Gauhati High Court
Krishna Paul vs The Union Of India And 6 Ors on 10 November, 2021
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GAHC010215242019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6607/2019
KRISHNA PAUL
S/O- BALAHARI PAUL, R/O- VILL- ASHURMARI, P.O. RAKSHASMARI, P.S.
DHEKIAJULI, DIST- SONITPUR, ASSAM, PERMANENT ADDRESS, S/O- S/O-
BALAHARI PAUL, R/O- VILL- DHARAMNALA, P.O. DIPHU, P.S. DIPHU, DIST-
KARBI ANGLONG, ASSAM, PRESENT ADDRESS
VERSUS
THE UNION OF INDIA AND 6 ORS.
REP. BY THE SECY., MINISTRY OF HOME AFFAIRS, NEW DELHI, PIN-
110001
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-6
3:THE MEMBER
FOREIGNERS TRIBUNAL-9
DHEKIAJULI
DIST- SONITPUR
ASSAM
PIN- 784110
4:THE ELECTION COMMISSION OF INDIA
NEW DELHI
PIN- 110001
5:THE COORDINATOR
NRC
ASSAM
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GHY-5
6:THE DY. COMMISSIONER
SONITPUR
DIST- SONITPUR
ASSAM
PIN- 784001
7:THE SUPERINTENDENT OF POLICE (B)
SONITPUR
DIST- SONITPUR
ASSAM
PIN- 78400
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MRS. JUSTICE MALASRI NANDI
order
For the Petitioner: Mr. B. Borgohain, Advocate
For the Respondents: Mr. S.K. Medhi, CGC,
Ms. A. Verma, Special Counsel, F.T.,
Mr. A Bhuyan, Standing Counsel, ECI
Ms. U. Das, State Counsel, Assam,
Ms. L. Devi, Standing Counsel, NRC
Date of Hearing & Judgment : 10.11.2021
Judgment and Order (Oral)
[N. Kotiswar Singh, J]
Heard Mr. B. Borgohain, learned counsel for the petitioner. Also heard Mr. S.K. Medhi,
learned CGC appearing for respondent No.1; Ms. A. Verma, learned Special Counsel, F.T.
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appearing for respondent Nos. 2, 3 & 7; Mr. A. Bhuyan, learned Standing Counsel, ECI,
appearing for respondent No.4, Ms. L. Devi, learned Standing Counsel, NRC, appearing for
the respondent no.5 and Ms. U. Das, learned State Counsel, Assam, appearing for the
respondent no.6.
2. Considering the nature of the case and after hearing the learned counsel for the parities,
we are of the view that the present petition can be disposed of at this stage without issuing
any formal notice to the respondents.
3. Records have been received and we have perused the records.
4. In this petition the petitioner has challenged the ex parte order dated 09.08.2016 passed
by the Foreigners Tribunal No.9, Sonitpur, Dhekiajuli, Assam, in F.T. Case No.19/2016, by
which the petitioner was declared a foreigner. The Tribunal held that the petitioner failed to
appear before the Tribunal even after notice was deemed to have been served as he was not
in the village. The Tribunal had noted that in the service report produced before the Tribunal
on 19.07.2016, it has been notified by the Tribunal that the proceedee had left his last
residence without informing the investigating officer and thereafter, the process server affixed
the notice on a wall on the last residence of the Opp. Party in presence of the local
Gaonburha i.e. Pratap Rajput who put his signature on the notice as witness.
5. We have perused the original notice. However, it is not mentioned in the report of the
process server that the notice was affixed on a wall in the residence last resided by the
Opposite Party. The process server merely mentioned that it was affixed in presence of the
Gaonburah. Thus, it is not very clear from the records as to whether the notice was really
affixed on the wall of the residence of the petitioner where the petitioner last resided. Under
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such circumstances, we are inclined to give the benefit of doubt to the petitioner that he was
not served notice as according to him the notice was not pasted on a wall in the residence
where the petitioner last resided.
6. Learned counsel for the petitioner also submits in Para-10 of the petition that the
petitioner came to know from some of his friends in the month of May, 2019 that he had
been declared a foreigner by an ex parte order dated 09.08.2016 passed by the Foreigners
Tribunal No.9, Sonitpur at Dhekiajuli in F.T. Case No.19/2016 and accordingly, after coming to
know about the same, he had obtained the certified copy of the order dated 09.08.2016 and
approached this Court by challenging the ex parte order.
