Debendra Baishya @ Deben Baishya vs The Union Of India And 6 Ors
2022 Latest Caselaw 2173 Gua

                                                                 Page No.# 1/8

GAHC010159002019




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

                         Case No. : WP(C)/5163/2019

         DEBENDRA BAISHYA @ DEBEN BAISHYA
         S/O- LATE JITENDRA CHANDRA [email protected] JITEN CHANDRA [email protected]
         JINENDRA, VILL- NICHALAMARI, P.S- BARAMA, DIST- BAKSA, BTAD,
         ASSAM, PIN- 781367



         VERSUS

         THE UNION OF INDIA AND 6 ORS
         REP. BY THE SECRETARY TO THE HOME AFFAIRS, NEW DELHI- 110001

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

         3:THE SUPERINTENDENT OF POLICE (B)
          BAKSA
          MUSHALPUR
         ASSAM
          PIN- 781343

         4:THE DEPUTY COMMISSIONER
          BAKSA
         ASSAM
          PIN- 781343

         5:THE ELECTION COMMISSION OF INDIA
          NEW DELHI- 110001

         6:STATE COORDINATOR
          NRC
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              ASSAM
              BHANGAGARH
              GUWAHATI- 781005

              7:THE FOREIGNERS TRIBUNAL
               BAKSA
              TAMULPUR
               P.O- TAMULPUR
               DIST- BAKSA
              ASSAM
               PIN- 78136

Advocate for the Petitioner     : MR. S C PANDIT

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

                                       BEFORE
                       HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
                      HONOURABLE MR. JUSTICE LANUSUNGKUM JAMIR

                                             ORDER

Date : 24-06-2022

[N. Kotiswar Singh, J.]

Heard Mr. S.C. Pandit, learned counsel for the petitioner. Also heard Mr. K.K. Parashar, learned CGC, who appears on behalf of Mr. R.K.D. Choudhury, learned ASGI; Mr. J. Payeng, learned Special Counsel, FT; Mr. A. Bhuyan, learned Standing Counsel, Election Commission of India; Mr. N.K. Das, learned Government Advocate, Assam and Mr. K.K. Parashar, learned counsel for the NRC.

2. In this petition, the petitioner has challenged the impugned order dated 21.07.2018 passed by the Foreigners Tribunal, Baksa in FT Case No.700/BAKSA/2016 by which the petitioner is declared to be a foreigner as he failed to prove his linkage with his projected parents, who are Indians.

3. Learned counsel for the petitioner submits that unfortunately the said opinion was rendered by the Tribunal without hearing the petitioner but purely on the basis of the documents available on record.

It has been also submitted that the learned Member, who gave the opinion, was not the Page No.# 3/8

one who heard the argument of the parties. The concerned Member, who heard the arguments of the parties, was no more holding the office of the Tribunal at the time of rendering the opinion and he was replaced by the Member, who rendered the impugned opinion. However, to avoid delay and multiplicity of proceedings, the Member purportedly proceeded to render his opinion on the basis of the materials on record. The same is clearly evident from paragraphs 12 to 14 of the impugned opinion, which are reproduced hereinbelow:-

"12. The proceedee/opposite party was not cross examined at the time of my predecessor probably due to absence of Assistant Government Pleader.

13. My predecessor had heard the arguments of the proceedee/opposite party and fixed on 04-05-2018 for opinion.

14. Though after assuming office, I was supposed to re-hear the reference in appropriate cases but to avoid multiplicity and time consumption, I proceed to render my opinion in this case on the basis of the available materials on record which however is treated as incomplete and the scope of re-hearing may be availed by this Tribunal as and when felt necessary."

4. A bare perusal of the aforesaid paragraphs No.12 to 14 would clearly indicate that the learned Member of the Tribunal was not the one before whom evidences were recorded nor submissions advanced by the parties. However, the Member proceeded to render the opinion on the basis of the documents which were available before him.

5. In our opinion, in order to appreciate the evidences on record, it was necessary for the incumbent Member/Presiding Officer of the Tribunal to hear the counsel for the parties inasmuch as the admissibility, reliability or credibility of the evidences can be better explained by the counsel who appeared. If the assistance of the counsel is not available before the Tribunal, perhaps, it may lead to improper appreciation of the evidences.

