Allowed

Smti. Mina Rani Das @ Mina Das v. the Union of India and 6 Ors.

Gauhati HC25 Apr 2022WP(C)/2694/2022

Case brief

AI extract

What is this about?

High Court allowed the writ petition and set aside ex parte orders by the Foreigners Tribunal which declared the petitioner a foreigner due to procedural default. The Court granted the petitioner an opportunity to prove her Indian citizenship before the Tribunal amidst the COVID lockdown and financial hardships.

What did the court decide?

Set aside ex parte order of 24.04.2014 and order of 16.08.2019; petitioner allowed to appear before Tribunal on 27.05.2022 to prove Indian citizenship.

Smti. Mina Rani Das @ Mina Das Vs the… — Constitutional and Fundamental Rights | Gauhati HC (2022)

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GAHC010074892022

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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)/2694/2022

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SMTI. MINA RANI DAS @ MINA DAS

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W/O SHRI ASHADHAN DAS, D/O LATE UPANANDA DAS, VILL-KARAIBARI, P.O.-DURGANAGAR, P.S.-NILAMBAZAR, DIST-KARIMGANJ, STATE-ASSAM, INDIA, PIN-788722

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VERSUS

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THE UNION OF INDIA AND 6 ORS

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REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI-110001

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2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GHY-6

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3:THE DEPUTY COMMISSIONER KARIMGANJ DIST-KARIMGANJ ASSAM PIN-788710

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4:THE ELECTION COMMISSION OF INDIA NEW DELHI-110001

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5:THE STATE COORDINATOR NATIONAL REGISTER OF CITIZENS ASSAM GUWAHATI-781005

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6:THE SUPERINTENDENT OF POLICE (B) KARIMGANJ DIST-KARIMGANJ ASSAM PIN-788710

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7:BOLAI CHAKRABORTHY ADVOCATE/MEMBER DISTRICT BAR ASSOCIATION KARIMGANJ P.O. AND P.S.-KARIMGANJ DIST-KARIMGANJ ASSAM PIN-78871

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Advocate for the Petitioner : MR J M SULAIMAN

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

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BEFORE

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HON’BLE MR. JUSTICE N. KOTISWAR SINGH

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HON’BLE MR. JUSTICE NANI TAGIA

order

(oral)

25-04-2022

[N. Kotiswar Singh, J]

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Heard Mr. J.M. Sulaiman, learned counsel for the petitioners. Also heard Mr. P.K. Medhi,

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learned CGC appearing for respondent no.1; Mr. G. Sarma, learned Special Counsel, F.T. appearing for respondent no.6; Mr. A. I. Ali, learned Standing Counsel, ECI, appearing for respondent no.4; Ms. L. Devi, learned Standing Counsel, NRC, appearing for respondent no.5 and Ms. U. Das, learned Government Advocate, Assam, appearing for respondent nos.2 & 3.

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Considering the nature of the case and after hearing the submission made by learned counsel for the parties, we are of the view that the matter can be disposed of at this stage

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without issuing any formal notice to the respondents.

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In this petition the petitioner has challenged the ex parte order dated 24.04.2014

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passed by the Foreigners Tribunal (1^st ), Karimganj in F.T. Case No.842/2009 declaring the petitioner as a foreigner of post 1971 stream. The Foreigners Tribunal mentioned that the petitioner remained absent on various occasions, though notice was duly served on her and accordingly, the Tribunal proceeded ex parte against the petitioner vide impugned order dated 10.02.2021. The Tribunal on the basis of the materials available on record held that the petitioner is a foreigner of post 1971 stream.

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Learned counsel for the petitioner submits that the petitioner duly received notice from the Tribunal and appeared before the Tribunal through her engaged counsel and filed her written statement on 29.10.2011 but thereafter, she did not appear before the Tribunal and accordingly, the Tribunal passed the impugned ex parte order dated 24.04.2014 declaring the petitioner as a foreigner. Subsequently, the petitioner filed a Misc. Case being Misc. Case No.31/2017 in F.T. Case No.842/2009 before the Tribunal wtih a prayer to set aside the aforesaid impugned ex parte order and grant her another opportunity to prove her citizenship. However, the Tribunal vide order dated 16.08.2019 rejected the application of the petitioner by observing that the Tribunal did not find any reasonable ground to condone the delay and to review of the order dated 24.04.2014 passed by the Foreigners Tribunal (1^st ), Karimganj in F.T. Case No.842/2009.

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The petitioner being aggrieved by the said orders dated 24.04.2014 and 16.08.2019 has filed the present writ petition with a prayer to provide her another opportunity to prove her citizenship. The impugned order dated 24.04.2014 passed by the Foreigners Tribunal

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(1^st ), Karimganj in F.T. Case No.842/2009 indicates that the petitioner appeared before the Tribunal and also filed her written statement on 29.10.2011 but thereafter, she did not appear before the Tribunal on various dates fixed by the Tribunal, because of which the matter was proceeded ex parte and the impugned ex parte order dated 24.04.2014 was passed.

