Gauhati High Court
Sona Kha @ Sona Khan vs The Union Of India And 9 Ors on 24 March, 2021
Bench: N. Kotiswar Singh, Manish Choudhury
Page No.# 1/14
GAHC010036712021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1293/2021
SONA KHA @ SONA KHAN
S/O LATE BASED ALI KHA @ BASEDWALA KHA @ BASED KHA @ BASED
KHAN
VILLAGE CHUKRUNGBARI PATHER
PO CHUKRUNGBARI, PS GOBARDHANA, DIST BAKSA, BTAD, ASSAM,
781317
VERSUS
THE UNION OF INDIA AND 9 ORS
REPRESENTED BY THE MINISTRY OF HOME AFFAIRS, NEW DELHI 1
2:THE CHIEF ELECTION COMMISSIONER OF INDIA
NEW DELHI
3:THE STATE OF ASSAM
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR GUWAHATI 06
4:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR GUWAHATI 06
5:THE STATE CO ORDINATOR
NRC
ASSAM BHANGAGARH GHY 05
6:THE DEPUTY COMMISSIONER
BAKSA
BTAD
Page No.# 2/14
ASSAM
7:THE SUPERINTENDENT OF POLICE (B)
BAKSA
BTAD
ASSAM
8:THE DISTRICT ELECTORAL REGISTRATION OFFICER
BARPETA
ASSAM
9:THE ELECTORAL REGISTRATION OFFICER
40TH NO. SORBHOG LAC
SORBHOG
DIST BARPETA
ASSAM
10:THE FOREIGNERS TRIBUNAL
BAKSA TAMULPUR
ASSA
Advocate for the Petitioner : MR. M U MONDAL
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MR. JUSTICE MANISH CHOUDHURY Date of hearing & Judgment : 24.03.2021 Page No.# 3/14 JUDGMENT AND ORDER (Oral) [N. Kotiswar Singh, J] Heard Mr. M.U. Mondal, learned counsel for the applicant. Also heard Mr. B. Sarma, learned CGC appearing for respondent No.1; Mr. G. Sarma, learned Special Counsel, F.T. for respondent Nos.3, 4, 6, 7 & 10; Ms. B. Das, learned standing counsel, ECI, appearing for respondent No.2, 8 & 9 and Ms. L. Devi, learned Standing Counsel, NRC, for respondent no.5.
2. In this petition the petitioner has challenged the notice issued by the Foreigners Tribunal, Baksa in F.T. Case No.159/BAKSA/2019 on 18.11.2019. The notice issued to the petitioner, being crucial and critical for decision of this Court, is reproduced herein below:
"S.P.(Border)'s Reference No.BSA/B.27/2019/1045 Date.18.11.2019 Whereas by the above reference, the SP(Border) Baksa district made a reference to the undersigned to render opinion as per provision of order 2 (1) Foreigners (Tribunal) Orders, 1964, on the ground that you have illegally entered into Assam without any valid documents post 24.03.1971 and residing in Assam and Whereas the reference reveals that you could not produced any valid documents before the police during enquiry/verification regarding your Indian Citizenship within the stipulated period of time, and Whereas on the grounds made on the reference, you are suspected to be an illegal migrant.
Therefore, as per provision of Order 3(1) of the Foreigners (Tribunal) Orders, 1964, you are asked to appear in person or by a concern lawyer engaged by you before this Foreigners Tribunal on 26.02.2021 at 10 A.M. to show cause supported by valid documents as admissible to prove that you are not a foreigner/illegal migrant as required under Section 9 of the Foreigners Act, 1946.
Upon failure to response to this notice on your part, the Tribunal shall proceed to decide the reference ex-parte."
