WP(C)/116/2019
2021 Latest Caselaw 2417 Gua

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GAHC010286872018




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

                             Case No. : WP(C)/116/2019


           1. Md. Nuruddin, age 47 years,
               Son of Late Rousan Ali,
               Resident of village- Naramari Reserve,
               P.S. Dharamtul, District- Morigaon, Assam
               PIN 782415
          2.   Abedul Ali, age 26 years
               Son of Md. Nuruddin
               Resident of village- Naramari Reserve,
               P.S. Dharamtul, District- Morigaon, Assam
               PIN 782415
          3.   Manjur Ali, age 45 years,
               Son of Late Rousan Ali,
               Resident of village- Naramari Reserve,
               P.S. Dharamtul, District- Morigaon, Assam
               PIN 782415
          4.   Rahatun Begum, age 69 years,
               Wife of Late Rousan Ali,
               Resident of village- Naramari Reserve,
               P.S. Dharamtul, District- Morigaon, Assam
               PIN 782415
          5.   Innus Ali, age 54 years,
               Son of Late Rousan Ali,
               Resident of village- Naramari Reserve,
               P.S. Dharamtul, District- Morigaon, Assam
               PIN 782415
                                                             ...... Petitioners
                         -Versus-
               1. Union of India,
               represented by the Secretary of the Ministry of Home Affairs,
               Government of India, New Delhi-1.
                                                                                      Page No.# 2/13


                 2. The State of Assam,
                 represented by the Commissioner & Secretary to the Govt. of Assam, Home
                 Department,
                 Dispur, Guwahati-6.

                 3. The Election Commission of India,
                 represented by the District Election Officer,
                 Morigaon, Assam PIN-782105.

                 4. The State Co-Ordinator, NRC,
                 Achyut Plaza, Bhangagarh, Guwahati-5.

                 5. The Foreigners' Tribunal No. 1st, Morigaon, Assam
                 District- Morigaon, PIN 782105

                 6. The Deputy Commissioner, Morigaon,
                 Assam, PIN- 782105.

                 7. The Superintendent of Police (Border),
                 Morigaon, Assam. PIN-782105.

                 8. The Officer In-Charge of Dharamtul Police Station,
                 P.O. Dharamtul, District- Morigaon,
                 Assam. PIN-782105
                                                                               .....Respondents

:: BEFORE::

                 HON'BLE MR. JUSTICE N. KOTISWAR SINGH
                 HON'BLE MR. JUSTICE MANISH CHOUDHURY

Advocates

For the Petitioners                    :      Ms. D. Ghosh, Advocate.
For the Respondent No.1                :     Mr. R.K. Deb Choudhury, ASGI

For the Respondent Nos.2, 5,6, 7 & 8 :       Mr. A. Kalita, Special Counsel, FT.
For the Respondent No.3                :     Mr. A. Bhuyan, Standing Counsel, ECI.
For the Respondent No.4                :     Ms. L. Devi, Standing Counsel, NRC.


Date of Hearing & Judgment             :     05.10.2021
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                         JUDGMENT & ORDER (ORAL)
(N. Kotiswar Singh, J)

Heard Ms. D. Gosh, learned counsel for the petitioners. Also heard Mr. A. Kalita,

learned Standing Counsel, Foreigners Tribunal; Ms. L. Devi, learned Standing Counsel, NRC as

well as appears on behalf of Mr. R.K. Deb Choudhury, learned ASGI; Mr. A. Bhuyan, learned

Standing Counsel, ECI; and Ms. U. Das, learned Additional Senior Government Advocate,

appearing on behalf of Deputy Commissioner, Morigaon.

2. The plea of the petitioners amongst others is that they were proceeded before the

Foreigners Tribunal 1st, Morigaon in F.T. Case no. 54/2010 and F.T. Case no. 104/2010 and

after hearing the matter, the learned Tribunal reserved for delivery of judgment on

12.05.2017. However, no judgment was rendered. But the new Tribunal Member who took

charge of the office, without hearing the parties again, disposed of the matter on 05.09.2018

by holding the petitioners as illegal immigrants of post 25.03.1971 stream. Accordingly, it has

been submitted that since the petitioners were not heard by the new incumbent learned

Member of the Tribunal, the opinion rendered has been vitiated and as such, deserves to be

set aside.

