IN THE GAUHATI HIGH COURT ( THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH ) WP(C) No of Versus-

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1 IN THE GAUHATI HIGH COURT ( THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH ) WP(C) No of 2009 Sri Swapan Kumar Dey S/o late Jogesh Chandra Dey, R/o Nagadolong, P.O. & P.S. Namrup, District: Dibrugarh, Assam. -Versus-.. Petitioner 1. The Union of India, Represented by the Secretary to the Department of Home Affairs, New Delhi. 2. The State of Assam, Represented by the Secretary, Department of Home Affairs, Govt. of Assam, Dispur, Guwahati The Deputy Commissioner, Goalpara, Assam. 4. The Superintendent of Police, Goalpara, Assam. 5. The Foreigners Tribunal, Goalpara, District-Goalpara, Assam... Respondents For the Petitioner : Mr. H.A. Sarkar, Advocate For the respondents : Mr. M. Bhagabati, CGC, Date of hearing : Date of judgment : WP(C) No of 2009 Page 1 of 6

2 (Chaudhury, J) BEFORE HON BLE MR. JUSTICE N. CHAUDHURY JUDGMENT AND ORDER (ORAL) By this application under Article 226 of the Constitution of India, the petitioner has challenged the final order dated passed by the learned Foreigner s Tribunal, Goalpara, in F.T. Case No. 466/G/2006 (Ref. F.T. Case No. 166 of 2006) thereby holding the petitioner a foreigner of post 1971 stream. [2] The fact involved in this case is required to be stated in brief. The petitioner on earlier many occasion was called for to produce relevant documents to prove her citizenship, though she appeared herself before the learned Foreigner s Tribunal, Goalpara, but she could not present any document to prove her citizenship, except the photocopies of leaving Certificate of Class IX in year 1998 and procured in2001, Gaon Panchayat Certifica, Birth Certificate obtained in 1991, which are not sufficient to prove her citizenship. She appeared before the learned Tribunal pursuant to the notice issued to her by the Foreigners Tribunal, Goalpara, and on filed her written statement claiming to be a citizen of India by birth. It appears from the final order referred to above that the petitioner went on taking time verbally for producing original documents and witnesses in support of her claim of citizenship and ultimately she did not produce the same. She, however, produced the photocopies of birth certificate, issued her on , from Marnai Primary Health Centre of Matia Division, Department of Public Health, Assam, of registration as a citizen of India under the Provisions of the Citizenship Act, 1955, issued to his grandfather, Rasik Ch. Dey, on , a letter dated issued to his father Lt. Jogesh Ch. Dey from Assistant Relief and Rehabilitation Officer, Jorhat and also transfer certificate of Shapekathi Provincialised Higher Secondary School, Sivasagar, issued on Since the said documents were not produced in original, the learned Foreigner s WP(C) No of 2009 Page 2 of 6

3 Tribunal did not consider the same and consequently held that the petitioner failed to discharge the burden cast on him under Section 9 of the Foreigners Act, The learned Tribunal decided the reference in affirmative declaring the petitioner a foreigner of the stream of post The said order is under challenge before this Court. On the basis of order dated passed by this Court, the petitioner surrendered before the Superintendent of police and thereupon he sent him to the Detention Camp of Dhubri and the petitioner has been in the detention camp for last 4 years. [3] Heard Mr. G. N. Sahewalla, learned Senior Counsel assisted by Ms. R. Jain, learned counsel for the petitioner. Also heard Mr. M. Bhagwati, learned CGC appearing for respondent No.1 as well as Ms. B. Dutta, learned Government advocate, Assam, appearing for respondent Nos. 2 to 5. [4] Mr. G. N. Sahewalla, learned Senior Counsel, has produced the originals of the aforesaid certificates of registration, letter dated and the transfer certificate dated The learned Senior counsel has drawn my attention to the voter list of 120 Naharkatia of the voter list of the year In Serial No of the said voter list, the name of the petitioner is shown with his father s name as Lt. Jogesh Ch. Dey. [5] Mr. Bhagwati, learned Central Government Counsel submits that in the said voter list the age of the petitioner is shown as 50 years, where as the petitioner could not produce any voter list of the proceeding year to show that the petitioner has become voters after attaining the 18 years of age. Mr. Bhagwati submits that under Section 9 of the Foreigners Act, it is the burden of the notice receiver to prove that he is not a foreign national, but in the case in hand the petitioner failed to produce the original of the certificates and also could not produce any witness. Per contra, Mr. Sahewalla WP(C) No of 2009 Page 3 of 6