3. From above, it is clear that the Foreigners Tribunal, Baksa proceeded against the petitioner on the premise that the proceedee/petitioner is suspected to be an illegal Page No.# 4/14 immigrant entering Assam without any valid documents after 24.03.1971. It is now well settled that the proceeding before the Tribunal will be initiated by the Tribunal only when a reference is made. It is also settled by this Court in many decisions that the Tribunal gets the jurisdiction to decide only in respect of the reference and if reference is made for opinion of the Tribunal as to whether a person is a foreigner or not within the meaning of Section 2(a) of the Foreigners Act, 1946 and having entered India during a particular period of time, the reference has to be answered only with reference to the period of time referred to. In this regard one may refer to Section 6A of the Citizenship Act, 1955 where a special provision has been made for the State of Assam. Under Section 6A of the Citizenship Act, 1955 it has been provided that if a person has entered into Assam on or after 01.01.1966 but before 25.03.1971 from a specified territory and since his entry from that date, has been ordinarily resident of Assam, but has been detected as a foreigner, he will get the benefit of getting citizenship of this country on completion of 10 years, provided he gets himself registered with the competent authority. However, said benefit has not been given to those persons who have entered in Assam on or after 25.03.1971. Thus, as provided under Section 6A of the Citizenship Act, 1955, persons who have been declared foreigners can be categorised into 2 categories: (i) who have entered into Assam during the period of 01.01.1966 and before 25.03.1971 and (ii) those, who have entered into Assam on or after 25.03.1971, entailing each category of person with different consequences and liabilities as referred to above. It is in that context the referral authority has to make a specific query and seek opinion from the Tribunal with reference to the period of entry of the concerned proceedee. It is in that context, this Court had intervened when a reference was made as to whether the proceedee had entered into India (Assam) during the period of 01.01.1966 to 24.03.1971, but the Page No.# 5/14 Tribunal had given the opinion that the proceedee is an illegal immigrant who entered on or after 25.03.1971. The Tribunal could not have given its opinion that the proceedee had entered into Assam post 25.03.1971 as in the case of Santosh Das vs. Union of India reported in 2017 (2) GLT 1065) being WP(C) No.7551/2016. This Court referring to the provisions of Foreigners Act, 1946 as well as Foreigners (Tribunal) Orders, 1964 under which the Tribunals are constituted to decide the issue, makes the following observations and directions:
"14. Section 3 of the Foreigners Act, 1946 empowers the Central Government to make Orders dealing with foreigners. In exercise of powers conferred under Sect ion 3 of the aforesaid Act, Foreigners (Tribunals) Order, 1964 was framed. Order 2 deals with constitution of Tribunals. As per Order 2(1), Central Government may by order refer the question as to whether a person is or is not a foreigner within the meaning of the Foreigners Act, 1946 to a Tribunal to be constituted for the purpose for its opinion. Order 2(1A) also confers such power on a registering authority appointed under Sub-Rule (1) of Rule 16(F) of the Citizenship Rules, 1956.
15. We have been informed at the Bar that the power of the Central Government to make reference in terms of Order 2(1) has since been delegated to the concerned Superintendents of Police.
16. From a careful reading of Order 2(1), what is discernible is that a reference is made to a Tribunal for its opinion whether a person is or is not a foreigner within the meaning of Section 2(a) of the Foreigners Act, 1946. The Tribunal gets its jurisdiction to render its opinion only when a reference is made to it. Without a reference being made, Tribunal cannot exercise its jurisdiction to opine that a person is or is not a foreigner. It is only when a reference is ma de as above that the Tribunal assumes jurisdiction to render its opinion. Therefore, to our mind, Tribunal would have to confine to the terms of the reference made to it and cannot go beyond the same. Admittedly, in this case, reference was that petitioner was a foreigner who had illegally entered into India (Assam) from the specified territory during the period 01.01.1966 to 24.03.1971. The Tribunal was required to answer the reference either in favour of the State or in favour of the proceedee. If the reference was to be answered in favour of the State and it was answered rightly so by the Tribunal, the natural corollary would be that petitioner is a foreigner belonging to the 01.01.1966 to 24.03.1971 stream. Therefore, the view taken by the Tribunal that the Foreigners Act, 1946 or the Orders framed there under do not bind it to the terms of the reference is not correct."
Form the above it is very clear that the referral authority has to make a reference to the Tribunal as to whether a proceedee has entered Assam during the period of 01.01.1966 to 24.03.1971, or, on or after 25.03.1971, as the case may be and accordingly, the Tribunal has Page No.# 6/14 to give his opinion.
4. Coming to the case in hand, it appears that the petitioner's name was already included in the 'D' voters list i.e. a person whose nationality is doubtful, because of which the petitioner had to face various hurdles in getting benefits which have been denied to him on account of his name being included his name in 'D' Voter list. In that regard, in order to purge himself from the category of 'D' Voter, the petitioner approached this Court by filing a writ petition being WP(C) No.8232/2017. However, it appears that in the said petition, this Court noted the submission advanced by the learned Standing Counsel, Election Commission of India (ECI) that certain consequential steps have already been taken in respect of the petitioner who was marked as doubtful (D) voter. But it was also clarified that there was no proceeding pending before any Foreigners Tribunal against the petitioner. In view of the submission advanced by the learned Standing Counsel, ECI, therein, this Court took the view that it would be open to the petitioner to take up the matter with the Superintendent of Police (B) Baksa. The relevant portion of the said order dated 18.09.2018 are reproduced herein below:
"...............
