Saradhani Mazumdar vs The Union Of India And 7 Ors
2021 Latest Caselaw 1012 Gua

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GAHC010211302019




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

                           Case No. : WP(C)/6736/2019

         SARADHANI MAZUMDAR
         W/O. SRI NIPEN DAS, R/O. VILL. KARIBIL KACHARI, P.S. HALEM P.O.
         KARIBIL BANGALI, DIST. BISWANATH, ASSAM, PIN-784170.



         VERSUS

         THE UNION OF INDIA AND 7 ORS.
         REP. BY THE SECRETARY MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA,
         NEW DELHI-01.

         2:THE CHIEF ELECTION COMMISSIONER

          ELECTION COMMISSION OF INDIA
          ASHOKA ROAD
          NEW DELHI-01.

         3:THE STATE OF ASSAM
          REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT.
          DISPUR
          GUWAHATI-06.
         ASSAM.

         4:THE FOREIGNERS TRIBUNAL

          TEZPUR AT GOHPUR
          ASSAM.

         5:THE STATE COORDINATOR

          NRC
          ASSAM
          BHANGAGARH
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              GUWAHATI-05.

              6:THE DY. COMMISSIONER

              BISWANATH DISTRICT
              BISWANATH
              ASSAM.

              7:THE SUPDT. OF POLICE (B)

              BISWANATH
              DIST. BISWANATH
              ASSAM.

              8:THE ELECTION OFFICER

              BISWANATH
              DIST. BISWANATH
              ASSAM

Advocate for the Petitioner   : MR. D P MANDAL

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

BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MR. JUSTICE MANISH CHOUDHURY order 17-03 -2021

[N. Kotiswar Singh, J]

Heard Mr. F.A. Hassan, learned counsel for the petitioner. Also heard Mr. K.K. Parasar,

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

respondent Nos.3, 4 & 5; Ms. N. Upadhyay, learned standing counsel, ECI, appearing for

respondent No.2 and Ms. L. Devi, learned Standing Counsel, NRC appearing for respondent

No.6.

2. The present petition has been filed challenging the ex parte order passed by the Page No.# 3/5

learned Foreigners' Tribunal-4th, Tezpur at Gohpur, in F.T.(T-4)/GPR, Case No.2375/2017

[corresponding to S.P. Ref. Case No.-Tz(B)/99/2293/GPR LAC] vide order dated 27.12.2018 by

which the petitioner was declared a foreigner.

3. Learned counsel for the petitioner fairly acknowledges that the notice was duly

received by the proceedee/petitioner herein and accordingly, she appeared before the learned

Tribunal on 29.11.2018 and also submitted a set of documents and prayed for some time to

file her written statement. Learned counsel for the petitioner submits that though several

opportunities were given to the petitioner by the learned Tribunal to file her written

statement, the petitioner could not appear before the learned Tribunal as the petitioner was

not able to get all the necessary documents to prove her nationality and on 27.12.2018, the

learned Tribunal passed ex parte order against her and accordingly, she has been declared a

foreigner by the learned Foreigners' Tribunal-4 th, Tezpur. It has been submitted that the

petitioner is presently in detention at Tezpur Central Jail since 07.05.2019 on the basis of the

abovementioned ex parte order.

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

learned Tribunal on the fixed dates and also failed to adduce evidence to prove her case, the

learned Tribunal held that the petitioner has failed to discharge the onus cast upon her under

Section 9 of the Foreigners' Act, 1946 and accordingly, declared her a foreigner having

entered India after 25.03.1971. Thus, the opinion of the learned Tribunal was by way of

default and not on the basis of merit by considering the materials or evidence. Moreover,

since the petitioner is presently in detention at Tezpur Central Jail since 07.05.2019, we are of Page No.# 4/5

the opinion that it would serve the interest of justice if we grant the petitioner another

opportunity to prove her case by releasing her.

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

most valuable right 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 the citizenship is denied by the alleged country of origin, 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 a case,

rather than by default as has happened in the present case.

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

judgment and opinion dated 27.12.2018 passed by the learned Foreigners' Tribunal-4 th,

Tezpur at Gohpur in F.T.(T-4)/GPR, Case No.2375/2017 [corresponding to S.P. Ref. Case No.-

Tz(B)/99/2293/GPR LAC] and the petitioner shall be released from detention forthwith.

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

(two) weeks of being released from the detention. Since the petitioner has already been

declared a foreigner, though by an ex parte order and since her citizenship is under cloud, she

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), Biswanath. The

concerned Superintendent of Police (Border), Biswanath, shall also take steps for capturing the

fingerprints and biometrics of the iris of the petitioner, if so advised. The petitioner also shall not leave

the jurisdiction of Biswanath district without furnishing the details of the place of destination and Page No.# 5/5

necessary information including contact number to the Superintendent of Police (Border), Biswanath

and the applicant shall appear before the Superintendent of Police (Border), Biswanath as and when

directed by the Superintendent of Police (Border), Biswanath

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

Tribunal-4th, Tezpur at Gohpur, within the aforesaid period being released from the detention,

as directed above, the earlier order passed by the learned Foreigners' Tribunal-4 th, Tezpur at

Gohpur on 27.12.2018 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.

Copies of this order be furnished to the Superintendent of Tezpur Central Jail, where

the petitioner is presently stated to be lodged as well as Superintendent of Police (B),

Biswanath for doing the needful.

                                                JUDGE                                   JUDGE

Comparing Assistant