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2021 DIGILAW 623 (GAU)

Tika Devi v. Union of India

2021-10-26

MALASRI NANDI, N.KOTISWAR SINGH

body2021
JUDGMENT : N. Kotiswar Singh, J. 1. Heard Mr. R.P. Sarmah, learned Senior counsel assisted by Ms. S.P. Chetry, learned counsel for the petitioner. Also heard Ms. A. Gayan, learned CGC appearing for respondent No. 1; Mr. J. Payeng, learned special counsel, FT, appearing for respondent Nos. 2, 4 and 5; Mr. A.I. Ali, learned standing counsel, ECI, appearing for respondent No. 6; Ms. U. Das, learned Additional Senior Government Advocate, Assam, appearing for respondent No. 3 and Ms. L. Devi, learned standing counsel, NRC, appearing for respondent No. 7. 2. In this petition, the matter pertains to the challenge of the order dated 30.01.2019 passed by the learned Member, Foreigners Tribunal (2nd), Sonitpur, Tezpur, Assam, in F.T. (D.C.) Case No. 6/2006 by which the petitioner was declared as a foreigner/illegal migrant of post 25.03.1971 stream. 3. The case of the petitioner is that the petitioner belongs to Gorkha community and as such she cannot be treated to be a foreigner and has relied on the decision rendered by the Division of this Court on 29.11.2019 in W.P. (C) No. 8490/2018 [Indira Newar vs. Union of India and Others] and other analogous matters and submits that in the aforesaid decision, this Court had held that in respect of members of Gorkha community who originally hail from Nepal and who do not come from the ‘specified territory’ as defined under the provisions of Section 6-A of the Citizenship Act, 1955, the provisions of Foreigners Order, 1964 cannot be made applicable to them. Only those who have come from Bangladesh and living in the State of Assam can be treated as to have come from the ‘specified territory’ in accordance with Section 6-A of the Citizenship Act, 1955. Further, only the cases of members of Gorkha community living in Assam who do not fall in any of the categories mentioned in the notification dated 24.09.2018 issued by the Government of India in the Ministry of Home Affairs may be referred to the Foreigners' Tribunal for its opinion as to whether the person is or is not a ‘foreigner’ within the meaning of the Foreigners Act, 1946. 4. The Judgment of a co-ordinate Bench of this Court rendered in the case of Indira Newar (Supra) relied upon by the learned counsel for the petitioner has also been duly perused. 4. The Judgment of a co-ordinate Bench of this Court rendered in the case of Indira Newar (Supra) relied upon by the learned counsel for the petitioner has also been duly perused. In the said case, this Court was dealing with a bunch of writ petitions where contentions were made by the petitioners therein that the mother tongue of the petitioners was “Nepali” which is a language spoken by the citizens of the neighbouring country, Nepal and is also included as language in the 8th schedule of the Constitution of India and therefore, they could not have been treated to be migrants from the “Specified Territory” i.e. Bangladesh. The Court took note of the fact that the Foreigners Tribunals constituted under the Foreigners (Tribunals) Order, 1964 in the State of Assam are concerned, in terms of Rule 21 of the Citizenship Rules, 2009, to decide references received from the Registering Authority made under sub-section (3) of Section 6-A of the Citizenship Act, 1955. Further, as defined in Citizenship Act, 1955 “specified territory” means the territories included in Bangladesh immediately before the commencement of the Citizenship (Amendment) Act, 1985. This Court upon perusal of the information recorded by the Referral Authorities came to the conclusion that there was no suspicion expressed by the Referral Authorities nor any findings recorded by the Tribunals that any of the petitioners therein were persons who had come into Assam from the ‘Specified Territory’ as defined under Section 6A(1)(c) of the Citizenship Act, 1955. This Court held that unless there is a finding arrived at by the Referral Authorities and/or by the Tribunal that the petitioner migrated to Assam from the 'Specified Territory' namely, from any place in the country of Bangladesh, the benefit of the Notification dated 24.09.2018 issued by the Government of India in the Ministry of Home Affairs that it will not be appropriate to declare all members of Gorkha community hailing from Nepal to be from the ‘Specified Territory’ as defined under Section 6A(1)(c) of the Citizenship Act, 1955, cannot be denied. Only those persons who came from Bangladesh and are living in the State of Assam can be treated as persons migrating from the Specified Territory. Only those persons who came from Bangladesh and are living in the State of Assam can be treated as persons migrating from the Specified Territory. In accordance with the 6A of the Citizenship Act, 1955 this Court held that only cases of members of Gorkha community living in Assam, who do not fall in any of the categories mentioned in the Notification dated 24.09.2018 issued by the Home Ministry, may be referred to the Foreigners Tribunal for its opinion as to whether the person is or is not a foreigner within the meaning of Foreigners Act, 1946. 5. Mr. J. Payeng, learned special counsel, FT, appearing for the State of Assam has not disputed the aforesaid contention of the learned counsel for the petitioner and fairly submits that this writ petition can be disposed of in terms of the judgment dated 29.11.2019 passed in a bunch of writ petitions in which the leading case was WP(C) No. 8490/2019. 6. In that view of the above submission made, without going further into the detail facts and submissions advanced, we dispose of this petition by setting aside the impugned order dated 30.01.2019 passed by the learned Foreigners Tribunal (2nd), Sonitpur, Tezpur, Assam, in F.T. (D.C.) Case No. 6/2006 on the strength of the judgment and order dated 29.11.2019 rendered by the Division Bench of this Court in Indira Newar (supra) and analogous matters. 7. Registry to return the LCR forthwith.