In this regard, Ms. Ghosh has referred to the decision rendered by this Court in writ petition,

W.P.(C) no. 139/2019 disposed of on 27.09.2021 dealing with similar issue.

3. Accordingly, without going into the other grounds raised in this petition, we will first

examine whether the impugned opinion dated 05.09.2018 was rendered without hearing the

parties as alleged.

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4. We have gone through the original records.

On perusal of the original records, it is seen that on 12.05.2017 when the matter was taken

up by the learned Foreigners Tribunal, the following order was passed keeping it reserved for

judgment :

"Opposite party has filed Hazira and the learned engaged counsel for the O.Ps. has advanced his argument on behalf of the O.Ps.

In the meantime, one Jamabandi copy has been submitted by the O.P. which is marked as Mark-1.

Now, the matter of delivering the judgment is kept reserved."

However, when the matter was again put up before the same learned Member of Tribunal on

12.04.2018, the following order was passed releasing the matter from being reserved for

judgment :

"Though the matter was kept reserved for judgment, the same could not be delivered due to shortage of time as well as dearth of a typist in this Tribunal.

The matter is accordingly released from being reserved."

5. The original records of the Tribunal indicate that the matter was subsequently taken up

on 05.09.2018 by the new Member of the Tribunal, and the following order was passed

disposing of the said case declaring the proceedees as foreigners.

"The case record is put up today for delivering the Final order which is written in 9 (nine) separate pages signed and sealed and kept with the record.

After summing up the materials on record and perusal of the evidence of the O.Ps., I am of the opinion that all the OPs referred in the Case No. 1, i.e. F.T. (C) Case No. 54/2010, namely Nooruddin, Karimjan Begum @ Karimjan Nessa, Abdul and Majnur Ali and in Case No. 2, i.e. F.T.(C) Case No. 104/2010, namely Rahatun Nessa @ Rahatun Begum and Innus Ali, all of village - Naramari Reserve/Naramari under P.S.- Dharamtul in the district of Morigaon, Assam are Page No.# 5/13

foreigners/illegal migrants who entered India (Assam) after 25.03.1971.

Hence, the references are answered in the affirmative and in favour of the Union of India.

Simultaneously, it is also opined that the OP1 Roshan Ali of F.T.(C) Case No. 104/2010 is doubted whether he is expired. Since, the documents did not amount to prove his citizenship, the OP is declared to be an illegal migrant of post 25.03.1971. The Superintendent of Police (Border), Morigaon shall inquire about the OP1 Roshan Ali through his subordinate officer and take necessary steps as per law. In regard to Majibur Ali, found in the records of the case, this Tribunal does not observe anything, but forward it to the SP(B), Morigaon for necessary steps upon proper inquiry and investigation.

The detailed order will follow in a separate sheet comprising of nine pages.

Inform the Superintendent of Police (Border), Morigaon, Deputy Commissioner, Morigaon and the Election Officer, Morigaon for taking necessary action."

6. From the above, it is seen that there was no proceeding between 12.04.2018, when

the matter was released by the earlier Tribunal Member after the matter was kept reserved

for judgment, and 05.09.2018 when the opinion was rendered by new incumbent Member of

the Foreigners Tribunal. This would clearly indicate that no hearing took place after the earlier

Member of the Foreigners Tribunal demitted office either on transfer or on some other

ground, of which there is no mention in the record. But the fact remains that the earlier

Member, who had heard the matter up to 12.05.2017 had kept the matter reserved for

judgment on 12.05.2017 but was released by him on 12.04.2018. Thereafter, the new

incumbent who took over the charge of the office of the Foreigners Tribunal, for the first

time, took up the matter on 05.09.2018 and on the same day passed the aforesaid impugned

order.

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7. Similar issue had been dealt by this Court in W.P.(C) no. 139/2019 [Md. Abul Kalam vs.

