Giyasuddin vs Union Of India And 4 Ors
2021 Latest Caselaw 3429 Gua

                                                                Page No.# 1/8

GAHC010138502018




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

                          Case No. : WP(C)/4347/2018

         GIYASUDDIN
         S/O LT. BHOJA MIYAN
         PERMANENT RESIDENT OF-
         VILL-MADHUSAI, WARD NO.13,
          BHUVWAN CHHAPRA
         P.O. BHUWAN CHHAPRA
         P.S. SAKIA
         BLOCK -EAST CHAMPORAN, KALYANPUR
         DIST. EAST CHAMPORAN, BIHAR, PIN - 845412,
         LAST RESIDENCE AT-
         BOKAKHAT TOWN,
          WARD NO. 1
         P.O. AND P.S. BOKAKHAT,
         DIST. GOLAGHAT, ASSAM, PIN - 785612.



         VERSUS

         UNION OF INDIA AND 4 ORS.
         TO BE REP. BY THE SECRETARY TO THE MINISTRY OF HOME, GOVT. OF
         INDIA, NEW DELHI,PIN- 110001.

         2:THE STATE OF ASSAM

         TO BE REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF
         ASSAM
         HOME DEPARTMENT

         DISPUR
         GUWAHATI- 781006.

         3:THE SUPERINTENDENT OF POLICE
                                                                                           Page No.# 2/8

              GOLAGHAT DISTRICT
              ASSAM

              DIST. GOLAGHAT
              ASSAM
              PIN - 785621.

              4:ELECTION COMMISSION OF INDIA

              TO BE REP. BY ITS COMMISSIONER
              NEW DELHI
              PIN - 110001.

              5:THE COMMISSIONER AND SECRETARY TO HOME AND STATE
              COORDINATOR

              NRC ASSAM
              BHANGAGARH
              GUWAHATI - 781005

Advocate for the Petitioner   : MR. M K SHARMA

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

Before Hon'ble Mr. Justice N. KOTISWAR SINGH HON'BLE MRS. JUSTICE MALASRI NANDI

For the Petitioner: Ms. S. Sarma, amicus curiae

For the Respondents: Mr. K. Gogoi, CGC Ms. A. Verma, Special Counsel, F.T., Mr. A. I. Ali, Standing Counsel, ECI Ms. U. Das, State Counsel, Assam, Ms. L. Devi, Standing Counsel, NRC

Date of Hearing & Judgment : 13.12.2021 Page No.# 3/8

Judgment and Order (Oral)

[N. Kotiswar Singh, J]

Heard Ms. S. Sarma, learned counsel who has been appointed as amicus curie in this

case by this Court as no one appeared on behalf of the petitioner. Heard Mr. K. Gogoi, learned

CGC for respondent nos.1; Ms. A. Verma, learned Special Counsel, F.T. appearing for

respondent no. 3; Mr. A.I. Ali, learned Standing Counsel, ECI, appearing for respondent no.4;

Ms. U. Das, learned State Counsel, Assam, appearing for respondent nos.2 and Ms. L. Devi,

learned Standing Counsel, NRC for respondent no.5.

2. The LCR, as called for, has been received and we have perused the same.

3. In this petition the petitioner has challenged the order dated 04.11.2015 passed by the

Foreigners Tribunal, Jorhat in FTG(D) no.179/10 by which the petitioner was declared a

foreigner of the 1971 stream. The Tribunal held that the proceedee had failed to discharge

the burden cast upon him under Section 9 of the Foreigners Act, 1946 to prove that he is an

Indian citizen and accordingly, declared him foreigner who had entered to India through

Assam after 25.03.1971.

Subsequently, the petitioner after coming to know of the said ex-parte order dated

04.11.2015 approached the Tribunal by filing a misc. case i.e. Misc. Case No.41/2017 on

06.03.2017 but the Tribunal held that the notice was received by his wife Sobba Khatun on

08.08.2015 and as such, it cannot be said that the petitioner did not receive the notice.

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Moreover, there was a delay in filing the Misc. Case and accordingly, rejected the said misc.

case on 12.06.2017. The petitioner was taken into custody by the Border Branch of Golaghat

Police on 18.12.2015 after the impugned order dated 04.11.2015 was passed by the

Foreigners Tribunal.

4. In the present petition, it is has been submitted that the petitioner did not receive any

notice from the Tribunal and as such, he had no knowledge about passing of the said ex-

parte order. It has been submitted that the petitioner is a Dhunai Wala by profession and as

such, he had to move from place to place in search of livelihood. Accordingly, it has been

submitted that there was no intention to avoid the proceeding of the Court. Moreover, the

petitioner has sufficient documents in his possession to prove that he is an Indian citizen. It

has been submitted that the petitioner was born in the year 1970 in his parents' house

situated at Village-Madhuchai (Manchi Chapra), P.O. Panchayat, Bhuwan Chapra, P.S.:Chakia,

Circle:Kalayanpur, Dist.:East Champaran, Bihar, India and his father name is Bhoja Mia and

the petitioner's ancestors actual title is ' Hussain' but due to curtsey they are locally known as

'Mia'. Thus, Bhoja Mia and Bhoja Hussain are the same persons and in the Electoral Rolls the

name of the proceedee's father is entered as Bhoja Mia, son of Doma Mia though in some

land documents his father name is recorded as Bhoja Hussain. The petitioner has submitted

voters list of 2015 of 16-Kalyanpur LAC, Bihar at village Bhuban Chapra, Polling Center

No.278 Panchayat: Kalyanpur, Dist.-East Champaran, Bihar. It has also been submitted that

the name of the petitioner also appeared in the voters list of 2011. It is also stated that the

petitioner's mother's name also appeared in the voters list of 1975 in 18 Kesaria, LAC Bihar

at Village: Bhuban Chapra, Khanda no.25, Panchayat: Kalyanpur, Dist.-East Champaran, Bihar.

