Gauhati High Court
Man Maya Chetri vs The Union Of India And 5 Ors on 17 November, 2022
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh, Ajit Borthakur
Page No.# 1/15
GAHC010048902021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./46/2021
MAN MAYA CHETRI
W/O- GHANASHYAM CHETRI, 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- 110011.
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)
ASSAM.
Page No.# 2/15
5:THE ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
DELHI- 110001.
6:THE DEPUTY COMMISSIONER
KAMRUP METROPOLITAN DISTRICT
PANBAZAR
GUWAHATI- 781001
DIST.- KAMRUP(METRO)
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 02.02.2021 passed in WP(C) No.6325/2019 by which this Court declined to interfere with the opinion of the Tribunal, which was decided ex parte against the petitioner.
3. Before we go to the rival contentions of the parties, it may be apposite to recollect the basic facts leading to filing of this review petition.
4. From the records, it appears that a proceeding was initiated against the present petitioner on the basis of a reference made by the Superintendent of Police (B), the then Page No.# 3/15 Guwahati City in terms of an enquiry made by the Local Verification Officer. Consequently, on reference being made, F.T. Kamrup (Metro) DV Case No.197/2011 was initiated against the present petitioner before the Foreigners Tribunal, Kamrup (M), Guwahati.
5. It is the case of the petitioner that after receipt of notice from the Tribunal, the petitioner appeared before the Tribunal and sought time in order to collect documents to support her claim. However, the petitioner remained absent on as many as seven dates. Accordingly, the Tribunal proceeded ex parte resulting in passing of the ex parte order dated 12.01.2012. For better appreciation of the matter, the impugned ex parte order dated 12.01.2012 is reproduced below:-
"The EO (Enquiry Officer) is examined in connection with the ex parte hearing. I have carefully perused the evidence of the EO and also the case record. The name of the OP appeared in the draft electoral roll in respect of No.52 Dispur LAC. The ERO having doubt about the citizenship status of the OP got the matter verified through LVO (Local Verification Officer). On obtaining report of the LVO, the ERO made a formal request to the SP(B), City Guwahati for reference in the IMD(T) Tribunal at Nalbari as no such Tribunal was in existence in Guwahati. However, the provisions of the IMD(T) Act was challenged in the Supreme Court of India which by its judgment and order dated 12.07.2005 declared the provisions of IMD(T) Act as ultra vires the Constitution. By the same judgment and order, the Hon'ble Supreme Court made specific instructions that all cases pending under the IMD(T) Act be transferred to the Tribunals constituted under the Foreigners (Tribunals) Order, 1964 and also creating new such Tribunals. In the result, the present Tribunal was created and then this case was transferred and converted into a case under the Foreigners Act. Notice was issued on the OP who received the same, several dates were given but she failed to appear. Therefore, this ex parte hearing was made. The EO has deposed that he made enquiry as per instruction of SP(B), City Guwahati and found the record as correct one. Under Section 9 of the Page No.# 4/15 Foreigners Act, the burden of proof lies on the OP to prove his nationality. But that opportunity of proving her nationality has not been availed by the OP.
In the result, this Tribunal is of the opinion that the OP of this case is a foreigner of post 1971 stream.
Let a copy of this order be sent to the Senior Superintendent of Police (B), City Guwahati for his information and necessary action."
6. Being aggrieved, the petitioner preferred WP(C) No.6325/2019 challenging the said ex parte order. In the said writ petition, while reiterating that her parents and forefathers from both paternal and maternal sides were citizens of India and permanent residents of Barbila, Sonapur in the district of Kamrup (Metro), the petitioner contended that after receipt of notice from the Tribunal, she appeared before the Tribunal on 31.05.2011 and filed an application with a prayer to allow her to file written statement and documents. Accordingly, the matter was fixed on 21.06.2011 on which date, the petitioner took time to file written statement and documents, which was allowed by the Tribunal and the matter was fixed on 29.07.2011. However, thereafter, the petitioner could not appear before the Tribunal as the petitioner had to move from place to place along with her family for business purposes. Consequently, the matter was proceeded ex parte against the petitioner resulting in passing of the impugned order dated 12.01.2012.
