Gauhati High Court
WP(C)/6725/2019 on 12 November, 2021
GAHC010213812019
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
WP(C) No. 6725/2019
Khadiza Begum @ Khudeza,
D/O Komar Ali,
W/O Saijuddin,
Village-Aparia, PS-Mangaldai,
District-Darrang, Assam.
......Petitioner.
-Versus-
1. The Union of India,
represented by the Ministry of Home Affairs,
Government of India, New Delhi-110001.
2. The Election Commissioner of India,
Government of India,
New Delhi-110001.
3. The State of Assam,
represented by the Commissioner & Secretary to the
Government of Assam, Home Department,
Dispur, Guwahati-781006.
4. The State Coordinator, National Register of Citizens (NRC),
Bhangagarh, Guwahati-781005.
5. The Deputy Commissioner, Darrang,
District-Darrang, Assam, Pin-784125.
6. The Superintendent of Police (B),
Darrang, District-Darrang, Assam,
Pin-784125.
......Respondents.
WP(C) 6725/2019 Page - 1 of 6
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MRS. JUSTICE MALASRI NANDI
For the Petitioner: Mr. H.R.A. Choudhury (Sr. Adv.),
Mr. F.U. Barbhuiya,
Mr. H. Ali. ......Advocates.
For the Respondents: Asstt.S.G.I.,
Mr. J. Payeng, SC, FT,
Mr. A. Bhuyan, SC, ECI,
Ms. U. Das, Addl. Sr. GA, Assam,
Ms. L. Devi, SC, NRC. ......Advocates.
Date of Hearing & Judgment : 12th November, 2021
JUDGMENT AND ORDER (ORAL)
[N. Kotiswar Singh, J.]
Heard Mr. F.U. Barbhuiya, learned counsel for the petitioner. Also heard
Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K. Dev Choudhury,
learned Asstt. Solicitor General of India for the respondent No.1 as well as
appearing as standing counsel, NRC, for respondent No.4; Mr. J. Payeng,
learned special counsel, FT, appearing for respondent Nos.3 and 6; Mr. A.
Bhuyan, learned standing counsel, ECI, appearing for respondent No.2 and Ms.
U. Das, learned Additional Senior Government Advocate, Assam, appearing for
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respondent No.5.
2. The present petition has been filed challenging the ex-parte order dated
24.05.2019 passed by the learned Member, Foreigners Tribunal (1 st), Mangaldai,
Darrang, Assam, in F.T. Case No.778/2001 by which the petitioner was declared
as a foreigner of post 25.03.1971 stream.
3. The submission of the petitioner is that, it is not that the petitioner did
not appear before the learned Foreigners' Tribunal but did appear before the
Tribunal and filed her written statement as well as adduced evidences. But
unfortunately, though the learned Tribunal had fixed the matter on 14.05.2019
for further hearing and cross-examination of DW-1 and DW-2, two witnesses
produced by the petitioner, due to mistake of the conducting counsel, who
informed the petitioner that the matter was fixed on 24.05.2019, the petitioner
could not appear before the learned Tribunal on 14.05.2019 and instead
appeared on 24.05.2019, by which time it was found that the matter has been
decided ex-parte as mentioned in paragraph 11 of this petition.
4. From the above, what we have noted is that it is not a case that the
petitioner had totally ignored to appear before the learned Tribunal but had
been appearing before the Tribunal by filing her written statement and adduced
evidence. But on the day fixed for cross-examination, the petitioner did not
appear, which has been explained, as mentioned above. Learned Tribunal,
however, holding that it is a time bound proceeding, proceeded with the matter
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ex-parte. As such, what is clearly evident is that it is not the case where the
petitioner had totally neglected to appear before the learned Tribunal but had
been appearing though on the crucial date the petitioner did not appear
resulting in passing of the ex-parte order.
5. 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
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. 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 foreigner almost seals the fate of the proceedee as far as
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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 the evidence that may
be produced by the proceedee and not by way of default as has been done in
the present case, as the learned Tribunal passed the opinion without effective
hearing of the petitioner.
6. Accordingly, the present petition is allowed by setting aside the
impugned ex-parte opinion dated 24.05.2019 passed by the learned Member,
Foreigners Tribunal (1st), Mangaldai, Darrang, Assam, in F.T. Case No.778/2001
and direct the petitioner to appear before the learned Tribunal on or before
13.12.2021 and thereafter, the learned Tribunal will proceed with the matter
from the stage when the petitioner last appeared. In other words, the learned
Tribunal will proceed with the proceeding by cross-examining DW-1 and DW-2
and hearing other oral evidences as may be adduced as per rules and pass a
fresh opinion.
7. Since the citizenship of the petitioner has come under cloud, she will
continue to remain on bail in terms of the earlier order dated 17.02.2021 till the
conclusion of the proceeding before the Tribunal.
8. With the above observation and direction, the present petition stands
disposed of.
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9. Registry to send back the LCR to the concerned Tribunal forthwith.
Sd/- Malasri Nandi Sd/- N. Kotiswar Singh
JUDGE JUDGE
Comparing Assistant
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