Krishna Prasad Dahal @ Krishna ... vs The Union Of India And 5 Ors
2021 Latest Caselaw 1525 Gua

                                                                Page No.# 1/7

GAHC010251422019




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

                         Case No. : WP(C)/7791/2019

         KRISHNA PRASAD DAHAL @ KRISHNA PRASAD DAHAL @ KRISHNA
         DAHAL @ KRISHNA PRASAD UPADHYAY
         S/O- LATE NARADMUNI DAHAL @ NARABAHADUR @ NURBAHADUR
         CHETRY @ NARAD MUNI UPADHYAY, R/O- NO. 3 TEZAL PATTY, P.S.-
         SOOTEA, DISTRICT- SONITPUR, ASSAM.



         VERSUS

         THE UNION OF INDIA AND 5 ORS.
         REPRESENTED BY THE MINISTRY OF HOME AFFAIRS, GOVERNMENT OF
         INDIA, SASTRI BHAWAN, NEW DELHI, PIN- 110001.

         2:THE STATE OF ASSAM
          REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM
          HOME DEPARTMENT
          DISPUR
          GUWAHATI-6.

         3:THE SUPERINTENDENT OF POLICE (B)
          SONITPUR
         TEZPUR
          DISTRICT- TEZPUR
         ASSAM. PIN- 784001.

         4:THE DEPUTY COMMISSIONER
          SONITPUR
          DISTRICT- TEZPUR
         ASSAM. PIN- 784001.

         5:THE ELECTION COMMISSION OF INDIA
          REPRESENTED BY THE CHIEF ELECTION COMMISSION OF INDIA
                                                                                 Page No.# 2/7

             NIRVACHAN SADAN
             ASHOKA ROAD
             NEW DELHI
             INDIA. PIN- 110001.

            6:THE NATIONAL REGISTAR OF CITIZEN
             REPRESENTED BY THE STATE CO-ORDINATION
            ACHYUT PLAZA
             BHANGAGARH
             KAMRUP(M)
            ASSAM
             PIN- 781006

Advocate for the Petitioner   : MR. M A SHEIKH

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




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

                                             ORDER

26.04.2021 [N. Kotiswar Singh, J.]

Heard Mr. M.A. Sheikh, learned counsel for the petitioner. Also heard Mr. S.K. Medhi,

learned CGC appearing for the respondent No.1; Mr. J. Payeng, learned special counsel, FT,

appearing for respondent Nos.2--4; Mr. A. Bhuyan, learned standing counsel, ECI, appearing

for respondent No.5 and Ms. L. Devi, learned standing counsel, NRC, appearing for

respondent No.6.

2. In this petition, the petitioner, who claims to be a resident of No.3 Tezal Patty, PS-

Sootea, District-Sonitpur, Assam, has challenged the ex-parte order/opinion dated 25.04.2016

passed by the Foreigners' Tribunal (2 nd), Sonitpur, Tezpur, Assam, in F.T.(D.C.) Case

No.2760/2013, declaring him to be a foreigner of 1971 stream. The petitioner acknowledges Page No.# 3/7

that notice was duly served upon him but did not enter appearance before the Tribunal and

that he did not file written statement despite opportunities being granted, whereupon the

impugned opinion was rendered.

3. The petitioner, however, has raised an issue of great importance and submits that

having regard to the facts of the case, the provisions of Section 6-A of the Citizenship Act,

1955 are not applicable to him, in that, he is not a person having come into Assam (India)

from the "specified territory", within the meaning of Section 6-A(1)(c) of the aforesaid Act.

The petitioner claims to belong to the Gorkha community of Nepali origin and submits that his

case is squarely covered by the judgment and order of this Court dated 29.11.2019 passed in

a bunch of writ petitions in which the leading case was WP(C) No.8490/2019 ( Indira Newar

Vs. Union of India & Ors.).

