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2019 Supreme(Gau) 191
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR JJ.
ON THE DEATH OF ASHMAT KHA @ ASHMAT ALI KHAN HIS LEGAL HERIS - APPELLANT
VERSUS
THE UNION OF INDIA AND ORS - RESPONDENTS
WP(C) 8592 of 2018
Decided On : 30-01-2019
For the Petitioner: MR. M.U. MONDAL
Continuous residence in Assam since the date of entry is a mandatory requirement for registration under Section 6A(3) of the Citizenship Act.
Headnote:
Foreigners - Citizenship Act - Section 6A(3)
Fact of the Case:
The petitioners' father was declared a foreigner by the Foreigners Tribunal, and upon his death, the petitioners filed a writ petition challenging the declaration.
Finding of the Court:
The court noted that the father had not registered himself with the Foreigners Regional Registration Officer as required by Section 6A(3) of the Citizenship Act.
Issues: The issue was whether the petitioners' father had continuously resided in Assam since his entry between 01.01.1966 and 25.03.1971, as required for registration under Section 6A(3).
Ratio Decidendi: The court emphasized that continuous residence in Assam since the date of entry is a core requirement for eligibility to be registered under Section 6A(3) of the Citizenship Act.
Final Decision: The court allowed the writ petition, directing the petitioners to appear before the Tribunal to provide evidence of continuous residence, and ordered the transfer of records to the Tribunal at Kokrajhar.
A.M.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 31.05.1997 had declared him to be a foreigner who had entered Assam between 01.01.1966 and 25.03.1971. 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 01.01.966 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 the25th 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 there from. 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. A reading of the provision of Section 6A (3) (b) shows that every person of Indian origin, who came to Assam on or after 01.01.1966, but before 25.03.1971 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 01.01.1966 but before 25.03.1971 and has been declared to be a foreig
