Tozim Uddin vs The Union Of India And 4 Ors
2022 Latest Caselaw 2791 Gua

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GAHC010150562022




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

                          Case No. : WP(C)/5071/2022

         TOZIM UDDIN
         S/O- LATE AMZAD ALI, R/O- SUPERIVITA, LAKHIPUR, P.O. TULSHIBARI,
         P.S. LAKHIPUR, PIN- 783129, DIST. GOALPARA, ASSAM



         VERSUS

         THE UNION OF INDIA AND 4 ORS.
         REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA,
         MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, NEW DELHI-110001.

         2:THE STATE OF ASSAM
          REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
         GOVERNMENT OF ASSAM
          HOME DEPARTMENT
          DISPUR
          GUWAHATI
          PIN- 781006.

         3:THE DEPUTY COMMISSIONER
          JORHAT
          P.O. AND DIST. JORHAT
         ASSAM
          PIN- 785001.

         4:THE SUPERINTENDENT OF POLICE (BORDER)
          JORHAT
          P.O. AND DIST. JORHAT
         ASSAM
          PIN- 785001.

         5:THE OFFICER-IN-CHARGE OF LAKHIPUR POLICE STATION
          LAKHIPUR
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             P.O. LAKHIPUR
             DIST. GOALPARA
             ASSAM
             PIN- 783129

Advocate for the Petitioner   : MR. R P SARMAH

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




                                        :: BEFORE ::
                     HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
                        HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA


                                        O R D E R

06.08.2022

(Parthivjyoti Saikia, J)

Heard Mr. R.P. Sarmah, learned senior counsel, assisted by Mr. M. Rahman, Advocate appearing for the petitioner. Also heard Ms. K. Phukan, learned Government Advocate; Mr. K.K. Parasar, learned Standing Counsel, NRC; Ms. J. Sarmah, learned Central Government Counsel; Mr. A. Bhuyan, learned Standing Counsel, Election Commission of India and Ms. A. Verma, learned Standing Counsel, Foreigners' Tribunal, Assam.

2. This is an application under Article 226 of the Constitution of India whereby the opinion dated 05.07.2022 passed by the learned Member, Foreigners' Tribunal, Jorhat, Assam in F.T. Case No.JFT.3067/06 is put to challenge.

3. On the basis of a reference made by the competent authority, Page No.# 3/4

notice was issued to the petitioner to prove his Indian citizenship. After service of notice, the petitioner appeared before the Tribunal and filed his written statement along with some documents. He even filed his evidence-on-affidavit along with the documents relied upon by him to prove his case.

4. Thereafter, the case was posted for passing the final order on 09.04.2021. At that stage, the petitioner stopped appearing before the Tribunal. Referring to a judgment of this Court, the Tribunal held that at the time of passing final order, personal presence of the proceedee/ petitioner in the Tribunal is mandatory.

5. For that reason, the Tribunal directed that warrant of arrest is to be issued against the proceedee/petitioner for procuring his presence at the time of passing the final order.

6. We have given our anxious considerations to the submissions of the learned counsel of both sides.

7. Without an elaborate discussion on the point, we are of the opinion that since the petitioner expressed his intention to be present before the Tribunal at the time of passing the final order, no coercive action should be taken against him to compel his presence in the Tribunal.

8. Accordingly, we allow the prayer of the petitioner and the impugned order dated 05.07.2022 passed by learned Member, Foreigners' Tribunal, Jorhat, Assam in F.T. Case No.JFT.3067/06 is set aside subject to payment of a cost of Rs.2,500/-, which shall be paid by the petitioner to the District Legal Services Authority, Jorhat. After taking a receipt from the District Legal Services Authority, Jorhat, the petitioner Page No.# 4/4

shall appear before the Foreigners' Tribunal, Jorhat on 23.08.2022 in said F.T. Case No.JFT.3067/06. Thereafter, the Tribunal shall dispose of the matter in accordance with the procedure as laid down by law.

9. Since the citizenship of the petitioner is under cloud, he will continue to remain on bail till culmination of the proceeding before the Tribunal subject to furnishing a bail bond of Rs.5,000/- with one local surety of the like amount to the satisfaction of the Superintendent of Police (Border), Jorhat. The Superintendent of Police (Border), Jorhat shall also take steps for capturing the fingerprints of both hands of the petitioner and biometrics of the iris of his both eyes. For the aforesaid purpose, petitioner shall appear before the Superintendent of Police (Border), Jorhat on or before 23.08.2022 during the office hours.

10. The petitioner shall not leave the jurisdiction of the Superintendent of Police (Border), Jorhat without giving details of the place of destination and his place of stay to the Superintendent of Police (Border), Jorhat and without obtaining prior written permission from the said authority.

11. This order is passed in presence of the learned counsel of both sides and the writ petition is accordingly disposed of.

                                   JUDGE                      JUDGE




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