Samser Ali vs The Union Of India And 7 Ors
2022 Latest Caselaw 1173 Gua

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GAHC010064872022




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

                          Case No. : WP(C)/2429/2022

         SAMSER ALI
         S/O RAJAB ALI
         R/O VILL- HATIJUJUA
         P.S. JOJORI,
         DIST. NAGAON, ASSAM

         VERSUS

         THE UNION OF INDIA AND 7 ORS
         REP. BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA,
         SHASTRI BHAWAN, NEW DELHI-110001

         2:THE STATE OF ASSAM
          REP. BY THE SECRETARY TO THE GOVT OF ASSAM
          HOME DEPARTMENT
          DISPUR
          GUWAHATI-781006

         3:THE ELECTION COMMISSION OF INDIA
          REP. BY THE CHIEF ELECTION COMMISSION
          NIRVACHAN SADAN
         ASHOKA ROAD
          NEW DELHI-110001.

         4:THE STATE COORDINATOR
          NATIONAL REGISTRATION OF CITIZENS
         ASSAM
          1ST FLOOR
         ACHYUT PLAZA
          G.S. ROAD
          BHANGAGARH
          GUWAHATI
         ASSAM, PIN-781005.
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            5:THE DEPUTY COMMISSIONER
             NAGAON
             POST OFFICE AND P.S. NAGAON
             DIST. NAGAON
            ASSAM
             PIN-782001.

            6:THE FOREIGNERS TRIBUNAL NO. 1ST
             NAGAON
             P.O. AND P.S. NAGAON
             DIST. NAGAON
            ASSAM
             PIN-782001

            7:THE SUPERINTENDENT OF POLICE (BORDER)
             NAGAON
             P.O. AND P.S. NAGAON
            DIST. NAGAON
            ASSAM PIN-782001

            8:THE OFFICER- IN-CHARGE OF JOJORI POLICE STATION
             P.O. JOJORI
             DIST. NAGAON
            ASSAM PIN-78246

Advocate for the Petitioner    : MS. D GHOSH

Advocate for the Respondent : ASSTT.S.G.I.

                                      BEFORE
                      HON'BLE MR. JUSTICE N. KOTISWAR SINGH
                              HON'BLE MR. JUSTICE NANI TAGIA
                                      :: O R D E R ::

04.04.2022 [N. Kotiswar Singh, J]

Heard Ms. D. Ghosh, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K.D. Choudhury, learned ASGI for respondent No.1; Ms. Devi also appears for respondent No.6 as the learned Standing Counsel, NRC; Mr. G. Sarma, learned Standing Counsel, Foreigners Tribunal for respondent Nos.2 & 4; Ms. K. Phukan, learned Govt. Advocate, Assam for respondent No.3 and Mr. A.I. Ali, learned Standing Page No.# 3/5

Counsel, ECI for respondent No.5.

2. In this petition, the petitioner has challenged the order dated 22.12.2021 passed by

the learned Foreigners Tribunal No.1 st, Nagaon, Assam in F.T. Case No.1227/2011 by which the learned Tribunal refused to allow the petitioner to file additional written statement primarily on the ground that the written statement was filed five years ago and 3 (three) witnesses have been already examined and cross-examination of third witness was already fixed.

3. Under the circumstances, it has been held that allowing the petitioner to file the additional written statement at this stage will cause delay in the proceeding.

4. Ms. Ghosh, learned counsel for the petitioner submits that on earlier an occasion in Safiya Khatun Vs. Union of India and Ors ., 2018(1) GLT 491, this Court had allowed filing of additional written statement.

In this regard, she relies on the following paragraphs in Safiya Khatun (supra):

"2. Order dated 03.08.2018 passed by the Foreigners' Tribunal 3rd, at Nagaon in FT Case No. 1280/2016 is put under challenge. The petitioner who is the proceedee in FT Case No. 1280/2016 in the aforesaid Tribunal filed her written statement on 06.09.2017. The matter was fixed for further evidence. The evidence of official witness was also adduced. Since 31.10.2017 the proceeding is pending for further evidence. On 03.08.2018 the petitioner filed petition No. 2071/2018 thereby seeking the leave of the Tribunal to file additional written statement and also sought for amendment of the Paragraph-4 of the written statement already on record. The said petition was rejected vide the impugned order dated 03.08.2018. Considered the submission of the learned counsel. It is seen that while rejecting the petition No. 2071/2018 the Tribunal held that under Order VI Rule 17 of the Code of Civil Procedure (CPC) no amendment in written statement is permissible after commencement of trial and accordingly, the petitioner was rejected. We would like to mention that there is no application of order VI Rule 17 of the CPC in a proceeding before the Tribunal. The limited application of the provisions of the CPC is prescribed under Section 4 of the Foreigners' (Tribunals) Order, 1964. Thus, we are of the view that the Tribunal exercised a wrong jurisdiction while rejecting the said petition No. 2071/2018 and the impugned order dated 03.08.2018 is set aside.

3. The Tribunal shall allow the petitioner to file the additional written statement which is annexed to this writ petition purportedly made ready on 24.07.2018. It is specifically mentioned that except allowing tofile the additional written statement of the petitioner which is annexed as annexure in this writ petition, the Tribunal shall not allow the petitioner to amend the written statement which is already on record. After acceptance of the additional written statement the Page No.# 4/5

proceeding shall be brought to its logical conclusion within a period of 30 days from the date thereof. The said additional written statement shall be filed immediately on the next date fixed by the Tribunal. Failure to file the additional written statement on the date so fixed by the Tribunal, no further chance be given to the petitioner to file additional written statement and to that effect, the Tribunal shall pass necessary order(s). This writ petition stands allowed with the aforesaid direction."

5. Ms. Ghosh, learned counsel for the petitioner submits that filing of written statement will not cause any prejudice to the State inasmuch as the petitioner is merely clarifying the place of birth, date of birth and family tree which will help him to establish that he is an Indian and not a foreigner.

6. Mr. G. Sarma, learned Standing Counsel, Foreigners Tribunal, however, submits that there are number of judgments to show that additional written statement may not be allowed after filing of written statement and recording of evidence has commenced.

7. In the present case, what we have noted is that the learned Tribunal has not yet rendered its opinion.

8. We are of the view that filing of such additional written statement and bringing in new documents though may cause certain delay, may not, however, cause any prejudice to the State.

9. In our view, citizenship being an important right of a person, if the said opportunity is not given to establish his citizenship, the proceedee will suffer greater harm and will be greatly prejudiced.

We have also kept in mind the earlier order passed by this Court in Safiya Khatun (supra) allowing filing of additional written statement.

10. Under the circumstances, though filing of additional written statement may cause certain delay, for the ends of justice, we are inclined to allow the petitioner to file additional written statement and to adduce evidence to show that he is an Indian and not a foreigner, as such a direction will not cause any prejudice to the State.

11. Accordingly, we allow this petition by setting aside impugned order dated 22.12.2021

passed by the learned Foreigners Tribunal No.1 st, Nagaon, Assam in F.T. Case No.1227/2011 and allow the petitioner to file additional written statement and adduce evidences in Page No.# 5/5

accordance with law.

12. With the above observation and direction, the present petition stands disposed of.

                          JUDGE                                       JUDGE




Comparing Assistant