WP(C)/8295/2019
2021 Latest Caselaw 3060 Gua

GAHC010269972019




                             IN THE GAUHATI HIGH COURT
               (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

                                   PRINCIPAL SEAT AT GUWAHATI

                                      WP(C) No. 8295/2019




                   1.   Shri Rajendra Das,
                        S/O Lt. Gandhilal Das.
                   2.   Smt. Renubala Das,
                        W/O Shri Rajendra Das.
                   3.   Ananda Das, minor,
                        S/O Rajendra Das.
                   4.   Biswajit Das, minor,
                        S/O Rajendra Das.
                   5.   Babita Das, minor,
                        D/O Rajendra Das.
                        All are residents of Village-Mahadevpur, P.S.-Katigorah,
                        District-Cachar, Assam.
                                                                             ......Petitioners.
                        -Versus-

                   1.   The Union of India,
                        represented by the Secretary to the Govt. of India,
                        Home Department, North Block, New Delhi.
                   2.   State of Assam,
                        represented by the Commissioner & Secretary to the
                        Government of Assam, Home Department,
                        Dispur, Guwahati-06.
                   3.   Additional Director General of Police, Assam (Border),
                        Bhangagarh, Guwahati-05.
                   4.   Superintendent of Police (Border), Cachar,
                        Assam.
                   5.   State Coordinator NRC, Assam,

           WP(C) 8295/2019                                                       Page - 1 of 7
               Achyut Plaza, Bhangagarh, Guwahati.
                                                                ......Respondents.

BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MRS. JUSTICE MALASRI NANDI

For the Petitioners: Ms. Swati B. Baruah. ......Advocate.

For the Respondents:       Asstt.S.G.I.,
                           Mr. P.S. Lahkar, SC, NRC,
                           Ms. A. Verma, SC, FT.             ......Advocates.



Date of Hearing & Judgment :      24th November, 2021



                       JUDGMENT AND ORDER (ORAL)

[N. Kotiswar Singh, J.]

Heard Ms. Swati Bidhan Baruah, learned amicus curiae appearing for the

petitioners. Also heard Mr. P.S. Lahkar, learned counsel assisting Mr. R.K. Dev

Choudhury, learned Asstt. Solicitor General of India for the respondent No.1 as

well as on behalf of the NRC, respondent No.5 and Ms. A. Verma, learned

special counsel, FT, appearing for respondent Nos.2, 3 and 4.

2. Considering the nature of this case, the matter is taken up for disposal at

this stage without issuing any formal notice to the respondents.

3. The present petition has been filed challenging the order dated

WP(C) 8295/2019 Page - 2 of 7 26.04.2018 passed by the learned Member, Foreigners Tribunal-4 th, Cachar,

Silchar, Assam, in Misc. Case No.07/2018 upholding decision of the learned

Tribunal dated 18.01.2018 passed in F.T.4 th Case No.327/2017 by which the

petitioner No.1 and his family members were declared foreigners of post

25.03.1971 stream.

4. It appears that the petitioners were proceeded before the Foreigners'

Tribunal-4th, Cachar, Silchar, in F.T.4th Case No.327/2017 and an ex-parte order

was passed on 18.01.2018 against the petitioners, as the petitioners failed to

appear before the learned Tribunal after being served notice and also did not

file written statement after seeking time. Subsequently, the petitioner No.1

approached the Tribunal by filing the Misc. Case No.07/2018 for setting aside

the said ex-parte opinion dated 18.01.2018, which however, was rejected by

the learned Tribunal on 26.04.2018 on the ground that no sufficient cause was

shown by the petitioner for setting aside the ex-parte order and also it was

observed on the strength of the decision rendered by this Court in Rukia

Begum Vs. Union of India & Ors.1, that application to set aside ex-parte

opinion should not be entertained in a routine manner.

