Gauhati High Court
Sabiran Nessa @ Jarifan Nessa vs The Union Of India And 5 Ors on 18 March, 2021
Equivalent citations: AIRONLINE 2021 GAU 298
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh, Manish Choudhury
Page No.# 1/5
GAHC010247052019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7592/2019
SABIRAN NESSA @ JARIFAN NESSA
W/O- TOIMUDDIN, D/O- LT HABEJ UDDIN, PERMANENT R/O- VILL-
SILOCHI, P.S. BAGHBAR, DIST- BARPETA, ASSAM, PIN- 781301
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NEW DELHI, PIN- 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
BARPETA
781301
5:THE SUPERINTENDENT OF POLICE (B)
BARPETA
781301
ASSAM
6:COORDINATOR
NATIONAL REGISTER OF CITIZENS
BHANGAGARH
GHY-
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Advocate for the Petitioner : SYED BURHANUR RAHMAN
Advocate for the Respondent : ASSTT.S.G.I. (R1)
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 18-03-2021 (N. Kotiswar Singh, J.) Heard Mr. A. W. Aman, learned counsel for the petitioner. Also heard Mr. S.S. Roy, learned CGC; Mr. J. Payeng, learned Special Counsel, FT; Ms. B. Das, learned Standing Counsel, ECI and Ms. L. Devi, learned Standing Counsel, NRC.
2. The present petition has been preferred against the ex parte opinion dated 23.10.2017 rendered in FT Case No.596/2016 by the Foreigners Tribunal (IVth), Barpeta by which the petitioner has been declared to be a foreigner of post 25.03.1971 stream.
3. The case of the petitioner is that she is Sabiran Nessa and not Jarifan Nessa, wife of Taimuddin, Village-Silochi, PS. Baghbar, Barpeta, Assam. The notice issued by the Tribunal bears the name of Jarifan Nessa, though the petitioner is not Jarifan Nessa and, as such, the petitioner did not appear before the Tribunal in spite of service of notice.
4. We have gone through the records.
5. As per the report of the Process Server, it appears that the Process Server had gone to the village of the petitioner but did not find anyone called Jarifan Nessa for which the Process Server served the notice by hanging in a tea stall near the house of the said proceedee.
6. The Tribunal after examining the Process Server and the witnesses held that notice has been properly served upon the proceedee and as the proceedee did not appear before the Tribunal, proceeded ex parte. Accordingly, the Tribunal declared the proceedee to be a foreigner who had entered into India on or after 25.03.1971.
7. Learned counsel for the petitioner submits that confusion had arisen for the reason that though the petitioner is the wife of Taimuddin and resident of village Silochi, the real Page No.# 3/5 name of the petitioner is Sabiran Nessa and not Jarifan Nessa. However, since the petitioner did not appear before the Tribunal, the Tribunal proceeded ex parte. As a result, police are looking for the petitioner on the ground that she is the wife of Taimuddin though she is not Jarifan Nessa.
8. From the record, it is seen that at the time of carrying out of the investigation, the person, who was under investigation, was one Jarifan Nessa wife of Taimuddin who was also the resident of village Silochi. Thus, accordingly, on the basis of the investigation, reference was made in the name of Jarifan Nessa and notice was also issued in the name of Jarifan Nessa with the name of the husband and the name of the village same as that of the petitioner.
9. As far as the issue relating to determination of citizenship within the purview of the Foreigners Act, 1946 is concerned, it is concerning a specific individual and, as such, clarity of identification of the person against whom the proceeding has been initiated is very important and necessary for the simple reason that difference in the name can certainly create problem both for the State as well as for the person concerned, if identification of the person is not properly done.
10. It is for this reason that the Full Bench of this Court in State of Assam Vs. Moslem Mondal, 2013(1)GLT 809, had emphasized on the necessity to make proper investigation. Had the proper investigation been carried out, perhaps, the issue which has arisen here might not have arisen. It was accordingly held in paragraph 96 and 98 of Moslem Mondal (supra) as follows:-
"96. One of the contentions of the proceedees is that though the referral authority is required to make the reference to the Tribunal after making a fair investigation, no such proper and fair investigation is conducted and the police at their own whims and caprice gives a report, in some cases even without visiting the place where such proceedee resides and also without giving any opportunity to produce the relevant documents to substantiate that the proceedee is not a foreigner, and such report is accepted by the referral authority and accordingly the reference is made to the Tribunal, on the basis of which the reference is registered against such person.
