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Gauhati High Court sets aside ex-parte order declaring a man foreigner, grants him bail to contest it before foreigners’ tribunal

Counsel for the petitioner submitted that the petitioner had to leave the State of Assam for Kerala to earn his livelihood.

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The Gauhati High Court has recently set aside the ex-parte order dated April 26, 2011 passed by the Member, Foreigners’ Tribunal, Morigaon, Assam, declaring petitioner Asor Uddin a foreigner. The Court asked the petitioner to engage with the tribunal and prove his credentials in November and asked him to pay a bail amount since his citizenship was under a cloud. The Court observed that citizenship, being an essential right of a person, should be decided based on merit by considering the material evidence that may be adduced by the person concerned and not by way of default.

The  Division Bench of Justices Manish Choudhary and N. Kotiswar Singh passed this order while hearing a petition filed by Asor Uddin.

The Petition has been filed by the Petitioner for setting aside the ex-parte order dated April 26, 2011 passed by the Member, Foreigners’ Tribunal, Morigaon, Assam, by which the petitioner was declared as a foreigner under Section 2(a) of the Foreigners Act, 1946, because of his failure to submit written statement by adducing evidence to prove his documents.

The plea of the petitioner for his inability to appear before the Foreigners’ Tribunal is that the Petitioner is a very poor person and he could not readily collect the relevant documents bearing the names of his grandfather, father and also in respect of him for filing the written statement and as such, the petitioner did not appear before the Tribunal. He also could not communicate with the engaged counsel nor his counsel communicated with him of the subsequent dates fixed by the Tribunal.

Counsel for the petitioner submitted that the petitioner had to leave the State of Assam for Kerala to earn his livelihood.

He also submitted that the aforesaid case against the petitioner in the Foreigners’ Tribunal was lodged by the verification officer as ‘D’ voter without proper examination of his documents.

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However, on receipt of the notice from the Tribunal, the petitioner had appeared on February 12, 2010 through his engaged lawyer as he had no intention to evade the proceedings. Thereafter, several dates were given by the Tribunal for filing of written statements on certain facts, but the petitioner failed to do the same for the reasons stated above, and as a result, the impugned ex-parte order was passed.

A. Verma, special Counsel, FT,  has objected to the petition by submitting that this kind of petition ought not to be entertained inasmuch as the petitioner himself is to be blamed for non-appearance, as law is clear that in the absence of the proceedee concerned, the Tribunal had no option but to proceed ex-parte and declare him as a foreigner as required under law.

The Court said that, we are of the view that citizenship, being an important right of a person, ordinarily, should be decided on the basis of merit by considering the material evidence that may be adduced by the person concerned and not by way of default as happened in the case.

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The Court noted that,

In the case, the petitioner has drawn our attention to the voters’ lists of 1965, 1970 and 1971, wherein the names of his grandparents, parents and the petitioner himself have been shown to be included in respect of village Sahariapam, Mouza-Moirabari, DistrictNagaon, under Assam Legislative Assembly Constituency, No.84 Laharighat and No.83 Dhing. Accordingly, Counsel for the petitioner submitted that otherwise, there are sufficient documents and evidences to prove that he is an Indian citizen. However, these are factual aspects which are to be ordinarily considered by the Foreigners’ Tribunal and not by the Court.

The Court further said that, if the petitioner is able to prove the aforesaid documents, certainly, he can make a reasonable claim that he is an Indian citizen and not a foreigner, for which we feel that it will be most appropriate to remand the matter to the Foreigners’ Tribunal (2nd), Morigaon, Assam for reconsideration.

“Considering the circumstances as narrated by the petitioner, we are also of the view that there were sufficient reasons for the petitioner for not being able to appear before the Foreigners’ Tribunal to enable the Tribunal to consider his claim on merit and accordingly, we are inclined to afford another opportunity to the petitioner to appear before the Foreigners’ Tribunal to prove that he is an Indian, not a foreigner,”

-the Court observed.

The Court ordered, “The Petition is allowed by setting aside the impugned ex-parte order dated April 26, 2011 passed by the Member, Foreigners’ Tribunal (2nd), Morigaon, Assam. The petitioner will appear before the Foreigners’ Tribunal (2nd), Morigaon on or before November 08, 2021 for the fresh proceedings.

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However, since his citizenship has come under cloud, he will remain on bail during the proceedings for which he will appear before the Superintendent of Police (B), Morigaon within 15 days from today but the petitioner will remain on bail on furnishing a bail bond of Rs 5,000 with one local surety of the like amount to the satisfaction of the said authority.

The concerned Superintendent of Police (B) shall also take necessary steps for capturing the fingerprints and biometrics of the iris of the petitioner. It is also made clear that the petitioner shall not leave the jurisdiction of the Morigaon district without obtaining permission from the Superintendent of Police (B), Morigaon.

“We also make it clear that in the event of failure of the petitioner to pay the aforesaid cost of Rs 5,000 as well as in the failure to appear before the Foreigners’ Tribunal (2nd), Morigaon, on or before November 08, 2021, the ex-parte order dated April 26, 2011 which has been set aside by the Court today, will stand revived and the law will take its own course,” the order reads.

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