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On being queried as to why the matter was proceeded ex parte, it has been submitted by the learned counsel for the petitioner that her engaged counsel Sri Bolai Chakraborthy, the respondent no.7 herein, did not proceed with the case properly and did not inform her about the dates fixed by the Tribunal for proceeding and also about passing of the ex parte order in time and whenever the petitioner used to communicate with her counsel, she was informed that he would take necessary steps in that regards.

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From the impugned order dated 24.04.2014 it appears that the counsel of the petitioner did not appear before the Tribunal on the fixed dates resulting in passing of the ex parte order. It has been submitted that thereafter, the petitioner has also collected all the necessary documents like electoral rolls of the years 1966 and 1970 to prove her linkage with her father, namely, Upananda Das, who is an Indian citizen. Thereafter, the petitioner filed a Misc. Case being Misc. Case No.31/2017 before the Foreigners Tribunal-III, Karimganj to set aside the ex parte order dated 24.04.2014 with a prayer to provide her a chance to prove her case before the Tribunal which, however, was not entertained by the Tribunal on the ground of undue delay.

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Learned counsel for the petitioner submits that because of her financial hardships and lockdown due to COVID pandemic she could not prosecute the matter before this Court also. Subsequently, after consultation with her family members and well wishers, the petitioner

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filed the present petition.

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Learned counsel for the petitioner submits that the petitioner has now sufficient documents to prove that she is the daughter of one Upananda Das, whose name appeared in the voters lists of 1966 and 1970 and also in the records of the NRC of the year 1966. Thereafter, the name of the petitioner also appeared in the voters lists of 1993 along with her father Upananda Das. It has been submitted that in all the voters lists of 1966, 1970 & 1993, the names of the petitioner and her father appeared as the residents of Nischintapur under Badarpur Police Station under district Karimganj and accordingly, it has been submitted that if the petitioner is able to prove those documents, she can make a legitimate claim that she is Indian and not a foreigner. Accordingly, the petitioner prays for another opportunity to appear before the Tribunal and to prove that she is Indian and not a foreigner.

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In the Tribunal’s order dated 24.04.2014 it is seen that while passing the ex parte order, the Tribunal did not make any observation as to how the present petitioner had been found to be a foreigner except for the observation that she had failed to appear before the Tribunal after filing written statement. Thus, the said ex parte order was passed without considering the claim of the petitioner which was indicated in the written statement. However, the petitioner has been declared to be a foreigner by way of default and not on merit or after considering the materials.

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Under the normal circumstances, such a delay in approaching this Court could be fatal but in the present case, we have to keep in mind that the issue involves citizenship of a person. Thus, if we reject this petition only on the ground of delay, the petitioner would be declared a foreigner, not on the basis of any materials evidence or on merit but purely

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because of default in appearing before the Tribunal. Because of the serious consequences which would entail if the petition is not allowed, we are inclined to allow this petition by affording another opportunity to the petitioner to appear before the Tribunal to prove that she is an Indian and not a foreigner.

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Citizenship is one of the most important rights of a person in today’s world. It is the key to enjoyment of the rights guaranteed by law of the land. It is through citizenship that a person can enjoy and enforce fundamental rights and other legal rights conferred by the Constitution and other statutes, without which a person cannot lead a meaningful life with dignity. A person stripped of citizenship could be rendered a stateless person, if any other country refuses to accept him or her as its citizen. Such is the overarching significance and importance of citizenship to a person. Therefore, any such proceeding which has the potential of depriving citizenship ought to be accordingly, examined from that perspective also. In a normal proceeding before a court of law, in spite of any adverse finding, the person will continue to enjoy the rights as a citizen. Though a proceeding under the Foreigners’ Tribunal, is merely quasi-judicial in nature, yet an adverse opinion by the Tribunal that the proceedee is a foreigner almost seals the fate of the proceedee as far as the issue of citizenship is concerned, as the authorities are expected to declare such a person a foreigner in terms of the opinion of the Tribunal and he would be liable to be detained and deported. Thus, ordinarily, such an opinion of the Tribunal, in our view, ought to be given after analyzing all the relevant evidence that may be produced by the proceedee and not by way of default as has been done in the present case.

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Accordingly for the reasons discussed above, we are inclined to allow this petition by

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setting aside the impugned order dated 24.04.2014 passed by the Foreigners Tribunal (1^st ), Karimganj in F.T. Case No.842/2009 and also the order dated 16.08.2019 passed in Misc. Case No.31/2017 by the Foreigners Tribunal-III, Karimganj. Accordingly, the petitioner will appear before the Foreigners Tribunal (1^st ), Karimganj on 27.05.2022 and shall produce her documents and adduce evidence to prove that she is Indian and also adduce evidence.

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Copy of this order be furnished to the Superintendent of Police (Border), Karimganj for doing the needful.

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JUDGE JUDGE

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Comparing Assistant

Smti. Mina Rani Das @ Mina Das v. the Union of India and 6 Ors.

Case brief

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What did the court decide?

Smti. Mina Rani Das @ Mina Das v. the Union of India and 6 Ors.

Case brief

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