Gauhati High Court
Manju Chetri vs The Union Of India And 7 Ors on 17 February, 2021
Page No.# 1/6
GAHC010178752020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5600/2020
MANJU CHETRI
D/O DHAMAN BAHADUR, R/O VILL. DURGASARBAR, P.S.
BHARALUMUKH, DIST. KAMRUP (M), ASSAM
VERSUS
THE UNION OF INDIA AND 7 ORS
REPRESENTED BY THE SECY., MINISTRY OF HOME AFFAIRS, GOVT. OF
INDIA, SHASTRI BHAWAN, NEW DELHI 110001
2:THE STATE OF ASSAM
REPRESENTED BY THE SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GUWAHATI 781006
3:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTION COMMISSIONER
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI 110001
INDIA
4:THE STATE COORDINATOR
NRC
ASSAM.
1ST FLOOR
ACHYUT PLAZA
G.S. ROAD BHANGAGARH
GUWAHATI
ASSAM 781005
5:THE FOREIGNERS TRIBUNAL 5TH
KAMRUP (M)
Page No.# 2/6
DIST. KAMRUP (M)
ASSAM.
6:THE DEPUTY COMMISSIONER
KAMRUP (M)
PANBAZAR
GUWAHATI
POLICE STATION PANBAZAR
DIST. KAMRUP (M)
ASSAM 781001
7:THE DEPUTY COMMISSIONER OF POLICE (BORDER)
KAMRUP (M)
PANBAZAR
GUWAHATI
P.O. AND P.S. PANBAZAR
ASSAM 781001
8:THE OFFICER IN CHARGE OF BHARALUMUKH P.S.
BHARALUMUKH
GUWAHATI
DIST. KAMRUP (M)
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 SOUMITRA SAIKIA
ORDER
Date : 17.02.2021
[Soumitra Saikia, J]
Heard Ms. H. Betala, learned counsel for the petitioner. Also heard Mr. P. S. Lahkar,
learned counsel representing respondent no.1, Mr. U. K. Nair, learned Senior Advocate
assisted by Mr. A. Kalita appears for respondent nos. 2, 5, 6, 7, and 8; Ms. B. Das, learned
counsel for the respondent no.3 and Ms. L. Devi, learned counsel for respondent no.4.
2. The petitioner, Smti Manju Chetri who claims to be a resident of Durgasorobar, P.S-
Bharalumukh, Dist- Kamrup (M), Assam has approached this Court being aggrieved by the
Page No.# 3/6
ex-parte opinion dated 26-02-2020 rendered by the Member, Foreigners Tribunal 5 th Kamrup
(M), Guwahati in D.V. Case No. 162/2018 arising out of a reference case No. 3090/1999,
whereby the reference was answered in affirmative declaring her to be a foreigner of Post
1971 stream. The petitioner was directed to be pushed back to the ' Specified Territory' in
exercise of power under section 3(13) of The Foreigners (Tribunals) Order, 1964 and to be
taken into the custody as an internee till deportation to the ' Specified Territory'.
3. The pleaded case of the petitioner is that Superintendent of Police (Border), Kamrup
(M), Guwahati upon an information received that the petitioner is an illegal migrant who
entered into India on or after 25-03-1971, registered a case vide IMDT Case No. 3090/1999
and conducted an enquiry into the matter and referred the case to the Foreigners Tribunal
No. 1st Kamrup(M). The Foreigners Tribunal registered the case as D.V. Case No.162/2018
and issued Notice to the petitioner on 21-11-2018. Although the petitioner had appeared
before the Foreigners Tribunal 1st Kamrup (M), Guwahati upon receipt of notice, because of
financial constraints and also because she is a single parent and had to undertake the
responsibility of the medical treatment of her daughter and also as her son was taken into
custody, the petitioner suffered mental trauma and could not manage to collect all relevant
documents necessary in support of her contentions required to be made before the Tribunal.
After her son was granted bail and after her daughter was discharged from the hospital, she
contacted the learned counsel and submitted some documents in support of her case.
However, because of her inability to appear before the Tribunal on the relevant dates, the
Tribunal by the impugned order 26-02-2020 proceeded ex-parte and answered the reference
in affirmative and declared her to be a foreigner.
4. The learned counsel appearing for the petitioner submits that the order of the
learned Tribunal is defective as the very reference which was made by the Superintendent of
Police (Border), Kamrup (M) is not maintainable and therefore, the learned Tribunal exceeded
it's jurisdiction in answering the reference in affirmative. The learned counsel for the
petitioner submits that a bare perusal of the Local Verification Officer's (LVO's) report reveals
that there is no finding that the petitioner belongs to any of the places within the meaning of
Page No.# 4/6
'Specified Territory' as defined under section 6(A) (1)(c) of the Citizenship Act 1955. The
learned counsel for the petitioner submits that she is the daughter of Late Dhaman Bahadur
Chetri who expired on 11-10-1986 and whose nationality is reflected as Indian (Nepali) in the
certificate issued by Health Department dated 03-10-1988. The learned counsel in support of
her contention also refers to a judgment rendered by a Coordinate Bench of this Court in the
case of Indira Newar & Ors vs- Union of India & Ors reported in 2019 SCC OnLine Gau
5890 : (2020) 5 Gau LR 502. It is submitted that the case of the petitioner is squarely
covered in terms of the judgment rendered in the case of Indira Newar (Supra) and
therefore, the writ petition should be allowed and the ex-parte order dated 26.02.2020 be set
aside and quashed.
