Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 141 (GAU)

Ashmat Kha v. Union of India

2019-01-30

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

body2019
JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. MU Mondal, learned counsel for the petitioners, Mr. A. Ali, learned counsel for the Election Commission of India, Mr. A. Kalita, learned standing counsel for the State of Assam appearing for the Foreigners Tribunal and Border Affairs, Ms. A. Verma, learned standing counsel for the authorities under the NRC as well as Ms. G. Sarma, learned counsel for the authorities under the Union of India. 2. The father of the petitioners was referred by the Superintendent of Police (Border), Dhubri resulting in the registration of FT Case No. 1816/K/1997 before the Foreigners Tribunal at Dhubri. The father of the petitioners upon receipt of notice, entered appearance, but had neither submitted any written statement nor adduced any evidence. In the circumstance, the Tribunal by the order dated 31.5.1997 had declared him to be a foreigner who had entered Assam between 1.1.1966 and 25.3.1971. But as required under the law, the father of the petitioners had not registered himself with the Foreigners Regional Registration Officer at Kokrajhar. 3. But, in the meantime, the father of the petitioners died on 02.10.2015. Upon his death, the petitioners are prejudiced that the declaration by the Foreigners Tribunal against their father will have its affect as to whether the petitioners themselves are foreigners or not. In the circumstance, the present writ petition has been preferred. 4. The law as regards the registration of a person declared to have entered the State of Assam between 01.01.1966 and 25.13.1971 is provided in Section 6A(3) of the Citizenship Act of 1955. In the circumstance, the present writ petition has been preferred. 4. The law as regards the registration of a person declared to have entered the State of Assam between 01.01.1966 and 25.13.1971 is provided in Section 6A(3) of the Citizenship Act of 1955. Section 6A(3) provides as follows:- (3) Subject to the provisions of sub-sections (6) and (7), every person of Indian origin who-- (a) came to Assam on or after the 1st day of January, 1966 but before the 25th day of March, 1971 from the specified territory; and (b) has, since the date of his entry into Assam, been ordinarily resident in Assam; and (c) has been detected to be a foreigner, shall register himself in accordance with the rules made by the Central Government in this behalf under section 18 with such authority (thereafter in this sub-section referred to as the registering authority) as may be specified in such rules and if his name is included in any electoral roll for any Assembly or Parliamentary constituency in force on the date of such detection, his name shall be deleted therefrom. Explanation.--In the case of every person seeking registration under this sub-section, the opinion of the Tribunal constituted under the Foreigners (Tribunals) Order, 1964 holding such person to be a foreigner, shall be deemed to be sufficient proof of the requirement under clause (c) of this sub-section and if any question arises as to whether such person complies with any other requirement under this sub-section, the registering authority shall,-- (i) if such opinion contains a finding with respect to such other requirement, decide the question in conformity with such finding; (ii) if such opinion does not contain a finding with respect to such other requirement, refer the question to a Tribunal constituted under the said Order hang jurisdiction in accordance with such rules as the Central Government may make in this behalf under section 18 and decide the question in conformity with the opinion received on such reference. 5. 5. A reading of the provision of Section 6A(3)(b) shows that every person of Indian origin, who came to Assam on or after 1.1.1966, but before 25.3.1971 from the specified territory and has since the date of his/her entry into Assam been ordinarily resident in Assam and has been detected to be a foreigner, shall register himself or herself in accordance with the Rules made by the Central Government for the purpose. A core requirement of being eligible to be registered is that there also has to be a conclusion arrived at that the person concerned, who came after 1.1.1966 but before 25.3.1971 and has been declared to be a foreigner, has to mandatorily resided in the State of Assam continuously since the date of his or her entry into Assam. The requirement of being ordinarily a resident in Assam since the date of his/her entry into Assam as a condition precedent for being eligible to be registered under Section 6A(3) of the Citizenship Act of 1955. In the absence of a satisfaction of the condition precedent of being a resident in the State of Assam continuously since the date of the initial entry between 1.1.1966 and 25.3.1971, a person would not be eligible to be registered under Section 6A(3) of the Indian Citizenship Act of 1955. 6. In the instant case, we take note of that there is no conclusion being arrived at by the Tribunal at Dhubri that although the father of the petitioners may have entered the State of Assam between 01.01.1966 and 25.03.1971, they had continuously been a resident in the State of Assam since the date of the initial entry. 7. But as the father of the petitioners had died in the meantime, they shall appear before the Tribunal at Kokrajhar on 25.02.2019 for leading appropriate evidence as to whether they or their father entered India between 1.1.1966 and 25.3.1971 and that they had been continuously a resident in the State of Assam since the date of his/their initial entry between 1.1.1966 and 25.3.1971. Upon such evidence being led, the Tribunal shall arrive at its conclusion as regards its acceptability and pass a reasoned order thereon. If the Tribunal arrives at a conclusion that the father of the petitioners/petitioners had continuously resided as indicated above, appropriate direction be passed requiring them to register before the Foreigners Regional Registration Officer at Kokrajhar. 8. Upon such evidence being led, the Tribunal shall arrive at its conclusion as regards its acceptability and pass a reasoned order thereon. If the Tribunal arrives at a conclusion that the father of the petitioners/petitioners had continuously resided as indicated above, appropriate direction be passed requiring them to register before the Foreigners Regional Registration Officer at Kokrajhar. 8. As the original FT Case No. 1816/K/1997 was before the Foreigners Tribunal at Dhubri, the Tribunal at Kokrajhar upon appearance of the petitioner shall take necessary steps for calling for the records from the Foreigners Tribunal at Dhubri inasmuch as, in the meantime, the Dhubri district had been bifurcated resulting creation of the Kokrajhar district. Upon such requisition being made, the Foreigners Tribunal at Dhubri shall do the needful for transmitting the record to the Foreigners Tribunal at Kokrajhar. The writ petition stands allowed to the extent indicated above.