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2015 DIGILAW 1273 (GAU)

Kitabjan (Musstt. ) v. Union of India

2015-10-01

B.K.SHARMA

body2015
JUDGMENT : B.K. Sharma, J. Heard Mr. M.U. Mahmud, learned counsel for the petitioner. Also heard Ms. P. Baruah, learned counsel appearing on behalf of Mr. S.C. Keyal, learned Assistant Solicitor General of India and so also Mr. B.J. Ghosh, learned State counsel. 2. This writ petition has been filed with falsification of truth and abusing the process of law. On that score alone, the writ petition is liable to be dismissed. 3. The challenge in the writ petition is the final order dated 21st March, 2003 of the Foreigners Tribunal, Nagaon in F.T. Case No.2148/1988 (State v. Musstt. Marbanu & 8 Ors.), by which the petitioner, namely, Mustt. Kitabjan, along with Md. Mona Hussain and Musstt. Chamuza Khatoon, were declared to be foreigners of 1st January, 1966 to 25th March, 1971 stream. So far as the other proceedees are concerned, namely, (1) Musstt. Marbanu; (2) Md. Nur Hussain; (3) Md. Nur Islam; (4) Md. Jamir Hussain; (5) Md. Minul Hussain and (6) Md. Makbul Hussain, were not found to be foreigners within said stream. In terms of the directions contained in the impugned order, the petitioner was to register her name with the Registering Authority at Nagaon within 2(two) months. Admittedly, she has not registered her name till date. In the meantime, she has been taken into custody and presently said to be at the Detention Camp at Kokrajhar. 4. When the matter was taken up on 10th September, 2005, Mr. M.U. Mahmud, learned counsel for the petitioner submitted that the impugned order is not sustainable in law inasmuch as the petitioner was not served with any notice in respect of the proceeding before the Tribunal. Having regard to such a submission, records were called for from the Foreigners Tribunal. 5. I have considered the submissions advanced by the learned counsel appearing for the parties and have also perused the entire materials on record including the LCR received from the Tribunal. 6. In paragraphs 5 and 7 of the writ petition, the petitioner has specifically stated that she did not receive any notice from the Foreigners Tribunal, Nagaon in F.T. Case No.2148/1988 with which the present proceeding is concerned. For a ready reference, paragraphs 5 and 7 are quoted below: "5. 6. In paragraphs 5 and 7 of the writ petition, the petitioner has specifically stated that she did not receive any notice from the Foreigners Tribunal, Nagaon in F.T. Case No.2148/1988 with which the present proceeding is concerned. For a ready reference, paragraphs 5 and 7 are quoted below: "5. That the petitioner begs to state that she did not know about the F.T. Case No.2146/1988 and nor she received any notice from the Foreigner's Tribunal, Nagaon to prove her Indian nationality. Due to ignorance of the said case, your petitioner did not contest the case and remained absent without step though your petitioner had all valid documents to prove her nationality. The Foreigner's Tribunal, Nagaon, without being heard and giving any opportunity to the petitioner to be heard passed the impugned ex-parte order, dated 21-03-2003, declaring the petitioner as foreign national of 1966 to 1971. 7. That the petitioner begs to state that she did not know about order, dated 21-03-03, passed by the Ld. Member, Foreigners Tribunal, Nagaon. She has come to know about the said order only in the month of May, 2015, when the police of Nagaon P.S arrested her and after inquiry, she came to know that there is an ex-parte order, dated 21-03-03, passed by the Ld. Member, Foreigners Tribunal, Nagaon against her. The right of citizenship is the highest right conferred by Constitution of India. But, by the impugned ex-parte order, dated 21-03-03, passed in F.T Case No.2146/1988, which is gross violation of the provisions of the Constitution of India as well as the Sections - 3, 5, 6 and 6A of the Citizenship Act, 1955, Foreigners' Act, Foreigners' Tribunal Orders etc. Thereafter, she collected a copy of the ex-parte order on 21-08-15, and has filed this writ petition for remedy. Even the petitioner was not given chance to register her name before the registering authority." 7. The impugned order was passed on 21st March, 2003 and the instant writ petition was filed on 20th August, 2015 and thus, there is delay of more than 12(twelve) years in filing the writ petition. However, since it is the specific case of the petitioner that no notice was served on her, the writ petition was entertained and the record from the Tribunal was called for. 8. However, since it is the specific case of the petitioner that no notice was served on her, the writ petition was entertained and the record from the Tribunal was called for. 8. On perusal of the LCR, it is found that the aforesaid plea of the petitioner that no notice was served on her is absolutely a false plea inasmuch as she along with others was duly served with notice and on receipt of the same, she also appeared and filed written statement on 6th July, 1990. However, at a later stage, she abandoned the proceeding. After the impugned order dated 21st March, 2003, she again reappeared before the Tribunal along with Md. Mona Hussain (her son), who was also declared to be a foreigner within the stream of 1st January, 1966 to 25th March, 1971 and prayed for extension of time limit for registration. Such appearance was on 6th January, 2009 and the application was signed by the petitioner along with her son Md. Mona Hussain. In the application, it was contended that the engaged counsel did not inform them about the requirement to get their names registered with the registering authority. Referring to the Quite India Notice served on them about 20(twenty) days back of filing the application on 6th January, 2009, it was stated that when the said notice was shown to the engaged counsel, he informed that they were required to register their names with the Registering Authority within 2(two) months from the date of passing the impugned order. The prayer made in the application was to extend the time limit for registering their names with the Registering Authority. 