Allowed

Sukkur Ali and 7 Ors. v. the Union of India and 7 Ors.

Gauhati HC3 Jun 2022WP(C)/3545/2022

Case brief

AI extract

What is this about?

This writ petition challenges an ex parte declaration of foreign status by the Foreigners Tribunal, Silchar, passed due to lockdown-induced communication lapses. The High Court set aside the order, remanding the case for a rehearing, and directed the petitioner to appear with evidence. The Court also granted bail subject to police supervision.

What did the court decide?

Impugned order dated 01.01.2021 set aside and matter remanded to Foreigners Tribunal; bail granted.

Sukkur Ali and 7 Ors. Vs the Union of India and 7… — Writ and Judicial Review | Gauhati HC (2022)

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Page No.# 1/7

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GAHC010098122022

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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)/3545/2022

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SUKKUR ALI AND 7 ORS. S/O- LATE AYAZ ALI

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2: MONOMILA KHATUN W/O-SUKKUR ALI

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3: ABDUL SALAM S/O- SUKKUR ALI

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4: ABDUL ROHIM S/O- SUKKUR ALI

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5: HAIDOR HUSSAIN S/O- SUKKUR ALI

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6: ABDUL HASSAN S/O- SUKKUR ALI

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7: HASHINA BEGUM D/O- SUKKUR ALI

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8: SHAHJAHAN BADSHA S/O- SUKKUR ALI

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ALL ARE RESIDENTS OF VILL- DIGLIGAON P.S- JIRIGHAT DIST- CACHAR ASSA

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VERSUS

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THE UNION OF INDIA AND 7 ORS. REP. BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF

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Page No.# 2/7

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INDIA, NEW DELHI- 110001.

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2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6 3:THE ELECTION COMMISSION OF INDIA

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NIRVACHAN SADAN ASHOKA ROAD NEW DELHI-110001 4:THE STATE COORDINATOR NATIONAL REGISTER OF CITIZENS ASSAM 1ST FLOOR ACHYUT PLAZA G.S ROAD. BHANGAGARH GUWAHATI-05 DIST- KAMRUP (M)

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5:THE MEMBER FOREIGNERS TRIBUNAL TEZPUR 5TH AT BISWANATH CHARIALI BISWANATH DIST- BISWANAT ASSAM 6:THE DEPUTY COMMISSIONER CACHAR SILCHAR ASSAM 7:THE SUPERINTENDENT OF POLICE (B) SILCHAR DIST- CACHAR ASSAM 8:THE OFFICER IN CHARGE JIRIGHAT POLICE STATION DIST- CACHAR ASSA

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Advocate for the Petitioner : MR H R CHOUDHURY

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

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Page No.# 3/7

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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 Mr. H.R. Choudhury, learned counsel for the petitioners. 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.5, 7 & 8; Ms. U. Das, learned Government Advocate, Assam, appearing for respondent nos. 2 & 6, 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 petitioners have challenged the order dated 01.01.2021 passed by

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the Foreigners Tribunal 5^th , Silchar ISBT, Ramnagar, Silchar, Cachar, Assam in F.T. Case No.590/2016 (reference case No.1901/07 of Jirighat PS), declaring the petitioners as foreigners who had entered the territory of India (Assam) after 25.03.1971. In the impugned order it has been clearly mentioned that the proceedees did not come forward in a proper manner after duly receiving the notice and they had failed to give reply within time.

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Page No.# 4/7

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Accordingly, on the basis of the materials available on records, the Tribunal vide impugned order dated 01.01.2021 held that the proceedees are foreigners who entered the territory of India (Assam) after 25.03.1971.

