High Court · 2009

2. I have heard Mr. MH Choudhury, the learned counsel for the petit ioners and Mrs. HM Phookan, the learned State Counsel appearing on behalf of all the respondents.

3. No affidavit-in-opposition has been filed by the respondents tho ugh vide order dated 14-09-2009 notice of motion was issued and the learned Addi tional Sr. Government Advocate accepted notice on behalf of all the respondents and vide order dated 31-10-2009 while issuing rule, the Court directed listing o f this case today, i.e. on 26-11-2009, for hearing.

4. It appears from the records of FT Case No.251/2009 that the Supe rintendent of Police (B), Nagaon, Assam on the basis of the enquiry made by him made a reference to the learned Foreigners’ Tribunal, Nagaon for a trial allegin g that (i) the petitioners entered into India in between 1966-71; (ii) they are ordinarily residing in Assam since their entry and (iii) they are detected to be foreigners. The relevant portion of the said reference is quoted below:- (cid:28)So, I refer the case to the Foreigners’ Tribunal, Nagaon for trial as per provi sions of Foreigner Act, 1946/Foreigner (Tribunal) Order, 1964 and Citizenship (A mendment) Act, 1985 with triple criteria, i.e. The persons entered into India in between 1966-71; (1) (2) The persons ordinarily resident of Assam since their entry; (3) The persons detected as foreigners. (cid:29)

5. On the basis of such reference, FT Case No.251/1990 had been reg istered by the learned Foreigners’ Tribunal, Nagaon and notices were issued. Th e petitioners received the notices and entered appearance but did not file any w ritten statement. The petitioner, however, subsequently did not appear before t he learned Tribunal, which necessitated the learned Tribunal to proceed ex-parte against the petitioners. The learned Tribunal thereafter, vide order dated 06-0 3-2008 declared the petitioners to be foreigner coming into India in (cid:28)1966-1971 stream (cid:29) without, however, indicating as to whether the petitioners entered into India before 25-03-1971 or thereafter.

6. It appears from the records of the learned Tribunal that the pet itioners though initially appeared pursuant to the notices issued, have chosen n ot to contest the proceeding before the learned Tribunal for the reasons best kn own to them. The petitioners having not filed the written statement and not app earing before the learned Tribunal, no fault can be found with the learned Tribu nal for proceeding ex-parte against the petitioners. However, whenever Court or Tribunal proceeds ›ex-parte against any one, the burden of the Court or Tribuna l increases. The Court or Tribunal should be more careful in passing the order i n such proceeding, which proceeded ex-parte. In the instant case, the learned T ribunal has recorded the finding that the petitioners’ (cid:28)are foreigners of the 19 66-71 stream (cid:29), without, however, recording any finding as to whether the petitio ners came into India before 25-03-1971 or thereafter. Such a finding is very mu ch material in view of the provisions contained in Section 6 (A) of the Citizens hip Act, 1955 (in short, (cid:28)the Act (cid:29)). 7. Section 6A of the Act, which has been inserted by Act 65 of 1985 (with effect from 07-12-1985) provides special provisions as to citizenship of persons covered by Assam Accord. Sub-Section (3) of Section 6A of the Ac t provides that subject to the provisions of Sub-Sections (6) and (7), every per son of Indian origin who (a) came to Assam on or after the 1st day of January, 1 966 but before the 25th day of March, 1971 from the specified territory; (b) has , since the date of his entry into Assam, been ordinarily resident in Assam; and (c) has been detected to be a foreigner, shall register himself in accordance w ith the rules made by the Central Government in this behalf under Section 18 wit h such authority as may be specified in such rules and if his name is included i n any electoral roll for any Assembly or Parliamentary constituency in force on the date of such detection, his name shall be deleted therefrom. The explanatio n to Sub-Section (3) provides that the opinion of the Tribunal constituted under the Foreigners (Tribunals) Order, 1964 holding any person to be a foreigner, sh all be deemed to be sufficient proof of the requirement under clause (c) of the sub-section and if any question arises as to whether such person complies with a ny other requirement under the sub-Section, the registering authority shall (i) if such opinion contains a finding with respect to such other requirement, decid e the question in conformity with such finding and (ii) if such opinion does not contain a finding with respect to such other requirement, refer the question to a Tribunal constituted under the said Order having jurisdiction in accordance w ith such rules as the Central Government may make in this behalf under Section 1 8 and decide the question in conformity with the opinion received on such refere nce. Sub Section (4) of Section 6A of the Act provides that from the date on wh ich the person has been detected to be a foreigner till the expiry of a period o f 10 (ten) years from that date, such person shall have the same rights and obli gations as a citizen of India including the right to obtain a passport under the Passport Act, 1967 and the obligations connected therewith, but shall not be en titled to have his name included in any electoral roll for any Assembly or Parli amentary constituency at any time before the expiry of the said period of ten ye ars. Sub Section (5) of that Section provides that a person registered under Su b-Section (3) shall be deemed to be a citizen of India for all purposes as from the date of expiry of a period of 10 (ten) years from the date on which he has b een detected to be a foreigner. The person declared to be a foreigner coming to India from the specified territory between 01-01-1966 to 25-03-1971 and who hav e been ordinarily resident of Assam since their entry are required to file appli cation for registration of his name within 30 (thirty) days from the date of suc h detection as foreigner under Rule 16F of the Citizenship Rules, 1956 (as amend ed in 2005). The Registering Authority, however, has the power to extend the sai d time not exceeding 60 (sixty) days for the reasons to be recorded in writing. The question, whether the Writ Court can extend such period when the legislatur e has given the maximum time which can be extended under the Rules, has not been gone into in the present case.

8. As noticed above, the learned Tribunal has not recorded any find ing as to whether the petitioners entered into India before 25-03-1971 or therea fter. The finding on such issue is very material as the petitioners either shal l be entitled to get their names registered as required under the Act and the Ru les framed thereunder or have to be deported from India.

9. In view of the above, the order dated 06-03-2008 passed by the l earned Tribunal is set aside. The matter is remitted to the learned Tribunal fo r fresh disposal. The learned Tribunal shall record the finding as to whether t he petitioners entered into India between 01-01-1966 and 25-03-1971 or thereafte r and shall pass necessary order. The petitioners are directed to appear before the learned Tribunal on 7th December, 2009.

10. Since the case has been remitted to the learned Tribunal for fre sh disposal, the petitioners are allowed to file the written statement, which th ey may file on or before 17-12-2009. Since the burden is on the petitioners, in view of Section 9 of the Foreigners’ Act, 1946, to prove that they are not fore igners, they may examine their witnesses in support of their claim. In the even t any written statement is filed, within the aforesaid time allowed, the evidenc e on affidavit of the witnesses shall be filed within 7 (seven) days thereafter and such witnesses shall be made available for cross-examination, if so required , within 15 (fifteen) days from the dates of filing the evidence on affidavit. The learned Tribunal within 1 (one) month, thereafter, shall pass necessary orde r in accordance with law.

11. as to reach the learned Tribunal on or before 5th December, 2009. The Registry is directed to send down the records forthwith, so

12. The writ petition is accordingly allowed to the extent indicated above. No cost.