Gauhati High Court
WP(C)/6292/2019 on 26 October, 2021
GAHC010201682019
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
WP(C) No. 6292/2019
Smti Tika Devi,
D/O Late Bhabani Shankar Ghimire,
W/O Late Ukta Sarmah,
R/O Village-Bormata, PS-Jamuguri,
District-Sonitpur, Assam,
Pin-784182.
......Petitioner.
-Versus-
1. The Union of India,
represented by the Secretary,
Ministry of Home Affairs,
New Delhi-110001.
2. The State of Assam,
represented by the Commissioner & Secretary
Government of Assam,
Home Department, Dispur, Guwahati-781006.
3. The Deputy Commissioner,
Biswanath, Biswanath Chariali,
District-Biswanath, Assam,
Pin-784176.
4. The Superintendent of Police,
Biswanath, Biswanath Chariali,
Dist.-Biswanath, Assam, Pin-784176.
5. The Superintendent of Police (Border),
Sonitpur, Tezpur, Dist.-Sonitpur,
Assam, Pin-784001.
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6. The Electorate Registration Officer,
Sootea LAC, Dist.-Biswanath,
Assam, Pin-784176.
7. The State Coordinator of NRC,
PO & PS-Bhangagarh, District-Kamrup(Metro),
Guwahati-781005, Assam.
......Respondents.
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MRS. JUSTICE MALASRI NANDI
For the Petitioner: Mr. R.P. Sarmah (Sr. Adv.),
Ms. S.P. Chetry. ......Advocates.
For the Respondents: Ms. A. Gayan, CGC,
Mr. J. Payeng, SC, FT,
Mr. A.I. Ali, SC, ECI,
Ms. U. Das, Addl. Sr. GA, Assam,
Ms. L. Devi, SC, NRC. ......Advocates.
Date of Hearing & Judgment : 26th October, 2021
JUDGMENT AND ORDER (ORAL)
[N. Kotiswar Singh, J.]
Heard Mr. R.P. Sarmah, learned Senior counsel assisted by Ms. S.P.
Chetry, learned counsel for the petitioner. Also heard Ms. A. Gayan, learned CGC
appearing for respondent No.1; Mr. J. Payeng, learned special counsel, FT,
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appearing for respondent Nos.2, 4 and 5; Mr. A.I. Ali, learned standing counsel,
ECI, appearing for respondent No.6; Ms. U. Das, learned Additional Senior
Government Advocate, Assam, appearing for respondent No.3 and Ms. L. Devi,
learned standing counsel, NRC, appearing for respondent No.7.
2. In this petition, the matter pertains to the challenge of the order dated
30.01.2019 passed by the learned Member, Foreigners Tribunal (2 nd), Sonitpur,
Tezpur, Assam, in F.T.(D.C.) Case No.6/2006 by which the petitioner was
declared as a foreigner/illegal migrant of post 25.03.1971 stream.
3. The case of the petitioner is that the petitioner belongs to Gorkha
community and as such she cannot be treated to be a foreigner and has relied
on the decision rendered by the Division of this Court on 29.11.2019 in WP(C)
No. 8490/2018 [Indira Newar vs. Union of India and Ors.] and other analogous
matters and submits that in the aforesaid decision, this Court had held that in
respect of members of Gorkha community who originally hail from Nepal and
who do not come from the 'specified territory' as defined under the provisions
of Section 6-A of the Citizenship Act, 1955, the provisions of Foreigners Order,
1964 cannot be made applicable to them. Only those who have come from
Bangladesh and living in the State of Assam can be treated as to have come
from the 'specified territory' in accordance with Section 6-A of the Citizenship
Act, 1955. Further, only the cases of members of Gorkha community living in
Assam who do not fall in any of the categories mentioned in the
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notification dated 24/09/2018 issued by the Government of India in the Ministry
of Home Affairs may be referred to the Foreigners' Tribunal for its opinion as to
whether the person is or is not a 'foreigner' within the meaning of the
Foreigners Act, 1946.
4. The Judgment of a co-ordinate Bench of this Court rendered in the case
of Indira Newar (Supra) relied upon by the learned counsel for the petitioner
has also been duly perused. In the said case, this Court was dealing with a
bunch of writ petitions where contentions were made by the petitioners therein
that the mother tongue of the petitioners was "Nepali" which is a language
spoken by the citizens of the neighbouring country, Nepal and is also included
as language in the 8th schedule of the Constitution of India and therefore, they
could not have been treated to be migrants from the 'Specified Territory' i.e.
Bangladesh. The Court took note of the fact that the Foreigners Tribunals
constituted under the Foreigners (Tribunals) Order, 1964 in the State of Assam
are concerned, in terms of Rule 21 of the Citizenship Rules, 2009, to decide
references received from the Registering Authority made under sub-section (3)
of Section 6-A of the Citizenship Act, 1955. Further, as defined in Citizenship
Act, 1955, 'specified territory' means the territories included in Bangladesh
immediately before the commencement of the Citizenship (Amendment) Act,
1985. This Court upon perusal of the information recorded by the Referral
Authorities came to the conclusion that there was no suspicion expressed by
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the Referral Authorities nor any findings recorded by the Tribunals that any of
the petitioners therein were persons who had come into Assam from the
'Specified Territory' as defined under Section 6A(1)(c) of the Citizenship Act,
1955. This Court held that unless there is a finding arrived at by the Referral
Authorities and/or by the Tribunal that the petitioner migrated to Assam from
the 'Specified Territory' namely, from any place in the country of Bangladesh,
the benefit of the Notification dated 24.09.2018 issued by the Government of
India in the Ministry of Home Affairs that it will not be appropriate to declare all
members of Gorkha community hailing from Nepal to be from the 'Specified
Territory' as defined under Section 6A(1)(c) of the Citizenship Act, 1955, cannot
be denied. Only those persons who came from Bangladesh and are living in the
State of Assam can be treated as persons migrating from the ' Specified
Territory'. In accordance with the 6A of the Citizenship Act, 1955 this Court held
that only cases of members of Gorkha community living in Assam, who do not
fall in any of the categories mentioned in the Notification dated 24.09.2018
issued by the Home Ministry, may be referred to the Foreigners Tribunal for its
opinion as to whether the person is or is not a foreigner within the meaning of
Foreigners Act, 1946.
5. Mr. J. Payeng, learned special counsel, FT, appearing for the State of
Assam has not disputed the aforesaid contention of the learned counsel for the
petitioner and fairly submits that this writ petition can be disposed of in terms
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of the judgment dated 29.11.2019 passed in a bunch of writ petitions in which
the leading case was WP(C) No.8490/2019.
6. In that view of the above submission made, without going further into
the detail facts and submissions advanced, we dispose of this petition by setting
aside the impugned order dated 30.01.2019 passed by the learned Foreigners
Tribunal (2nd), Sonitpur, Tezpur, Assam, in F.T.(D.C.) Case No.6/2006 on the
strength of the judgment and order dated 29.11.2019 rendered
by the Division Bench of this Court in Indira Newar (supra) and analogous
matters.
7. Registry to return the LCR forthwith.
Sd/- Malasri Nandi Sd/- N. Kotiswar Singh
JUDGE JUDGE
Comparing Assistant
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