9. Above fact will go to show that the petitioner was fully aware of the proceeding in F.T. Case No.2148/1988 but coming to the writ Court took recourse to falsehood taking a chance for favourable consideration with the above statements in paragraphs 5 and 7 of the writ petition. 10. A person invoking writ jurisdiction must come with clean hand. The petitioner having taken recourse to falsehood, on that score alone, the writ petition is liable to be dismissed. There is also un-explained delay of more than 12(twelve) years in approaching the writ Court. 11. As stated by Mr. Mahmud, learned counsel for the petitioner, she has already been taken into custody and presently in the Detention Camp at Kokrajhar. The petitioner having taken recourse to falsehood, on that score alone, the writ petition is liable to be dismissed. There is also un-explained delay of more than 12(twelve) years in approaching the writ Court. 11. As stated by Mr. Mahmud, learned counsel for the petitioner, she has already been taken into custody and presently in the Detention Camp at Kokrajhar. She must not be released under any circumstances till such time she is deported to her country of original, i.e. Bangladesh. As per the impugned judgment and order, the other 2(two) persons, namely, Md. Mona Hussain and Musstt. Chamuza Khatoon, were also required to get their names registered. It is not known as to what action has been taken against them. The Superintendent of Police (B), Nagaon and the Commissioner & Secretary to the Government of Assam in the Home & Political Department are directed to immediately take them into custody if not already taken into. 12. As per the Full Bench decision in State of Assam & Anr. v. Moslem Mondal & Ors. reported in (2013) 1 GLT 809, time limit for registering ones name cannot be for indefinite period. In paragraph 111 of the aforesaid decision, it has been observed thus: "111. 1956 Rules as well as 2009 Rules, as noticed above, provide the initial time limit for filing application for registration, i.e. 1(one) month, which is extendable by another 60 days by the registering authority. Though there is no time limit prescribed in Section 6A of the 1955 Act for filing such application, having regard to the purpose for which Section 6A of the 1955 Act has been enacted, it also cannot be said that the fixation of time limit for filing the application has no bearing on the purpose sought to be achieved by such enactment. However, such time limit can be extended by the registering authority, only under very exceptional circumstances preventing the applicant from filing the application due to reasons beyond his control, for which the reasons have to be recorded by the registering authority. But such extension of time cannot also be for an indefinite period of time, having regard to the object of the enactment of Section 6A of the 1955 Act. But such extension of time cannot also be for an indefinite period of time, having regard to the object of the enactment of Section 6A of the 1955 Act. A person who does not register within the time limit fixed or within the time limit that may be extended by the registering authority, is liable to be deported from India as he is admittedly a foreigner and he has not acquired the right of a citizen of India as has been acquired by a person of Indian origin who came to Assam from the specified territory prior to 01.01.1966, by virtue of the deeming provision in sub-section (2) of Section 6A of the 1955 Act." 13. In the instant case, the petitioner was to register her name within 2(two) months of the impugned order dated 21st March, 2003. The said time limit expired long back. After the aforesaid judgment in Moslem Mondal (supra), the, the Citizenship Rules, 2009 was amended in 2013 as follows:- "[(2) An application for registration under sub-section (3) of section 6A shall be made in Form XVIII, by the person to the registering authority for the district in which he is ordinarily resident, within a period of thirty days from the date of receipt of order of the Foreigners Tribunal declaring such person as a foreigner: Provided that the registering authority may, for reasons to be recorded in writing, extend the said period to such further period as may be justified in each case bit not exceeding sixty days] [(2-A) A person who has been declared as a foreigner by the Foreigners Tribunal prior to 16th July, 2013 and has not been registered under sub-section (3) of Section 6-A for the reason of non-receipt of order of the Foreigners Tribunal or refusal by the registering authority to register such person as a foreigner on account of delay may, within a period of thirty days from the date of receipt of the order passed by the Foreigners Tribunal, or, from the date of publication of this notification, make an application for registration in Form XVIII to the registering authority of the district in which such person is ordinarily a resident: Provided that the registering authority may, for reasons to be recorded in writing, extend the said period to such further period as may be justified in each case but not exceeding one hundred eighty days.]" 14. As per the aforesaid provision also the petitioner is not entitled to get any extension of time limit. Situated thus, she is a declared foreigner and having not acquired the right of a citizen of India. 15. In view of the above, I see no reason to interfere with the impugned order dated 21st March, 2003 of the Foreigners Tribunal, Nagaon in F.T. Case No.2148/1988 and accordingly, the writ petition is dismissed. The Deputy Commissioner, Nagaon shall ensure deletion of her name from the voter list, if found. 16. The Registry shall transmit the case records to the Foreigners Tribunal, Nagaon along with a copy of this order. 17. Copies of this order shall also be sent to the Commissioner & Secretary to the Government of Assam, Home & Political Department; Superintendent of Police (B), Nagaon and the Deputy Commissioner, Nagaon. Another copy of this order shall also be furnished to Mr. B.J. Ghosh, learned State counsel, for his necessary follow up action. 18. List the matter after 1(one) month for submission of report by the Commissioner & Secretary to the Government of Assam, Home & Political Department; Superintendent of Police (B), Nagaon and the Deputy Commissioner, Nagaon.