Allowed

Sasadhar Mandal @ Shashadhar Mandal v. the Union of India and 6 Ors.

Gauhati HC14 Jun 2022WP(C)/5534/2019

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a writ petition challenging an ex parte order declaring the petitioner a foreigner. The Court remanded the matter to the Foreigners Tribunal to consider the petitioner's evidence on merit and directed the Tribunal to proceed afresh with the petitioner present.

What did the court decide?

Application allowed; ex parte order set aside; matter remanded to Foreigners Tribunal for fresh adjudication on merits; petitioner granted bail.

Sasadhar Mandal @ Shashadhar Mandal Vs the Union of India and 6 Ors. — Gauhati HC (2022) — LawSathi Research

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GAHC010176562019

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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)/5534/2019

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SASADHAR MANDAL @ SHASHADHAR MANDAL S/O- LT.JOGINDRA MANDAL @ YOGINDRA MANDAL @ JAGENDRA MANDAL, VILL. ROHNIBIL, P.O. AND PS THELAMARA, DIST. SONITPUR, ASSAM, PIN- 784149.

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VERSUS

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THE UNION OF INDIA AND 6 ORS.

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REP. BY THE SECRETARY, HOME AFFAIRS, NEW DELHI, DELHI- 01.

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2:THE STATE OF ASSAM

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR

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GUWAHATI-06.

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

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4:THE SPECIAL COUNSEL OF NRC GOVT. OF ASSAM. GHY.-01

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5:THE SPECIAL COUNSEL OF FOREIGNERS TRIBUNAL GOVT. OF ASSAM. GHY.-01

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6:THE SUPERINTENDENT OF POLICE BORDER SONITPUR ASSAM PIN- 784001.

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7:THE DEPUTY COMMISSIONER

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DISTRICT SONITPUR ASSAM PIN- 784001

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Advocate for the Petitioner : MR S C DAS

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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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14-06-2022

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[N. Kotiswar Singh, CJ (Acting)]

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Heard Mr. S.C. Das, learned counsel for the petitioner. Also heard Mr. K.K. Parasar, learned CGC appearing for respondent no.1; Mr. J. Payeng, learned Special Standing Counsel, F.T. appearing for respondent no.5 & 6; Ms. U. Das, learned Government Advocate, Assam, appearing for respondent nos.2 & 7, 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, namely, Sri Sasadhar Mandal @ Shashadhar was proceeded ex parte before the Foreigners Tribunal No.8, Tezpur, Assam in F.T.(8) Case No.1315/2011. Vide

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impugned ex parte order dated 29.08.2018, the Tribunal held that the proceedee/petitioner failed to appear before the Tribunal on various occasions to submit his written statement and as such, the proceedee/petitioner had failed to discharge his burden under Section 9 of the Foreigners Act, 1946, to prove that he is not a foreigner but a citizen of India and accordingly, the Tribunal on the basis of the materials available on record declared him a foreigner who came to Assam (India) illegally on or after 25.03.1971.

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Learned counsel for the petitioner submits that after receipt of the notice from the Tribunal on 24.01.2018, he engaged a counsel but because of his extreme poverty, he could not pay fees to the counsel, leading to the withdrawal of the Vakalatnama of his counsel and as a result, as the petitioner continuously remained unrepresented before the Tribunal and the Tribunal proceeded ex parte against him. Learned counsel for the petitioner also submits that as the petitioner is an illiterate person, he has no knowledge about the significance of the proceeding before the Foreigners Tribunal. The learned counsel for the petitioner submits that the petitioner in para-7, 8 & 9 of the petition has clearly mentioned the reasons due to which he remained absent before the Tribunal on the fixed dates. It has also been submitted that the petitioner was not aware of any such scheme of providing free legal aid to the poor section of the society and as such, he could not avail the benefit under the Legal Service Authorities Act, 1987.

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Learned counsel for the petitioner submits that otherwise, the petitioner has sufficient documents to prove that he is an Indian citizen and not a foreigner and as such, the learned counsel for the petitioner submits that the petitioner may be given another opportunity to appear before the Tribunal to prove his citizenship as the absence of the petitioner before the Tribunal at the time of proceeding was not deliberate but for reasons beyond his control as he

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was not aware of the proceedings before the Tribunal. In this regard, the petitioner has drawn attention of this Court to the certain documents i.e. Certificate of Registration issued by the Additional Deputy Commissioner, Nowgaon, Assam in favour of one Sri Hiradhar Mondal, whom the petitioner claims to be his brother, where the petitioner’s name also appeared, voters list of 1977 where the name of his projected brother Hiradhar Mondal appeared and the voters lists of 1997, 2005, 2013 etc where his name along with his brother’s name appeared. Accordingly, the learned counsel for the petitioner submits that if the aforesaid documents can be proved by the petitioner, he can make a legitimate claim that he is an Indian and not a foreigner. 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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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 been objected seriously by the learned Special Standing Counsel, F.T., we are of the view that the petitioner should be allowed to prove his case before 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 No.8, Tezpur, 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.

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With the above observation and direction, we allow this application by setting aside the impugned opinion dated 29.08.2018 passed by the Foreigners Tribunal No.8, Tezpur,

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Assam in F.T.(8) Case No.1315/2017.

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Accordingly, the petitioner is directed to appear before the Foreigners Tribunal No.8, Tezpur, on 19.07.2022 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), Sonitpur, 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), Sonitpur 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 petitioner, if so advised.

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

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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), Sonitpur for doing the needful.

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JUDGE CHIEF JUSTICE (ACTING)

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Comparing Assistant

Sasadhar Mandal @ Shashadhar Mandal v. the Union of India and 6 Ors.

Case brief

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Sasadhar Mandal @ Shashadhar Mandal v. the Union of India and 6 Ors.

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