Gauhati High Court
Rabia Khatun @ Rabiya Begum vs The Union Of India And 5 Ors on 8 November, 2024
Author: K.R. Surana
Bench: Kalyan Rai Surana
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GAHC010189202024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4806/2024
RABIA KHATUN @ RABIYA BEGUM
W/O- AJIJUL HOQUE,
D/O- LATE INTAZ ALI,
R/O- VILLAGE HALDHIA GAON,
P.S- KALGACHIA,
MOUZA- RUPSHI,
DIST- BARPETA, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS
REP. BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF
INDIA, SASTRI BHAWAN, NEW DELHI- 110001.
2:THE ELECTION COMMISSION OF INDIA
NEW DELHI-110001
3:THE STATE OF ASSAM
REP. BY THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6
4:THE ASSAM STATE COORDINATOR
OF NATIONAL REGISTER OF CITIZENS
ASSAM
BHANGAGARH
GUWAHATI-05
DIST- KAMRUP (M)
5:THE DEPUTY COMMISSIONER
BARPETA
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ASSAM
PIN-781301
6:THE SUPERINTENDENT OF POLICE (B)
BARPETA
ASSAM
PIN-78130
Advocate for the Petitioner : MR. S A AHMED, C S KAMTHONG,A. KHANAM,MR. F A
AHMED,MISS M GOGOI
Advocate for the Respondent : DY.S.G.I., GA, ASSAM,SC, ECI,SC, F.T
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE KARDAK ETE
For the petitioner : Mr. S.A. Ahmed, Advocate.
For respondent no.1 : Mr. B. Chakraborty, CGC.
For respondent no.2 : Ms. S.T. Khan, Advocate.
For respondent nos.3 and 6 : Mr. G. Sarma, Standing Counsel.
For respondent no.4 : Mr. R. Talukdar, Govt. Advocate.
Date of hearing : 04.11.2024.
Date of judgment : 08.11.2024.
JUDGMENT AND ORDER
(CAV)
(K.R. Surana, J)
Heard Mr. S.A. Ahmed, learned counsel for the petitioner. Also
heard Mr. B. Chakravorty, learned CGC appearing for respondent no.1; Ms. S.T.
Khan, learned counsel appearing for respondent no.2; Mr. G. Sarma, learned
standing counsel for Home Department, appearing for respondent nos. 3 and 6;
and Mr. R. Talukdar, learned Govt. Advocate appearing for respondent no.5.
None appears on call for respondent no.4 despite the fact that respondent no.4
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is an establishment under the State Home Department.
2) The petitioner, namely, Rabia Khatun alias Rabiya Begum, has
assailed the opinion dated 28.02.2024 by the learned Member, Foreigners'
Tribunal 5th, Barpeta, in Case No. F.T. (5 th) 287/2016, arising out of Reference
bearing no. IM(D)T 148/2015, by filing this writ petition under Article 226 of the
Constitution of India. As per the said opinion, the petitioner is a foreigner of
post 1971 stream and accordingly, the reference made by the Superintendent of
Police (Border), Barpeta, was answered in the affirmative and in favour of the
State.
3) On receipt of the notice of the proceeding, the petitioner had
appeared before the learned Foreigners' Tribunal and submitted her written
statement, denying the allegations of being an illegal migrant into Assam and
projected herself to be a bona fide citizen of India.
4) The petitioner had also filed her evidence-on- affidavit and
although in support of her contention, the petitioner had exhibited 12 (twelve)
documents, viz., (i) certified copy of electoral roll of 1966 (Ext.A); (ii) certified
copy of electoral roll of 1966 (Ext.B); (iii) certified copy of electoral roll of 1970
(Ext.C); (iv) sale deed registered on 10.08.1965 (Ext.D); copy of jamabandi of
land (Ext.E); (v) certified copy of voter list of 1985 (Ext.F); (vi) certified copy of
voter list of 1997 (Ext.G); (vii) certified copy of voter list of 2005 (Ext.H); (viii)
certified copy of voter list of 2010 (Ext.I); (ix) Elector Photo Identity Card
(Ext.J); (x) Gaonbura's certificate (Ext.K); (xi) Gaonbura's certificate (Ext.L).
However, the petitioner did not appear for her cross-examination before the
learned Tribunal.
5) It may also be mentioned that along with her evidence-on-
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affidavit, the petitioner had annexed copy of 7 (seven) documents without
exhibiting them, being (i) photocopy of N.R.C., 1951 (Annexure-I and II); and
(ii) voter list of the year 1953, 1997, 2011, 2017 and 1997 (Annexure-III to VI).
It may also be stated that the learned counsel for the petitioner could not show
that the petitioner had taken any steps to exhibit the said 7 (seven) annexures.
