W.P. (C) No. 256 of 2013. Case: Md. Bahaluddin Sheikh Vs Union of India. Guwahati High Court
| Case Number | W.P. (C) No. 256 of 2013 |
| Counsel | For Petitioner: A. R. Sikdar; M. H. Talukdar, Advs. and For Respondents: K. N. Choudhury, Addl. Sr. AAG, Ms. A. Deka, K. P. Pathak, Amicus Curiae, A.S. G.I., M. Bhagawati, C.G.C., M. U. Mahmud, S.E., S.E.C. |
| Judges | B. K. Sharma, J. |
| Issue | Constitution of India - Article 11; Civil Procedure Code (5 of 1908) - Section 9 |
| Citation | AIR 2013 Gau 181 |
| Judgement Date | April 11, 2013 |
| Court | Guwahati High Court |
Judgment:
1. The petitioner, who has been identified as 'D' (Doubtful) voter, has filed this writ petition, challenging the proceeding that has been initiated against him by the Foreigners Tribunal, Goalpara vide FT Case No. 5368/G/12 arising out of district Case No. 793/2010. Apart from claiming that initiation of such proceeding is uncalled for in view of the fact that the petitioner is an Indian citizen, the said proceeding has also been questioned on the ground of pendency of a suit being Title Suit No. 95/2012 in the Court of the learned Munsif No.1, Goalpara, by which the petitioner as the plaintiff has prayed for a declaration that he is an Indian citizen as defined in the Citizenship Act and that the alphabet "D" shown against his name in the electoral roll be removed entitling him to cast votes in elections.
2. Having regard to the importance of the issue involved, which is, as to whether in view of the existing special law for determination of citizenship issue, a civil suit is maintainable towards determination of one's citizenship, Mr. K.P. Pathak, learned ASGI was requested to assist the Court as Amicus Curiae, more particularly when the Union of India is also party respondent in the writ petition. Similarly, Mr. K.N. Choudhury, learned Sr. AAG, Assam was also requested to assist the Court. Both of them readily agreed to do so.
3. The writ petition was first entertained on 24.1.2013 and thereafter adjourned to 28.1.2013. On that day, Mr. A.R. Sikdar, learned counsel for the petitioner prayed for a week's time and suggested the next date as 13.2.2013. Accordingly, the matter was adjourned and could be taken up for final hearing on 21.2.2013, on which date Mr. Sikdar, learned counsel for the petitioner, at the first instance, wanted to withdraw the writ petition to which Mr. Pathak, learned ASGI, acting as Amicus Curiae, raised objection having regard to the importance of the issue involved. Eventually, the learned counsel for the petitioner agreed for final adjudication of the matter and made his submissions. In addition to his oral submission, he also submitted a written argument.
4. Mr. Sikdar, learned counsel for the petitioner during the course of his argument submitted that irrespective of filing the suit by the petitioner, he has already responded to the proceeding before the Tribunal. However, on being asked as to what will be the consequence of two simultaneous proceedings, he submitted that it is the judgment and decree in the civil Court proceeding which will prevail over the opinion rendered by the Foreigners Tribunal. Referring to the notice dated 13.12.2012 served on the petitioner including his other family members, Mr. Sikdar, learned counsel for the petitioner submitted that the said notice having not contained the grounds on which they are alleged to be foreigners, it is difficult on the part of the petitioner to effectively respond to the said notice.
5. Both Mr. K. P. Pathak, learned Amicus Curiae and ASGI and Mr. K.N. Choudhury, learned Sr. AAG, Assam, opposing the said submission submitted that the civil suit filed by the petitioner is not maintainable in view of the existing special provisions in the form of Citizenship Act, 1955; Foreigners Act, 1946 and Foreigners (Tribunal) Order, 1964. In addition, they also referred to the constitutional provisions relating to citizenship.
6. Mr. A.R. Sikdar, learned counsel for the petitioner in reference to the written argument submitted by him, submitted that the petitioner is a citizen of India, his grand parents' names having appeared in the NRC of 1951 and voter list of 1966. It was also submitted that his father's name was in the voter list of 1966 onwards up to 1989. It was also submitted that his father expired in 1996 and that the petitioner's name along with the other family members appeared in the voter lists from 1989 onwards. However, in April, 2011, the petitioner was prevented from casting his votes by the Presiding Officer in the General Assembly Election on the ground of there being 'D' inserted against his name in the voter list. His request for correction of the same having not been entertained, he filed Title Suit No. 95/2012 on 27.8.2012.
7. It was further submitted by Mr. A.R. Sikdar, learned counsel for the petitioner that although the defendants in the suit who are Union of India; Chief Election Commissioner of India; State of Assam; Election Commission; the District Election Officer and Superintendent of Police, initially appeared in the said Title Suit proceeding but in view of their subsequent absence, the learned Munsiff No. 1 has passed an order for ex parte hearing. But in the mean time, the petitioner was served with the impugned notice dated 13.12.2012 issued by the Foreigners Tribunal, Goalpara requiring his and his family members presence. By the said notice, they have been asked to appear before the Tribunal along with the supporting documents including the voter list of 1966 in response to the proceeding that has been initiated under the Foreigners Act.
