High Court
Case Details
WP(C) 1669/2012 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER (ORAL)
Decision
Both the writ petitions involve identical facts and common questions of law and hence were heard together and being disposed of by this common judgment and order. The writ petitioner in W.P.(C) No. 1668/2012 Smti Jotsna Barman was decl 2. ared as an illegal migrant of post 1971 in F.T. Case No. 225(III)/2007 arising o ut of I.M.(D).T Reference Case No. 427/2004 by the Foreigners Tribunal - III, Ba rpeta vide judgment and order dated 29.12.2007, while the writ petitioner in W.P .(C) No. 1669/2012 Smti Kalyani Barman was declared an illegal migrant of post 1 971 in F.T. Case No. 337(III)/2007 arising out of I.M.(D).T Reference Case No. 4 26/2004 vide judgment and order dated 29.12.2007. 3. In both the cases the writ petitioners were declared foreign nationals i n ex-parte proceedings as they did not appear before the learned Tribunal in cou rse of the proceeding and the learned Tribunal solely relying upon the evidence of the investigating police officer to the effect that the opposite parties coul d not produce any document before him in course of enquiry had adjudged both the writ petitioners as foreigners who had entered into Assam after 25.03.1971. 4. The case of the writ petitioner in W.P.(C) No. 1668/2012 is that the nam e of her father was enrolled in the Voters List as a voter in the year 1965 unde r the then No. 69 Paneri Legislative Assembly Constituency (LAC for short), whic h has been subsequently delineated as No. 31 Sidli (SC) LAC. The petitioner was later on married to one Sri Prabhat Barman of village Balimari under P.S. Patach arkuchi, District Barpeta in the year 1998 and her name was also enrolled in the voters list of No. 41 Bhawanipur LAC in the year 2011. The writ petitioner has stated on oath in the writ petition, particularly at paragraphs 5 and 8 thereof that she was never served with any notice of the proceedings against her by the Foreigners Tribunal. 5. The writ petitioner in W.P.(C) No. 1669/2012 also claims that the name o f her father was enrolled in the Voter’s List of 1966 onwards under No. 48 Bhawa nipur LAC. The Petitioner was born at village Puthimari under Patacharkuchi P.S. , District Barpeta and she was married to one Sri Amulya Barman and subsequently her name was enrolled in the Voter’s List of Bhawanipur LAC in the year 2011. T he writ petitioner has stated on oath in the writ petition, particularly at para graphs 5 and 8 thereof that she was never served with any notice of the proceedi ngs against her by the Foreigners Tribunal. 6. It is the specific case of both the writ petitioners that had they been aware about the proceedings before the Tribunal, they would have contested the s ame, they being bonafide Indian citizen. Thus being aggrieved with the aforesaid judgment and order passed by the learned Tribunal, declaring them to be foreign ers entered into Assam after 25.03.1971, the writ petitions are filed praying fo r setting aside the impugned ex-parte order dated 29.12.2007 passed in the FT Ca se No.225(III)/2007 and FT Case No.337(III)/2007. 7. I have heard Mr. D Sur, learned counsel appearing for the petitioner. Al so heard Ms. B Dutta, learned State counsel, appearing for respondent Nos. 1 to 4 and Mr. M Bhagawati, learned Central Government counsel appearing for responde nt No.5. Perused the materials on record including the records of the Foreigners Tribunal. Respondent Nos. 2, 3 and 4 in their affidavit-in-opposition filed in W.P.(C) No. 1668/2007 have made general assertions that the writ petitioner did not appear before the learned Tribunal inspite of service of notice to her while the affidavit-in-opposition in W.P.(C) No. 1669/2007 is virtually silent regard ing the specific plea of non-service of notice. 8. After going through the records of the Tribunal, it transpires that noti ce on Smti. Jotsna Barman (Petitioner in W.P.(C) No. 1668/2007) was said to be s erved on her husband Sri Prabhat Barman. There is no endorsement to the effect o f service of notice on the person concerned i.e., Smti Jotsna Barman. However, t his was taken to be a proper service by the learned Member of the Tribunal vide his order dated 29.10.2007. As regards the case against Smti Kalyani Barman (Pet itioner in W.P.(C) No. 1669/2007) by an order dated 22.08.2007 the learned Membe r of the Tribunal had recorded that notice was returned after proper service but the O.P. was absent without steps and hence passed the order that the case woul d proceed ex-parte. The returned copy of the notice contains signature of Sri Am ulya Barman and a Right Thumb Impression (RTI for short) said to be of Smti Kaly ani Barman. It is not understood as to why the notice had to be served on Amulya Barman if Kalyani Barman herself was present. Further, there is also no explana tion as to who had identified the RTI of Kalyani Barman. The report of the Proce ss Server does not throw any light on the above context. Neither the Process Ser ver was examined by the Tribunal nor the report of the Process Server was verifi ed in any manner or accompanied by any affidavit. None of these can be held to be a service (cid:28)on the person to whom the question relates (cid:29), as mandated under Cla use 3(1) of the Foreigners (Tribunal for Assam) Order, 2006 (Order 2006 for shor t). Clause 3(1) being relevant is quoted hereunder: (cid:28)3. Procedure for disposal of questions.