6) The learned counsel for the petitioner had submitted that the
voter's lists disclosed that she was the daughter of Late Intaz Ali Dewan and
Late Jarina Khatun and that the petitioner was born and brought up at village-
Haldiapathar, Mouza- Rupshi, in the then undivided Kamrup District, which
presently falls under Barpeta district. The petitioner's paternal grand-father was
Late Jonab Ali and she had two grand-mothers, Late Khodeja Khatun and Late
Haitan Nessa. Moreover, it was stated that the petitioner had disclosed her
detailed family tree in her written statement. It was also submitted that the sale
deed and land jamabandi disclosed that her father had land since 10.08.1965.
Accordingly, it was submitted that the petitioner has sufficient documents to
prove that she is a bona fide citizen of India and not a foreigner.
7) It has been submitted that the petitioner had filed her evidence-
on- affidavit as DW-1 on 04.09.2017 and she had taken steps in the proceedings
till 20.10.2022, but she defaulted in taking steps after 20.10.2022 till the
opinion was given by the learned Foreigners' Tribunal on 28.02.2024 due to
gynecological disease, which was beyond her control.
8) Accordingly, it was submitted that one last opportunity may be
granted to the petitioner to appear before the learned Tribunal and to face
cross-examination and accordingly, it was prayed that the impugned opinion be
set aside and the matter be remanded back for a fresh opinion after giving one
opportunity of being cross-examined and heard.
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9) In support of his submissions, the learned counsel for the
petitioner has placed reliance on the case of (1) Poonnamma Jagadamma &
Ors. v. Narayanan Nair & Ors., (2017) 6 SCC 778 (para-11 and 13) , and 2)
Avinash Singh Bagri & Ors. v. Registrar, IIT, Delhi & Anr., (2009) 8 SCC 220
[para 36, 39 and 44(f)], and Musstt. Sufia Khatoon @ Suruj Bhanu v. The Union
of India & 6 others, W.P.(C) 2708/2021, decided by a co-ordinate Bench of this
Court on 24.06.2022.
10) Per contra, the learned standing counsel for the Home
Department has submitted that this Court is not exercising appellate powers,
but is examining the matter in exercise of certiorari jurisdiction and therefore, it
is impermissible to interfere with the opinion of the learned Tribunal unless the
same is found to be vitiated by any perversity whatsoever. It is also submitted
that the decision of this Court in the case of Musstt. Sufia Khatoon @ Suruj
Bhanu is per in curium because the earlier order of this Court in the case of
Sajiran Nessa v. The Union of India & 5 Ors., W.P.(C) 1293/2020, decided on
05.01.2021 was perhaps not placed for consideration of the Court. In support of
her submission, reliance is placed on the case of Central Council for Research in
Ayurvedic Sciences & Anr. v. Bikartan Das & Ors., (2023) 0 Supreme(SC) 763:
(2023) 0 INSC 733.
11) It is seen that though the petitioner has stated in her writ petition
that she was suffering from gynecological illness, but she has not stated about
the nature of her ailment and therefore, vague. Moreover, the petitioner has
also not annexed any medical document to show that she was suffering from
any disease whatsoever from 20.10.2022 till the impugned opinion was given on
28.02.2024.
12) The records received from the learned Tribunal reveals that the
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petitioner had last appeared and taken steps in connection with the proceeding
on 20.07.2022. After allowing repeated prayers for adjournment, the learned
Tribunal had granted one last opportunity to the petitioner by order dated
20.09.2023. Thereafter, on 30.11.2023, the learned counsel for the petitioner
had filed a petition for withdrawing his vakalatnama, which was allowed and the
proceeding was fixed on 21.02.2024. However, on 21.02.2024, the petitioner
was absent without steps and thereafter, on 28.02.2024, the opinion was
passed.
13) The petitioner has not alleged in this writ petition that she had no
knowledge that her learned counsel was allowed to withdrawn his vakalatnama
by order dated 30.11.2023 and she has not even alleged that her learned
counsel before the learned Tribunal was in default or had not informed the
petitioner about the dates fixed the said proceeding.
14) Therefore, as the petitioner did not appear before the learned
Foreigners' Tribunal for her cross-examination without any reasonable or good
cause, on merit, no case is made out by the petitioner to show that the learned
Foreigners' Tribunal has committed any error of perversity in rendering of its
opinion, impugned in this writ petition. The petitioner has not been able to show
that she has been able to discharge her burden under section 9 of the
Foreigners' Act, 1946.
15) The case of Poonnamma Jagadamma & Ors. (supra) and Avinash
Singh Bagri & Ors. (supra), cited by the learned counsel for the petitioner are
out of context and on facts, those cases have no relevance and thus, it would
be a wastage of time to discuss the said cases. In so far as the case of Musstt.
Sufia Khatoon @ Suruj Bhanu (supra) is concerned, the learned standing
counsel for the Home Department and correctly pointed out that the previous
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decision of this Court in the case of Sajiran Nessa (supra), was not placed for
consideration of the Court when the case of Musstt. Sufia Khatoon @ Suruj
Bhanu (supra) was decided.
