Gauhati High Court
WP(C)/5122/2022 on 10 August, 2022
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GAHC010147312022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. WP(C) No. 5122/2022
Md. Ekramul Hussain,
Aged about 37 years,
S/o Md. Ideish Ali,
R/o-Village-Dikharumukh, (Tapatjuri),
P.S.- Doboka,
District:- Hojai, Assam.
......Petitioner.
-Versus-
1. The Union of India,
represented by the Secretary, Ministry of Home
Affairs, Govt. of India, New Delhi -1.
2. State of Assam,
represented by the Commissioner & Secretary to the Government
of Assam, Home Department,Dispur, Guwahati-06.
3. The Foreigners' Tribunal, Nagaon Court No. 10th at
Sankardev Nagar, District - Hojai, Assam,
Pin Code No. 782442.
4. The Deputy Commissioner, Hojai, P.O.-
Sankardev Nagar, District- Hojai, Assam,
Pin Code No. 782442.
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5. Superintendent of Police (Border), Hojai,
Sankardev Nagar, Hojai, Assam,
Pin Code - 782442.
6. The Officer-In-Charge, P.S.- Doboka,
District - Hojai, Assam, Pin Code No.
782428.
7. The Election Commissioner of India,
New Delhi - 110001.
8. The State Coordinator, National
Registration of Citizens (NRC),
Bhangagarh, Guwahati-5.
......Respondents.
Advocate appeared for the petitioner : Ms. A H Atia
Advocates appeared for the respondents : Mr. P K Medhi, CGC,
Ms. L Devi, SC, NRC
Ms. A Verma, SC, FT.
Mr. A I Ali, SC, ECI,
Ms. K. Phukan, GA, Assam
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
HON'BLE MRS. JUSTICE MALASRI NANDI
Date of Hearing & Judgment : 10.08.2022
JUDGEMENT AND ORDER (ORAL)
[Malasri Nandi, J.]
Heard Ms. A H Atia, learned counsel appearing for and on behalf of the petitioner; Mr.
P K Medhi, learned Central Government Counsel, appearing for the respondent No. 1, Ms. A
Verma, learned Standing Counsel, Foreigners' Tribunal, appearing for the respondent Nos. 2,
3, 5 and 6, Ms. K Phukan, learned Government Advocate, Assam, for the respondent No. 4,
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Mr. A I Ali, learned Standing Counsel, Election Commission of India, for respondent No. 7
and Ms. L Devi, learned Standing Counsel, NRC, for respondent No. 8.
2. In this petition, the petitioner has challenged the ex parte order dated 06.12.2021,
passed by the Foreigners' Tribunal, No. 10th, Nagaon at Sankardev Nagar, Hojai, Assam, in
FT (D) Case No. 1550/2015, corresponding to Case No. F.T./H/3178/2012, arising out of
SP(B)'s F.T. Case No. 377/2010, by which, the petitioner was declared a foreigner of the
1971 stream. The Tribunal held that in spite of giving adequate opportunity, the petitioner
failed to produce any relevant and trustworthy documents to prove his citizenship and
accordingly declared him a foreigner, who had entered India through Assam, on or after
25.03.1971.
3. Learned counsel for the petitioner claims that the petitioner duly appeared before the
Foreigners' Tribunal, after receipt of notice, but because of non-availability of proper
documents at the relevant time, he could not appear before the Tribunal for filing the
documents in support of his evidence. Learned counsel for the petitioner also submits that
inability of the petitioner to appear before the Tribunal on the date so fixed by the Tribunal
was because of lack of communication of the petitioner with his engaged counsel.
Otherwise, the petitioner was all along ready to appear before the learned Tribunal.
4. We have gone through the order of the learned Tribunal dated 06.12.2021. The said
order indicates that the petitioner had appeared before the Tribunal on 28.02.2020 and due
to the COVID-19 (first wave) protocol, the said case was re-fixed on 19.06.2020 and the
written statement was filed by the present petitioner on 17.11.2020. It also appears that the
present petitioner sought adjournment for filing of evidence on 05.12.2020, 18.12.2020 and
04.01.2021 and the evidence-in-chief was filed without any documents on 21.01.2021.
