Gauhati High Court
Page No.# 1/6 vs The Union Of India And 6 Ors on 19 July, 2021
Page No.# 1/6
GAHC010167882020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4986/2020
RAJU UPADHYAY @ RAJURAM BARAL
S/O. LAKHIKANTA UPADHYAYA @ LAKHI BARAL, R/O. VILL. NAHARANI
BALIJAN P.O. DIMOW, P.S. SILAPATHAR, DIST. DHEMAJI, ASSAM, PIN-
787059.
VERSUS
THE UNION OF INDIA AND 6 ORS
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF
POLITICAL AND HOME AFFAIRS, NEW DELHI.
2:THE ELECTION COMMISSION OF INDIA
REP. BY THE CHIEF ELECTION COMMISSIONER OF INDIA
NIRVACHAN BHABAN
ASHOKA ROAD
NEW DELHI-110001.
3:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GUWAHATI-781006.
4:THE CHIEF ELECTION OFFICER
ASSAM
HOUSEFED COMPLEX
BELTOLA ROAD
GUWAHATI-781006.
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5:THE ELECTORAL REGISTRATION OFFICER
DHEMAJI SUB DIVISION
DIST. DHEMAJI
ASSAM
PIN-787057.
6:THE DY. COMMISSIONER CUM DIST. ELECTION OFFICER CUM
ELECTORAL REGISTRATION OFFICER
DHEMAJI
P.O. DHEMAJI
DIST. DHEMAJI
ASSAM
PIN-787057.
7:THE SUPDT. OF POLICE (B)
DHEMAJI
P.O. DHEMAJI
DIST. DHEMAJI
ASSAM
PIN-787057
Advocate for the Petitioner : MR. R P SARMAH
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
order
19-07-2021
[N. Kotiswar Singh, J]
Heard Mr. R.P. Sarma, learned Senior Counsel assisted by Ms. S.P. Chetry, learned
counsel for the petitioner. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr.
R.K. Dev Choudhury, learned CGC appearing for respondent No.1; Ms. A. Verma, learned
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Special Counsel, F.T. appearing for respondent Nos.3, 6 & 7 and Mr. A. Bhuyan, learned
Standing Counsel, ECI, appearing for respondent No.2, 4 & 5.
2. The petitioner, Mr. Raju Upadhya, who claims to be a resident of Santipathar,
Silapathar, Dist. Dhemaji, Assam, has approached this Court being aggrieved by the opinion
dated 17.12.2017 passed by the Member, Foreigners Tribunal 2 nd Dhemaji, Silapathar in F.T.
(D) Case No.2nd Dhemaji-432/2016 arising out of a reference Case No.3435/2009, whereby
the petitioner has been declared a foreigner of post 1971 stream. The petitioner
acknowledges that notice was duly served upon him and on pursuant of the notice he
appeared before the Tribunal and filed his written statement and adduced evidence by way of
an affidavit.
3. Learned counsel for the petitioner submits that the petitioner is an Indian Nepali
settled in Dehmanji. However, the authority proceeded against him on the allegation that he
is a Nepali, who migrated in Assam after 1971. Learned counsel for the petitioner submits
that the petitioner has evidence to show that he is a resident of Assam. It has been further
submitted that the name of the petitioner's father appeared in the NRC, copy of which is
annexed as Annexure-E. Accordingly, learned counsel for the petitioner submits that 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.).
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4. The relevant portions of the aforesaid judgment dated 29.11.2019 are reproduced
herein below:
".......
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 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 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,
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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.
.................."
5. In the present case, there is neither any suspicion expressed by the Referral
Authorities nor any finding recorded by the concerned Tribunal that the writ petitioner is a
person who had come to Assam from the " Specified Territory". Further, there is no finding
either in the local verification officer's report or in the order dated 17.12.2017 passed by the
Tribunal that the petitioner's mother tongue although ' Nepali', the benefit under the
Notification dated 24.09.2018 cannot be extended to the petitioner.
6. Ms. A. Verma, learned Special Counsel, F.T., has fairly admitted to the legal position
and submits that the present 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 (Indira Newar vs. Union of India & Ors.).
7. Accordingly, in view of above and in terms of the judgment dated 29.11.2019 passed
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in the case of Indira Newar (Supra), the writ petition is allowed. The impugned order dated
17.12.2017 passed by Foreigners Tribunal 2 nd Dhemaji, Silapathar in F.T. (D) Case No.2 nd
Dhemaji-432/2016 arising out of a reference Case No.3435/2009 is hereby set aside and
quashed. Consequently, the reference made against the petitioner by the Referral Authorities
is also interfered with.
JUDGE JUDGE
Comparing Assistant
