Allowed

Chabiran Bibi v. the Union of India and 6 Ors.

Gauhati HC2 Dec 2019WP(C)/6302/2019

Case brief

AI extract

What is this about?

High Court directed set aside of ex-parte order declaring petitioner as foreigner. Court granted seven days time to appear for hearing and directed Tribunal to decide afresh within 45 days upon appearance. Failure to appear within seven days shall result in order being discharged.

What did the court decide?

Set aside impugned order dated 28/11/2016; granted seven days time to appear; directed Tribunal to decide afresh within 45 days upon appearance.

Chabiran Bibi Vs the Union of India… — Constitutional and Fundamental Rights | Gauhati HC (2019)

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GAHC010205192019

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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) 6302/2019

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1:CHABIRAN BIBI

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D/O- MD. SATTAR ALI, W/O- ABDUL RAHMAN FAKIR, R/O- VILLGARUMARACHAR NO.1, P.S- GOSSAIGAON, DIST- KOKRAJHAR, BTAD, ASSAM, PIN- 783362

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VERSUS

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1:THE UNION OF INDIA AND 6 ORS

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REP. BY THE SECRETARY TO THE GOVT OF INDIA, MIN OF HOME AFFAIRS, NEW DELHI- 01

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2:THE ELECTION COMMISSION OF INDIA NEW DELHI- 01

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3:THE STATE OF ASSAM

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM HOME DEPTT DISPUR GUWAHATI- 6

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4:THE STATE COORDINATOR NRC BHANGAGARH ASSAM GHY- 05

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5:THE DEPUTY COMMISSIONER KOKRAJHAR DIST- KOKRAJHAR BTAD ASSAM

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PIN- 783370

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6:THE SUPERINTENDENT OF POLICE(B) KOKRAJHAR DIST- KOKRAJHAR BTAD ASSAM PIN- 783370

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7:THE OFFICER IN CHARGE GOSSAIGAON POLICE STATION DIST- KOKRAJHAR BTAD ASSAM PIN- 78336

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Advocate for the Petitioner : MR. M U MAHMUD

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

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BEFORE

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HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

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ORDER

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Date : 02-12-2019

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Suman Shyam, J

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Heard Mr. M.U. Mahmud, learned counsel for the petitioner. We have also heard Mr. A. Kalita, learned Standing Counsel, Foreigner’s Tribunal appearing for the respondent nos. 3, 5, 6 and 7, Ms. A. Verma, learned Standing Counsel, NRC for the respondent no. 4, Mr. A. Ali, learned Standing Counsel, Election Commission of India representing the respondent no. 2 and Ms. G. Hazarika, learned CGC, appearing for the respondent no. 1.

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This writ petition is directed against the ex-parte order dated 28/11/2016 passed by the learned Member, Foreigner’s Tribunal, Kokrajhar in connection with case No. K/FT/D/1101/11 (No. B/Case No. 744)

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whereby the petitioner was declared as a foreigner.

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It appears from the impugned order that upon receipt of notice the petitioner had appeared before the learned Tribunal and filed written statement but thereafter, she had remained absent, as a result of which the learned Tribunal had to proceed with the matter ex-parte and give its opinion. It further appears from the order dated 28/11/2016 that while the petitioner had put her thumb impression in the Vakalatnama, Written statement and in the Hazira, she had subsequently put her signature in the deposition, as a result of which the learned Tribunal was of the view that a suspicion arises as regards the true identity of the petitioner. On such ground and taking note of the alleged discrepancy with regard to the thumb impression and signature in the deposition, the impugned order has been passed.

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Mr. Mahmud submits that though his client was literate but had put her thumb impression due to the advise rendered by the learned counsel. It is also the submission of Mr. Mahmud that the learned counsel did not intimate her about the date of appearance, as a result of which she had remained absent before the learned Tribunal. However, the learned counsel for the petitioner has invited our attention to the copy of the NRC pertaining to the year 1951 as well as the copy of the voters’ list of 1966, which bears the name of Sattar Ali i.e. the father of the petitioner to contend that she has a very good case on merit and, therefore, one opportunity be granted to the petitioner to contest the case.

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Although, Mr. Kalita has submitted that the petitioner’s conduct does not justify a lenient approach from this Court. However, considering the materials available on record, he would not have any objection, if the matter is remanded back to the learned Tribunal to decide the reference afresh on merit.

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Upon perusal of the materials brought on record, although we are not satisfied with the conduct of the petitioner and, therefore, are of the opinion that the learned Tribunal was justified in proceeding with the matter ex-parte, yet, for ends of justice, we deem it appropriate to grant one more opportunity to the petitioner to appear and contest the reference case since she has already filed written statement and there are vital documents available on record in support of her claim of citizenship. We, therefore, set aside the impugned order dated 28/11/2016 and grant 7 (seven) days time to the writ petitioner from today to

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appear before the learned Tribunal along with a certified copy of this order.

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On such appearance, the learned Tribunal may proceed with the matter afresh from the stage of evidence and render an opinion preferably within a period of 45 days thereafter.

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It is, however, made clear that if the petitioner fails to appear within seven days from today for any

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reason whatsoever, this order shall stand discharged without any further order from this Court.

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With the above observation, the writ petition stands disposed of.

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JUDGE JUDGE

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Sukhamay

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Comparing Assistant

Chabiran Bibi v. the Union of India and 6 Ors.

Case brief

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Chabiran Bibi v. the Union of India and 6 Ors.

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