It has been submitted that the petitioner's father and other paternal family members' names Page No.# 5/8

appeared in the Electoral Roll of 1966 of 17 Pipra LAC Bihar at village:Manshi Chapra (Bhuban

Chapra), Khanda No.40, Thana No.144, P Panchayat: Kalyanpur, Dist.-East Champaran, Bihar.

Further, the petitioner's father Bhoja Mia @ Bhoja Hussain purchased a land situated at

village Manshi Chapra (Bhuban Chapra) Circle: Kalyanpur, Dist.-East Champaran, Bihar

covered by Khata no.227/55 and Kachara no.2201/3251 along with one Samsuddin and both

are the sons of Doma Mia (petitioner's grandfather). It has been submitted that the father of

the procedee was a labourer and worked outside of Bihar and as such, remained out of his

locality in search of the livelihood for his family. It has been accordingly submitted that there

are sufficient documentary evidences to prove that the petitioner is an Indian and not a

foreigner. However, as the Tribunal had proceeded ex-parte, the petitioner did not get any

opportunity to prove his case that he is an Indian.

5. We have also perused the order dated 12.06.2017 passed by the Tribunal in rejecting

the misc. application filed on 06.04.2017 for setting aside the ex-parte opinion dated

04.11.2015. The Tribunal rejected the said application primarily on the ground that the notice

was received by his wife Sobba Khatun on 08.08.2015 and as such, it cannot be said that the

petitioner did not receive the notice. Even if wife of the petitioner Sobba Khatun had received

the notice as recorded in the order dated 12.06.2017, considering the fact that the petitioner

is a Dhunai Wala by profession and had to go from place to place to earn livelihood for his

family and since he has enough documents in his possession to prove that he is an Indian

citizen, which have been brought to the notice of this Court also, in our opinion, in the

interest of justice, an opportunity should be afforded to the petitioner to prove his case as it

not a case of total lack of document or evidence. It has been also mentioned in the order

dated 12.06.2017 that the petitioner was taken into custody by the Border Branch of Page No.# 6/8

Golaghat Police on 18.12.2015 and as such, certain delay had occurred in filing the said Misc.

Application for setting aside the ex-parte order dated 04.11.2015 passed by the Foreigners

Tribunal, Jorhat.

6. We are of the view that if the aforesaid documents can be proved by the petitioner, he

can make a legitimate claim that he is an Indian not a foreigner. Accordingly, since the matter

was proceeded ex-parte, in the interest of justice, we are inclined to grant another

opportunity to the petitioner to appear before the Tribunal to prove his case that he is an

Indian and not a foreigner.

7. Citizenship is one of the most important rights of a person in today's world. It is the key

to enjoyment of the rights guaranteed by law of the land. It is through citizenship that a

person can enjoy and enforce fundamental rights and other legal rights conferred by the

Constitution and other statutes, without which a person cannot lead a meaningful life with

dignity. A person stripped of citizenship could be rendered a stateless person, if any other

country refuses to accept him or her as its citizen. Such is the overarching significance and

importance of citizenship to a person. Therefore, any such proceeding which has the potential

of depriving citizenship ought to be accordingly, examined from that perspective also. In a

normal proceeding before a court of law, in spite of any adverse finding, the person will

continue to enjoy the rights as a citizen. Though a proceeding under the Foreigners' Tribunal,

is merely quasi-judicial in nature, yet an adverse opinion by the Tribunal that the proceedee is

a foreigner almost seals the fate of the proceedee as far as the issue of citizenship is

concerned, as the authorities are expected to declare such a person a foreigner in terms of

the opinion of the Tribunal and he would be liable to be detained and deported. Thus,

ordinarily, such an opinion of the Tribunal, in our view, ought to be given after analyzing all Page No.# 7/8

the relevant evidence that may be produced by the proceedee and not by way of default after

considering any evidence as has been done in the present case.

8. In view of the above, we are inclined to remand this matter to the concerned Tribunal

for a fresh consideration by setting aside the impugned order dated 04.11.2015 passed in

FTG(D) No.179/2010 as well as order dated 12.06.2017 passed in Misc. Case No.41/2017

(1st) by the Foreigners Tribunal, Jorhat.

9. Consequently, the petitioner shall appear before the Foreigners Tribunal, Jorhat on

24.01.2022 and thereafter, the learned Tribunal will proceed with the matter in accordance

with law and shall pass an opinion afresh in the light of written statement and documents

that may be filed by the petitioner in that regard. There is nothing on record to show that as

to whether the petitioner has been released on bail from the detention camp or not.

Accordingly, if the petitioner has not been released on bail, he may be released from the

concerned detention camp so as to enable him to appear in the proceeding before the

Foreigners Tribunal, Jorhat and defend his case, for which he will furnish 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), Jorhat during the pendency of the proceeding

before the Tribunal. The concerned Superintendent of Police (Border) shall also take steps for

capturing the fingerprints and biomertrics of iris of the petitioner. The petitioner also shall not

leave the jurisdiction of Jorhat district without furnishing the details of the place of

destination and necessary information including contact number to the Superintendent of

Police (Border), Jorhat.

10. The writ petition stands disposed of accordingly.

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11. Copy of this order be furnished to the Foreigners Tribunal, Jorhat as well as the Superintendent of Police (B), Jorhat to inform the petitioner or his family about passing of the order of this Court.

12. The LCR be remitted back immediately to the concerned Tribunal.

13. Ms. S. Sarma, learned counsel appearing as amicus curiae in the present case, be paid her honorarium by the High Court Legal Service Committee as per norms.

                                         JUDGE                                    JUDGE



Comparing Assistant