Union of India and others] which was disposed of on 27.09.2021. In that case, this Court had

discussed the need for hearing a party afresh, by successor Presiding Officer on demitting of

office or transfer of the predecessor Presiding Officer. In this regard, the following

observations were made by this Court in the aforesaid writ petition, which are reproduced

hereinbelow :-

"6. We have also noted that between 12.04.2018 and 20.06.2018, there was no proceeding before the Tribunal.

7. Thus what can be gathered from record is that though the learned Member of the Foreigners' Tribunal No.1, Morigaon, Smti. Navanita Baruah passed the opinion dated 20.06.2018, and though it has been mentioned in paragraph-8 of the said opinion that the arguments had been heard and records of the case has been perused, the records indicates otherwise. In fact, what the record clearly shows is that the matter perhaps was heard by her predecessor and was kept in a sealed cover and though the matter was reserved for judgment by the earlier Member, the same could not be delivered due to shortage of time and also because of non-availability of a typist and the matter was accordingly released from being reserved as mentioned in the order dated 12.04.2018.

When the matter was next taken on 20.06.2018 there is no recording by the learned Tribunal that the parties were heard. As mentioned above, the order dated 20.06.2018 merely mentions that the case records have been put up for delivering the final order which is written in 6 (six) separate pages signed and sealed and kept with the record.

Further, towards the end of the opinion, it is mentioned that the reference is made in the affirmative and in favour of the Union of India and that detailed order will follow in a separate sheet comprising of said pages. Thus, the first part of the opinion and the end part of the opinion do not somehow converge, for if the order was already signed and sealed kept on record, there is no reason to mention that detail order will follow.

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It has been not also indicated in the said order dated 20.06.2018 as to when the new Member had heard the matter before delivering the judgment.

It is not a case of pronouncement of a judgment by a judge of a judgment already written, but not pronounced, by his predecessor as provided under Order XX Rule 2 C.P.C.

8. Though it may happen that before concluding hearing of evidence the Judge may demit office or may be transferred in which event, the new incumbent Judge would continue with the hearing of evidence and as such, such change of Judge may not have any effect as far as the proceeding of the case is concerned. However, if the recording of evidence is concluded and the matter is fixed for argument for delivery of judgment and after the hearing of the submission of the parties is concluded if the Judge is transferred or demits office, in that event, the new incumbent Judge ought to re-hear the oral submission of the parties before delivery of judgment.

9. As mentioned above, between 12.04.2018 and 20.06.2018, that is, during the intervening period of the matter being released after it was kept reserved for judgment by the earlier member of the Tribunal and taking over the matter by the new incumbent, there is nothing on record to show that the new incumbent had heard the parties before announcing the opinion on 20.06.2018.

10. In this regard, one may note the provisions of Order XVIII Rule (2) of the CPC. Order XVIII Rule (2)(1) provides that on the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. Order XVIII Rule (2)(2) further provides that the other party shall then state his case and produce his evidence, if any, and may then address the Court generally on the whole case. Order XVIII Rule (2)(3) also provides that the party beginning may then reply generally on the whole case. As per the newly inserted Rule 3A of Order XVIII, any party may address 'oral arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the Court so permits concisely and under distinct headings written arguments in support of his case to the Court and such written arguments shall Page No.# 8/13

form part of the record. Rule 3D of Order XVIII also provides that the Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it thinks fit.

It may be noted that the provisions of the CPC are not strictly applicable in the proceeding before the Foreigners' Tribunal, nevertheless the principles permeating these provisions would be applicable in a proceeding before the Foreigners' Tribunal as the Foreigners' Tribunal are expected to render their opinion by conforming to the basic norms of justice and fair play.

Thus from the above provisions of CPC it is clear that oral hearing is an important ingredient of the justice delivery system. The importance of oral arguments by the parties have been thus statutorily recognized by providing specific provisions under Order XVIII of the CPC as referred above.