5. Mr. U.K. Nair, learned senior advocate assisted by Mr. A. Kalita, advocate appearing
for the State of Assam agrees to the submission made by 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)/8490/2019 (Indira Newar).
6. As the learned counsels for the parties have agreed that this matter is covered by
the judgment in the case of Indira Newar (Supra), we propose to dispose of the matter at the
motion stage itself without issuing Notice as the respondents are duly represented by the
respective counsels.
7. Learned counsels for the parties have been heard. Record received from the Tribunal
have also been perused.
8. The case of the petitioner was originally sent to the SP (Border) city, Guwahati for
making an enquiry regarding the citizenship under the IMDT Act. During the enquiry made
from the verification of the official report dated 14.10.1999, it is seen that the petitioners'
'mother tongue' is recorded as "Nepali". There is no finding recorded in respect of the place
from where she migrated. Her address is shown to be 'Durgasorobar, P.S- Bharalumukh, Dist-
Kamrup (M), Assam'. On this the matter was referred initially to the IMDT and subsequently
to the Foreigners Tribunal, Kamrup (M) after scrapping of the IMDT Act. It is the pleaded case
Page No.# 5/6
of the petitioner that upon receipt of Notice she had entered appearances through a counsel.
However, because of her daughter's illness and also on account of steps required to be taken
for arrangement of bail in respect of his son who was in custody at the relevant point of time,
the required documents etc could not be furnished to her counsel whereupon, the Tribunal
came to pass the ex-parte order which is impugned in the present proceedings.
9. The order of the Tribunal impugned is perused.
10. It is seen that the Tribunal held that the petitioner upon receipt of Notice failed to
appear and also inspite of sufficient time being granted to the petitioner to file her Written
Statements, she had intentionally avoided appearing before the Tribunal to substantiate her
claim of Indian citizenship. Accordingly, the Tribunal held that the petitioner failed to
discharge her burden to prove Indian citizenship by adducing necessary evidence, both oral
and documentary. Accordingly, the Tribunal gave its opinion that the petitioner is a foreigner
of Post in 1971 stream.
11. The Judgment of a co-ordinate Bench of this Court rendered in the case of Indira
Newar and Ors (Supra) relied upon by the learned counsel for the petitioner has also been
duly perused. In this case this court was dealing with a bunch of writ petitions where
contentions were made by the petitioners therein that the mother tongue of the petitioners
were "Nepali" which is a language spoken by the citizenship of neighbouring country Nepal
and is also included as language in the 8th schedule of the Constitution of India and therefore
they could not have been treated to be migrants from the ' Specified Territory' i.e.
Bangladesh. This court upon perusal of the information recorded by the Referral Authorities
came to the conclusion that there was no suspicion expressed by the Referral Authorities nor
any findings recorded by the Tribunals that any of the petitioners therein were persons who
had come into Assam from the 'Specified Territory' as defined under Section 6A (1)(c) of the
Citizenship Act, 1955. This Court held that unless there is findings arrived at by the Referral
Authorities and/or by the Tribunal that the petitioner migrated to Assam from the ' Specified
Territory' namely, from any place in the country of Bangladesh, the benefit of the Notification
dated 24/09/2018 issued by the Government of India in the Ministry of Home Affairs that it
will not be appropriate to declare all members of Gorkha community hailing from Nepal to be
Page No.# 6/6
from the 'Specified Territory' as defined under Section 6A (1)(c) of the Citizenship Act, 1955,
cannot be denied. Only those persons who came from Bangladesh and are living in the State
of Assam can be treated as persons migrating from the ' Specified Territory'. In accordance
with the 6A of the Citizenship Act, 1955 this Court held that only cases of members of Gorkha
community living in Assam, who do not fall in any of the categories mentioned in the
Notification dated 24/09/2018 issued by the Home Ministry, 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
Foreigners Act, 1946.
12. 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 petitioners' mother tongue although
being 'Nepali', the benefit under the Notification dated 24/09/2018 cannot be conferred upon
the petitioner. No finding to that effect is also noticed in the order dated passed by the
Tribunal and impugned in the present proceedings.
13. Accordingly, in view of the above, and in terms of the Judgment dated 29.11.2019
passed in the case of Indira Newar (Supra), this writ petition is allowed. The impugned order
dated 26.02.2020 passed in D.V. Case No.162 of 2018 arising out of Ref. Case No. 3090/1999
passed ex-parte by the Learned Member of the Foreigners Tribunal, 5 th Kamrup (M), Assam is
hereby set aside and quashed.
14. Consequently, the reference made against the petitioner by the Referral
Authorities is also interfered with.
15. Records of the Tribunal be sent back along with a copy of this order.
16. This writ petition is accordingly allowed. No order as to cost.
JUDGE JUDGE
Comparing Assistant
