Remanded

Shyamlal Namasudra v. the State of Assam and 5 Ors.

Gauhati HC3 Apr 2018WP(C)/549/2016

Case brief

AI extract

What is this about?

This court disposed of a writ petition seeking quashing of an order declaring the petitioner a foreigner. While noting the petitioner failed to mention a sibling in prior pleadings, the court remanded the matter to the Foreigners Tribunal to determine the brotherhood between the petitioner and a prior proccedee, whose citizenship was previously affirmed by this court.

What did the court decide?

Petitioner remanded to Foreigners Tribunal to prove brotherhood with Sudhamoy Namasudra; impugned order of 14.03.2013 set aside.

Shyamlal Namasudra Vs the State of Assam and… — Pension and Retirement Benefits | Gauhati HC (2018)

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GAHC010007492016

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

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Case No. : WP(C) 549/2016

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1:SHYAMLAL NAMASUDRA

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S/O- RAIMOHAN NAMOSUDRA, R/O VILL.- KARKHANAPUTNI, P.S.PATHARKANDI, DIST.- KARIMGANJ, ASSAM.

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VERSUS

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1:THE STATE OF ASSAM AND 5 ORS

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REP. BY THE COMMISSIONER and SECY., GOVT. OF ASSAM, HOME DEPTT., DISPUR, GHY- 6.

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2:THE DY. COMMISSIONER KARIMGANJ DIST.- KARIMGANJ ASSAM.

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3:THE SUPERINTENDENT OF POLICE KARIMGANJ DIST.- KARIMGANJ ASSAM.

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4:THE SUPERINTENDENT OF POLICE BORDER DIST.- KARIMGANJ ASSAM.

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5:THE ELECTORATE REGISTRATION OFFICER PATHARKANDI LAC DIST.- KARIMGANJ ASSAM. 6:THE UNION OF INDIA REP. BY THE SECY. MINISTRY OF HOME AFFAIRS NEW DELHI

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Advocate for the Petitioner : MS.N DAIMARI

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

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BEFORE HON'BLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE AJIT BORTHAKUR

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ORDER

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Date : 03-04-2018

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(Ujjal Bhuyan, J)

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Heard Mr. P. N. Sharma, learned counsel for the petitioner and Mr. U. K. Nair, learned Senior Special Counsel, Foreigners Tribunal (FT) assisted by Ms. P. Borgohain, learned counsel for the respondents.

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By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 14.03.2013 passed by the Foreigners Tribunal-1, Karimganj in FT Case No. 90/2006 (State Vs Shyamlal Namosudra) declaring the petitioner to be a foreigner.

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This Court by order dated 09.02.2016 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to his appearance before the Superintendent of Police (Border), Karimganj and furnishing of adequate surety.

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We have heard learned counsel for the parties and perused the materials on record, including the record requisitioned from the Tribunal.

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Case of the petitioner is that he is the son of late Raimohan Namosudra and grandson of late Kamini Namosudra. Kamini Namosudra originally hailed from Dharmanagar of Tripura State. He had migrated to the State of Assam in 1986. Before the Tribunal, petitioner deposed as his witness and also exhibited some documents.

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Tribunal disbelieved the version of petitioner and answered the reference in favour of the State vide the impugned order dated 14.03.2013.

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In the course of hearing on 27.03.2018, learned counsel for the petitioner submitted

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that petitioner had a brother by the name of Sudhamoy Namasudra. He had also faced a reference before the Foreigners Tribunal No.1, Karimganj being FT Case No. 92/2006. In that reference Tribunal had passed an order on 07.02.2014 declaring him to be a foreigner. This order of the Tribunal was put to challenge by Sudhamoy Namasudra before this Court in WP(C) No. 7744/2015 (Sudhamoy Namasudra Vs. State of Assam). This Court by order dated 19.05.2016 had allowed the writ petition by setting aside the order dated 07.02.2014.

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In the face of such submission, learned Senior Special Counsel was asked to examine the above aspect of the matter and thereafter to make his submissions.

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Today, Mr. Nair submits that petitioner in his written statement filed before the Tribunal did not mention that he had a brother by the name of Sudhamoy Namasudra. This fact was also mentioned by him in his evidence tendered before the Tribunal. That apart in the writ petition too, there is no averment to the effect that petitioner has a brother by the name of Sudhamoy Namasudra who was a proceedee in FT Case No. 92/2006. However, he fairly submits that Exhibit 2 of the petitioner was also relied upon by Shri Sudhamoy Namasudra as Exhibit 3.

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Ordinarily we would not have entertained such an unpleaded submission which was never raised by the petitioner at any point of time but upon hearing learned counsel for the parties and on due consideration, we feel that though this fact was not mentioned by the petitioner in his written statement and evidence-in-chief before the Tribunal as well as in the writ petition, the same may have a material bearing on the citizenship status of the petitioner. This is of course subject to petitioner satisfactorily proving that Sudhamoy Namasudra is infact his brother being sons of Raimohan Namasudra. This is a fact which the petitioner is required to prove by adducing cogent, reliable and admissible evidence. We feel that it would be appropriate if this aspect is left to the Tribunal to decide because after all it is a fact finding exercise which would require adducing of evidence.

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In such circumstances, we deem it appropriate to remand the matter back to the Tribunal for a hearing on this limited aspect of the matter i.e., as to whether Sudhamoy Namosudra, proceedee in FT Case No. 92/2016 before the Foreigners Tribunal No.1, Karimganj, is the brother of the petitioner or not. It would be open to the petitioner to adduce such evidence as may be necessary to prove this fact in issue. At the same time, it

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would be open to the State to cross examine and rebutt the evidence tendered by the petitioner. Tribunal shall apply its mind to all the relevant aspects whereafter a reasoned order shall be passed within a period of 60 days from the date of appearance. Impugned order dated 14.03.2013 would be subject to such order(s) that may be passed by the Tribunal. Let the petitioner appear before the Tribunal on 26.04.2018 at 10.30 a.m. whereafter Tribunal shall proceed with the reference in accordance with law.

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In terms of the directions given above, writ petition is disposed of.

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Registry to send down the LCR forthwith and inform the concerned Foreigners’ Tribunal, Deputy Commissioner and Superintendent of Police (B) for doing the needful.

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Copies of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC.

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JUDGE JUDGE

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Comparing Assistant

Shyamlal Namasudra v. the State of Assam and 5 Ors.

Case brief

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Shyamlal Namasudra v. the State of Assam and 5 Ors.

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