Gauhati High Court
Nalpati Sharma vs The Union Of India And 7 Ors on 29 July, 2021
Bench: N. Kotiswar Singh, Soumitra Saikia
Page No.# 1/9
GAHC010098182020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3457/2020
NALPATI SHARMA
S/O- LT. BANARACHI SHARMA, R/O- VILL- GOTANAGAR, P.S. JALUKBARI,
DIST.- KAMRUP (M), ASSAM- 781011
VERSUS
THE UNION OF INDIA AND 7 ORS
REP. BY THE SECY., MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA,
SHASTRI BHAWAN, NEW DELHI- 110001
2:THE STATE OF ASSAM
REP. BY THE SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-06
3:THE ELECTION COMMISSION OF INDIA
REP. BY THE CHIEF ELECTION COMMISSION
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI
DELHI- 110001
INDIA
4:THE STATE COORDINATOR
NRC
ASSAM
1ST FLOOR
ACHYUT PLAZA
G.S.ROAD
BHANGAGARH
GHY
ASSAM- 781005
5:THE FOREIGNERS TRIBUNAL NO. 1
Page No.# 2/9
KAMRUP (M)
ULUBARI
GHY
DIST.- KAMRUP (M)
ASSAM- 781005
6:THE DY. COMMISSIONER
KAMRUP (M)
PANBAZAR
GHY
P.S. PANBAZAR
DIST.- KAMRUP (M)
ASSAM- 781001
7:THE DY. COMMISSIONER OF POLICE (BORDER)
KAMRUP (M)
P.O. AND P.S. PANBAZAR
DIST.- KAMRUP (M)
ASSAM- 781001
8:THE OFFICER-IN-CHARGE OF JALUKBARI P.S.
DIST.- KAMRUP (M)
ASSAM- 78101
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 SOUMITRA SAIKIA
ORDER
Date : 29.07.2021 [Soumitra Saikia, J] Heard Ms. H. Betala, learned counsel for the petitioner. Also heard Mr. P. S. Lahkar, learned counsel representing respondent no.1, Ms. A. Verma, learned counsel appearing for respondent nos. 2, 5, 6, 7, and 8; Mr. A. Bhuyan, learned counsel for the respondent no.3 and Mr. P.S. Lahkar, learned counsel for Page No.# 3/9 respondent no.4.
2. Pursuant to a reference made by the State of Assam or Senior Superintendent of Police (B), City Guwahati, the matters were initially placed/referred to the IMDT (as it then was). The matters were placed before the Foreigners' Tribunal, Guwahati pursuant to the IMDT Act being declared ultra vires by the Hon'ble Supreme Court. Notices were issued to the petitioner. However, the petitioner failed to appear before the Foreigners' Tribunal and the matter was decided ex-parte against the petitioner holding him to be a Foreigner of Post-1971 stream. Being aggrieved, the petitioner has preferred the instant writ petition.
3. By order dated 15.09.2020 records of the Foreigners' Tribunal were called for. As the same have been requisitioned and are available before this Court, the matter is taken up for disposal.
4. The learned counsels for the parties have been heard. The pleadings as well as the Tribunal records requisitioned have been duly perused.
5. From the Tribunal records it is seen that pursuant to a doubt expressed by the Electoral Registration Officer for 54 Guwahati West Assembly Constituency in Assam, in respect of the citizenship of the petitioner, the matter was forwarded to the Page No.# 4/9 Superintendent of Police (B), City Guwahati for deciding the question whether the petitioner is a citizen of India or not.
6. The Superintendent of Police (B) City Guwahati could not ascertain the nationality of the person but it was strongly suspected that he was an illegal migrant, who entered India after 25th of March, 1971. Consequently, the matter was referred to the IMDT (as it then was). A similar reference was made in respect of one Ghanashyam Sapkai, who however, is not a petitioner in the present proceedings. Both these two references were registered as F.T. Kamrup (M) Doubtful Voter Case No. 375/2011 and 490/2010. Both these cases were taken up together by the Foreigners' Tribunal, Kamrup (M) and decided ex- parte by the Judgment and order dated 22.12.2011 which is impugned in the present proceedings. For the purpose of the present writ petition we are concerned only with Foreigners' Tribunal, Kamrup (M) D.V. Case No. 490/2010 (Police Case No. 540/2019) which pertains to the present petitioner namely, Sri Nalpati Sarma.
7. It is seen from the Foreigners' Tribunal records requisitioned that in respect of the petitioner the Local Verification Officers' Report did not reveal anything except that at Serial No.12 his mother tongue is shown to be "Nepali" (Mother tongue: Nepali) and at serial No.13, Inquiry Officers' assessment on the dialect spoken is shown as " Nepali". No other finding is recorded in the Local Verification Officers' Report as is evident Page No.# 5/9 from the Tribunal records.
8. Be that as it may the Tribunal issued a Notice on the petitioner vide Notice dated 15.11.2010. The Process Server's Report on the reverse of the said Notice discloses that the Process Server was informed by wife of the petitioner that he has gone out of Assam and it is not known when he will return. Accordingly, a copy of this summon was handed over to his son namely one Srikant Sarma with his endorsement. Subsequently, another Notice was also issued on 15.07.2011 which was shown to have been received by the petitioner with his endorsement.
9. The Tribunal held that inspite of Notices being issued, the proceedee failed to appear and contest the case and to prove the relevant documents. The proceedees have failed to discharge the burden under Section 9 of the Foreigners' Act. The Tribunal held that the proceedees failed to avail the opportunities given to them to prove their respective nationalities. Accordingly, Foreigners' Tribunal opined that the proceedees including the present petitioner are Foreigners of Post 1971 stream.