7. Learned counsel for the petitioner submits that the petitioner has sufficient documentary
evidences in his possession which would prove that he is an Indian citizen and not a
foreigner. In this regard learned counsel for the petitioner has drawn attention of this Court to
a certain document which shows that the father of the petitioner had purchased a land under
Dag no.78 of periodic patta no.13 at village Asurmari, Mauza Dhekiajuli, P.S. Dhekiajuli, in
which regard a sale deed was executed in the office of the Sub-Registrar Tezpur district
Darrang in the year 1969 and the petitioner claims that he is in possession of the original
registered sale deed and as the said document is quite old, he had obtained a certified copy
of the same from the Office of the Sub-Registrar, Tezpur. The petitioner has also stated that
the mother of the petitioner, namly, Rajbala Das, had been also declared a foreigner by the
Foreigners Tribunal, Sonitpur in F.T. 125/90 vide its judgement and order dated 31.12.1990,
who had entered India after 01.01.1966 but before 25.03.1971 and accordingly, she had
registered herself as a citizen of India under Section 6A of the Citizenship Act, 1955. The
petitioner also has referred to certain other documents like the registration certificate, school
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certificate, residence certificate issued by the Gaonburah and electoral rolls. Accordingly, it
has been submitted that since the petitioner is in possession of impeccable documents to
show that he is an Indian and not a foreigner, in the event he is not provided another
opportunity to appear before the Tribunal to prove his case that he is an Indian and not a
foreigner, he will suffer irreparable loss and injury.
8. We, having gone through records, are also satisfied that if the aforesaid documents are
proved, the petitioner can certainly make a legitimate claim that he is an Indian and not a
foreigner, which however can be done only if he is given another opportunity to prove his
case before the Tribunal.
9. 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 would 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 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. Only in a criminal proceeding because of any
adverse finding, some of the rights of a person may get affected because of incarceration,
except in the case of capital punishment, when life itself gets extinguished and all the rights
also go away along with it. 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
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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
the relevant evidence that may be produced by the proceedee and not by ignoring any
relevant evidence as has been done in the present case.
10. Considering the circumstances, which led the petitioner not to appear before the
Foreigners Tribunal, as discussed above, we are of the opinion that another opportunity may
be granted to him to prove that he is an Indian citizen and not a foreigner.
11. Accordingly, we remand the matter to the learned Tribunal for a fresh consideration by
setting aside the impugned order dated 09.08.2016 passed by the Foreigners Tribunal No.9,
Sonitpur at Dhekiajuli in F.T. Case No.19/2016.
12. Accordingly, the petitioner shall appear before the Foreigners Tribunal No.9, Sonitpur at
Dhekiajuli on 10.12.2021 and thereafter, the learned Tribunal will proceed with the matter in
accordance with law after allowing him to file written statement and adduce evidence in
support of his claim that he is an Indian. Thereafter, the Tribunal shall pass the opinion afresh
in the light of the documents and written statement that may be filed by the petitioner and
evidence adduced by him in that regard.
13. We have also perused the opinion rendered by the Foreigners Tribunal, Sonitpur in F.T.
125/90 on 31.12.1990 against the proceedee, namely, Rajbala Paul, whom the petitioner
claims to be his mother, by which the proceedee was declared a foreigner who came to
Assam after 01.01.1966 but before 25.03.1971 and accordingly, the mother had registered
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herself before the Special Foreigners Regional Officers (Superintendent of Police) Sonitpur,
copy of which is annexed as Annexure-6 of this writ petition in which the name of the
petitioner has also appeared as one of the children of the aforesaid Rajbala Paul. Accordingly,
we are of the view that if the Tribunal ascertains the genuineness of the said documents, it
will clinch the case in favour of the petitioner.
14. It is made clear that since the nationality of the petitioner is already under cloud, he
will be allowed to 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), Sonitpur during the pendency of the proceeding before the Tribunal. The
concerned Superintendent of Police (Border) shall also take steps for capturing the
fingerprints and biometrics of the iris of the petitioner. The petitioner also shall not leave the
jurisdiction of Sonitpur district without furnishing the details of the place of destination and
necessary information including contact number to the Superintendent of Police (Border),
Sonitpur.
15. The writ petition stands disposed of accordingly.
16. Copy of this order be furnished to the Superintendent of Police (B), Sonitpur for doing
the needful.
17. Let the LCR of the Foreigners Tribunal No.9, Sonitupur be remitted immediately.
JUDGE JUDGE
Comparing Assistant
