Remanded

Rasida Khatun @ Rachida Khatun and 5 Ors. v. the Union of India and 5 Ors.

Gauhati HC25 Apr 2022WP(C)/4621/2018

Case brief

AI extract

What is this about?

Petitioners challenged an ex parte order declaring them foreigners of the post-1971 stream. The High Court set aside the decree, emphasizing the critical importance of citizenship, and remanded the matter to the Foreigners Tribunal to decide afresh after providing the petitioners an opportunity to present evidence.

What did the court decide?

Ex parte order dated 10.09.2012 set aside; matter remanded to Foreigners Tribunal (1st), Morigaon for fresh hearing after opportunity to file written statements and produce evidence.

Rasida Khatun @ Rachida Khatun and 5… — Constitutional and Fundamental Rights | Gauhati HC (2022)

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GAHC010148772018

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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)/4621/2018

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RASIDA KHATUN @ RACHIDA KHATUN AND 5 ORS. W/O- LT JAYNUDDIN @ JAINUDDIN, D/O- LT ABDUL KADIR @ A. KADIR, VILL- SILCHANG, P.O. SILCHANG, MAYANG DEVELOPMENT BLOCK, DISTMORIGAON, ASSAM, PIN- 782412

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2: IBRAHIM ALI S/O- LT JAYNUDDIN @ JAINUDDIN VILL- BASUNDHARI P.O. NELLIE P.S. JAGIROAD DIST- MORIGAON ASSAM PIN- 782412

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3: AINUL HOQUE S/O- LT JAYNUDDIN @ JAINUDDIN VILL- BASUNDHARI P.O. NELLIE P.S. JAGIROAD DIST- MORIGAON ASSAM PIN- 782412

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4: JAYNAL ABADDIN S/O- LT JAYNUDDIN @ JAINUDDIN VILL- BASUNDHARI P.O. NELLIE P.S. JAGIROAD DIST- MORIGAON ASSAM PIN- 782412

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5: KHAIRUL ISLAM S/O- LT JAYNUDDIN @ JAINUDDIN

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VILL- BASUNDHARI P.O. NELLIE P.S. JAGIROAD DIST- MORIGAON ASSAM PIN- 782412 6: KHALEDA KHATUN D/O- LT JAYNUDDIN @ JAINUDDIN VILL- BASUNDHARI P.O. NELLIE P.S. JAGIROAD DIST- MORIGAON ASSAM PIN- 78241 VERSUS

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THE UNION OF INDIA AND 5 ORS.

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REP. BY THE COMM. AND SECY. TO THE GOVT. OF INDIA, HOME DEPTT., NEW DELHI-1, INDIA

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2:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-6

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3:THE STATE CO-ORDINATOR NATIONAL REGISTER OF CITIZENS (NRC) ASSAM ACHYUT PLAZA BHANGAGARH GHY-5 ASSAM

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4:THE ELECTION COMMISSION OF INDIA TO BE REP. BY THE COMM. NIRVACHAN SADAN ASHOKA ROAD DELHI 110001 5:THE DY. COMMISSIONER MORIGAON DIST- MORIGAON ASSAM

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6:THE SUPERINTENDENT OF POLICE (B)

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MORIGAON DIST- MORIGAON ASSA

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Advocate for the Petitioner : MD E AHMED

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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 HON’BLE MR. JUSTICE NANI TAGIA

order

(oral)

25-04-2022

[N. Kotiswar Singh, J]

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Heard Mr. Z. Hammad, 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.3 and Ms. U. Das, learned Government Advocate, Assam, appearing for respondent nos.2 & 5.

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In this petition the petitioners have challenged the ex parte order dated 10.09.2012

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passed by the Foreigners Tribunal (1^st ), Morigaon in F.T.(C) No.177/2012 arising out of IM(D)T Case No.206/2002 declaring the petitioners as foreigners of post 1971 stream. The Foreigners Tribunal mentioned that in spite of giving various opportunities, the petitioners could not file their written statement in time and accordingly, the Tribunal proceeded ex parte against the petitioner vide impugned order dated 10.09.2012. The Tribunal on the basis of

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the materials available on record held that the petitioners are foreigners of post 1971 stream.

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Learned counsel for the petitioners submits that the petitioners duly received notice

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from the Tribunal and appeared before the Tribunal and prayed for time to file written statements. Learned counsel for the petitioners further submits that though their prayer was granted by the Tribunal, the petitioners could not file their written statements on the given dates as they could not obtain all the relevant documents in time, resulting in passing of the impugned ex parte order 10.09.2012. It is the grievance of the petitioners that the engaged counsel, who was representing them before the Tribunal also did not inform them about the consequence of non-filling of written statements on the fixed dates by the Tribunal and the petitioners also remained out of State for earning their livelihoods. Later on, coming to know about the ex parte order dated 10.09.2012 was passed by the Tribunal, the petitioners have approached this Court by filing the present writ petition.

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Learned counsel for the petitioner submits that petitioners have 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 list of 1970 where the name of one Abdul Kadir, whom the petitioner no.1 claims to be her father, appeared. Similarly, the voters list of 1971 where the name of one Naimuddin, whom the petitioner nos. 2 to 6 claim to be their grandfather, appeared and the voters list of 1997 where the father of the petitioner nos. 2 to 6, namely, Jayuddin @ Jainuddin, appeared. The petitioners have also relied on several certificates issued by the Gaonburah to show that the petitioners are genuine Indians and not foreigners. Learned counsel for the petitioners submits that the petitioners are financially very poor and have no knowledge about the significance of the

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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 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, after hearing the parties and on perusal of the LCR, we are inclined to grant another opportunity to the petitioners to prove that the petitioners are Indians and not foreigners, particularly, considering the fact that the citizenship is an important right which

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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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7 In view of above, the matter is remanded to the Foreigners Tribunal (1^st ), Morigaon, Assam, to decide the matter afresh and accordingly, the ex parte order dated 10.09.2012 passed by the Foreigners Tribunal (1^st ), Morigaon in F.T.(C) No.177/2012 arising out of IM(D)T Case No.206/2002 is set aside, however, subject to condition of payment of cost of Rs.5000/- (Rupees One Thousand) only by the petitioners to be deposited to the Gauhati High Court Legal Aid Committee. The Tribunal shall allow the petitioners to file written statements, produce necessary documents and adduce evidence to prove that they are Indians and not foreigners.

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Accordingly, the petitioners are directed to appear before the concerned Foreigners Tribunal on 27.05.2022 and thereafter, the Tribunal will proceed with the matter in accordance with law.

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It is made clear that since the nationality of the petitioners have come under cloud, they will be allowed to remain on bail on furnishing a bail bond of Rs.5,000/- (Rupees five thousand) each with one surety of the like amount to the satisfaction of the Superintendent of Police (Border), Morigaon during the pendency of the proceeding before the Tribunal. The concerned Superintendent of Police (Border) shall also take steps for capturing the fingerprints and biomertrics of iris of the petitioners. The petitioners also shall not leave the jurisdiction of Morigaon district without furnishing the details of the place of destination and necessary information including contact number to the Superintendent of Police (Border), Morigaon.

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Copy of this order be furnished to the Superintendent of Police (Border), Morigaon for

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doing the needful.

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Let the LCR of the Foreigners Tribunal (1^st ), Morigaon, be remitted forthwith.

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JUDGE JUDGE

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Comparing Assistant

Rasida Khatun @ Rachida Khatun and 5 Ors. v. the Union of India and 5 Ors.

Case brief

What is this about?

What did the court decide?

Rasida Khatun @ Rachida Khatun and 5 Ors. v. the Union of India and 5 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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