7. The said writ petition was dismissed by this Court primarily on the ground that though the petitioner was granted several dates by the Tribunal, the petitioner remained absent before the Tribunal on as many as seven dates and this Court observed that having been given sufficient opportunity to file written statement, if the petitioner does not appear before the Tribunal, the petitioner can only be blamed for the situation she has put herself and since onus is on the proceedee to discharge her burden to prove that she is an Indian and not a Page No.# 5/15 foreigner, and if she does not take necessary steps, action of the Tribunal cannot be faulted.
8. This Court also observed that it does not appear that the principles of natural justice have been violated inasmuch as sufficient opportunity had been given to the petitioner. Accordingly, this Court declined to interfere with the ex parte order passed by the Tribunal.
9. Being aggrieved with the aforesaid dismissal of the writ petition, the present review petition has been filed.
10. In approaching this Court under review jurisdiction, the petitioner has taken an additional plea before this Court that in Indira Newar and others Vs. Union of India and others, reported in 2020 (1) GLT 413, this Court had the occasion to deal with the citizenship of Gorkha community of Nepali origin. In the said case, this Court after considering various aspects of the matter, took the view that a proceeding against a person belonging to Gorkha community of Nepali origin will not lie before the Foreigners Tribunal and accordingly, set aside all the proceedings pending or orders passed by the Foreigners Tribunal against such persons. In this regard we would like to reproduce the relevant paragraphs of the aforesaid decision in Indira Newar (supra):
"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 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 Page No.# 6/15 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 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 Page No.# 7/15 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, 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 Page No.# 8/15 made against each of the writ petitioners by the respective Referral Authority are also interfered with."
11. It is the case of the petitioner that the petitioner originally belongs to Gorkha community of Nepali origin, which is clearly evident in the enquiry held before the proceeding was initiated against her and, as such, her case is clearly covered by the decision in Indira Newar (supra). If that is so, the proceeding against the petitioner, even if ex parte, would not lie and would be liable to be set aside on that ground.
12. However, Mr. Payeng, learned Special Counsel, FT has contested this review petition on the following grounds:-
Firstly, it has been submitted that the petitioner never took the plea that the petitioner belongs to Gorkha community and that no proceeding would lie against her before the Foreigners Tribunal. Even though the said decision was rendered on 29.11.2019, the petitioner did not take this plea neither before the Foreigners Tribunal nor before this Court when WP(C) No.6325/2019 was filed and, as such, the petitioner cannot be allowed to raise this plea for the first time in this review petition. As such, this plea will be hit by the principles of constructive res judicata.
It has been also submitted that while principles of natural justice will be applicable in a proceeding before the Foreigners Tribunal and also before this Court while considering challenges of the opinion of the Tribunal, it cannot be stretched too far and cannot be said to be applicable in all cases where the proceedee is responsible for the delay and the laches. In this regard, Mr. Payeng has relied upon the decision of this Court in Ayub Ali and others Vs. Union of India and others, 2016 (1) GLT 274, wherein this Court observed as follows:-
Page No.# 9/15 "16. Principles of natural justice cannot be put into a strait-jacket formula. It is more than three decades that the issue of influx of foreign nationals ha s been in public domain in the State of Assam. Process of determination of quest ion of citizenship cannot be a one - way traffic, leaning only in favour of a person whose citizenship is doubted. Interest of the State is also of paramount importance in that unabated influx has the potential to affect the integrity and sovereignty of the country. Citizenship of a person, no doubt, is a very valuable right and should be zealously guarded. However, if a person does not take steps for safeguarding his interest, he does so at his own peril. Right to a fair hearing or principles of natural justice cannot be permitted to lead to a farcical situation and to be an engine for defeating the very object of identification and deportation of foreigners. The petitioners had known about the allegations against them that they are foreigners entering India without any valid documents, a t least from 2007, even ignoring the earlier part under the IMDT Act from 1997. The petitioners, all these years, apparently, did not take any step to defend their rights in the Court proceedings. In the circumstances, I am not inclined to grant any further opportunity to the petitioners as any such course of action, according to the perception to the court, would be self-
defeating."
