Gauhati High Court
Sayed Ali Sheikh @ Soiyed Ali vs The Union Of India And 7 Ors on 21 May, 2019
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan, Nelson Sailo
Page No.# 1/5
GAHC010045432019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review. Pet. 55/2019 In
WP(C) No.2114/2017
1:SAYED ALI SHEIKH @ SOIYED ALI
S/O- LATE BAHEJ ALI,
VILL.- HARBANGA, P.O.- TULSIBIL, P.S. GOSSAIGAON, DIST.- KOKRAJHAR,
B.T.A.D., ASSAM, PIN- 783360.
VERSUS
1:THE UNION OF INDIA AND 7 ORS.
REP. BY THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI-
01.
2:THE STATE OF ASSAM
REP. BY CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI- 06.
3:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI- 06.
4:THE DIRECTOR GENERAL OF POLICE
ASSAM
ULUBARI
GUWAHATI- 05.
5:THE SUPERINTENDENT OF POLICE (B)
KOKRAJHAR
ASSAM
PIN- 783360.
6:THE DEPUTY COMMISSIONER
KOKRAJHAR
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ASSAM
PIN- 783360.
7:THE OFFICER-IN-CHARGE
GOSSAIGAON POLICE STATION
DIST.- KOKRAJHAR
B.T.A.D.
ASSAM
PIN- 783360.
8:THE ELECTOR REGISTRATION OFFICER
NO. 29 KOKRAJHAR WEST (ST) LAC
DIST.- KOKRAJHAR
ASSAM
PIN- 783360
Advocate for the Petitioner : MR. M U MONDAL
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE UJJAL BHUYAN
HONOURABLE MR. JUSTICE NELSON SAILO
ORDER
Date : 21-05-2019 Ujjal Bhuyan, J.
Heard Mr. MU Mondal, learned counsel for the review petitioner; Mr. A Kalita, learned Special Counsel, Foreigners Tribunal; Mr. D Baruah, learned Standing Counsel, Election Commission of India; and Ms. U Das, learned counsel for State Coordinator, National Register of Citizens (NRC).
By filing this petition, petitioner seeks review of judgment and order dated 08.05.2018 dismissing the writ petition, being WP(C) No.2114/2017 (Sayed Ali Sheikh @ Soiyed Ali Vs. Union of India) filed by the petitioner.
Page No.# 3/5 Be it stated that by the order dated 15.02.2017, Foreigners Tribunal, Kokrajhar in Case No.K/FT/D/242/2006 had declared the petitioner to be a foreigner who had illegally entered into India (Assam) from the specified territory after 25.03.1971. This order was assailed by the petitioner in WP(C) No.2114/2017. As noted above, the said writ petition was dismissed by a reasoned judgment and order dated 08.05.2018. Against this order, petitioner had preferred Special Leave Petition (C) Diary No.35246/2018. By order dated 29.10.2018, Supreme Court dismissed the Special Leave Petition.
Thereafter present review petition has been filed.
Learned counsel for the review petitioner submits that while the issue before the Tribunal was whether petitioner was a foreigner of 1966 to 1971 stream, Tribunal ultimately declared the petitioner to be a foreigner of post 25.03.1971 stream. Secondly, he submits that after dismissal of his writ petition, his name has appeared in the final draft NRC. Therefore, on that ground, judgment and order of the High Court should be reviewed. Elaborating further he submits that NRC authority had appreciated linkage documents submitted by the petitioner as well as the land documents.
We are afraid we can entertain the review petition. Firstly, we find that Supreme Court had condoned the delay and had also permitted the petitioner to file additional documents. A careful reading of the Supreme Court order will go to show that the additional documents were considered by the Supreme Court whereafter the Supreme Court observed that it was not inclined to interfere with the matter. Consequently, the Special Leave Petition was dismissed. Therefore, judgment and order of the High Court was affirmed. Thereafter question of review does not arise.
Reverting back to the issue of petitioner being suspected to be a foreigner of 1966 to 1971 stream, we find that reference was made under Section 8 (1) of the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) to the then Illegal Migrants (Determination) Tribunal, Kokrajhar on 30.07.1998 suspecting the petitioner to be an illegal migrant. As per Section 3 (1) (c) of the 1983 Act, an illegal migrant was defined as a foreigner who had unauthorizedly entered into or stayed back in India after 25.03.1971.
Page No.# 4/5 In Sarbananda Sonowal Vs. Union of India , reported in (2005) 5 SCC 665, Supreme Court declared the IMDT Act to be unconstitutional and directed that all the reference which were pending before the Tribunals constituted under the IMDT Act should be transferred to the Foreigners Tribunals constituted under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964. Accordingly, this reference was transferred to the Foreigners Tribunal, Kokrajhar. Therefore, it is very much clear that the issue was whether petitioner was an illegal migrant or not. In other words, whether petitioner had unauthorizedly entered into India from the specified territory after 25.03.1971.
In such circumstances, the question as to whether petitioner had entered into India between 1966-1971 does not and cannot arise. Further we find that the reference against the petitioner remained pending before the Illegal Migrants (Determination) Tribunal, Kokrajhar from 30.07.1998 till 29.07.2005. Thereafter also till the matter was taken up by the Foreigners Tribunal, Kokrajhar by issuing notices after notices to the petitioner, there was no progress at all in the reference. It was the petitioner's misfortune that he had accepted notice from the Tribunal otherwise, proceeding before the Tribunal would have continued indefinitely. This Court had noted that for long 17 years, there was no progress at all in the reference.
Be that as it may, the Writ Court had elaborately gone into the evidence and thereafter affirmed the finding of the Foreigners Tribunal. Supreme Court also did not interfere with the finding of the High Court. Therefore, question of review does not arise.
In so far the third issue is concerned, it is quite clear that a person who is declared to be a foreigner by the Foreigners Tribunal cannot get his name entered in the NRC. As per the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, more particularly sub-clause (2) of Clause 3 thereof, the names of persons who have been declared as illegal migrants or foreigners by the competent authority shall not be included in the consolidated list of NRC. Therefore, the contention that because somebody's name has appeared in the NRC though he has been declared to be a foreigner by the Foreigners Tribunal and on that ground, order of the Foreigners Tribunal or the High Court should be reviewed is legally untenable.
Page No.# 5/5 We see no good reason to entertain the review petition.
Review petition is dismissed.
JUDGE JUDGE Biplab Comparing Assistant