Kamana Das v. The Union of India and 6 Ors

ORDER

29.11.2024 [K.R. Surana, J.]

Heard Ms. B. Bhuyan, learned senior counsel assisted by Ms. B. Bora, learned counsel for the petitioner. Also heard Mr. P.K. Medhi, learned CGC appearing for the respondent no. 1; Mr. G. Sarma, learned Standing Counsel for the FT matters representing the respondent nos. 2, 3, 5 & 6; Mr. H. Kuli, learned counsel on behalf of Mr. A.I. Ali, learned Standing Counsel for the respondent no. 4; and Mr. P. Sarma, learned Additional Senior Government Advocate appearing for the respondent no. 7. Page No.# 3/5

¶2By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the ex parte opinion dated 09.01.2023, passed by the learned Member, Foreigners' Tribunal, Baksa & Tamulpur in F.T. Case no. 336/Baksa/2017, arising out of I.M.(D)T. Case no. 1188/2004, whereby the petitioner was declared to be a foreigner and an illegal migrant of post 1971 stream.

¶3In the said ex parte opinion, the learned Tribunal has recorded that after due service of notice on the petitioner on 11.10.2021, the petitioner remained absent on

11.02.2022, 23.05.2022, 20.08.2022 and 11.11.2022 and therefore, as the petitioner did not contest the proceedings by filing written statement or evidence, the said ex parte opinion was passed.

¶4In this writ petition, it is projected that the petitioner had approached the Gaonbura of the village, who had assured that her name would appear in the NRC, she did not contest the proceedings. The said ground is ex facie not acceptable as a good and sufficient ground for not appearing and contesting the proceedings despite receipt of notice.

¶5The learned senior counsel for the petitioner has submitted that the petitioner has sufficient materials to establish that she is not a foreigner but a citizen of India and prays to give one opportunity to contest the reference.

¶6Under the circumstances, we do not find any fault in passing the impugned ex parte opinion dated 09.01.2023 by the learned Member, Foreigners' Tribunal, Baksa & Tamulpur in F.T. Case no. 336/Baksa/2017 as the petitioner was consciously absent in the proceedings despite receipt of notice.

Page No.# 4/5

¶7Be that as it may, as the issue of citizenship is a right, required to be established by the petitioner, we are of the considered opinion that one opportunity be granted, for ends of justice, to the petitioner to present her written statement and to contest the proceedings.

¶8Accordingly, the impugned ex parte opinion dated 09.01.2023, passed by the learned Member, Foreigners' Tribunal, Baksa & Tamulpur in F.T. Case no. 336/Baksa/2017 is conditionally set aside on the following terms.

(i) The petitioner, namely, Smti. Kamana Das shall appear before the Superintendent of Police (Border), Baksa within 15 (fifteen) days from the date of this order and shall furnish a bail bond of Rs. 5,000/- (Rupees five thousand only) with one surety of the like amount to the satisfaction of the said authority.

(ii) It is made clear that as the said impugned opinion is conditionally set aside, on failure of the petitioner to take bail, this order would stand recall and the ex parte opinion dated 09.01.2023 would stand restored.

(iii) In addition, we provide that the petitioner shall deposit a cost of Rs. 1,000/- to the Member Secretary, District Legal Services Authority, Baksa and produce a copy of the acknowledgement along with a certified copy of this order before the learned Member, Foreigners' Tribunal, Baksa & Tamulpur within 25 (twenty-five) days from the date of this order and shall file written statement along with all necessary documents.

(iv) On compliance of the above conditions by the petitioner, the learned Member, Foreigners' Tribunal, Baksa & Tamulpur shall give an opportunity to the petitioner to prove her case and decide the matter afresh in accordance with law. Page No.# 5/5

¶9It is made clear that non-compliance of the above condition by the petitioner, consequences as indicated above shall follow.

¶10The writ petition stands conditionally allowed to the extent indicated above.

JUDGE JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010133152024 ooooooo 2024:GAU-AS:11894-DB ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/3784/2024o KAMANAoDASo D/O-oLATEoLAXMANoDAS,o W/O-oSRIoPRADIPoDAS,o VILLAGE-oGAROGHUTU,o P.S.-oTAMULPUR,o DISTRICT-oBAKSA,oASSAM. VERSUSo THEoUNIONoOFoINDIAoANDo6oORSo REPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEo GOVERNMENToOFoINDIA,o HOMEoDEPARTMENT,oNEWoDELHI-1,oINDIA. 2:THEoSTATEoOFoASSAM oREPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEo GOVERNMENToOFoASSAM o HOMEoDEPARTMENT oDISPUR oGUWAHATI-o781006. 3:THEoSTATEoCO-ORDINATOR oNATIONALoREGISTERoOFoCITIZENSo(NRC) oASSAM oACHYUToPLAZA oBHANGAGARH o GUWAHATI-5 oASSAM. 4:THEoELECTIONoCOMMISSIONoOFoINDIA Page No.# 2/5 TO BE REPRESENTED BY COMMISSIONER NIRVACHAN SADAN ASHOKA ROAD NEW DELHI -110001. 5:THE SUPERINTENDENT OF POLICE (BORDER) DISTRICT- BAKSA (ASSAM). 6:THE OFFICER-IN-CHARGE TAMULPUR POLICE STATION DISTRICT- BAKSA ASSAM. 7:THE DEPUTY COMMISSIONER BAKSA ASSAM Advocate for the Petitioner : MR. A K BHUYAN, MS R DAS,MS M.CHAKRABORTY,MS. B BHUYAN,MS. N CHOUDHURY,MS B BORA,MR A TALUKDAR,MR A SHARMA,MR J DAS Advocate for the Respondent : DY.S.G.I., GA, ASSAM,SC, F.T,SC, ECI BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE MANISH CHOUDHURY