16) However, be that as it may, in the present case in hand, the
petitioner has referred to a copy of the sale deed registered on 10.08.1965,
which is stated to have been filed before the learned Foreigners' Tribunal as
Exhibit-D. In the said context, without making comment on the evidentiary
value of the said sale deed, the Court is of the considered opinion that the said
document is of a period prior to 25.03.1971, which if considered after the
petitioner is subjected to cross-examination, may help the learned Tribunal in
proper adjudication of the issue involved in the determination before it i.e. to
render a fresh opinion whether or not the petitioner is a foreigner who has
entered into India (Assam) illegally from the specified territory after 25.03.1971
stream. We do so because the issue of citizenship of the petitioner is involved.
17) Hence, the Court is of the considered opinion that under the facts
and circumstances of the case, the petitioner has been able to demonstrate that
she may be afforded one last opportunity to appear before the learned Member,
Foreigners' Tribunal 5th, Barpeta in Case No. F.T. (5th) 287/2016 to face cross-
examination on the basis of the pleadings and her evidence-on-affidavit on
record, on conditions as enumerated below:-
a. That upon remand of the proceedings of Case No. F.T. (5 th)
287/2016 before the learned Member, Foreigners' Tribunal 5 th,
Barpeta, the petitioner, namely, Rabia Khatun alias Rabiya Begum
shall appear before the said learned Tribunal on or before
28.11.2024 without fail or any default whatsoever and without
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any requirement of the learned Tribunal to issue any notice
whatsoever to the petitioner.
b. On failure of the petitioner to appear before the said learned
Tribunal within the outer limit of time allowed, this order would
stand revoked, rescinded and recalled without any further
reference to the Court and the impugned opinion dated
28.02.2024, passed by the learned Member, Foreigners' Tribunal
5th, Barpeta in Case No. F.T. (5th) 287/2016, arising out of
Reference bearing no. IM(D)T 148/2015 shall stand revived and
restored.
c. On appearance of the petitioner, it would be open to the said
learned Foreigners' Tribunal either to allow the petitioner to be
cross-examined on the same date, if its quasi-judicial business so
permits, or to fix another date for the cross-examination of the
petitioner on the basis of her evidence already on record.
d. The petitioner is further/also directed to appear before the
Superintendent of Police (Border), Barpeta within 10 days from
the date of this order and furnish bail for a sum of Rs.5,000/-
with one local surety of the like amount to the satisfaction of the
said authority. Further, the Superintendent of Police (Border),
Barpeta, is directed that on appearance of the petitioner within
the period indicated above, the biometrics of the iris of both
eyes, the fingerprints of both hands and the photographs of the
petitioner shall be obtained, whereafter, she shall be allowed to
remain on bail. Further, on her appearance before the
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Superintendent of Police (Border), Barpeta, as directed above,
the said authority shall obtain necessary information and
documentation as required under the Rules from the petitioner
for securing her presence.
e. It is made clear that the obligation of the petitioner to obtain
bail from the Superintendent of Police (Border), Barpeta, within
the time allowed is a made a condition precedent for the learned
Foreigners' Tribunal for giving the petitioner an opportunity to
face cross-examination. Therefore, in the event the petitioner
does not appear before the Superintendent of Police (Border),
Barpeta and take bail, this order shall stand revoked, rescinded
and recalled without any further reference to this Court.
f. As the petitioner is found to have willfully defaulted in
appearing before the learned Tribunal without any good cause,
as a pre-condition for the restoration of the proceedings of Case
No. F.T. (5th) 287/2016 to file, the petitioner shall also deposit a
cost of Rs.10,000/- (Rupees ten thousand only) before the
Secretary, District Legal Services Authority, Barpeta and produce
the receipt/acknowledgment before the learned Member,
Foreigners' Tribunal 5th, Barpeta.
18) Subject to compliance of the conditions as enumerated in
paragraph 17 above, the impugned opinion dated 28.02.2024 by the learned
Member, Foreigners' Tribunal 5th, Barpeta in Case No. F.T. (5 th) 287/2016,
arising out of Reference bearing no. IM(D)T 148/2015, is conditionally set aside
without finding fault with the impugned opinion. It is again reiterated that non-
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compliance of the condition of obtaining bail, the direction contained in
paragraph 17(e) shall become operative. Resultantly, the proceeding of Case No.
F.T. (5th) 287/2016, arising out of Reference bearing no. IM(D)T 148/2015, is
restored back to the file of the learned Member, Foreigners' Tribunal 5 th,
Barpeta, for a fresh opinion after affording an opportunity to the petitioner to
appear for her cross-examination.
19) This writ petition stands disposed of on terms as indicated in
paragraph 17 and 18 above.
20) The petitioner shall produce a certified copy of this order before
the learned Foreigners' Tribunal 5th, Barpeta, within the time allowed and await
further order from the said learned Tribunal. It shall be open to the learned
Tribunal to take up the matter on remand as expeditiously as its quail-judicial
work may permit.
21) The parties are left to bear their own cost.
22) Before parting with the records, it is also clarified that this order
has been passed on the unique facts of this case and therefore, this order shall
not constitute a precedent for being cited in any other case.
JUDGE JUDGE
Comparing Assistant
