Gauhati High Court
Padmalal Sharma (Adhikari ) @ ... vs The Union Of India And 5 Ors on 3 January, 2022
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GAHC010009022019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/283/2019
PADMALAL SHARMA (ADHIKARI ) @ PADMA PRASAD SHARMA
S/O LATE HIRALAL SHARMA (ADHIKARI)
R/O SOCIETY GAON, P.O. SILAPATHAR,
DIST. DHEMAJI, ASSAM, PIN - 787059.
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA,
MINISTRY OF HOME AFFAIRS, NEW DELHI, PIN - 110001.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY
GOVT. OF ASSAM
HOME AND POLITICAL DEPT. DISPUR
GUWAHATI
PIN - 781006.
3:THE ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI- 110001.
4:THE OFFICER OF THE STATE COORDINATOR OF NATIONAL REGISTRAR
OF CITIZENSHIP (NRC)
ASSAM
GUWAHATI
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PIN - 781005.
5:THE DEPUTY COMMISSIONER
DHEMAJI
P.O. AND P.S. DHEMAJI
ASSAM
PIN -787057.
6:THE SUPERINTENDENT OF POLICE (BORDER)
DHEMAJI
DIST. DHEMAJI
ASSAM
PIN - 787057
Advocate for the Petitioner : MR. B CHETRI
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MRS. JUSTICE MALASRI NANDI
order
(oral)
03-01 -2022
[N. Kotiswar Singh, J]
Heard Mr. B. Chetri, learned counsel for the petitioner. Also heard Ms. R.N. Sarma,
learned counsel appearing on behalf of Mr. H. Gupta, learned CGC, for the respondent no.1;
Ms. A. Verma, learned Special Counsel, F.T. appearing for respondent no.6; Mr. A.I. Ali,
learned Standing Counsel, ECI, appearing for respondent no.3, Ms. K. Phukan, learned
Government Advocate, Assam, appearing for respondent nos.2 & 5 and Ms. L. Devi, learned
Standing Counsel, NRC, for respondent no.4.
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2. In this petition, the matter pertains to the challenge of the order dated 23.10.2017
passed by the Member, Foreigners Tribunal (2nd), Dhemaji, Silapathar, Assam, in F.T.(D.) Case
No.2nd Dhemaji-195/2016 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 of Nepali
Origin, who is a resident of Assam and had not come from the " Specified Territory'', and his
parents are the voters in Assam since 1951 and as such, he cannot be treated to be a
foreigner. In this regard, the learned counsel for the petitioner 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 . reported in 2021 (1) GLT 413] 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 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
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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 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
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of Assam can be treated as persons migrating from the ' Specified Territory'.
5. Ms. A. Verma, 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 the present case is covered by 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 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
23.10.2017 passed by the Foreigners Tribunal (2nd), Dhemaji, Silapathar, Assam, in F.T.(D.)
Case No.2nd Dhemaji 195/2016 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.
JUDGE JUDGE
Comparing Assistant
