In a significant judgment, the Gauhati High Court has set aside an ex-parte order by a Foreigners’ Tribunal (FT) declaring a Morigaon resident as a foreigner in his absence.
Passing an order on a petition filed by Asoruddin, a resident of Moirabari of Morigaon district, a Division Bench of Justice Manish Choudhary and Justice N Kotiswar Singh held that citizenship was an “important right of a person” and should be decided on the “basis of merit” by considering the material evidences that may be adduced by the person concerned and “not by way of default” as happened in the present case.
The judges said that the petitioner had pointed out that his name, along with that of his grandparents, parents, has appeared in the voters’ lists of 1965, 1970 and 1971, as residing in Sahariapam village in Assam’s Nagaon district. “Accordingly, it has been submitted that otherwise, there are sufficient documents and evidences to prove that he is an Indian citizen,” order said.
The judges, however, did not overturn the order but sent the matter back to the FT, observing that there were “factual aspects which must be ordinarily considered by the Foreigners’ Tribunal and not by this Court”. It directed the petitioner to appear before the FT (2nd), Morigaon, on or before November 8.
Asoruddin’s advocate, M A Sheikh, argued that he could not appear for his hearing because he was “very poor” and could not “readily collect the relevant documents”. “He also could not communicate with the engaged counsel nor his counsel communicated with him the subsequent dates fixed by the Tribunal. Further, it has been submitted that the petitioner had to leave the State of Assam for Kerala for earning his livelihood,” submitted Sheikh.
Asoruddin was marked as a D-voter or Doubtful Voter “without proper examination of his documents”, he said, adding that on receiving notice from the Tribunal, Asoruddin on February 12, 2010, appeared before it “as he had no intention to evade proceedings”.
The counsel representing the FT objected to Asoruddin’s petition saying it “ought not to be entertained” as he was absent during the proceedings.
However, the judges said they had taken into account Asoruddin’s circumstances and there were “sufficient reasons” for him not being able to appear before the FT. “We are inclined to afford another opportunity to the petitioner to appear before the Foreigners’ Tribunal to prove that he is an Indian, not a foreigner,” the order said,
The order added that Asoruddin will remain on bail during the proceedings, and that he should appear before the SP (Border), Morigaon, within 15 days from September 9 furnishing a bail bond of Rs 5,000.