Allowed

Jahera Khatun v. the State of Assam and 6 Ors.

Gauhati HC13 Jun 2022WP(C)/2001/2017

Case brief

AI extract

What is this about?

This order allows a writ petition where the Guwahati High Court, perceiving genuine medical reasons for the petitioner's absence during Foreigners Tribunal proceedings, set aside the tribunal's ex parte declaration and the subsequent dismissal of her review application. The court directed the petitioner to appear and prove citizenship.

What did the court decide?

The writ petition was allowed, setting aside the order dated 13.02.2017 and the ex parte order dated 17.12.2012. The petitioner was directed to appear on 19.07.2022 to prove citizenship and furnish a

Jahera Khatun Vs the State of Assam… — Constitutional and Fundamental Rights | Gauhati HC (2022)

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GAHC010126082017

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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)/2001/2017

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JAHERA KHATUN

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W/O. JAYNAL UDDIN @ MD. JAYNAL ABEDIN, D/O. LT. MAFIZ UDDIN, R/O. VILL. SAHARIA PAM, P.O. MOIRABARI, P.S. MOIRABARI, DIST.MORIGAON, ASSAM, PIN-782126.

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VERSUS

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THE STATE OF ASSAM and 6 ORS. REP. BY ITS SECRETARY, GOVT. OF ASSAM, HOME DEPTT., DISPUR, GUWAHATI-6.

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2:THE DIRECTOR GENERAL OF POLICE ASSAM, ULUBARI GUWAHATI-781007. 3:THE DEPUTY COMMISSIONER MORIGAON DIST. MORIGAON ASSAM, PIN-782126.

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4:THE SUPERINTENDENT OF POLICE BORDER MORIGAON DIST. MORIGAON ASSAM, PIN-782126.

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5:THE OFFICER-IN-CHARGE MOIRABARI POLICE STATION MORIGAON DIST. MORIGAON ASSAM PIN-782126.

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6:THE UNION OF INDIA REP. BY THE SECRETARY TO THE GOVT. OF INDIA

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MINISTRY OF HOME AFFAIRS NEW DELHI PIN-110001.

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7:THE STATE COORDINATOR NRC, ASSAM 1ST FLOOR ACHYUT PLAZA GUWAHATI SHILLONG RD BHANGAGARH GUWAHATI, ASSAM 78100

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Advocate for the Petitioner : MS. R BISWAS Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE THE CHIEF JUSTICE (ACTING) HONOURABLE MR. JUSTICE NANI TAGIA

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ORDER

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Date : 13-06-2022

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[N. Kotiswar Singh, C.J. (Acting)]

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Heard Mr. K. M. Hasan, learned counsel for the petitioner. Also heard Mr. G. Sarma, learned Standing Counsel, Foreigners Tribunal; Mr. K. K. Parasar, learned CGC and Standing counsel, NRC; Mr. N. K. Das, learned Government Advocate and Mr. A. Bhuyan, learned Standing counsel, Election Commission of India, appearing for the respondents.

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In this writ petition the petitioner has challenged the order dated 13.02.2017, passed by the Foreigners Tribunal (2^nd ), Morigaon, in Misc. Case No. 62/2017 [arising out of FT(D) Case No. 98/2009], by which the Misc. Case filed by the present petitioner seeking review of the order dated 17.12.2012 passed by the Tribunal in FT(D) Case No. 98/2009, was dismissed. By the said order dated 17.12.2012, the petitioner has been declared to be a foreigner of post-1971 stream after the petitioner had failed to appear before the Tribunal on the date fixed.

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It is contended on behalf of the petitioner that after receiving notice from the Tribunal, she had appeared before the Tribunal and filed her written statement denying that she is a foreigner. However, unfortunately, when the matter was listed on subsequent dates, the

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petitioner failed to appear before the Tribunal to adduce evidence in support of her Indian citizenship as she developed certain mental disorder in connection of which she was undergoing medical treatment at the Lokopriya Gopinath Bordoloi Regional Institute of Mental Health, Tezpur, with regular intervals. Resultantly, the proceedings proceeded ex parte and the impugned order dated 17.12.2012 was passed by the learned Tribunal.

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Learned counsel for the petitioner submits that, subsequently, after coming to know that the matter had proceeded ex parte, the petitioner approached the Tribunal by filing Misc. Case No. 62/2017 praying for reviewing the order dated 17.12.2012 which, however, was dismissed by the Tribunal on the ground that the original case had been disposed of on contest and, as such, the Misc. Case filed by her under Order 9 Rule 13 and Section 15 of the CPC was held not maintainable.

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Being aggrieved by the aforesaid order dated 13.02.2017, passed in Misc. Case No. 62/2017 the present writ petition has been filed.

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We have considered the submissions made on behalf of the parties and also have gone through the records.

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It appears that after receiving summons in the original proceedings [FT(D) Case No. 98/2009] the petitioner had appeared before Tribunal and also filed written statement, but while filing written statement no documents were filed.

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Learned counsel for the petitioner submits that there are sufficient documents to prove that the petitioner is not a foreigner but an Indian citizen. In this regard, learned counsel for the petitioner has drawn attention of this Court to certain certificate (Annexure-1) issued by the Secretary of Bechamari Gaon Panchayat, District Nagaon, stating that she is daughter of Mafiz Uddin and Samala Khatun of Bechamari village under Dhing Revenue Circle. The petitioner has also annexed a copy of the Voters List of No. 86 Dhing Legislative Assembly Constituency for the year 1965 in which the name of her father appears along with the name of her mother showing them to be residents of Bechamari village under Dhing Revenue Circle. The petitioner has also annexed the Voters List of No. 86 Dhing Legislative Assembly Constituency for the year 1970 (Annexure-3) where the names of the parents of the petitioner appear under the same village and Revenue Circle. Similarly, the petitioner has also

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annexed the Voters List of No. 86 Dhing Legislative Assembly Constituency for the year 1989 (Annexure-5) bearing the name of the petitioner along with the name of her husband showing them to be residents of Village Saharia Pam under Moirabari Mouza. Accordingly, it has been submitted by the learned counsel for the petitioner that the petitioner should have been given an opportunity to adduce evidence and to prove the documents in support of her legitimate claim that she is an Indian citizen and not a foreigner.

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After hearing the learned counsel for the parties and also considering the records, we are of the view that the petitioner may be given another opportunity to prove her Indian citizenship as it appears to us that the inability of the petitioner to appear before the Tribunal and to adduce evidence was due to certain genuine medical reasons.

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Accordingly, we allow this petition by setting aside the impugned order dated 13.02.2017, passed by the Foreigners Tribunal (2^nd ), Morigaon, in Misc. Case No. 62/2017. Resultantly, the order dated 17.12.2012 passed by the Foreigners Tribunal (2^nd ), Morigaon, in FT(D) Case No. 98/2009 is also set aside.

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The petitioner is directed to appear before the Foreigners Tribunal (2^nd ), Morigaon, on 19.07.2022 to prove her Indian citizenship. Since the citizenship of the petitioner is under cloud, she is directed to appear before the Superintendent of Police (Border), Morigaon, and furnish a bail bond of Rs. 5,000/- and, upon furnishing of such bail bond the petitioner will be allowed to remain on bail.

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Writ petition stands disposed of in terms of the above observations and directions.

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Let the records be remitted to the concerned Tribunal forthwith.

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JUDGE CHIEF JUSTICE (ACTING)

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Comparing Assistant

Jahera Khatun v. the State of Assam and 6 Ors.

Case brief

What is this about?

What did the court decide?

Jahera Khatun v. the State of Assam and 6 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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