, for examination as to whether he/she is a foreigner or not, in respect of references made under sub-section (3) of Section 6-A of the Citizenship Act, 1955 to a Tribunal constituted under the Foreigners (Tribunals) Order, 1964 having jurisdiction over a district or part thereof in the State of Assam, in terms of Rule 21 of the Citizenship Rules, 2009, the primary and necessary ingredient or the condition precedent is that reference can only be in respect of persons who have come to Assam from the "specified territory‟, meaning the territories included in Bangladesh immediately before the commencement of the Citizenship (Amendment) Act, 1985, and also having regard to the cut-off date of migration into Assam as prescribed under the aforesaid Section 6-A of the Citizenship Act, 1955. Law being clear, as above, there are neither any suspicion expressed by the Referral Authority nor any findings recorded by the concerned Tribunals that any of the writ petitioners are persons who have come into Assam from the "specified territory‟. In Section 6-A, particularly at sub-sections (2) and (3), the expression "specified territory‟ is predominant. It would be apposite to make reference to the Notification dated 23.08.1988 of the Government of India in the Ministry of Home Affairs, whereby the misconception noticed by the Central Government about the citizenship at the commencement of the Constitution of India, of certain classes of persons commonly known as Gorkhas, who had settled in India at such commencement, was clarified. Clarification made was that as from the commencement of the Constitution i.e. from 26.01.1950, every Gorkha who had his domicile in the territory of India and who was born in the territory of India or either of whose parents was born in the territory of India or who had been ordinarily been a resident in the territory of India for not less than five years before such commencement, shall be a citizen of India as provided in Article 5 of the Constitution of India. There is yet another Notification dated 24.09.2018 of the Government of India in the Ministry of Home Affairs (Foreigners Division), perhaps as a guidance while making future references in respect of individuals claiming to belong to the Page No.# 5/8 Gorkha community of Nepali origin, on the subject of a Memorandum dated 30.07.2018 submitted by the All Assam Gorkha Students Union to the Hon'ble Home Minister. It is seen that the issues raised in the Memorandum had been examined by the Ministry of Home Affairs and decision thereof was also taken, with approval of the competent authority. While reiterating the conditions of citizenship of classes of persons known as Gorkhas, as specified in the earlier Notification dated 23.08.1988, the later Notification dated 24.09.2018 clearly laid down that "Since the members of the Gorkha community originally hail from Nepal, it may not be appropriate to declare all of them as from the 'specified territory' as defined under Section 6-A (1) (c) of the Citizenship Act, 1955. Only those who have come from Bangladesh and living in the State of Assam can be treated as from the 'specified territory' in accordance with Section 6-A of the Citizenship Act, 1955." Further, "Only cases of members of Gorkha community living in Assam who do not fall in any of the categories mentioned above may be referred to the Foreigners‟ Tribunal for its opinion as to whether the person is or is not a "foreigner‟ within the meaning of the Foreigners Act, 1946." The categories are duly mentioned in the said Notification dated 24.09.2018. We may also take notice of the provisions of Section 8 of the Foreigners Act, 1946, which relates to determination of nationality. A reading of said Section 8 in the context of the present bunch of cases, it is seen that where for any reason it is uncertain what nationality, if any is to be ascribed to a foreigner, in such cases that foreigner may be treated as the national of the country with which he appears to the prescribed authority to be most closely connected for the time being in interest or sympathy or if he is of uncertain nationality, of the country with which he was last so connected. This provision would be relevant to the extent that even if the most extreme view is taken that the petitioners can never claim to be citizens of India, however, having regard to the status of the petitioners as recorded in the Verification Reports to be persons having their mother tongue and spoken dialect as "Nepali‟, they can only be treated as the national of the country to which they appear to be closely connected i.e. Nepal. Under no circumstances, that too, in the absence of any reports of being persons coming into Assam from the "specified territory‟, the provisions of Section 6-A of the Citizenship Act, 1955 cannot be made applicable to the petitioners. For all the aforesaid reasons, Page No.# 6/8 we have no hesitation but to allow all the 29 writ petitions by setting aside the impugned opinions in all the said 29 writ petitions. As a necessary corollary, reference made against each of the writ petitioners by the respective Referral Authority are also interfered with."
