Jamila Begum @ Jamela Khatun V. The Union of India and The Election Commission of India and The State of Assam and The State Coordinator National Registrar of Citizen and The Member Foreigners Tribunal No. 4th Darrang and The Superintendent of Police (B) Darrang

WP(C)/1242/2022

AI Insights

The case involves Jamila Begum @ Jamela Khatun, who was declared a foreigner by the Foreigners Tribunal (4th), Darrang, Mangaldai, through an ex-parte order. The petitioner challenged this order in the Gauhati High Court, citing her inability to attend the tribunal due to illness (Hepatitis B) and poverty, along with her illiteracy and lack of communication facilities. The petitioner presented various documents, including electoral rolls and certificates, to substantiate her claim of being an Indian citizen. The High Court, after considering the petitioner's circumstances and the documents presented, decided to remand the case back to the Foreigners Tribunal for a fresh evaluation.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 694130 (HC-ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH)
• Appeal Type: Others
• Pronouncement Date: 23-02-2022
• Assessment Year: misc
• Laws Referred To: Foreigners Act, 1946
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: L DEVI; A BHUYAN; A VERMA
• Assessee Lawyers: M HOQUE
• Keywords: Citizenship; Electoral roll; Ex parte order; Foreigners tribunal; Illiterate; Poverty; Hepatitis B; NRC document
• Section: 143(3)