Thereafter, the present petitioner sought adjournment for filing of documents in support of
his evidence on 17.03.2021, 07.04.2021 and 29.04.2021. Thereafter, due to COVID-19
(second-wave), the case was re-fixed by the learned Tribunal on 05.08.2021. Subsequently,
the case was also refixed on 26.10.2021. The present petitioner as an opposite party again
sought adjournment for filing documents on 26.10.2021, 16.11.2021 and 06.12.2021 (the
date on which, the ex parte order was passed by the learned Tribunal).
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5. What we have noticed from the above is that it is not the case that the petitioner
totally ignored the summons from the Tribunal or was duly negligent towards the proceeding
of the Tribunal. From the documents available on record, it appears that attempts were
made on the part of the petitioner to collect some documents, because of which, the
petitioner took time. As regards the subsequent dates, the petitioner remained absent.
6. We have also noticed that there was some mis-information between the petitioner's
counsel and him, after filing of the written statement and evidence-in-chief for which he was
shown absent in the matter and the learned Tribunal passed the impugned ex parte order on
the ground that the petitioner failed to discharge the burden casted upon him under Section
9 of the Foreigners' Act, 1946. Though technically, the order of the learned Tribunal could
not be faulted with, however, we are aware that this is a very important proceeding dealing
with the citizenship of a person and, in the present case, the petitioner, annexing a number
of documents submitted that he should be given a chance to prove those documents before
the concerned Foreigners' Tribunal, that he is indeed an Indian.
7. In our view, since the matter was proceeded ex parte, the petitioner could not
substantiate his claim that he is an Indian and not a foreigner.
8. Be that as it may, Ms A Verma, learned Standing Counsel, FT, has fairly submitted
before this Court that she has no objection if the case is remanded to the learned Tribunal,
for fresh consideration, subject to payment of cost.
9. In view of above, we are inclined to remand this matter to the concerned Tribunal for a
fresh consideration by setting aside the impugned order dated 06.12.2021, passed by the
learned Foreigners' Tribunal, No. 10th, Nagaon at Sankardev Nagar, Hojai, Assam, in FT (D)
Case No. 1550/2015.
10. Accordingly, we allow the petition by setting aside the impugned ex parte order dated
06.12.2021, passed by the learned Member, Foreigners' Tribunal No. 10 th, Nagaon at
Sankardev Nagar, Hojai, Assam.
11. The petitioner shall appear before the learned Member, Foreigners' Tribunal 10 th,
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Nagaon, at Sankardev Nagar, Hojai, Assam, on 31.08.2022, along with a certified copy of
this order and shall submit the relevant documents before the concerned Tribunal, subject to
payment of Rs. 2,500/- (Rupees Two Thousand and Five Hundred Only) to the District Legal
Services Authority, Hojai In the event of adducing any such documents and evidence, as
directed above, the learned Tribunal, after considering them, shall proceed with the matter
in accordance with law and shall pass an opinion afresh. Needless to say, in the event of
failure on the part of the petitioner to appear before the concerned Tribunal on 31.08.2022
and on the subsequent dates, as may be fixed by the said Tribunal, the said authority shall
be at liberty to pass necessary order(s) as per law.
12. However, since the citizenship of the petitioner has come under cloud, the petitioner
will appear before the Superintendent of Police (Border), Hojai, on or before 30.08.2022,
and will furnish a bail bond of Rs. 5,000/- (Rupees Five Thousand Only) with one local
surety of the like amount to the satisfaction of the said authority, whereafter the petitioner
shall be allowed to remain on bail. On such appearance, the concerned Superintendent of
Police (Border), Hojai may obtain necessary information and documentation as required
under the Rules, from the petitioner for securing his presence and shall also take steps for
capturing the fingerprints and biometrics of the iris of the petitioner. It is also made clear
that the petitioner shall not leave the jurisdiction of Superintendent of Police (Border), Hojai,
without obtaining prior permission from the said authority and further without giving
information about his place of destination and his place of stay, to the Superintendent of
Police (Border), Hojai.
13. Registry shall inform the Superintendent of Police (Border), Hojai, about this order
forthwith.
14. With the above observations and directions, the writ petition stands disposed of.
JUDGE JUDGE
Comparing Assistant
