High Court · 2012

In challenge is the judgment and order dated 20.03.2012 rendered in WP(C) No.323 1/2011 sustaining the determination made by the learned Foreigners’ Tribunal, Ka mrup(Metro), Guwahati (hereinafter for short referred to as the Tribunal) in F.T . Kamrup(Metro) Case No.86/2010 adjudging the appellant to be a foreigner who ha d migrated to India from Bangladesh after 25th of March, 1971. We have heard Mr. H.R.A. Choudhury, learned Senior Counsel for the appellant, Mr . M. Bhagawati, learned Central Govt. Standing Counsel for the Union of India an d Mr. P.S. Deka, learned Govt. Advocate, Assam for the State respondents. On a reference being made by the Senior Superintendent of Police (B), City Guwah ati under the provisions of the Foreigners’ Act, 1946 (for short hereinafter ref erred to as the Act) against the appellant, the aforementioned proceeding was re gistered in the learned Tribunal. Notice was issued by the learned Tribunal in the proceeding and on the receipt, thereof, he appeared on 27.10.2010 and produc ed photocopies of some documents. The writ appellant thereafter neither presente d himself nor took steps in the case. No witness was examined. Situated thus, th e learned Tribunal on examining the Inquiry Officer ex parte and on a perusal of the report submitted by him, by judgment and order dated 21.10.2010 declared th e appellant to be a foreigner under the Act. As adverted to hereinabove, being aggrieved, he approached this Court with WP(C) No.3231/2011. Along with the writ petition, he amongst others filed photocopy/c ertified copy of the extract from the Electoral Rolls of 1966, 1970 and 2008 per taining to 7/4 South Karimganj (SC) Legislative Assembly Constituency of the Sta te of Assam. Whereas, the extracts relating to 1966 and 1970 included Electoral Rolls containing the name of one Samsul Mia, S/o.Akaddas Ali, that pertaining to the year 2008 enlisted that of the appellant and his father Samsul Mia. In his affidavit-in-opposition, the Sr. Superintendent of Police (City), Guwahat i, in substance, endorsed the determination of the learned Tribunal and asserted that following the declaration so made, the appellant was kept in the detention camp, Goalpara and subsequent thereto was externed to Bangladesh on 30.06.2011 . The learned Single Judge by the judgment and order impugned in the instant appea l rejected the assailment on the following grounds: the absence of the writ appellant before the learned Tribunal was not ju (1) stified and no satisfactory explanation had been offered by him for his continu al lapse; (2) the photocopies of certain documents laid with the learned Tribunal on t he date of his first appearance without any formal proof thereof was of no conse quence. (3) The reference of the name of one Samsul Mia in the Electoral Roll 1966 & 1970 and that of the appellant’s name in the Electoral Roll 2008 per se do not establish his claim of Indian Citizenship. (4) Moreover, these documents not having been proved in accordance with law was bereft of any probative value in the face of mandate of Section 9 of the Act . Mr. Choudhury has emphatically urged that as would be obvious from the extrac ts of the Electoral Rolls of 1966 and 1970 that the appellant’s father was a vot er in those elections to the Assam State Legislative Assembly, this fact couple d with writ appellant’s enlistment as a voter in the Electoral Roll of 2008 was demonstrative of the genuineness of his claim of Indian nationality. According t o Mr. Choudhury, the certificate issued by the Secretary, Pirerchak Gaon Panchay at to the effect that he was a resident of Pirerchak Gaon within the territoria l limits of Pirerchak Gaon Panchayat and that his name was enrolled in the Elec toral Roll of 2008, did substantiate this claim of his. The learned Senior Coun sel has contended that the appellant being unaware of the legal procedure involv ed and the consequences of non compliance thereof ought not to be non suited in the face of overwhelming evidence in support of his claim of Indian nationality and an opportunity ought to be granted to him to prove his documents laid before this Court before the learned Tribunal. Mr. Bhagawati, per contra has urged that as the documents relied upon by the app ellant in absence of any formal proof are sans any probative worth, this plea of an opportunity for proving the same at this belated stage ought not to be enter tained. He having failed to avail the opportunities granted by the learned Trib unal, he is disentitled in law for any further opportunity. Mr. Deka, has endorsed this plea. Upon hearing the learned counsel for the parties and on a consideration of the g rounds on which the documents referred to hereinabove laid before the learned Tr ibunal as well as before this Court have not been taken note of, we are of the v iew that in the singular facts and circumstances of the case, the appellant is e ntitled to one opportunity of proving the same in accordance with law. This is more so, in view of the nature of the documents, more particularly, the extracts from the Electoral Roll of 1966, 1970 and 1980 referred to hereinabove. On bein g queried by us, it has been submitted at the Bar that the writ appellant is pre sently not in detention. In the above view of the matter, we dispose of this ap peal with the following directions: (1) mrup (Metro), Guwahati on 30.06.2012 at 10.30 A.M. without fail; (2) on his appearance, if the appellant applies for his release on bail befo re the learned Tribunal, it would pass appropriate order(s) on such prayer in ac cordance with law; the writ appellant would thereafter appear before the learned Tribunal i (3) n connection with the proceedings in hand on dates as may be fixed by it without the writ appellant would present himself before the learned Tribunal, Ka fail; (4) the learned Tribunal would afford reasonable opportunity to the appellan t to prove the aforementioned documents filed before this Court in accordance wi th law; (5) the learned Tribunal would complete the exercise as ordered within a per iod of two months from the date of the appellant’s appearance i.e. 30.06.2012. Needless to say, the learned Tribunal before passing appropriate order(s (6) ) would issue due notice to the State and also afford it a reasonable opportunit y of contesting the appellant’s claim. It is made clear that the writ appellant would strictly abide by the conditions mentioned hereinabove. Any breach of the directions with regard to his appearan ce on the date fixed before the learned Tribunal and participation in the procee dings would enable it (the learned Tribunal) to pass appropriate orders inter al ia for his detention and custody without any reference to this Court. The impugned judgments and orders dated 21.10.2010 passed in F.T. Kamrup (Metro) Case No.86/2010 as well as dated 20.03.2012 passed in WP(C) No.3231/2011 are se t aside. This determination, in any view of the matter, would not be construed to be a pr ecedent in future. No costs.