Allowed

Anis Ali @ Anish Ali v. the Union of India and 5 Ors.

Gauhati HC3 Jun 2022WP(C)/3535/2022

Case brief

AI extract

What is this about?

The Gauhati High Court allowed the petition, quashing an ex parte foreigner declaration by the Foreigners Tribunal due to improper notice service. The court remanded the case for fresh consideration, allowing the petitioner to prove citizenship. It also granted bail.

What did the court decide?

Impugned ex parte order dated 24.01.2019 set aside; case remanded to the Foreigners Tribunal for fresh consideration; petitioner released on bail.

Anis Ali @ Anish Ali Vs the Union of… — Constitutional and Fundamental Rights | Gauhati HC (2022)

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GAHC010099182022

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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)/3535/2022

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ANIS ALI @ ANISH ALI

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S/O- NUR ISLAM, R/O- VILL. DALGAONKHUTI, P.O. AND P.S. DALGAON, DIST.- DARRANG, ASSAM.

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VERSUS

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THE UNION OF INDIA AND 5 ORS

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REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF INDIA, HOME AFFAIRS DEPARTMENT, NEW DELHI-01.

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2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-06.

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3:THE ELECTION COMMISSION OF INDIA NEW DELHI-01 INDIA.

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4:THE STATE CO-ORDINATOR NRC ASSAM.

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5:THE DEPUTY COMMISSIONER DARRANG MONGALDAI DIST.- DARRANG ASSAM PIN- 784115.

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6:THE SUPERINTENDENT OF POLICE (B) DARRANG DIST.- DARRANG ASSAM PIN- 784115

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Advocate for the Petitioner : MR A ALI

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

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BEFORE

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HON’BLE THE CHIEF JUSTICE (ACTING) MR. N. KOTISWAR SINGH HON’BLE MR. JUSTICE NANI TAGIA

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Order

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03-06-2022

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[N. Kotiswar Singh, CJ (Acting)]

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Heard Ms. M. Khatun, learned counsel for the petitioner. Also heard Mr. K.K. Parasar, learned CGC appearing for respondent no.1; Mr. G. Sarma, learned Special Counsel, F.T. appearing for respondent no.6; Ms. U. Das, learned Government Advocate, Assam, appearing for respondent nos. 2 & 5, Mr. A. Bhuyan, learned Standing Counsel, ECI, appearing for respondent no.3 and Mr. K.K. Parasar, learned Standing Counsel, NRC, appearing for respondent no.4.

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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 without issuing any formal notice to the respondents.

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In this petition, the petitioner has challenged the impugned ex parte order dated

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24.01.2019 passed by the Foreigners Tribunal No.5^th , Darrang, Assam in Case No. FT(V) 2359/2016 arising out of S.P. Enquiry No.35/11 declaring the petitioner a foreigner of post 1971 stream and in connection with which the petitioner was taken into custody and now he is in Central Jail of Tezpur. The Tribunal held that in spite of giving adequate opportunities, the petitioner failed to produce any reliable and trustworthy document before the Tribunal to prove his citizenship and accordingly, declared him foreigner who had entered to India through Assam after 25.03.1971.

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Learned counsel for the petitioner submits that though the Foreigners Tribunal No.5^th , Darrang had issued notice upon the petitioner thereby, directing him to appear before the Tribunal for filing written statement, the petitioner did not receive any notice from the Tribunal as the petitioner was not present in his residence and was in Karnataka for earning his livelihood. Learned counsel for the petitioner further submits that the Tribunal in its order dated 24.01.2019 has clearly mentioned that the process server could not trace out the proceedee and his house was also not there at the given address and as such, he affixed a copy of the notice in a conspicuous part i.e. in the Notice Board of No.5 Buruajhar Gaonpanchayat in presence of the witness. As such, it cannot be said that the notice was properly served to the petitioner. The petitioner states that he came to know about passing of the ex parte order only after obtaining the certified copy of the order in the month of May, 2022 and thereafter, he was arrested.

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Learned counsel for the petitioner submits that it is not the case that the petitioner had deliberately avoided notice of the Tribunal and he, otherwise has sufficient documents to prove that he is an Indian. In this regard, the petitioner has drawn the attention of this Court

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to the copies of the voters lists of 1966 and 1993 where the names of the petitioner’s projected grandfather’s and father’s appeared.

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Accordingly, it has been submitted that the petitioner may be granted another opportunity to appear before the Tribunal and prove his Indian citizenship.

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We are of the view that if the petitioner is able to prove that he is the son of Nur Islam, who is the son of Jamirondin, he can make a legitimate claim that he is an Indian and not a foreigner. Further, after perusal of the impugned order dated 24.01.2019 it has been observed that the notice was not served properly to the petitioner and we are afraid that such a mode of service of summon is not recognised in law.

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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 the 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

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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 evidences 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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Be that as it may, Mr. G. Sarma has fairly submitted before this Court that he has no objection if the case is remanded to the Tribunal for a fresh consideration as he also admits that the law does not recognize such a method of service of notice to a proceedee.

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Having considered the circumstances which led the petitioner not to appear before the Tribunal on the fixed dates, we are of the view that it is not a case of deliberate avoidance of the proceeding but for reasons which we find not to be unreasonable, particularly, considering the fact that the citizenship is an important right which ought to be decided on merit after hearing the person concerned 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 allow this application by setting aside the impugned opinion dated 24.01.2019 passed by the Foreigners Tribunal No.5^th , Darrang, Assam in Case No. FT(V) 2359/2016 arising out of S.P. Enquiry No.35/11. The petitioner shall appear before the concerned the Foreigners Tribunal No.5^th , Darrang, Assam and thereafter, the Tribunal will proceed with the matter in accordance with law. The petitioner may file his written statement and produce documents to prove that he is an Indian and not a foreigner.

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Since the petitioner is in jail, he shall be released by allowing him to go on bail on furnishing a bail bond of Rs.5,000/- (Rupees five thousand) with one surety of the like

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amount to the satisfaction of the Superintendent of Police (Border), Darrang. The concerned Superintendent of Police (Border) shall also take steps for capturing the fingerprints and biomertrics of iris of the petitioner. The petitioner also shall not leave the jurisdiction of Darrang district without furnishing the details of the place of destination and necessary information including contact number to the Superintendent of Police (Border), Darrang.

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The petitioner shall appear before the Foreigners Tribunal No.5^th , Darrang within 1 (one) month from the date of his release from the detention camp.

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Copy of this order be furnished to the Superintendent of Police (Border), Darrang as well as the Superintendent of Central Jail, Tezpur for doing the needful.

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With the above observations and directions, the present writ petition stands disposed of.

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JUDGE CHIEF JUSTICE (ACTING)

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Comparing Assistant

Anis Ali @ Anish Ali v. the Union of India and 5 Ors.

Case brief

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Anis Ali @ Anish Ali v. the Union of India and 5 Ors.

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