Judgement Text

"Page No.# 1/5 GAHC010030912022 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/1242/2022 JAMILA BEGUM @ JAMELA KHATUN D/O MD. INSAN ALI @ MD. INCHAN ALI W/O KALO SEIKH PERMANENT RESIDENT OF VILL- PUTHIMARI CHAPORI (GASBARI), P.S. MANGALDAI, DIST. DARRANG, ASSAM, PRESENTLY RESIDING AT VILL- BARBARI, P.S. SIPAJHAR DIST. DARRANG, ASSAM VERSUS THE UNION OF INDIA AND 5 ORS REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, TILAK MARG, NEW DELHI-110001. 2:THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI-110001. 3:THE STATE OF ASSAM REP. BY THE SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-781006. 4:THE STATE COORDINATOR NATIONAL REGISTRAR OF CITIZEN G.S. ROAD BHANGAGARH GUWAHATI-781005 Page No.# 2/5 5:THE MEMBER FOREIGNERS TRIBUNAL NO. 4TH DARRANG MANGALDAI ASSAM 6:THE SUPERINTENDENT OF POLICE (B) DARRANG ASSAM PIN-78100 Advocate for the Petitioner : MR M HOQUE Advocate for the Respondent : ASSTT.S.G.I. BEFORE HON’BLE MR. JUSTICE N. KOTISWAR SINGH HON’BLE MRS. JUSTICE MALASRI NANDI :: O R D E R :: 23.02.2022 [N. Kotiswar Singh, J] Heard Md. S. Hoque, 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.4 as the learned Standing Counsel, NRC; Ms. A. Verma, learned Special Counsel, Foreigners Tribunal for respondent Nos.3, 5 & 6 and Mr. A. Bhuyan, learned Standing Counsel, ECI for respondent No.2. 2. Considering the nature of this case, we are of the view that the present petitioner can be disposed of at this stage by remanding the matter to the learned Foreigners Tribunal (4th), Darrang, Mangaldai for a fresh consideration. 3. In this petition, the petitioner has challenged the order dated 24.05.2018 passed by the learned Foreigners Tribunal (4th), Darrang, Mangaldai in F.T.4th Case No.133/SPR/2017 [F.T. Case No.1164/12, Ref. F.T. Case No.541/10 dated 08/2010] by which the learned Tribunal proceeded the matter ex-parte and declared the petitioner as a foreigner within the Page No.# 3/5 meaning of the Foreigners Act, 1946 who had entered in Assam (India) after 25.03.1971. 4. Mr. Hoque, learned counsel for the petitioner submits that the petitioner had duly received the notice from the learned Tribunal and also contacted a lawyer. But unfortunately, the petitioner fell ill and also because of poverty and lack of communication she could not pursue her case before the Tribunal which resulted in passing of the impugned ex-parte order. 5. It has been submitted by the learned counsel for the petitioner that the petitioner was suffering from Hepatitis B for several months and she is illiterate and also very poor lady who lives in a very remote area. Moreover, no one is available to look after the petitioner as her sons live separately and her husband is also an old man who is about 98 years old. It has been submitted that, under the circumstances, the petitioner could not effectively pursue her case before the learned Tribunal. 6. Learned counsel for the petitioner further submits that, otherwise, the petitioner has sufficient documents in her possession to show that she is an Indian and not a foreigner. 7. In this regard, learned counsel for the petitioner has drawn attention of this Court to the following documents, (i) Copy of Electoral Roll of 1996 showing the names of “Isan Ali” who the petitioner claims as her father and “Asima Nessa” who the petitioner claims as her mother at Sl. Nos. 53 and 54, House No.49 in respect of Village- Kismat Mayanbari nonke, Puran Sikatari, Sub-Div- Barpeta, P.S. Baghbare. (ii) Voters list of 1970 in which the name of aforesaid Isan Ali appears at Sl. No.278. (iii) Certified copy of Electoral Roll of 1989 in which the name of Isar Ali who the petitioner claims as her father again appear. (iv) Certified copy of Electoral Roll of 1997 in which the name of the petitioner appears as “Jamela” at Serial No.592 along with her husband Kao Seikh at Serial No.591. (v) Certified copy of Electoral Roll of 2005 in which the name of the petitioner appeared at Serial No.717 along with her husband Kalu Sheikh at Serial No.716. (vi) Certified copy of Electoral Roll of 2009 in which the name of the petitioner appeared at Serial No.722 along with her husband at Serial No.721. Page No.# 4/5 (vi) Copy of Electoral Roll of 2013 in which the name of the petitioner appeared at Serial No.770 and her husband at Serial No.769. (vii) NRC document for the period 1966 in respect of the petitioner’s father Insan Ali. (viii) Copy of the Supplementary List of Inclusion and Exclusion (Final NRC) under Clause 7 of the Schedule to Citizenship Rules, 2003 showing the name of the petitioner appear as Jamela Khatun, father’s name Inchan Ali, mother’s name Rahiman Nessa and Spouse’s name Kalu Seikh. (ix) Certificate issued by Govt. Gaonbura of Village: No.1 Nangli Char, Mouza: Rangamati, P.O & P.S. : Mangaldai, Darrang indicating that the petitioner Jamela Khatun is the daughter of Insan Ali of village Puthimari Chapori, Gasbari, Moza: Rangamati, P.O. & P.S. Mangaldai and was married to Kalu Seikh, son of Sonamuddin of Village: Gasbari. (x) Certificate issued by the Secretary, Puthimari Gaon Panchayat on 22.07.2015 indicating petitioner is the daughter of Inchan Ali and Rahima Khatun and was married to Kalu Seikh, son of Sonamuddin. (xi) Pan Card issued by the Income Tax Department. 8. It has been, accordingly, submitted by the learned counsel for the petitioner that if the petitioner is afforded another opportunity to appear before the learned Tribunal, she will be able to prove that she is an Indian citizen and not a foreigner. 9. Having heard the learned counsel for the parties and also considering materials before this Court, this Court is of the view that if the petitioner is able to prove the aforesaid documents, she can certainly make a legitimate claim that she is an Indian citizen and not a foreigner. However, as mentioned above, the petitioner could not appear before the learned Tribunal and prove the documents as she is an illiterate poor lady and was also suffering from Hepatitis B. 10. Citizenship is one of the most important rights of a person, we are of the view that, ordinarily, the matter relating to citizenship may be decided on merit rather than by way of default as happened in the present case. Since the petitioner has explained the circumstances and the reasons why she could not appear before the learned Tribunal, we are inclined to Page No.# 5/5 afford another opportunity to the petitioner to appear before the learned Tribunal to prove that she is an Indian citizen and not a foreigner. 11. Accordingly, the petitioner will appear before the learned Foreigners Tribunal(4th), Darrang, Mangaldai on or before 23.03.2022 and will file her written statement and necessary documents and also adduce evidences to prove that she is an Indian, not a foreigner. The learned Tribunal, after hearing the petitioner and appreciating the evidences that may be adduced by the petitioner, will make a fresh opinion as regards the citizenship status of the petitioner. 12. Accordingly, we allow this petition by setting aside the impugned ex—parte dated 24.05.2018 passed by the learned Foreigners Tribunal (4th), Darrang, Mangaldai in Case No. F.T.4th Case No.133/SPR/2017 [F.T. case No.1164/12, Ref. F.T. Case No.541/10 dated 08/2010]. 13. Since the citizenship of the petitioner has come under cloud, the petitioner will appear before the Superintendent of Police (Border), Darrang and furnish a bail bond of Rs.5,000/- (Rupees five thousand) with one local surety of the like amount to the satisfaction of the said authority whereafter the petitioner shall be allowed to remain on bail. The concerned Superintendent of Police (Border) may obtain necessary information and documentation as required under the rules from the petitioner for securing her presence and also shall take steps for capturing the finger prints and biometrics of the iris of the petitioner, if so advised. 14. With the above observations and directions, the present petition stands disposed of. JUDGE JUDGE Comparing Assistant "