10. The learned counsel for the petitioner submits that the petitioner did appear before the Tribunal on 15.12.2010 and he had filed the petition for filing the written statements along with the documents. However, because of his financial difficulties as he belongs to an economically backward family, he could not meet up the financial requirements for the required legal expenses including the fees of the lawyer. The learned counsel Page No.# 6/9 for the petitioner submits that the lawyer who was requested by the petitioner to appear before the Tribunal refused to respond to the attempts made by the petitioner to contact him because the petitioner could not afford to meet the legal expenses including the lawyers' fees. Consequently, no intimation was given to the petitioner by the said counsel in respect of the status of the case and/or the ex-parte order passed by the Tribunal.
11. The learned counsel for the petitioner submits that during the NRC verification process he came to be aware of the ex-parte order passed by the Foreigners' Tribunal, Kamrup (M) D.V. Case No. 490/2010 (Police Case No. 540/2019). Thereafter the petitioner applied for certified copies and was provided with the same pursuant to which upon legal advice he has approached this Court assailing the impugned order.
12. The learned counsel for the petitioner submits that there are sufficient documents to project that the father of the petitioner namely, Banarachi Sharma was present in the state prior to 1971. The learned counsel submits that the Voter's List of 1966 enlists the name of the father of the petitioner namely, Banarachi Sharma as serial No. 433. Copy of this Voter's List is enclosed by the petitioner as Exhibit. 6.
13. The learned counsel also refers to the Voter's List of 1993 pertaining to Bhutanagar, Jalukbari, Guwahati West, Kamrup(M), wherein the name of the petitioner is shown at Serial No.19 along with his father's name. The learned counsel for the Page No.# 7/9 petitioner also refers to a certificate issued by the Asom Gorkha Sammelan, Kamrup (M) district to submit that the petitioner belongs to the Gorkha Community.
14. The learned counsel for the petitioner submits that this Court has held in Indira Newar & Ors vs- Union of India & Ors reported in 2019 SCC OnLine Gau 5890 : (2020) 5 Gau LR 502 and the connected bunch of writ petitions that persons belonging to the Gorkha community are to be given the benefit of the Central Government Notification in respect of citizenship.
15. As discussed above the Local Verification Officers' Report indicates that the petitioner's mother tongue and dialect spoken is shown to be Nepali. The respondent counsels also do not dispute the contention that if the petitioner indeed belongs to the Gorkha community then he will have to be given the benefit of the Central Government Notification dated: 24/09/2018 .
16. This court in the case of Indira Newar and Ors (Supra) was dealing with a bunch of writ petitions where contentions were made by the petitioners therein that the mother tongue of the petitioners were "Nepali" which is a language spoken by the citizen of neighbouring country Nepal and is also included as language in the 8th schedule of the Constitution of India and therefore they could not have been treated to be migrants from the 'Specified Territory i.e. Bangladesh. This court upon perusal of the information recorded by the Referral Authorities came to the conclusion that there was no suspicion expressed by the Page No.# 8/9 Referral Authorities nor any findings recorded by the Tribunals that any of the petitioners therein were persons who had come into Assam from the 'Specified Territory' as defined under Section 6A (1)(c) of the Citizenship Act, 1955. This Court held that unless there are findings arrived at by the Referral Authorities and/or by the Tribunal that the petitioner migrated to Assam from the 'Specified Territory' namely, from any place in the country of Bangladesh, the benefit of the Notification dated 24/09/2018 issued by the Government of India in the Ministry of Home Affairs that it will not be appropriate to declare all members of Gorkha community hailing from Nepal to be from the ' Specified Territory' as defined under Section 6A (1)(c) of the Citizenship Act, 1955, cannot be denied. Only those persons who came from Bangladesh and are living in the State of Assam can be treated as persons migrating from the 'Specified Territory' in accordance with Section 6A of the Citizenship Act, 1955. This Court held that only cases of members of Gorkha community living in Assam, who do not fall in any of the categories mentioned in the Notification dated 24/09/2018 issued by the Home Ministry, 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 Foreigners Act, 1946.
17. As discussed above from the records of the Tribunal it is seen that there is no finding in the Local Verification Officer's report besides the particulars that the petitioners' mother tongue is 'Nepali' and that they have illegally migrated from the specified Page No.# 9/9 territory. No finding to that effect is also noticed in the order dated 22.12.2011 passed by the Tribunal and impugned in the present proceedings.
18. Accordingly, in view of the above, and in terms of the Judgment dated 29.11.2019 passed in the case of Indira Newar (Supra), this writ petition is allowed. The impugned order dated 22.12.2011 passed in Foreigners' Tribunal, Kamrup (M) D.V. Case No. 490/2010 (Police Case No. 540/2019) passed ex-parte by the Learned Member of the Foreigners Tribunal, 5 thKamrup (M), Assam is hereby set aside and quashed.
19. The matter is remanded to the Tribunal to decide the reference afresh by affording all opportunities to the petitioner. The Foreigners' Tribunal while reconsidering the matter will also refer to the Government of India Notification/communication dated 24/09/2018 and grant the benefit thereunder to the petitioner if so applicable.
20. Records of the Tribunal be sent back along with a copy of this order.
21. This writ petition is accordingly allowed to the extent indicated above. No order as to cost.
JUDGE JUDGE Comparing Assistant