5. In this regard, learned counsel for the petitioners has drawn attention of

certain documents, namely, the voters' list of 1965, in which the names of one

Gandhi Lal Das and Sumurta Bala Das are shown, who the petitioner No.1

1 2015 (4) GLT 882

WP(C) 8295/2019 Page - 3 of 7 claims to be his parents. Similarly, the petitioners have also annexed one

photocopy of the voters' list of 1970, where the aforesaid names of the parents

of petitioner No.1 are shown. The petitioners have also referred to a certificate

issued by the Mahadevpur Gaon Panchayat, which shows that the petitioner

No.2 is married to the petitioner No.1 and as such the petitioners submit that

there are sufficient materials to show that they are Indians and not foreigners.

6. We are also of the view that if the petitioners are able to prove the

aforesaid documents, they may have a legitimate claim that they are Indians

and not foreigners.

7. This Court has reiterated the importance of citizenship 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. Though a proceeding under the Foreigners'

WP(C) 8295/2019 Page - 4 of 7 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 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.

8. Thus, proceeding before a Tribunal, though is a summary one, has huge

implications for the right of a person. The Full Bench of this Court in State of

Assam & Ors. Vs. Moslem Mondal & Ors. 2 has also emphasized that

citizenship has to be jealously guarded.

9. Learned counsel for the petitioners submits that the petitioner No.1

because of his ill health could not appear before the Tribunal resulting in

passing of the ex-parte order as mentioned in paragraph 4 of this petition. It

has been also submitted that the petitioner No.2 is the wife of the petitioner

No.1 and the other remaining petitioner Nos.3, 4 and 5 are minor children of

the petitioner Nos.1 and 2 and as such, because of the inability of the petitioner

No.1 to appear before the Tribunal the aforesaid ex-parte order had been

passed against all of them. Though we are also conscious of the fact that ex-

2 2013 (1) GLT 809

WP(C) 8295/2019                                                        Page - 5 of 7

parte orders cannot be interfered in a routine manner. However, in the present

case, the matter pertains to a very important right of a person i.e. citizenship. If

the petitioner No.1 could not appear before the learned Tribunal and ex-parte

order was passed it would have a cascading affect on other members of his

family i.e. his wife and minor children, as the rest of the family members are

dependent on the petitioner No.1.

10. Accordingly, considering the nature of the case, we are of the view that

the petitioners may be offered another opportunity to appear before the

learned Tribunal to prove that they are Indians and not foreigners.

11. Under the circumstances, we allow this petition by setting aside the

impugned order dated 26.04.2018 passed in Misc. Case No.07/2018 as well as

the order dated 18.01.2018 passed in F.T.4 th Case No.327/2017 and direct the

petitioners to appear before the learned Tribunal on or before 24.12.2021 and

file their written statement and adduce evidence in support of their claim that

they are Indians. The learned Tribunal after hearing the parties will pass

appropriate order in accordance with law.

12. It is also made clear that if the petitioners are not able to engage any

counsel on their own and of their choice, the petitioners may approach the

Cachar District Legal Services Authority for providing a legal aid counsel.

13. However, since citizenship of the petitioners has come under cloud, they

will remain on bail during the proceedings for which they will appear before the

WP(C) 8295/2019 Page - 6 of 7 Superintendent of Police (B), Cachar within 15(fifteen) days from today by

furnishing a bail bond of ` 5,000/- each with one local surety of the like amount

to the satisfaction of the said authority. The concerned Superintendent of Police

(B) shall also take necessary steps for capturing the fingerprints and biometrics

of the iris of the petitioners. It is also made clear that the petitioners shall not

leave the jurisdiction of the Cachar district without obtaining permission from

the Superintendent of Police (B), Cachar.

14. With the above observations and directions, the petition stands disposed

of.

15. Before parting, we place on record our appreciation to the service

rendered by Ms. Swati Bidhan Baruah, learned amicus curiae, who shall be paid

the professional fee as per entitlement, by the Gauhati High Court Legal Aid

Committee.

                  Sd/- Malasri Nandi                 Sd/- N. Kotiswar Singh
                          JUDGE                                 JUDGE


Comparing Assistant




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