Moinul Haque vs The Union Of India And 5 Ors
2021 Latest Caselaw 1308 Gua

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GAHC010214072019




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/6839/2019

         MOINUL HAQUE
         S/O- HASEN ALI, PERMANENT RESIDENT OF - VILLAGE- JOYPUR, PO. AND
         P.S. BAGHBOR, DIST.- BARPETA, ASSAM, PIN- 781308. PRESENTLY
         RESIDING AT VILL. JAHIRPUR, P.S. CHAYGAON, P.O. CHAYGAON, DIST-
         KAMRUP(RURAL), ASSAM. PI- 781124.



         VERSUS

         THE UNION OF INDIA AND 5 ORS.
         REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
         AFFAIRS, SHASTRI BHAWAN, TRILOK MARG, NEW DELHI- 110001.

         2:THE STATE OF ASSAM
          REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          HOME DEPTT.
          DISPUR
          GUWAHATI- 781006.

         3:THE ELECTION COMMISSION OF INDIA
         THROUGH ITS SECRETARY
          NIRBACHAN BHAWAN
          NEW DELHI-1.

         4:THE STATE CO-ORDINATOR
          NATIONAL REGISTER OF CITIZENS (NRC)
         ASSAM
          BHANGAGARH
          GUWAHATI- 781005.

         5:THE DEPUTY COMMISSIONER OF KAMRUP
          P.O. AMINGAON
          DIST.- KAMRUP
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              ASSAM
              PIN- 781031.

             6:THE SUPERINTENDENT OF POLICE (B)
              KAMRUP
             AMINGAON
              DIST.- KAMRUP
             ASSAM. PIN- 781031

Advocate for the Petitioner   : MR M AHMED

Advocate for the Respondent : ASSTT.S.G.I.

BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MR. JUSTICE SOUMITRA SAIKIA order

05-04 -2021

[N. Kotiswar Singh, J]

Heard Mr. M. Ahmed, learned counsel for the petitioner. Also heard Ms. J. Sarma,

learned CGC appearing for respondent No.1; Mr. G. Sarma, learned Special Counsel, F.T. for

respondent Nos.2, 5 & 6; Ms. B. Das, learned standing counsel, ECI, appearing for

respondent No.3 and Ms. L. Devi, learned Standing Counsel, NRC appearing for respondent

No.4.

2. The present petition has been filed challenging the ex parte order dated 18.02.2019

passed by the Foreigners Tribunal, Kamrup(Rural) No.1, Assam, in F.T. Case No.GFT(R) Case

No.38/2018 (Ref. Enquiry No.14/99) by which the petitioner was declared a foreigner of post

25.03.1971 stream.

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3. Learned counsel for the petitioner fairly acknowledges that after receiving the notice

from the Foreigners Tribunal, Kamrup(Rural) No.1 the petitioner appeared before the

Tribunal. However, the petitioner also filed an application on 15.02.2019 before the Tribunal

praying for transfer of the case to his home district Barpeta, which, however, was rejected by

the Tribunal and the matter was fixed for further proceeding on 18.02.2019. Unfortunately,

the petitioner could not appear on the subsequent date fixed by the Tribunal, resulting in

passing of the ex parte order by declaring the petitioner a foreigner of post 25.03.1971

stream. Learned counsel for the petitioner submits that there are sufficient materials to prove

that the petitioner is an Indian and not a foreigner. In this connection, learned counsel for the

petitioner has drawn attention of this Court to various voters' lists relied on by the petitioner

i.e. voters list of 1966, reflecting the name of the grandfather of the petitioner voters list of

1971 where the name of the father of the petitioner appeared, voters lists of 1989 & 1997

showing the names of the father and mother of the petitioner, and voters lists of 2010 & 2017

reflecting the names of the petitioner including his parents. Learned counsel for the petitioner

submits that the petitioner has other documents to substantiate his claim that he is an Indian

citizen and submits that he may be granted another opportunity to prove his case before the

Tribunal.

4. After hearing the learned counsel for the parties and on perusal of the materials

available on records, what transpires is that, as the petitioner failed to appear before the

Tribunal on the next fixed date, the Tribunal held that the petitioner has failed to discharge

the onus cast upon him under Section 9 of the Foreigners' Act, 1946 and accordingly,

declared him a foreigner having entered India after 25.03.1971. Thus, the opinion of the

Tribunal was not on the basis of the merit by considering the materials or evidences, but by Page No.# 4/5

way of default.

5. We are of the opinion that the citizenship is a very precious and perhaps one of the

most valuable rights of a person, by virtue of which a person becomes a member of the

claimed sovereign country. Without citizenship, a person cannot enjoy most of the

fundamental rights guaranteed in our constitution and will be liable to be deported. At the

same time, if citizenship is denied by the alleged country of origin also, he or she may be

rendered a stateless person. Such is the high stake involved in determining the citizenship of

a person. It is for this reason that the issue of citizenship should, in our opinion, as far as

possible, be determined on the basis of merit after considering the evidences of the case and

not by way of default.

6. In view of above, the present petition is allowed by setting aside the impugned

judgment and opinion dated 18.02.2019 passed by the Foreigners Tribunal, Kamrup(Rural)

No.1, Assam, in F.T. Case No.GFT(R) Case No.38/2018 (Ref. Enquiry No.14/99). The matter is

remanded to the Tribunal to afford another opportunity to the petitioner to prove that the

petitioner is not a foreigner.

7. Accordingly, the petitioner will appear before the aforesaid Tribunal within a period of 2

(two) weeks from today. Since the petitioner has already been declared a foreigner, though

by an ex parte order and since his citizenship is under cloud, he will remain on bail on

furnishing a bail bond of Rs. 5,000/- (Rupees five thousand) with one local surety of the like

amount to the satisfaction of the Superintendent of Police (Border), Kamrup (Rural). The

concerned Superintendent of Police (Border), Kamrup (Rural), shall also take steps for

capturing the fingerprints and biometrics of the iris of the petitioner, if so advised. The Page No.# 5/5

petitioner also shall not leave the jurisdiction of Assam without furnishing the details of the

place of destination and necessary information including contact number to the

Superintendent of Police (Border), Kamrup (Rural) and the petitioner shall appear before the

Superintendent of Police (Border), Kamrup (Rural) as and when directed by the

Superintendent of Police (Border), Kamrup (Rural).

8. It is made clear that if the petitioner fails to appear before the learned the Foreigners

Tribunal, Kamrup (Rural) No.1, Assam, within a period of 2 (two) weeks' from today, as

directed above, the earlier order passed by the Foreigners Tribunal, Kamrup (Rural) No.1,

Assam on 18.02.2019 will stand revived and the order of bail passed by this Court today will

stand vacated and the petitioner would be liable to be detained and deported from this

Country.

Copy of this order be furnished to the Superintendent of Police (B), Kamrup (Rural), for

doing the needful.

LCRs be immediately remitted to the Foreigners Tribunal, Kamrup (Rural) No.1, Assam.

                                           JUDGE                                     JUDGE



Comparing Assistant