High Court · 2012

Amitava Roy, J In assailment is the judgment and order dated 10.08.2009, passed in WP(C) No. 74 7/2009, negating the impugnment of the decision dated 31.12.2007, rendered by th e learned Foreigners Tribunal, Kamrup (Metro) in Case No. FT Kamrup (M) 349/2007 , holding the appellant to be a foreigner, who had entered Assam (India) after 2 5th of March, 1971. A challenge in the instant appeal has also been laid against the order dated 23.09.2009, passed in Review Petition No. 103/2009, whereby, th e learned Single Judge declined to reconsider the determination made by the judg ment and order dated 10.08.2009. We have heard Mr. DP Borah, learned counsel for the appellant and Mr. PS Deka, l earned State Counsel, Assam. Also heard Mr. M Bhagawati, learned Central Governm ent Counsel for the respondent No. 2. Shorn of details, suffice it to state that the appellant was noticed in the afor ementioned proceedings before the learned Foreigners Tribunal, Kamrup (Metro) (f or short hereafter referred to as the Tribunal) in response to a report submitte d by the SP(B), City, Guwahati alleging him to be a foreigner. On receipt of the notice of the proceedings, the appellant entered appearance on 01.112007, but t hereafter abandoned the same. According to him, he could not attend the proceedi ngs thereafter because his mother was seriously ill and eventually when he went to enquire about the same he came to learn that it had been decided ex-parte aga inst him vide the judgment and order dated 31.12.2007. Contending that his father Late Gopal Chandra Sarkar was a resident of Barpeta d istrict and had registered himself as an Indian citizen on 05.08.1966 under the Citizenship Act, 1955, and that thereafter he had shifted his place of residence from Barpeta to Jalpaiguri in the State of West Bengal in the year 1969, he imp ugned the determination made by the learned Tribunal. He stated amongst others t hat his name was entered in the voters list at Jalpaiguri and the voters identit y card was also issued to him vide No.03/020/426924 dated 20.03.1995 (with photo identify card) by the Electoral Registration Officer, Sadar Jalpaiguri. The learned Single Judge, however, on a consideration of the pleadings of the ap pellant/writ petitioner and the documents produced by him was of the view that h e had failed to discharge his burden as contemplated in section 9 of the Foreign ers Act, 1996, and that he had abstained from the proceedings without any justif iable reason. The documents produced by the appellant/writ petitioner along with the petition including his school certificates did not weigh with the learned S ingle Judge not having been duly proved. The decision of the learned Tribunal wa s left uninterfered. Though, a fresh endeavour was made by the appellant to get this decision reviewed by placing reliance on the documents at his disposal to p rove his citizenship of the country, by order dated 23.09.2009, the application for review was rejected. Mr. Borah, with special reference to the certificate of registration dated 05.08 .1966, issued by the Sub-Divisional Officer, Barpeta, under section 5 (1) (a) (d ) of the Citizenship Act, 1955, the photo identity card issued by the Election C ommission of India as well as the certificate issued by the Electoral Registrati on Officer, Jalpaiguri, West Bengal, has submitted that these along with the vot ers list brought on record amply establish the appellant’s citizenship of India and that if the same are not allowed to be proved in accordance with law, he wil l suffer irreparable prejudice and distress. Whereas, Mr. Bhagawati has argued that not only these documents do not inspire c onfidence, the appellant being inexplicably casual and indifferent to his cause, no fresh liberty ought to be granted to him, Mr. Deka has endorsed this stand. Upon hearing the learned counsel for the parties and on a consideration of the p leaded facts and the documents on record, it is evident that the appellant had a dmittedly not participated in the proceeding before the learned Tribunal, for wh ich, acting on the evidence produced on behalf of the reporting officer, it had held him to be a foreigner entering the territories of Assam after 25.03.1971. The documents now sought to be relied upon by the appellant, in particular, the certificate of registration issued on 05.08.1966 to his father under the Citizen ship Act, 1955, the certificate issued by the Electoral Registration Officer, Sa dar Jalpaiguri, the photo identity card issued by the Election Commission of Ind ia and the voter list on record, in our view, makes out a case prima facie to gr ant him an opportunity to prove the same in the proceeding before the learned Tr ibunal. Though, while observing this, we are fully conscious that the appellant ought to have produced and proved these documents in the said proceedings at the earliest opportunity, we consider it, appropriate, in the interest of justice a s well as the disastrous consequence that would otherwise follow that he ought t o be given this indulgence as a last chance. In the above view of the matter, we do not feel persuaded to agree with the find ings recorded by the learned Single Judge on the status of the appellant for the present. The impugned judgment and order dated 10.08.2009, passed in WP(C) No. 747/2009 and 23.09.2009 passed in Review Petition No. 103/2009 as well as the on e dated 31.12.2007 passed by the learned Tribunal in Case No. FT Kamrup (M) 349/ 2007 are thus interfered with. The appellant would present himself before the learned Foreigners Tribunal, Kamr up (M) on 22.03.2012 positively at 10.30 a.m. The learned Tribunal after registe ring his attendance would take up the proceedings in accordance with law and com plete the same within a period of 8 (eight) weeks therefrom. Needless to say, th e learned Tribunal would afford due opportunity to the parties to adduce evidenc e both oral and documentary and pronounce it’s ultimate decision on the basis th ereof. It is made clear that during the pendency of the proceeding before the le arned Tribunal, the appellant, however, would unfailingly present himself before the Officer-in-Charge, Fatasil Ambari Police Station once in every week. The appeal is allowed in the above terms. No costs. A copy of this order be furnished to Mr. PS Deka and Mr. M Bhagawati so as to en able them to do the needful.