11. It is trite, though of great significance that if any oral argument is advanced, only the Judge who had heard can appreciate the nuances of the case, the evidence adduced, based on oral arguments submitted by the parties or through the counsel. Naturally if hearing was conducted by a Judge who for any reason could not deliver the judgment, the new Judge who succeeds him would be deprived of the benefits of the oral arguments submitted by the party/through counsel and as this practice also in tune with the principle of fair play and justice, if for any reason the Judge demits office or is transferred before delivering judgment, when the new Judge takes over, the new Judge ought to hear again the parties or through the counsel before delivery of judgment.

12. Oral arguments are important ingredients of the justice delivery system in our jurisprudence. The party or the counsel at the time of making oral submission can explain the various facets of the evidence which have been adduced and clarify any doubt that may arise on account of the objection raised by the opposite party or by the Court as the case may be, and thus enables a party to put one's case succinctly, clearly on the basis of evidence so adduced.

13. The importance of "oral argument" was discussed and highlighted by the Hon'ble Supreme Court in Mohd. Arif @ Ashfaq Vs. The Registrar, Supreme Court of India and Ors., (2014) 9 SCC 737.

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It was observed by the Constitutional Bench in the aforesaid case of Mohammad Arif (supra), though in a different context relating to review petition regarding the death sentence, that oral submission by skilled advocate can effectively draw the attention of the court to the most relevant factors, mitigating factors which might possibly be overlooked if Judges are only required to consider written arguments/pleadings.

The inimitable expression of Justice Krishna Iyer, J. in P. N. Eswara Iyer Vs. The Registrar, Supreme Court Of India, (1980) 4 SCC 680 in para 23 thereof, have been quoted in the aforesaid decision in Mohammad Arif (supra), as ,

"23. The magic of the spoken word, the power of the Socratic process and the instant clarity of the bar-Bench dialogue are too precious to be parted with..............."

14. In this regard, one may also note a recent observation made by the Hon'ble Supreme Court in Chief Election Commissioner of India Vs. M.R. Vijayabhaskar and Ors., 2021 SCC OnLine SC 364, wherein Hon'ble Supreme Court observed in para No. 20 thereof that oral arguments are postulate on an open exchange of ideas and it is through such an exchange that legal arguments are tested and analysed. It was further observed that arguments addressed before the court, the response of opposing counsel and issues raised by the court are matters on which citizens have a legitimate right to be informed.

Though the aforesaid observation was made in the context of open court proceeding and rights of citizen to have access to court proceedings, as part of the transparent judicial process, the aforesaid observation would be of relevance in a proceeding before the Foreigners Tribunal also, as it is through the oral arguments that the Tribunal can appreciate evidence properly before making its opinion.

Relevant portions of the Para No.20 of the aforesaid case in Chief Election Commissioner of India Vs. M.R. Vijayabhaskar and Ors. (supra) are reproduced hereinbelow.

"20. Courts must be open both in the physical and metaphorical Page No.# 10/13

sense. Save and except for in-camera proceedings in an exceptional category of cases, such as cases involving child sexual abuse or matrimonial proceedings bearing on matters of marital privacy, our legal system is founded on the principle that open access to courts is essential to safeguard valuable constitutional freedoms. The concept of an open court requires that information relating to a court proceeding must be available in the public domain. Citizens have a right to know about what transpires in the course of judicial proceedings. The dialogue in a court indicates the manner in which a judicial proceeding is structured. Oral arguments are postulated on an open exchange of ideas. It is through such an exchange that legal arguments are tested and analyzed. Arguments addressed before the court, the response of opposing counsel and issues raised by the court are matters on which citizens have a legitimate right to be informed. An open court proceeding ensures that the judicial process is subject to public scrutiny. Public scrutiny is crucial to maintaining transparency and accountability. Transparency in the functioning of democratic institutions is crucial to establish the public's faith in them......................"

(emphasis added)

15. Thus, this important facet of justice delivery system would be reduced to naught if the successor Judge who takes over a case before delivery of judgment is not afforded the opportunity to hear the oral submissions of the parties, as judgment is a personal assessment by the Judge of the evidence and application of law on the facts and evidence that may have been brought on record for deciding a case. It is for this reason that if the new Judge who takes over the case delivers judgment without hearing the oral submission, it could cause serious prejudice to either of the parties.