8. Placing reliance on the decisions reported in (1) AIR 1961 SC 1526 (The Union of India v. Ghaus Mohammad); 2010 (2) GLT 01 (Moslem Mondal and others v. Union of India and others); Review Judgment (RA 22/2010) dated 3.1.2013 passed in Moslem Mandal (supra); (2003) 6 SCC 151: (AIR 2003 SC 2743) (Sahebgouda and others v. Ogeppa and others); AIR 1969 SC 439 and 560 (Musamia Imam Haider Bax Razvi v. Rabari Govindbhai Ratnabhai and others and State of U.P. and others v. Shah Mohammad and others); AIR 1966 SC 1718 (Abdul Waheed Khan v. Bhawani and others); (2003) 6 SCC 220: (AIR 2003 SC 2696) (Dwarka Prasad Agarwal and another v. Ramesh Chander Agarwal and others); AIR 1965 SC 1942 (Kamala Mills Ltd. v. State of Bombay); (1997) 5 SCC 460: (AIR 1997 SC 3082) (Vankamamidi Venkata Subba Rao v. Chatlapalli Seetharamaratna Ranganayakamma); AIR 1948 (Pat) 49 (Luthra Uraon v. Samua Uraon and others) and AIR 1952 (Mad) 106 (Gadha-vajhala Satyanarayanamurthi v. Rao aahed Y. Narayanamurthi and others), Mr. Sikdar, learned counsel for the petitioner in his elaborate and detailed argument, submitted that there cannot be any bar of jurisdiction of Civil Court to determine the citizenship of a person. According to him, the Citizenship Act and the Foreigners Act having not excluded the jurisdiction of the Civil Court, the Title Suit filed by the petitioner is very much maintainable and the declaration thereof would prevail over the opinion rendered by the Foreigners Tribunal. Mr. A.R. Sikdar, learned counsel for the petitioner also submitted that the issue being no longer res integra in view of the judgment in Moslem Mondal (supra), this Court is not entitled to adjudicate the same issue once again.
9. Opposing the aforesaid submission, Mr. K.P. Pathak, learned ASGI, acting as Amicus Curiae in the matter with the assistance of Mr. M. Bhagawati, learned CGC submitted that having regard to the special law as envisaged in the Citizenship Act and the Foreigners Act, there is implied ouster of jurisdiction of the civil court in the matter of determination of one's citizenship. Referring to the Moslem Mandal's case (supra), he submitted that while deciding the said case, the issue as has been raised in the present proceeding was not the issue and thus the observations made therein, cannot be said to be determination of the issue in question. He submitted that the rights and liabilities associated with citizenship can only be constitutional or statutory but can never be a right under common law so as to agitate or assert the same by way of a civil suit as in the case of land Dispute, etc.
10. Referring to Articles 5 to 11 of the Constitution of India under Part-II (Citizenship), he submitted that the Parliament having enacted the Citizenship Act, 1955 for acquisition and termination of Indian citizenship, as provided for under Article 11 of the Constitution of India, there is automatic ouster of jurisdiction of civil Court in the matter of determination of citizenship. Referring to the provisions of Foreigners Act, 1946, he also submitted that the said act having specifically been enacted towards exercising certain powers in respect of foreigners, there is no question of entitlement to initiate simultaneous proceeding by way of filing a suit for determination of the same issue. As regards the power of the Foreigners tribunal by way of rendering 'Opinion" as to whether a person is not a foreigner within the meaning of Foreigners Act, 1946, referring to the dictionary meaning, he submitted that "Opinion" being a statement by a Judge or Court of the decision reached in regard to a case tried or argued before them, expounding the law as applied to the case, and detailing the reasons upon which the judgment is based, it cannot be argued that such opinion is inferior than the declaration made by the Civil Court. In this connection, he has specifically referred to the observations made in Moslem Mandal (supra) in which the expression "Opinion" in reference to Civil Court jurisdiction was held thus:-
37. We deem it necessary to point out that under the scheme of the Foreigners Act, 1946, read with Foreigners (Tribunal) Order, 1964 (in short '1964 order'), the Tribunal, constituted under the 1964 Order, is required to give, on the 'reference' made to it, only an 'opinion' whether the person, proceeded against, is or is not a 'foreigner'. For the purpose of rendering such an opinion, the Tribunal has to necessarily determine the question as to whether the person, against whom a 'reference' is made, is or is not an Indian citizen. The question as to whether a person is or is not an Indian citizen can also be decided by a civil Court at the option of the person, who is alleged to be a foreigner or held to be a foreigner by the Tribunal constituted under the 1964 Order, inasmuch as a civil court is entitled to pass a decree declaring the status of a person as an Indian...
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