-(1) The Tribunal, upon receipt of a ref erence under sub-clause (1) of Cl.2. shall consider whether there is sufficient ground for proceeding and if the Tribunal is satisfied that basic facts are prim a facie established, it shall serve on the person to whom the question relates, a copy of the main grounds on which he is alleged to be a foreigner and give him a reasonable opportunity of making a representation and producing evidence in s upport of his case and after considering such evidence as may be produced and af ter hearing such person as may desire to be heard, the Tribunal shall submit its opinion to the officer or authority specified in this behalf in the order of re ference. (cid:29) 9. From a bare perusal of Clause 3(1) of order 2006, it would reveal that t he usual concept of service of notice on any member of the family cannot be impo rted in the case of Foreigners Tribunal in the matter of determination of citize nship of a person in view of the specific mandate of service of notice (cid:28)on the p erson to whom the question relates (cid:29) and also the severe consequences that may fo llow in the event of adverse determination of the question of citizenship agains t a person ex-parte. Consequently, the ex-parte proceedings against the writ petitioners culm inating in the judgment and orders dated 29.12.2007 passed therein by the Foreig ners Tribunal cannot be sustained in law and liable to be set aside. 10. The question of determination of citizenship of a person in a country st rikes upon the very root of right of such person emanating from the Constitution and other laws in force in the country. Any doubt cast upon a person regarding his/her citizenship status stigmatizes him/her and causes the potential to affec t his/her fundamental rights. As such, determination of citizenship status of a person is of immense consequence and has to be proceeded strictly in accordance with law so as to afford all opportunity to such a person to prove his/her citiz enship credential, more so, as the law in vogue mandates that the burden of proo f of citizenship lies on the person against whom, he/she being a foreigner is al leged. 11. This Court in course of judgment and order dated 04.02.2012 passed in W. P.(C) 1484/2010 (Rahmat Ulla Vs. Union of India & Ors.) had occasion to decide t hat in terms of the provisions of Clause 3(1) of Order, 2006 a Tribunal can proc eed on determination of the question of citizenship only upon satisfaction of th e fact that service upon the person to whom question of citizenship relates has been served a copy of the main grounds on the basis of which the citizenship sta tus of such person has been questioned. As the provision is mandatory the Tribun al could pass an order ex-parte only if it records satisfaction to the effect th at the notice has either been served upon the person or a substituted notice has been served in manners provided under law. In the said case, the notice served upon a person said to be the uncle of the petitioner was held to be non service of notice on the person concerned. 12. On the question of affording reasonable opportunity to a person in a pro ceedings before the Foreigner’s Tribunal, it has been held in the judgment and o rder dated 1.07.1996 in the case of Kamal Debnath and others Vs. Member, Foreign ers Tribunal, Guwahati and others, reported in 1996(3)GLT 350 that considering t he consequences of an adverse determination by the Foreigners Tribunal in ex-par te order, opportunity of hearing should be given to a person who for satisfactor y reasons was prevented from adducing evidence on his/her behalf before the Trib unal. This court is also conscious of the Full Bench Decision of this Court on t his context reported in 2013(1) GLT (FB) 809 (State of Assam and others Vs Mosle m Mondal and others). 13. In the case at hand, the manner in which the Tribunal has proceeded in d etermining the reference in ex-parte proceeding cannot be held to be proper, par ticularly in view of the provisions as quoted hereinabove i.e. Clause 3(1) of Or der 2006 regarding service or otherwise of the notices issued by it to the perso ns against whom references have been drawn up. 14. That being the position, without going to the merits of the case, the or der dated 29.12.2007 passed by the learned Member, Foreigners Tribunal-III, Barp eta in FT Case No.225 (III)/2007 arising out of IM(D)T. Reference Case No.426/20 04 declaring the petitioners Smti Jotsna Barman in WP(C) No.1668/2012 and Smti K alyani Barman, in WP(C) No.1669/2012 as foreigners is set aside. Accordingly, th e matter is remitted to the learned Member, Foreigners’ Tribunal - III, Barpeta for deciding the said proceeding afresh. 15. The writ petitioners having full knowledge of the proceedings before the m shall now appear before the learned Foreigner’s Tribunal - III at Barpeta on 1 4th of June, 2013 whereupon the grounds on which they are alleged to be foreigne rs shall be served upon them and reasonable opportunities for making representat ions and producing evidences in support of their cases shall be given to them an d only after hearing such persons, the Tribunal shall pass its fresh orders in a ccordance with law within a period of 3(three) months from the date of appearanc e of the petitioners as fixed hereinabove. 16. Mr. Sur, learned counsel appearing for the petitioners has submitted tha t the petitioners have been taken into custody and presently they are in the det ention camp at Kokrajhar. The Superintendent of Police, Kokrajhar as well as the Officer-in-Charge of the detention camp at Kokrajhar are, therefore, directed t o release the petitioners from custody forthwith, making it clear that during th e pendency of the proceeding before the learned Tribunal, the petitioners shall not leave the State of Assam without obtaining written permission from the learn ed Member, Foreigners Tribunal-III, Barpeta. The petitioners are further directe d to appear before the Officer-in-Charge of the jurisdictional Police Station fo rtnightly. The Registry is directed to send down the records to the learned Members 17. , Foreigners Tribunal, Barpeta forthwith so as to reach the Office of the Tribun al on or before 27th May, 2013. 18. ections. However there shall be no order as to costs. Both the writ petitions are hereby allowed in terms of the aforesaid dir