5. In the present case, it has been submitted that the records reveal that the petitioner belongs to Gorkha community of Nepali origin and, as such, the present petition may be allowed by recalling the order of this Court passed in WP(C) No.6416/2019 and also set aside the order passed by the Tribunal.
6. Mr. Payeng, on the other hand, submits that there is nothing wrong in the order passed by the Tribunal or for that matter the order passed by this Court inasmuch as if the petitioner failed to appear before the Tribunal in spite of giving several opportunities, she has to blame herself only. Further, order of this Court dismissing the writ petition cannot be said to have suffered from any infirmity as this Court had observed that the petitioner was granted several opportunities but she failed to appear and this Court also did not detect any violation of the principles of natural justice. As such, it has been submitted that the present review petition is devoid of merit and liable to be dismissed.
7. Though we appreciate the submission of Mr. Payeng that the petitioner was granted several opportunities to appear before the Tribunal and file written statement, and we also do not find any legal infirmity in the order sought to be reviewed, yet what has struck us is that there is a decision of this Court in Indira Newar (supra) wherein it has been held that persons of Gorkha community of Nepali origin cannot be proceeded in Foreigners Tribunal and in the said case, this Court, after being satisfied that the petitioners therein were all belonged to Gorkha community, set aside the proceedings.
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8. We have also examined ourselves from the original records as to whether the petitioner is a person of Nepali origin or not. While going through the original record, specifically the Verification Officer's report, we find that it is clearly mentioned that the petitioner, Padma Devi, is a resident of Amsing Jorabat (Schoolbasti), and was born in the year 1957 in Moran, Assam. It has been also mentioned that she has been registered as an elector of 52 Dispur LAC though eliminated in the year 1993. Similarly, her father's name is registered as an elector of Moran LAC. So is her mother, who has been shown to be an elector of Moran LAC. Her mother tongue has been shown to be Nepali. Inquiry officer's assessment on the dialect spoken has been also shown as Nepali. The remaining columns have not been filled up. In column No.15 as to whether she had migrated to Assam, it has been ticked as 'no'. There is no observation by the LVO that she is suspected to be a foreigner. Though the reference was made on the basis of the opinion of the ERO that she is suspected to be a foreigner, what is evident is that she is a member of Gorkha community of Nepali origin, though she claims to be a resident of this country.
9. Under the circumstances and in view of the decision rendered by this Court in Indira Newar (supra), we are of the opinion that the petitioner has been able to establish that she is a person of Nepali origin in which event the proceeding before the Tribunal will not lie.
10. Even if the petitioner was guilty of laches inasmuch as she did not appear before the Tribunal to file written statement as observed by the Tribunal and also by this Court, in view of the fact that she is a person of Gorkha community of Nepali origin, the petitioner could not have been obviously proceeded and even if proceeded, in view of the decision of this Court in Indira Newar (supra), such a proceeding cannot be sustained in law.
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11. Accordingly, without going into other aspects of the matter, we are satisfied that as the petitioner belongs to Nepali community, her case will be covered by the decision in Indira Newar (supra).
12. Normally, while sitting in review jurisdiction, the matter could have been remanded to the Tribunal for fresh re-consideration. However, we are of the view that such an exercise will be futile inasmuch as the original records show that the petitioner belongs to Gorkha community of Nepali origin.
13. For the reasons discussed above, we allow this review petition by recalling the order passed in WP(C) No.6416/2019 and also setting aside the impugned ex parte order dated 13.02.2012 passed by the Foreigners Tribunal, Kamrup (M), Guwahati in FT Kamrup (M) DV Case No.198/2011.
JUDGE JUDGE Comparing Assistant