This writ petition is preferred by the petitioner stating that his father's name is alleged to be recorded in the voter lists of 1965, 1970 and also in 1985. His name is also shown along with the other family members in the voter lists of 1985, 1989, 1997, 2001, 2005, 2010, 2016 and 2017.
Since the year 1997 and the subsequent voter lists, he was categorized as the "D" Voter.
Being aggrieved by the said action and as per the allegation that no show cause notice/notices were served upon him he sought for a direction for removal of such "D" category being put against his name in the voter list.
Page No.# 7/14 Mr. A. I. Ali, learned Standing Counsel for the Election Commission of India was directed vide order dated 08.01.2018 to inform this Court as to what consequential steps have been taken following marking of the petitioner as Doubtful (D) Voter. In response to the said direction, Mr. Ali, produced letter dated 22.12.2017 issued to the Election Office at Barpeta by the Superintendent of Police (B), Baksa, Mushalpur, the contents of which is reproduced herein below:
"With reference to the subject cited above, I have the honour to state that the records available at this end have consulted and found that no FT Case is referred/registered against Sona Khan, S/O-late Based Ali of Chukrungbari, P.S.-Gobardhana, Dist.-Baksa (Assam). Enclo:- As stated above.
Yours faithfully, Superintendent of Police, (B), Baksa, Mushalpur."
From the aforesaid information it is clear that on verification it was found that no F.T. Case has been referred/registered against the petitioner. Accordingly, we are of the considered opinion that it would be open to the petitioner to take up the matter with the Superintendent of Police, (B), Baksa, Mushalpur and on his appearance, necessary steps will be taken by the said Superintendent of Police, (B) to make a reference under appropriate provisions of law to the concerned Foreigners' Tribunal having appropriate territorial jurisdiction to give an opinion in this regard. Accordingly, this writ petition stands disposed of."
5. Learned counsel for the petitioner submits that though the petitioner had approached the concerned authority for doing the needful in terms of the direction issued by the Court in WP(C) No.8323/2017 on 18.09.2018, the authorities did not take any concrete step and accordingly, being aggrieved, the petitioner again approached this Court by filing a writ Page No.# 8/14 petition, being WP(C) No.4639/2019. It appears that during the pendency of the said writ petition i.e. WP(C) No.4639/2019, the Superintendent of Police (B), Baksa vide Memo No.BSA/B27/2019/1045 dated 18.11.2019 made a reference in terms of the earlier direction passed by this Court in WP(C) No.8232/2017 to the Member, Foreigners Tribunal, Baksa, Tamulpur and as such, it was submitted on behalf of the learned Senior Counsel for the petitioner that direction may be issued to the concerned Tribunal to dispose of the reference as per law. Accordingly in view of the above submissions made, this Court disposed of the said writ petition i.e. WP(C) No.4639/2019 on 01.02.2021 with a direction to the Member, Foreigners Tribunal, Baksa to take up the reference referred to in the said order and pass appropriate order as against the reference. The aforesaid order dated 01.02.2021 is reproduced herein below:
"The petitioner is aggrieved due to marking as 'D' voter against his name in voter list for which he preferred WP(C) No 8232/ 2017 which was disposed of vide order dated 18.9.2018 directing the Superintending of Police (Border), Baksa to take up the matter and to make a reference to the concerned Foreigners' Tribunal. However, no such reference was made and being further aggrieved with the 'D' category being tagged in the voter list, the petitioner has filed this writ petition seeking for appropriate relief. During the pendency of this writ petition the Superintendent of Police(B), Baksa vide memo No. BSA/27/2019/1045 dated 18.11.2019 made a reference in terms of the earlier direction passed in WP(C) 8232/2017 to the Member, Foreigners' Tribunal , Baksa,Tamulpur. As the reference had already been made, Mr. Das, learned Senior Counsel sought for a direction to the concerned Tribunal to dispose of the reference as per the law.
In view of the submission made by the learned counsel for the respondent and considering the submission of learned Senior Counsel for the petitioner, this writ petition stands disposed of with a direction to the Member, Foreigners' Tribunal, Baksa to take up the reference referred in this order and pass appropriate opinion as against the reference. Needless to say that the said reference be disposed of within a period of 60(sixty) days from today.
This writ petition stands disposed of accordingly.
6. Though reference was already made, the proceeding was initiated in terms of the order dated 01.02.2021 passed by this Court, referred to above. The petitioner has now challenged the correctness of the notice issued by the Foreigners Tribunal, which has been Page No.# 9/14 reproduced above, mainly on the ground that there was no such reference made by the referral authority that the petitioner is an illegal immigrant of post 25.03.1971 stream and as such, the Tribunal could not have issued any such notice for the purpose of considering the case of the petitioner to be an illegal immigrant of post 25.03.1971 especially when it was never the case of the referring authority as well. In this regard, we have perused the records of the case.