13. Accordingly, it has been submitted that this is not a fit case where this Court should intervene in a review jurisdiction to interfere with the order passed by the Tribunal as well as by this Court, which does not suffer from any infirmity.
14. We have learned counsel for the parties and perused the materials on record.
15. As mentioned above, it is evident that the ex parte order was passed against the petitioner on her failure to file written statement. We have also noted, as observed by this Court in WP(C) No.6325/2019, that several opportunities were granted to the petitioner to file written statement but she did not file the written statement for the reasons given by her.
Page No.# 10/15 Normally, such an order passed by the Tribunal cannot be said to be illegal or vitiated for the reason that if the proceedee does not promptly file the written statement, the action of the Tribunal to proceed ex parte cannot be said to be illegal. However, the situation is slightly different in the present case inasmuch as if we take into account the decision of this Court in Indira Newar (supra) wherein it has been held that persons belonging to Gorkha community of Nepali origin cannot be proceeded before the Foreigners Tribunal and if the present petitioner is indeed a person belonging to that community, certainly this Court can examine, for the reason that if a person who, otherwise, cannot be proceeded by the Foreigners Tribunal, is proceeded, it will lead to injustice in spite of laches on the part of such a proceedee, as the opinion of a Tribunal would ultimately decide the fate of the proceedee. Any opinion to that effect by the Tribunal that the proceedee is a foreigner, which is normally accepted by the Executive, would literally divest such a person of his/her citizenship. Accordingly, we deem it appropriate to examine the matter in this review petition.
16. While going through the original records, specifically the Local Verification Officer's report, which was prepared by one Prakash Borah, Assistant Geologist, Directorate of Geology as the LVO, we find that the name of the petitioner is clearly mentioned as Manmaya Chetri of Amsing - Jorabat (Schoolbasti). The name of her husband is mentioned as Ghanashyam Chetri and the year of birth is mentioned as 1972. The place of birth is mentioned as Kolongpar (Sonapur). In the column whether registered as an elector of any constituency in India, it is ticked as 'no'. As to the column, whether the father is registered as an elector of any constituency in India, it has been ticked as 'yes' under 52 Dispur constituency. Similarly, the name of the mother has also been shown registered under 52 Dispur LAC. Her mother tongue has been shown as Nepali. As per the Enquiry Officer's assessment on the dialect Page No.# 11/15 spoken, it is recorded as Nepali. As to the column whether migrated into Assam, it has been ticked as 'no'. The other columns have been left blank. There is no any remark or observation by the LVO that she is a foreigner or migrated from Bangladesh.
In the format prepared by the ERO, there is a remark that SI (B) of Noonmati Police Station shall submit a report based on Annexure A and B. Annexure A refers to Verification Officer's Report and B is the format prepared for the ERO.
17. From the records, it is seen that SI (B), Noonmati Police Station made the following report:-
"At 7 am : Opened the diary at PS. The case is endorsed to me for completion of enquiry. Form No.VIII filled up based on Annexure A and B submitted by Ashok Kumar Barman, ERO, 52 Dispur Assembly constituency where he suspected Smt. Manmaya Chetri of Amsing Jorbat, PS. Noonmati, dist. Kamrup as illegal migrant.
At 7.05 am : Now I close the diary at PS and forwarded to the SP(B) City Guwahati for necessary action."
As regards the aforesaid procedure, Mr. Payeng has submitted that SI (B) who was directed to submit a report was merely to look into Annexure A and B and he was not required to undertake further enquiry in this regard. We do not think that such a submission neither sound in logic nor under law.
18. There is nothing in the case diary as reproduced above of any statement recorded of anybody including the proceedee nor any of the neighbours which was required to be undertaken as requested by the ERO.
What we notice is that the case diary was opened on the same day and closed on the same day without making any investigation.
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19. A Full Bench of this Court in State of Assam and others Vs. Moslem Mondal, 2013 (1) GLT 809, held that before any reference is made, there must be a proper investigation, though such investigation need not be detail and exhaustive one. Further, the Full Bench observed that the reference by the Referral Authority also cannot be mechanical and the Referral Authority has to apply his mind on the materials collected by the investigating officer during the investigation and make the reference if satisfied that there are grounds for making such a reference. It has been also mentioned that the Investigating Officer, as far as practicable, shall obtain the signature or thumb impression of the person against whom such investigation is initiated, after recording his statement, if any, provided he makes himself available for that purpose.
