Allowed

Sahidulla @ Md. Julhas Ali v. the Union of India and 5 Ors.

Gauhati HC3 Jun 2022WP(C)/3550/2022

Case brief

AI extract

What is this about?

The Gauhati High Court disposed of a writ petition filed by a petitioner declared a foreigner of post 1971 by an ex parte Foreigners Tribunal order. The Court allowed the petition, setting aside the ex parte order and remanding the matter to the Tribunal for a fresh hearing on merits, while granting bail subject to specific conditions.

What did the court decide?

The impugned ex parte order of 17.11.2014 is set aside and the matter is remanded to the Foreigners Tribunal for reconsideration on merits. The petitioner is granted bail subject to specific condition

Sahidulla @ Md. Julhas Ali Vs the… — Constitutional and Fundamental Rights | Gauhati HC (2022)

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GAHC010102082022

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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)/3550/2022

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SAHIDULLA @ MD. JULHAS ALI

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S/O LATE HASEN ALI, R/O VILL-BAGICHA KASH, 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

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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-78411

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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 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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The present petitioner, Sahidulla @ Md. Julhas Ali was proceeded ex parte before the

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Foreigners Tribunal 3^rd , Darrang, Mangaldoi, Assam in FT 3^rd Case No.511/2012, declaring him to be a foreigner of post 25.03.1971 vide impugned order dated 17.11.2014. The Foreigners Tribunal mentioned that the proceedee (petitioner herein) was absent on various occasions, though notice was duly served upon Safiullah, elder brother of the proceedee and accordingly, the Tribunal proceeded ex parte against the petitioner vide impugned order dated 17.11.2014. The Tribunal on the basis of the materials available on record held that the petitioner is a foreigner of the stream post 1971.

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The plea of the petitioner herein is that the petitioner was not aware of the notice as well as the trial because at the time of proceeding he was in Karnata to earn his livelihood. However, though notice was served upon his brother, he did not inform him about the notice and as such, the petitioner remained absent/unrepresented in the proceeding. The petitioner submits that he came to know about the decision of the said proceeding only in the month of February, 2022 after returning his home from Karnataka and thereafter, he obtained the certified copy of the order dated 17.11.2014 on 22.04.2022 and accordingly, the petitioner has filed this application before this Court seeking setting aside the impugned ex parte order dated 17.11.2014 passed by the Tribunal.

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The petitioner claims that he is a genuine Indian Citizen and not a foreigner and has sufficient documents in his possession to show that he is not a foreigner. In this regard, the petitioner has drawn attention of this Court to the voters lists of the years 1966, 1971, 1997, 2005 etc in which the names of his grandfather and his father appeared and later his name also appeared and submits that he is ready to prove all these documents in support of his claim. However, these are the factual aspects which ought to be considered by the Foreigners Tribunal and not by this Court at the first instance.

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The only issue before us is to whether we should interfere with the ex parte opinion dated 17.11.2014 or not. Having considered the circumstances which led to the passing of the ex parte order and considering the materials which the petitioner seeks to rely in support of his claim that he is an Indian, and as the petition has not being objected seriously by the learned Special Counsel, F.T., we are of the view that the petition should be allowed by remitting to the Tribunal. We are of the opinion that in the matter relating to determination of the citizenship, such an issue ought to be decided on merit rather than by way of default as has happened in the present case.

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In view of above, we deem it appropriate to remand the matter to the Foreigners Tribunal 3^rd , Darrang, Mangaldoi, Assam for reconsideration and decide the matter afresh on the basis of the written statement and evidence that may be adduced by the petitioner in this regard and we accordingly do.

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With the above observation and direction, we allow this application by setting aside

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the impugned opinion dated 17.11.2014 passed by the Foreigners Tribunal 3^rd , Darrang, Mangaldoi, Assam in FT 3^rd Case No.511/2012.

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Accordingly, the petitioner is directed to appear before the Foreigners 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 opinion that since the citizenship of the petitioner has come under cloud, the petitioner shall appear before the Superintendent of Police (Border), Darrang, but the petitioner will not be detained and will remain on bail on furnishing a bail bond of Rs.5000/- (Rupees five thousand) with one local surety of the like amount to the satisfaction of the Superintendent of Police (Border), Darrang till disposal of the reference. The concerned

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Superintendent of Police (Border) shall also take steps for capturing the fingerprints and biometrics of the iris of the petitioner, if so advised.

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

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It is made clear that if the petitioner fails to appear before the Foreigners Tribunal, Darrang on 18.07.2022, the earlier ex parte order passed by the Foreigners Tribunal 3^rd , Darrang, Mangaldoi, Assam in FT 3^rd Case No.511/2012 on 17.11.2014 shall stand revived and the order of bail passed by this Court today will stand vacated and law will take its own course.

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

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

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JUDGE CHIEF JUSTICE (ACTING)

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Comparing Assistant

Sahidulla @ Md. Julhas Ali v. the Union of India and 5 Ors.

Case brief

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Sahidulla @ Md. Julhas Ali v. the Union of India and 5 Ors.

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