Gauhati High Court
Yakub Ali @ Eyakub Ali Sheikh vs The Union Of India And 4 Ors on 15 November, 2021
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GAHC010002342020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/120/2020
YAKUB ALI @ EYAKUB ALI SHEIKH
S/O- LATE SAGAR ALI, R/O- VILL- NO.1 BHOMRABIL, P.S- GOSSAIGAON,
DIST- KOKRAJHAR, BTC, ASSAM
VERSUS
THE UNION OF INDIA AND 4 ORS
THROUGH THE SECRETARY TO THE GOVT OF INDIA, MIN OF HOME
AFFAIRS, GRIHA MANTRALAYA, NEW DELHI, PIN- 110001
2:THE STATE OF ASSAM
THROUGH THE SECRETARY TO THE GOVT OF ASSAM
HOME DEPTT
DISPUR
GUWAHATI PIN- 781006
3:THE STATE COORDINATOR
NRC
ASSAM
BHANGAGARH
GUWAHATI PIN- 781005
4:THE DEPUTY COMMISSIONER
KOKRAJHAR
P.O AND DIST- KOKRAJHAR
BTC
ASSAM PIN- 783370
5:THE SUPERINTENDENT OF POLICE (B)
KOKRAJHAR
P.O AND DIST- KOKRAJHAR
BTC
ASSAM PIN- 78337
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Advocate for the Petitioner : MR. A A R KARIM
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MRS. JUSTICE MALASRI NANDI
:: O R D E R ::
15.11.2021
[N. Kotiswar Singh, J]
Heard Mr. A.A.R. Karim, learned counsel for the petitioner. Also heard Ms. B. Sarma,
learned Central Government Counsel appearing for respondent No.1; Mr. A. Kalita, learned
Special Counsel, Foreigners Tribunal appearing for respondent Nos.2 and 5; Ms. L. Devi,
learned Standing Counsel, NRC for respondent No.3 and Ms. U. Das, learned Additional Senior
Government Advocate, Assam for respondent No.4.
2. In this petition, the petitioner has challenged the impugned opinion dated 21.07.2017
rendered by the learned Foreigners Tribunal, Kokrajhar in Case No. K/FT/1943/08 [No.
B/FTC/GSSN/88/214, Dtd-07-05-88] by which the proceedee therein was declared as a
foreigner of post 1971.
3. However, on perusal of the cause title of the aforesaid proceeding, we have noted that
the opposite parties consist of two persons, namely, Yakub Ali @ Eyakub ali, S/o Late Sagar
Ali, Vill: No.1 Bhomrabil, P.S. Gossaigaon, Dist. Kokrajhar, BTC, Assam and Asia Bibi, D/o
Abdul Hussain Paramanik, W/o Yakub Ali @ Eyakub Ali.
4. The aforesaid opinion was rendered ex parte as the proceedee did not appear before
the Tribunal after filing of written statement on 30.01.2016.
5. The aforesaid impugned opinion dated 21.07.2017 reads follows:
"BEFORE THE FOREIGNERS TRIBUNAL :: KOKRAJHAR
Present : Shri Bikas Kumar, M.Sc., LLB.
Member,
Foreigners Tribunal,
Kokrajhar
Case No. : K/FT/1943/08
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(No.B/FTC/GSSN/88/214, dtd-07-05-88)
Referring Authority : Union of India
Vs.
Opposite Party Yakub Ali @ Eyakub Ali,
S/o Late Sagar Ali
Vill: No.I, Bhomrabil,
P.S. Gossaigaon
Dist. Kokrajhar, BTC, Assam,
A N D
Asia Bibi,
D/o Abdul Hssain Paramanik,
W/o Yakub Ali @ Eyakub Ali.
For State Shri J. Kr. Dey, Asstt. Govt. Pleader.
Date of Judgment 21-07-17,
J U D G E M E N T
The proceedee is absent. The case record shows that O.P. Was appeared in the Tribunal
several times and filed W/S on 30-01-16. But it seems to be appeared that O.P. intentionally
absent in the Tribunal to contest the case properly. On 23-03-17 O.P. was filed a petition
praying for some time for evidence of O.P. For ends of justice and to give full opportunities to
place their defence, the prayer is allowed. But O.P. again absent. Hence, case is fixed for
necessary Order.
As such, it appears that the conduct of the proceedee that the proceedee deliberately
avoided to be present in the Tribunal, most probably to avoid appearance in the Tribunal and
answer the proceedings. It is evident from case record that sufficient opportunity has been
afforded to the proceedee to contest the proceedings and to make their defence, however, the
proceedee choose not to defend the case/Reference with allegation of being a suspected
foreigner. Hence, the case/Reference is decided n/order.
Since the proceedee has chosen not to contest the proceedings, as such, the statement and
particulars submitted by the Referring Authority, doubting the citizenship of the proceedee are
accepted as true and proved and the proceedee has rendered themselves liable to be declared as
a foreigner as the proceedee has failed to discharge the burden cast on them to disprove such
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allegation before the Tribunal. So, the proceedee are declared as a foreigner of the stream Post
1971. The Superintendent of Police (B), Kokrajhar is directed to take all necessary steps to
apprehend the proceedee and to keep them in Detention Camp till their deportation/Push back in
accordance with procedure. It is also directed that the name of the proceedee, if included in any
electoral roll be deleted/struck off from the electoral rolls. The reference case against the
proceedee is answered in positive. In the result, the proceedee, in my considered opinion, is a
foreigner of the stream Post 1971.
