THE GAUHATI HIGH COURT v. THE UNION OF INDIA AND 6 ORS

Advocate for the Petitioner : MR. M KHAN Advocate for the Respondent : ASSTT.S.G.I. BEFORE HON’BLE MR. JUSTICE N. KOTISWAR SINGH HON’BLE MR. JUSTICE NANI TAGIA :: O R D E R ::

21.03.2022 [N. Kotiswar Singh, J] Heard Mr. M. Khan, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K.D. Choudhury, learned ASGI for respondent No.1; Ms. Devi also appears for respondent No.6 as the learned Standing Counsel, NRC; Mr. A. Kalita, learned Special Counsel, Foreigners Tribunal appearing for the respondent Nos.2, 3 & 5; Ms. U. Das, learned Additional Senior Govt. Advocate, Assam appearing for respondent No.4 and Mr. A.I. Ali, learned Standing Counsel, ECI appearing for respondent No.7.

2. Considering the nature of this case and as the matter was proceeded ex-parte without considering the matter on merit, we are inclined to allow this petition.

3. In this petition, the petitioner has challenged the ex-parte order dated 11.06.2014 passed by the learned Foreigners Tribunal, Jorhat in F.T. Case No. JFT/200/2007 [IM(D)T Enquiry No.48/2005 (Jorhat)] on the ground that the petitioner was never served with the copy of the notice. It has been submitted though the copy of the notice was served upon the father of the petitioner, the petitioner was never intimated about any such notice being received.

4. We have perused the records.

5. On perusal of the aforesaid ex-parte order dated 11.06.2014, it is seen that the notice was issued to the petitioner in his temporary address at Jorhat, which was served by pasting. Page No.# 3/4 The order also indicates that the notice was also sent to the permanent address of the petitioner at Bettari, P.S. Bilasipara, Dist. Dhubri which was received by one Musket Ali, the father of the petitioner. It has been submitted by the learned counsel for the petitioner that though the notice was served in the address in Bettari, P.S. Bilasipara under Dhubri District, the petitioner, at the relevant time, was in Jorhat.

6. Considering the above, we are of the view that it cannot be said that the notice was not properly served as it was received by the petitioner’s father. However, as the matter was not considered on merit and the petitioner is now is before us and relying on certain documents to show that he is an Indian and not a foreigner, we are inclined to allow this petition by affording the petitioner another opportunity to prove that he is an Indian and not a foreigner.

7. Learned counsel for the petitioner has drawn attention of this Court to the following documents which are stated to be in petitioner’s possession which would show that he is an Indian and not a foreigner. i. Voters list of 1966 in respect of Village: 326 Beltari, District: Goalpara, Sub- Division- Dhubri, P.S.: Bilasipara of 36 Bilasipara Constituency showing the names of Muksed Ali and Monira Khatun, who the petitioner claims as his father and step mother, respectively. ii. Voters list of 1970 showing the names of his father and step mother, Musket Ali and Monira Khatun in respect of Village: 326 Beltari, District: Goalpara, Sub- Division- Dhubri, P.S. Bilasipara of 36 Bilasipara Constituency. iii. Voters list of 1989 wherein the names of the petitioner’s father Muksed Ali, step mother and other family members were shown as the voters in respect of Village 317 Oldartari, District- Dhubri, Sub-Division- Bilasipara, 26 Bilasipara West Constituency. iv. Voters list of 1997 wherein the name of the petitioner’s father “Muksed Ali”, step mother Monira Bibi, his own mother Solima Bibi and other family members appeared in respect of District-Dhubri, Sub-Division- Bilasipara, Revenue Circle- Bilasipara under 26 Bilasipra West Constituency. Page No.# 4/4 v. Voters list of 2005 wherein the name of petitioner’s father Muksed Ali, step mother Monira Bibi appeared along with other family members. It has been also submitted that the name of the petitioner “Shahirul Hoque” also appeared in the voters list of 2005 along with his own mother “Salima Bibi” and other family members.

8. It has been, accordingly, submitted that if the petitioner is able to prove the aforesaid documents, he can make a legitimate claim that he is an Indian and not a foreigner.

9. Under the circumstances, considering the above documents, we allow this petition by setting aside the impugned order dated 11.06.2014 passed by the learned Foreigners Tribunal, Jorhat in F.T. Case No. JFT/200/2017 [IM(D)T Enquiry No.48/2005 (Jorhat)] by affording another opportunity to appear before the learned Foreigners Tribunal, Jorhat to prove that he is an Indian and not a foreigner.

10. Petitioner will, accordingly, appear before the learned Foreigners Tribunal, Jorhat on or before 21.04.2022 and will file his written statement and other documents to prove that he is an Indian and not a foreigner.

11. Learned Foreigners Tribunal, after hearing the petitioner and on the basis of the evidences that may be adduced by the petitioner, will pass a fresh opinion in accordance with law as regards the citizenship status of the petitioner.

12. However, the petitioner will continue to remain on bail on in terms of the order dated

30.07.2021 passed by this Court till a fresh opinion is rendered by the learned Foreigners Tribunal.

13. With the above observation and direction, the present petition stands disposed of.

14. LCR be remitted to the concerned Foreigners Tribunal forthwith. JUDGE JUDGE Comparing Assistant