7. Reference was made in terms of the direction of this Court referred to above by the Superintendent of Police (B), Baksa vide letter dated 18.11.2019. In the said letter, the Superintendent of Police(B), Baksa, however, mentioned that an inquiry has been conducted and having gone through the inquiry report and on scrutiny of the inquiry report and document submitted by the petitioner, it was found that the opposite party /petitioner seems not to be an illegal migrant. However, still the Superintendent of Police(B), Baksa proceeded to refer the case to the Foreigner Tribunal for favour of opinion. The aforesaid referral letter is also crucial for proper decision. Accordingly, the same is reproduced herein below:
"Reference the Hon'ble Gauhati High Court Order and WP(C) No.8232/2017 order dated 18.09.2018 in connection with 'D-Voter' marking of Sona kha @ Sona Khan, aged about 53 years S/o Based Ali Khan, r/o Vill-Chukrungbari Pather, P.O.-Chukrungbari, P.S.- Gobardhana, Dist-Baksa, Assam in the electoral roll since 1977. An enquiry has been conducted through SI (B), Mahananda Nath, I/C (B) Gobardhana P.S. I have gone through the enquiry report of Sona Kha @ Sona Khan, aged about 53 years, S/o Based Ali Khan, r/o Vill-Chukrungbari Pather, P.O.-Chukrungbari, P.S.- Gobardhana, Dist-Baksa. On scrutiny of enquiry report and documents submitted by the O.P., it is found that the opposite party seems not to be an illegal migrant.
Under the circumstances, I Shri Prateek V. Thube, IPS Superintendent of Police (B), Baksa do hereby forward the case to the foreigners Tribunal, Baksa Tamulpur for favour of opinion. The enquiry report along with the following documents is submitted herewith for favour of kind perusal and early opinion."
8. From above, it is clear that there was no specific reference by the Superintendent of Police (B) Baksa that the petitioner is an illegal immigrant of post 25.03.1971 stream and to Page No.# 10/14 that extent we agree with the submission advanced by the learned counsel for the petitioner that such a notice could not have been issued by the Tribunal, which has been challenged in this petition.
9. Having heard the learned counsel for the parties and also considering the material available on records, we are of the view that the reference made by the Superintendent of Police(B), Baksa cannot be said to be proper reference. Since, there is already a direction of this Court that reference be made in accordance with law, we will not enter into this issue as to whether any reference could have been made at all in respect of the petitioner on the basis of the investigation so made which has been reflected in the letter of reference dated 18.11.2019. However, we are of the view that the referral authority must make a specific reference to the Tribunal for his opinion as to the period during which the petitioner allegedly entered into India, which is not discernible from the referral letter dated 18.11.2019. In the absence of any such specific reference being made by the Superintendent of Police (B), Baksa, obviously the Tribunal will not be able to understand as to the nature of reference.
10. Accordingly, we direct the Superintendent of Police (Border) Baksa to make a specific reference on the basis of the documents available with him including the inquiry report as well as the documents submitted by the petitioner as to during which period the reference has to be made vis-à-vis the petitioner. We are of the view that the referral authority cannot make a reference merely to ascertain as to whether a person is a foreigner or not without making any specific reference of a period, which has a basis in terms of the Section 6A of the Citizenship Act, 1955. It may be also noted that the Tribunal also cannot give any opinion beyond the reference as already held by this Court in the case of Santosh Das (Supra). Thereby meaning that there has to be a specific reference as regards the period of alleged Page No.# 11/14 entry in case of a doubtful immigrant.
11. We also like to observe that the investigation or reference cannot be mechanical for the simple reason that it is the legal basis for conferring jurisdiction to the Foreigners Tribunal to give its opinion as to whether any person is a foreigner or not, in that context, investigation and reference assume great significance.
As a corollary, if no proper investigation or reference is made, it may vitiate the entire subsequent proceeding taken up by the Foreigners Tribunal if the investigation does not indicate that a concerned person under investigation is not a foreigner or does not appear to be a foreigner. We failed to understand how a reference can be made concerning that person unless there are other additional materials available on record to create a doubt about the citizenship of a person.
In this regard we would like to refer to the observation made by this Court in State of Assam and Ors. Vs. Moslem Mondal and Ors,. 2013, (1) GLT 809, which reads as follows:
"96. One of the contentions of the proceedees is that though the referral authority is required to make the reference to the Tribunal after making a fair investigation, no such proper and fair investigation is conducted and the police at their own whims and caprice gives a report, in some cases even without visiting the place where such proceedee resides and also without giving any opportunity to produce the relevant documents to substantiate that the proceedee is not a foreigner, and such report is accepted by the referral authority and accordingly the reference is made to the Tribunal, on the basis of which the reference is registered against such person.