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98. The reference by the referral authority also cannot be mechanical. The referral authority has to apply his mind on the materials collected by the investigating officer during investigation and make the reference on being satisfied that there are grounds for making such reference. The referral authority, however, need not pass a detailed order recording his satisfaction. An order agreeing with the investigation would suffice. The referral authority also, while making the reference, shall produce all the materials-collected during investigation before the Tribunal, as the Tribunal is required prima facie to satisfy itself about the existence of the main grounds before issuing the notice to the proceedee."
11. We are not making any observation as to whether the present petitioner Sabiran Nessa and Jarifan Nessa is one and the same person. Considering the fact that name of the husband of the proceedee as well as that of the petitioner and the residential address of the proceedee and the petitioner appear to be the same, in order to clear the cloud, which is hanging over the present petitioner, Sabiran Nessa, and the petitioner has approached this Court by challenging the said opinion on the ground that it has created a cloud on her citizenship, we deem it appropriate that she should approach the Tribunal to clarify that she is Sabiran Nessa and not Jarifan Nessa.
12. In view of above, we remand the matter to the Foreigners Tribunal for re- consideration and direct the Tribunal to pass appropriate order in this regard upon appearance and application filed by the present petitioner, Sabiran Nessa. It is also made clear that if the Tribunal, after hearing the petitioner, Sabiran Nessa, is of the view that the earlier order dated 23.10.2017 requires modification, the same may be done as we have noted that the Tribunal had passed the order ex parte and not on merit.
13. The Tribunal will accordingly hear the State as well as the petitioner to ascertain as to who the real proceedee is, as to whether it is " Jarifan Nessa, wife of Taimuddin, Village- Silochi, PS. Baghbar, Barpeta, Assam" or "Sabiran Nessa, wife of Toimuddin, daughter of late Habej Uddin, permanent resident of village-Silochi, PS. Baghbar, Barpeta, Assam ". If the finding is that both "Jarifan Nessa" and "Sabiran Nessa" refer to one and the same person who the authorities had proposed to proceed against, the Tribunal shall give a finding in that regard. If the answer is in the positive, the petitioner shall then prove that she is an Indian and not a foreigner. However, if the finding is in the negative that Jarifan Nessa and Sabiran Page No.# 5/5 Nessa are different persons, the Tribunal will also clarify so, so that the petitioner is not harassed by the opinion that Jarifan Nessa is a foreigner, though the name of the husband and the village may be same.
14. Accordingly, the present petition is allowed by setting aside the impugned order dated 23.10.2017 at the instance of the present petitioner, Sabiran Nessa. The Tribunal will, accordingly, pass a fresh order after hearing the petitioner and considering all relevant records as directed above.
15. As the petitioner has already voluntarily appeared before this Court to clear the doubts, the petitioner will accordingly appear before the Foreigners Tribunal (IVth), Barpeta on or before 09.04.2021 and file necessary written statement and documents. The Tribunal will proceed afresh to decide on the citizenship of the real proceedee after being satisfied with the identity of the proceedee in accordance with law as directed above.
16. It is made clear that though we have set aside the ex parte order and the petitioner has voluntarily approached this Court claiming that she is not Jarifan Nessa though wife of Taimuddin, since her citizenship is under cloud, let the petitioner make herself available before the Superintendent of Police (Border), Barpeta, and furnish a bond of Rs.5,000/- with one local surety of the like amount to the satisfaction of the Superintendent of Police (Border), Barpeta. The concerned Superintendent of Police (Border) shall also take steps for capturing the fingerprints and biometrics of the iris of the petitioner, if so advised.
The petitioner shall not leave the jurisdiction of Barpeta district without giving details of the place of destination and her place of stay to the Superintendent of Police (Border), Barpeta.
17. We also make it clear that if there is default on the part of the petitioner in appearing before the Tribunal on or before 09.04.2021, the impugned ex parte order passed by the Tribunal shall stand revived and law will take its own course.
18. Records be remitted to the concerned Foreigners Tribunal forthwith.
JUDGE JUDGE Comparing Assistant