4 submits that the petitioner did not understand the language of the Court and he being a cycle mechanic is not aware of the legal position. The learned senior counsel submits that without being aware of the legal position that original documents are necessary for the purpose of proving the same, the petitioner produced photocopy of the said certificates thereon. [6] Section 30 of the CPC lays down the procedure for power of the Court describing the provisions empowering the Court to make necessary orders relating proof of documents. The Hon ble Supreme Court has consider this provisions in the case of Maria Margerida Sequeira Fernandes reported in (2012) 5 SCC 370 held that it is the duty of the learned Court to be proactive in regard to arriving at finding in respond to the lis, when the matter is pending before the Court. The Hon ble Supreme Court has observed that Section 30 of the CPC should be frequently resorted by the Court of the original jurisdiction, but the same has not been followed by the Courts. In the said judgment the Hon ble Supreme Court has cautioned the learned Courts below in regard to its responsibility to properly adjudicate the dispute pending before it even if a party fails to act in the way he should. The provisions of Section 30 of the CPC has given enough power to the Court of original jurisdiction to take all necessary steps so as to cull out the truth in regard to responsibility of learned Civil Court under the Code of Civil Procedure, is also equally applicable for tribunal constituted under special Act and under such situation the responsibility of the learned Foreigner s Tribunal also would include exercise of jurisdiction in the spirit of Section 30 of the CPC. This is so because a Foreigner s Tribunal has been cast with the responsibility of deciding the valuable right of a citizen which is hallmark for enjoyment of any other right available under Constitution of India. In this view of the matter, it is not expected of the Foreigners Tribunal to Act Mechanically being oblivious on ground realities. As in this case, the petitioner is not a qualified person and is engaged in cycle WP(C) No of 2009 Page 4 of 6

5 repairing, he has been served with a notice under the Foreigner s Tribunal Order 1964 and he had to stand trial without being aided by any duly qualified counsel. He is in possession of rightful documents which is discernible from the fact that the original certificates have been produced before this Court by the learned Senior Counsel. If the learned Tribunal had exercised the power and responsibility cast on it under spirit of Section 30 of the CPC, the same documents would have found place in the records of the proceeding and in that event perhaps the impugned order would not have been passed. The net result is that a citizen is in custody for more than 4 years in spite of being in possession of the relevant documents. [7] Having gone through the original documents, particularly the letter dated , the photocopy of which was placed before the learned Tribunal, it appears thus the father of the present petitioner was appraised on that the further financial assistance would not be admissible to him. The petitioner has also produced the original certificate of registration of his grandfather, namely, Rasik Ch. Dey. It appears from the said certificate that as on the said Rasik Ch. Dey was certified to be a citizen of India under Provision of Section 5 (1) (a) citizenship Act, 1955 under the ceal and signature of the Registering authority, namely, the Sub Deputy Collector. It is not in dispute that Lt Jogesh Ch. Dey was the father of the petitioner. The certificate produced by him from Shapekathi Provincialised Higher Secondary School also makes the same disclose as to his parentage. The petitioner has produced a letter in original issued on showing that the said Jogesh Ch. Dey was the Secretary of the Refugee Association, Saphekati and that his grandfather was given certificate of registration by the competent authority, it is not possible to uphold the final order passed by the learned Tribunal referred to above. The learned tribunal has not considered the aforesaid document and merely refused the same on the ground that the originals are not produced. WP(C) No of 2009 Page 5 of 6

6 The final order does not indicate as to whether the learned Tribunal had enquired of the petitioner as to the originals of the documents photocopy of which were produced by him. However, once the originals have been produced before this Court and the same is perused, there is no doubt that the petitioner s father was in India on and moreover that the petitioner was a student of Shapekathi Provincialised Higher Secondary School in [8] In view of above, the impugned final order passed by the learned Foreigner s Tribunal is set aside with direction to the learned Foreigner s Tribunal, Dibrugarh to decide the reference afresh after considering the aforesaid documents. If the petitioner cannot afford to engage any counsel, the learned Tribunal shall pass necessary orders to providing legal aid to the petitioner so that the documents relied by the petitioner are proved in accordance with law. Writ petition is allowed. Petitioner shall be released from detention camp forthwith. Registry shall make necessary communication to the Superintendent of Detention Camp, Goalpara, immediately for release of the petitioner from jail. However, till the reference is decided the petitioner shall not leave the district of Dibrugarh. The petitioner shall appear before the learned Tribunal on or before to receive necessary order. [9] The writ petition stands disposed of. [10] The records shall be sent back to the learned Tribunal forthwith. sumita JUDGE WP(C) No of 2009 Page 6 of 6