O R D E R
In view of the discussions made above, in my opinion, the proceedee is declared as
foreigner of the stream post 1971. Therefore, the Reference case against the proceedee is
answered in positive.
Send a copy of the Order to the District Magistrate, Kokrajhar and the Superintendent of
Police (B), Kokrajhar for taking consequential necessary action against the proceedee.
The Order containing the opinion of this Tribunal is delivered under my hand and seal
on this 21st day of July 2017.
Dictated and corrected by me,
................................
Member,
Foreigners Tribunal
Kokrajhar."
6. Thus, from the above, it is clear that as per the cause-title, there were 2(two)
proceedees, namely, Yakub Ali @ Eyakub Ali A N D his wife Asia Bibi. The Tribunal however,
has not mentioned even once in the order the name of the proceedee who has been declared
as a foreigner. The Tribunal throughout the order uses the singular noun without referring to
the identity of the proceedee though the cause-title shows that the proceeding was against
two persons. The Tribunal accordingly, declared that, " In the result, the proceedee, in my
considered opinion, is a foreigner of the stream Post 1971 ." Thus, it cannot be ascertained
from the impugned opinion as to which of the aforesaid two proceedees, Yakub [email protected] Eyakub
Ali or his wife Asia Bibi has been declared a foreigner.
At the same time, we have seen in the certified copy of the impugned opinion dated
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21.07.2017 the photograph of only Asia Bibi being pasted. Therefore, it is not clear at all as to
who is the proceedee who had been declared a foreigner.
7. In our view, the opinion must be specific and qua the reference made and in respect of
the person proceeded and there cannot be any ambiguity in the opinion rendered by the
Tribunal as to the identity of the proceedee. Thus, we are of the view that the opinion dated
21.07.2017 rendered by the Tribunal cannot stand the scrutiny of law being vague as it does
not specifically refer to any of the persons named in the cause-title and any such ambiguous
opinion cannot adversely affect the right of a person.
8. Citizenship, being a very important right of a person, the Tribunal ought to be more
careful about the opinion being rendered by making it specific with particular details of the
person when declaring such a person foreigner.
9. Learned Counsel for the State has also acknowledged the ambiguity in the opinion
made which renders it untenable to implement.
10. At the same time, we have also noted that the present petition has been filed by Sri
Yakub Ali @ Eyakub Ali Sheikh and not by Asia Bibi, though Mr. A.A. Karim, learned counsel
for the petitioner submits that Yakub Ali and his wife Asia Bibi are very much alive and they
live together as husband and wife.
Thus, a peculiar situation has arisen in this case, where only the husband has
challenged the impugned order and not the wife, though both of them were proceeded and
though the said Asia Bibi had not been declared an Indian. However, this perhaps will not
come in the way of disposal of this petition, as the opinion otherwise, cannot be sustained.
Even if the said Asia Bibi has not challenged, the impugned order for the reasons discussed
above has to be set aside.
11. Accordingly, for the reasons discussed above, we allow this petition by setting aside
the ex parte opinion dated 21.07.2017 passed in Case No. K/FT/1943/08 [No.
B/FTC/GSSN/88/214, Dtd-07-05-88] as vague, ambiguous and not specific as to who had
been declared as foreigner by giving the benefit of doubt to both the persons named in the
cause-title, namely, Yakub Ali @ Eyakub Ali and Asia Bibi.
12. Though Asia Bibi is not before this Court, considering the submission made by the
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learned counsel for the petitioner that Asia Bibi is the wife of Yakub Ali @ Eyakub Ali and is
staying with him, it is desirable that such proceedings are heard together and not separately.
Accordingly, the above direction is issued in respect of Asia Bibi also though she is not
before this Court for the reason that the aforesaid opinion cannot otherwise stand scrutiny of
law and is set aside and as such absence of the aforesaid Asia Bibi before this Court will not
make any difference.
Both the proceedees, Yakub ali @ Eyakub Ali and Asia Bibi who are husband and wife
as submitted by the learned counsel for the petitioner will appear before the Foreigners
Tribunal, Kokrajhar on or before 15.12.2021.
13. They accordingly, will appear again before the Foreigners Tribunal, Kokrajhar and will
adduce evidence(s) in support of their claim that they are Indian, not foreigners, if reference
has been made against both of them.
14. Learned Foreigners Tribunal, Kokrajhar, after hearing both the proceedees, Yakub Ali @
Eyakub Ali and Asia Bibi, if referred to by the Referral Authority, will pass appropriate opinion
as regards the reference made. The Tribunal cannot proceed in respect of any person against
whom no specific reference has been made for the opinion of the Tribunal.
15. The opposite parties named in the said proceedings, Yakub Ali @ Eyakub Ali and Asia
Bibi however, will report before the Superintendent of Police (Border), Kokrajhar and furnish
necessary sureties of Rs.5,000/- (Rupees five thousand) and bail bond to the satisfaction of
the Superintendent of Police (Border), Kokrajhar and will be allowed to remain on bail during
the pendency of the aforesaid proceeding which has been directed to be initiated again as
mentioned above.
16. With the above observations and directions, the present petition stands disposed of.
JUDGE JUDGE
Comparing Assistant