In the present case, as discussed above, there is nothing on record to indicate that the Ld. Member of the Tribunal who had passed the opinion had the advantage of hearing the oral submissions of the parties including the petitioner in the present case.

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16. Citizenship is one of the important rights of a person. By virtue of citizenship, one becomes a member of a sovereign country and becomes entitled to various rights and privileges granted by law in the country and, as such, if any question arises about citizenship of a person, in our opinion, the same should be adjudicated as far as possible on the basis of merit and on hearing the person concerned, which would also include "oral hearing".

17. It may be also noted that Order (11) of the Foreigners (Tribunals) Order, 1964 provides that the Foreigners Tribunal shall hear such person, as in its opinion is required to be heard. Further, Order (15) provides that after the case has been heard, the Foreigners Tribunal shall submit its opinion as soon thereafter as may be practicable, to the officer or the authority specified in this behalf in the order of reference.

Thus, the aforesaid provisions make it clear that the Tribunal has to hear the matter though it is not specifically mentioned in the Order that he has to entertain oral hearing.

In our view, oral hearing is inseparable part of hearing in the proceeding before the Foreigner Tribunal as it involves a very important right of a person i.e. citizenship, with other attending fundamental and legal rights. Further, it has been the practice in the Tribunal to afford oral hearing to the proceedees.

The opinion of the Foreigners Tribunal will decide the fate of a person, as to whether he will be an Indian citizen or a foreigner.

18. Considering the above, we are of the view that as the opinion was rendered on 20.06.2018 without hearing the oral submission of the parties, it cannot be said to have been rendered by proper application of mind.

Accordingly, the impugned order dated 20.06.2018 passed in F.T.(C) Case No.461/2008 is set aside and we remand the matter to the Tribunal for a fresh hearing and for passing an appropriate opinion.

We accordingly, direct the petitioner to appear before the Foreigners' Tribunal

No.1, Morigaon on 28.10.2021."

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8. The facts in the aforesaid writ petition, W.P.(C) no. 139 of 2019 appear to be similar in

the present case as revealed from the records. Here also, after the earlier Member of the

Tribunal released the matter after keeping it reserved for judgment, there is nothing in the

record to show that the proceedees were heard by the new incumbent before the impugned

opinion was rendered. Under the circumstances, we are of the view that the present matter

also deserves to be remanded to the Foreigners Tribunal for passing a fresh order after

hearing the proceedees.

9. Accordingly, the impugned opinion dated 05.09.2018 and passed F.T. Case no. 54/2010

and F.T. Case no. 104/2010 is set aside and the matter is remanded to the learned Foreigners

Tribunal 1st, Morigaon for passing a fresh order after hearing the parties.

10. The petitioners are directed to appear before the learned Foreigners Tribunal 1 st,

Morigaon on 08.11.2021.

11. Since the citizenship of the petitioners is under cloud, they will continue to remain on

bail in terms of the earlier order dated 25.01.2019 passed in this petition till fresh appropriate

order is passed by the learned Foreigners Tribunal aforesaid.

12. There is one issue which has been raised by Ms. Ghosh that though the five petitioners

had been proceeded in the Foreigners Tribunal, the father of petitioner no. 1, Roushan Ali

died on 07.03.2009 when the proceeding was pending before the Foreigners Tribunal.

However, there was neither enquiry nor reference made by the inquiry officer in respect of

the remaining petitioners, except the petitioner no. 1 and his deceased father, and as such

the Foreigners Tribunal could not have any opinion against anyone who were not subjected to

enquiry. Since we have already remanded the matter to the learned Foreigners Tribunal for a Page No.# 13/13

fresh hearing, the petitioners would be at liberty to raise all such issues, including relating to

holding of enquiry for making of reference, before the learned Foreigners Tribunal.

With the above observations and direction the present petition stands disposed of.

                                          JUDGE                                    JUDGE




Comparing Assistant