6. This Court had the occasion to deal with a similar situation in WP(C) No.139/2019 (Abdul Kalam Vs. Union of India), decided on 27.09.2021, wherein it has been held as follows:-

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"8. Though it may happen that before concluding hearing of evidence the Judge may demit office or may be transferred in which event, the new incumbent Judge would continue with the hearing of evidence and as such, such change of Judge may not have any effect as far as the proceeding of the case is concerned. However, if the recording of evidence is concluded and the matter is fixed for argument for delivery of judgment and after the hearing of the submission of the parties is concluded if the Judge is transferred or demits office, in that event, the new incumbent Judge ought to re-hear the oral submission of the parties before delivery of judgment.

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10. In this regard, one may note the provisions of Order XVIII Rule (2) of the CPC. Order XVIII Rule (2)(1) provides that on the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. Order XVIII Rule (2)(2) further provides that the other party shall then state his case and produce his evidence, if any, and may then address the Court generally on the whole case. Order XVIII Rule (2)(3) also provides that the party beginning may then reply generally on the whole case. As per the newly inserted Rule 3A of Order XVIII, any party may address 'oral arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the Court so permits concisely and under distinct headings written arguments in support of his case to the Court and such written arguments shall form part of the record. Rule 3D of Order XVIII also provides that the Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it thinks fit. It may be noted that the provisions of the CPC are not strictly applicable in the proceeding before the Foreigners' Tribunal, nevertheless the principles permeating these provisions would be applicable in a proceeding before the Foreigners' Tribunal as the Foreigners' Tribunal are expected to render their opinion by conforming to the basic norms of justice and fair play. Thus from the above provisions of CPC it is clear that oral hearing is an important ingredient of the justice delivery system. The importance of oral Page No.# 5/8

arguments by the parties have been thus statutorily recognized by providing specific provisions under Order XVIII of the CPC as referred above.

11. It is trite, though of great significance that if any oral argument is advanced, only the Judge who had heard can appreciate the nuances of the case, the evidence adduced, based on oral arguments submitted by the parties or through the counsel. Naturally if hearing was conducted by a Judge who for any reason could not deliver the judgment, the new Judge who succeeds him would be deprived of the benefits of the oral arguments submitted by the party/through counsel and as this practice also in tune with the principle of fair play and justice, if for any reason the Judge demits office or is transferred before delivering judgment, when the new Judge takes over, the new Judge ought to hear again the parties or through the counsel before delivery of judgment.

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13. The importance of "oral argument" was discussed and highlighted by the Hon'ble Supreme Court in Mohd. Arif @ Ashfaq Vs. The Registrar, Supreme Court of India and Ors., (2014) 9 SCC 737. It was observed by the Constitutional Bench in the aforesaid case of Mohammad Arif (supra), though in a different context relating to review petition regarding the death sentence, that oral submission by skilled advocate can effectively draw the attention of the court to the most relevant factors, mitigating factors which might possibly be overlooked if Judges are only required to consider written arguments/pleadings. The inimitable expression of Justice Krishna Iyer, J. in P. N. Eswara Iyer Vs. The Registrar, Supreme Court Of India, (1980) 4 SCC 680 in para 23 thereof, have been quoted in the aforesaid decision in Mohammad Arif (supra), as , "23. The magic of the spoken word, the power of the Socratic process and the instant clarity of the bar-Bench dialogue are too precious to be parted with..............."

14. In this regard, one may also note a recent observation made by the Hon'ble Supreme Court in Chief Election Commissioner of India Vs. M.R. Vijayabhaskar Page No.# 6/8

and Ors., 2021 SCC OnLine SC 364, wherein Hon'ble Supreme Court observed in para No. 20 thereof that oral arguments are postulate on an open exchange of ideas and it is through such an exchange that legal arguments are tested and analysed. It was further observed that arguments addressed before the court, the response of opposing counsel and issues raised by the court are matters on which citizens have a legitimate right to be informed. Though the aforesaid observation was made in the context of open court proceeding and rights of citizen to have access to court proceedings, as part of the transparent judicial process, the aforesaid observation would be of relevance in a proceeding before the Foreigners Tribunal also, as it is through the oral arguments that the Tribunal can appreciate evidence properly before making its opinion. Relevant portions of the Para No.20 of the aforesaid case in Chief Election Commissioner of India Vs. M.R. Vijayabhaskar and Ors. (supra) are reproduced hereinbelow.