97. Fair investigation and fair trial being the basic fundamental/human right of a person, which are concomitant to preservation of the fundamental right of a person under article 21 of the Constitution, there has to be a fair and proper investigation by the investigating agency before Page No.# 12/14 making a reference to the Tribunal. In such investigation the attempt has to be made to find out the person against whom the investigation is made, so that the person concerned is given the opportunity to demonstrate at that stage itself that he is not a foreigner. In case the person concerned could not be found out in the village where he is reported to reside or in the place where he ordinarily resides or works for gain, the investigating agency has to record the same in presence of the village elder or the village headman or any respectable person of the locality, which in turn would ensure visit of the investigating officer to the place where such person ordinarily resides or reported to reside or works for gain and making of an effort to find him out for the purpose of giving him the opportunity to produce the documents etc., if any, to demonstrate that he is not a foreigner. The investigating officer, as far as practicable, shall also obtain the signature or thumb impression of the person against whom such investigation is initiated, after recording his statement, if any, provided he makes himself available for that purpose. There are also instances where the person against whom such investigation is initiated, changes his place of residence, may be in search of livelihood or may be to avoid detection. To ensure proper investigation and also having regard to integrity and sovereignty of the nation, once investigation relating to the nationality status of a person starts he must inform the investigating agency in writing about the change of residence, if any, thereafter. In case such person has failed to intimate the investigating agency in writing the subsequent change of his place of residence, the investigating agency has to mention the same in his report with his opinion relating to the status of such person on the basis of materials collected at the place where he earlier resided. That will ensure a fair investigation and submission of a proper report on such investigation to the authority. Needless to say, such investigation need not be a detailed or an exhaustive one keeping in view the nature of the proceeding before the Tribunal and the object sought to be achieved. Hence it need not be equaled with an investigation conducted in criminal cases.
98. The reference by the referral authority also cannot be mechanical. The referral authority has to apply his mind on the materials collected by the investigating officer during investigation and make the reference on being satisfied that there are grounds for making such reference. The referral authority, however, need not pass a detailed order recording his satisfaction. An order agreeing with the investigation would suffice. The referral authority also, while making the reference, shall produce all the materials-collected during investigation before the Tribunal, as Page No.# 13/14 the Tribunal is required prima facie to satisfy itself about the existence of the main grounds before issuing the notice to the proceedee."
Therefore, in view of the above observation made by the Full Bench of this Court, we are of the view that if no materials are available before the Referral Authority to doubt or question the citizenship of the person concerned, no reference can be made to the Tribunal for the simple reason that it is only when the citizenship of a person is doubtful or questioned by the investigating authority and the referring authority, the requirement of making the requirement of making a reference to the Tribunal arises for its opinion.
Accordingly, in the present case, if the Referral Authority makes the reference, it must produce all the materials collected during the investigation before the Foreigners Tribunal as the Tribunal is required to satisfy itself prima facie about the existence of the grounds before issuing notice to the proceedee as held by the Full Bench of this Court.
Consequently, if any such reference is made to the Tribunal and the Tribunal does issue notice to the proceedee, the proceedee will have a preliminary right to question the validity or legality of such reference being made before the Tribunal, before the Tribunal proceeds to consider on merit about the issue of citizenship, on the ground that no such case has been made out for making a reference against the petitioners.
12. In view of above, the present petition is allowed by setting aside the impugned notice dated 19.02.2021 issued by the Foreigners Tribunal, Baksa, Tamulpur in F.T. Case No.159/BAKSA/2019 and the respondent No.7 shall make a fresh reference only, if necessary, on being satisfied, on the basis of the records available with him in accordance with law to the aforesaid Tribunal for his opinion.
13. With the above observations and directions, the present petition stands allowed. Till such fresh decision is taken by the Superintendent of Police (B), Baksa i.e. the respondent no.7, about the reference as directed above, the Tribunal shall not proceed with the F.T. Case No. F.T. Case No.159/BAKSA/2019. If, the Superintendent of Police (Border) Baksa does not intend to make any reference on the basis of the materials on record, the Superintendent of Police (Border) Baksa shall intimate the Tribunal accordingly, in which event, the Tribunal shall close the proceeding against the petitioner.
Page No.# 14/14 LCRs be immediately remitted to the Foreigners Tribunal, Baksa.
JUDGE JUDGE Comparing Assistant