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Learned counsel for the petitioners submits that after filing of written statement by the petitioner no.1, lockdown due to COVID pandemic was imposed due to which the Tribunal became non-functional. The petitioners were informed by their engaged counsel that as and when the Tribunal reopens, the petitioners will be informed by their engaged counsel and as such, they were under the bonafide impression that they will be informed by their engaged counsel on the reopening of the Tribunal and thus, they will attend the proceeding before the Tribunal. However, the petitioners did not receive any information from their counsel and later on, when they made an inquiry about the proceeding, they came to know about passing of the impugned order dated 01.01.2021 by the Tribunal.

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Learned counsel for the petitioners submits that the petitioners are illiterate persons who stay in a remote area and as such, they were not aware about reopening of the Tribunal and could not appear before the Tribunal though the Tribunal had granted several days for their appearance. They also could not get in touch with their engaged counsel and neither their engaged counsel contacted them. Thus, due to the communication gap arising out of the lockdown, the petitioners failed to appear before the Tribunal resulting in passing of the ex parte order.

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Learned counsel for the petitioners submits that petitioners have otherwise all the necessary documents in their possession to prove that they are Indian citizens and not foreigners. In this respect the petitioners have produced before this Court the voters lists of

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Page No.# 5/7

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1966 where the name of one Ayaz Ali, whom the petitioner no.1 claims to be his father, appeared under Sl. No.13 of 6-North Karimganj Assembly Constituency, Section- Bhilorgaol, Sub-Division-Karimganj, District-Cacahr and 1985 voters list where the name of said Ayaz Ali, whom the petitioner no.1 claims to be his father, appeared under Sl. No.9 of 3 North Karimganj Assembly Constituency, Section Vithargool, Sub-Division Karimganj, DistrictKarimganj and one Final Khatian issued under Sylhet Tenancy Act, 1936 to his projected grandfather, namely, late Monai Mia and Ors. The petitioner no.1 has also annexed the final list of NRC where his name along with his other family members appeared. Voters lists of 2013, 2014 & 2019 are also annexed. Learned counsel for the petitioners submits that the petitioners have no knowledge about the significance of the proceeding before the Foreigners Tribunal and as such, they may be given another opportunity to prove before the Tribunal that they are Indians and not foreigners

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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 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

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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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Having considered the aspect which led the petitioners 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 the 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. In the present case we find that there was no effective hearing of the petitioners before the impugned order was passed. Under these circumstances, we are of the opinion that the petitioners may be given another opportunity to prove that they are Indians and not foreigners.

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In view of above, we allow this application by setting aside the impugned order dated

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01.01.2021 passed by the Foreigners Tribunal 5^th , Silchar ISBT, Ramnagar, Silchar, Cachar, Assam in F.T. Case No.590/2016 (reference case No.1901/07 of Jirighat PS), and remand the matter to the Foreigners Tribunal 5^th , Silchar ISBT, Ramnagar, Silchar, Cachar, to decide the matter afresh. The petitioners may file written statement, produce necessary documents and adduce evidence to prove that they are Indian and not foreigners.

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Accordingly, the petitioners are directed to appear before the concerned Foreigners

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Tribunal on 18.07.2022 and thereafter, the Tribunal will proceed with the matter in accordance with law.

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We are also of the view that since the citizenship of the petitioners have come under cloud, the petitioners shall appear before the Superintendent of Police (Border), Silchar and will remain on bail on furnishing a bail bond of Rs.5000/- (Rupees five thousand) only each with one surety of the like amount to the satisfaction of the Superintendent of Police (Border), Silchar till disposal of the reference. The concerned Superintendent of Police (Border) shall also take steps for capturing the fingerprints and biometrics of the iris of the petitioners, if so advised.

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The petitioners shall not leave the jurisdiction of Cachar District without giving details of the place of destination and his place of stay to the Superintendent of Police (Border), Silchar.

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

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of.

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

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JUDGE CHIEF JUSTICE (ACTING)

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Comparing Assistant

Sukkur Ali and 7 Ors. v. the Union of India and 7 Ors.

Case brief

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What did the court decide?

Sukkur Ali and 7 Ors. v. the Union of India and 7 Ors.

Case brief

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