"20. Courts must be open both in the physical and metaphorical sense. Save and except for in-camera proceedings in an exceptional category of cases, such as cases involving child sexual abuse or matrimonial proceedings bearing on matters of marital privacy, our legal system is founded on the principle that open access to courts is essential to safeguard valuable constitutional freedoms. The concept of an open court requires that information relating to a court proceeding must be available in the public domain. Citizens have a right to know about what transpires in the course of judicial proceedings. The dialogue in a court indicates the manner in which a judicial proceeding is structured. Oral arguments are postulated on an open exchange of ideas. It is through such an exchange that legal arguments are tested and analyzed. Arguments addressed before the court, the response of opposing counsel and issues raised by the court are matters on which citizens have a legitimate right to be informed. An open court proceeding ensures that the judicial process is subject to public scrutiny. Public scrutiny is crucial to maintaining transparency and accountability. Transparency in the functioning of democratic institutions is crucial to establish the public's faith in them......................"

(emphasis added) Page No.# 7/8

15. Thus, this important facet of justice delivery system would be reduced to naught if the successor Judge who takes over a case before delivery of judgment is not afforded the opportunity to hear the oral submissions of the parties, as judgment is a personal assessment by the Judge of the evidence and application of law on the facts and evidence that may have been brought on record for deciding a case. It is for this reason that if the new Judge who takes over the case delivers judgment without hearing the oral submission, it could cause serious prejudice to either of the parties. In the present case, as discussed above, there is nothing on record to indicate that the Ld. Member of the Tribunal who had passed the opinion had the advantage of hearing the oral submissions of the parties including the petitioner in the present case.

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17. It may be also noted that Order (11) of the Foreigners (Tribunals) Order, 1964 provides that the Foreigners Tribunal shall hear such person, as in its opinion is required to be heard. Further, Order (15) provides that after the case has been heard, the Foreigners Tribunal shall submit its opinion as soon thereafter as may be practicable, to the officer or the authority specified in this behalf in the order of reference. Thus, the aforesaid provisions make it clear that the Tribunal has to hear the matter though it is not specifically mentioned in the Order that he has to entertain oral hearing. In our view, oral hearing is inseparable part of hearing in the proceeding before the Foreigner Tribunal as it involves a very important right of a person i.e. citizenship, with other attending fundamental and legal rights. Further, it has been the practice in the Tribunal to afford oral hearing to the proceedees. The opinion of the Foreigners Tribunal will decide the fate of a person, as to whether he will be an Indian citizen or a foreigner."

7. Under the circumstances, we are of the view that the Tribunal would be required to re- appreciate the evidences after hearing the petitioner/counsel for the petitioner and also the counsel for the State also before rendering its opinion.

8. We, accordingly, allow this petition by setting aside the impugned order dated Page No.# 8/8

21.07.2018 passed by the Foreigners Tribunal, Baksa in FT Case No.700/BAKSA/2016 and direct the Tribunal to hear the parties again and after hearing the parties and on re- appreciation of the evidences on record, the Tribunal will pass a fresh order as regards the citizenship status of the petitioner.

9. Learned counsel for the petitioner submits that while rendering the impugned opinion, the Tribunal also did not consider two documents, namely, Certificate of Registration and Sale Deed. As regards the Certificate of Registration, the Tribunal held that the year of issue was not found and the certificate had not been proved by appropriate authority, so it was not accepted in evidence. As regards the Sale Deed, the Sale Deed was not considered as it was found hazy and partially legible. The petitioner can raise the issues relating to these before the Tribunal and, if necessary, can pray for producing additional evidences/witnesses by calling the concerned authorities for which the petitioner will have to make an application, which shall be considered by the Tribunal in accordance with law.

10. The petitioner will, accordingly, appear before Tribunal on 26.07.2022 and the Tribunal, after hearing the petitioner and on appreciation of evidences that may be adduced, as observed above, will pass a fresh opinion as regards the citizenship status of the petitioner.

11. LCR be remitted forthwith to the concerned Tribunal.

12. The writ petition is, accordingly, disposed of.

                                        JUDGE                          JUDGE




Comparing Assistant