4. Mr. J. Payeng, learned special counsel, FT, appearing for the State of Assam has not

disputed the aforesaid contention of the learned counsel for the petitioner and fairly submits

that this writ petition can be disposed of in terms of the judgment dated 29/11/2019 passed

in a bunch of writ petitions in which the leading case was WP(C) No.8490/2019.

5. We have carefully examined the case records received from the Tribunal. It is seen

from the Report of the Local Verification Officer that the petitioner has been described as the

son of one Narad Muni Dahal and that he was born in the year 1969 at No.3 Tezal Patty

under Sootea P.S. At Sl. No. 12 of the Report, it is recorded that the mother tongue of the

petitioner is 'Nepali'. Further, at Sl. Nos.15 and 16 of the said Report, which pertain to queries

as to whether the proceedee has migrated to Assam and, if so, the place from where

migrated, the Local Verification Officer had recorded in the negative, meaning thereby that Page No.# 4/7

the petitioner had not migrate to Assam, leading to a further endorsement that with regard to

the place from where migrated, the same does not arise for consideration. Neither in the

impugned opinion dated 25.04.2016 nor in the Referral Order of the Superintendent of Police

(B), Sonitpur, there is any finding recorded that the petitioner came to Assam from the

'specified territory'.

6. It may be pertinent to note that for the purpose of initiating a proceeding against a

person for determination as to whether he/she is a foreigner or not, under a reference made

under sub-section (3) of Section 6-A of the Citizenship Act, 1955 to a Tribunal constituted

under the Foreigners (Tribunals) Order, 1964, in terms of Rule 21 of the Citizenship Rules,

2009, the condition precedent is that the reference can only be in respect of person who had

come to Assam from the 'specified territory', that is, 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.

7. In the present case, there is neither any suspicion expressed by the Referral Authority

nor any finding recorded by the concerned Tribunal that the writ petitioner is a person who

had come to Assam from the 'specified territory'.

8. In this regard, one may refer to the Notification dated 23.08.1988 issued by 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 Page No.# 5/7

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), issued 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 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.

9. Section 8 of the Foreigners Act, 1946, which relates to determination of nationality Page No.# 6/7

may be also referred to. A reading of said Section 8 in the context of the present case reveals

that where for any reason it is uncertain what nationality, if any, is to be ascribed to a

foreigner, in such case, 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 petitioner can never claim to be citizen of India, however,

having regard to the status of the petitioner as recorded in the Verification Report to be a

person having his mother tongue and spoken dialect as 'Nepali', he can be treated as the

national of the country to which he appear to be closely connected i.e. Nepal. In the absence

of any reports of being a person coming into Assam from the 'specified territory', the

provisions of Section 6-A of the Citizenship Act, 1955 cannot be made applicable to the

petitioner.

10. As discussed above, from the records of the Tribunal it is seen that there is no finding

in the local verification officers report that the petitioner's mother tongue although being

'Nepali', the benefit under the Notification dated 24.09.2018 cannot be extended to the

petitioner. No finding to that effect is also noticed in the order dated 25.04.2016 passed by

the Tribunal and impugned in the present proceedings.

11. Accordingly, in view of the above, and in terms of the Judgment dated 29.11.2019

passed in the case of Indira Newar Vs. Union of India & Ors. [WP(C) No.8492/2018],

this writ petition is allowed. The impugned ex-parte order dated 25.04.2016 passed in F.T.

(D.C.) Case No.2760/2013 by the learned Member of the Foreigners Tribunal (2 nd), Sonitpur, Page No.# 7/7

Tezpur, Assam is hereby set aside and quashed. Consequently, the reference made against

the petitioner by the Referral Authorities is also interfered with.

12. Records of the Tribunal be sent back along with a copy of this order.

13. This writ petition is accordingly allowed. No order as to cost.

                Sd/- Soumitra Saikia                 Sd/- N. Kotiswar Singh
                          JUDGE                                 JUDGE




Comparing Assistant