20. In this regard, we may refer to para Nos.96, 97 and 98 of the decision of the Full Bench in Moslem Mondal (supra) which read 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 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.
(97) Fair investigation and fair trial being the basic fundamental/human right of a person, which are concomitant to preservation of the fundamental right of a person under Article 21 of the Constitution, there has to be a fair and proper investigation by the investigating agency before making a reference to the Tribunal. In such investigation the attempt has to be made to find out the person against whom the investigation is made, so that the person concerned is given the opportunity to Page No.# 13/15 demonstrate at that stage itself that he is not a foreigner. In case the person concerned could not be found out in the village where he is reported to reside or in the place where he ordinarily resides or works for gain, the investigating agency has to record the same in presence of the village elder of the village headman or any respectable person of the locality, which in turn would ensure visit of the investigating officer to the place where such person ordinarily resides or reported to reside or works for gain and making of an effort to find him out for the purpose of giving him the opportunity to produce the documents etc., if any, to demonstrate that he is not a foreigner. The investigating officer, as far as practicable, shall also obtain the signature or thumb impression of the person against whom such investigation is initiated, after recording his statement, if any, provided he makes himself available for that purpose. There are also instances where the person against whom such investigation is initiated, changes his place of residence, may be in search of livelihood or may be to avoid detection. To ensure proper investigation and also having regard to integrity and sovereignty of the nation, once investigation relating to the nationality status of a person starts he must from the investigating agency in writing about the change of residence, if any, thereafter. In case such person has failed to intimate the investigating agency in writing the subsequent change of his place of residence, the investigating agency has to mention the same in his report with his opinion relating to the status of such person on the basis of materials collected at the place where he earlier resided. That will ensure a fair investigation and submission of a proper report on such investigation to the authority. Needless to say, such investigation need not be a detailed or an exhaustive one keeping in view the nature of the proceeding before the Tribunal and the object sought to be achieved. Hence it need not be equalled with an investigation conducted in criminal cases.
(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 Page No.# 14/15 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."
21. What we have noted is that from the records it appears that no investigation was carried out by the SI (B) which was required as requested by the ERO. At the same time, in the report submitted by the LVO, there is nothing to indicate that the petitioner is a foreigner.
22. Since we are satisfied from the original records that the petitioner belongs to Gorkha community of Nepali origin, we need not go further into the matter as it will be sufficient to hold that no proceeding would lie against a person belong to Gorkha community of Nepali origin. We are of the view that her case is covered by the decision of Indira Newar (supra). Though we have noted the submission of Mr. Payeng that this plea was not taken earlier, in our view, since this has now been brought to our notice and it goes to the very root of the matter, inasmuch as a person who is not otherwise a foreigner which has been judicially taken note of, as mentioned in Indira Newar (supra) such a proceeding will not lie, if we allow the proceeding or uphold the order of this Court rendered in WP(C) No.6325/2019, it would lead to serious prejudice and injustice inasmuch as citizenship of the petitioner will be divested because of the ex parte order which we feel can be rectified even at this stage by way of review.
23. Normally, we would have remanded the matter to the Tribunal after recalling the ex parte order passed by the Foreigners Tribunal. However, we are of the view that in the present case, remanding the matter to the Tribunal would serve no purpose inasmuch as we are satisfied based on the record that the petitioner belongs to Gorkha community of Nepali origin, who is stated to be a resident of this country. Accordingly, no useful purpose will be Page No.# 15/15 served by remanding the matter to the Tribunal and we have opted to dispose of this matter at our instance by setting aside the impugned order passed by the Tribunal based on the original records, which are available before us.
24. Accordingly, this review petition is allowed by recalling the order dated 02.02.2021 passed in WP(C) No.6325/2019 and setting aside the order dated 12.01.2012 passed by the Foreigners Tribunal, Kamrup (M) in DV Case No.197/2011.
JUDGE JUDGE Comparing Assistant