Gauhati High Court
Amir Hamja @ Amir Ali vs The Union Of India And Ors on 26 September, 2025
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
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GAHC010174932025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C)/3718/2025
AMIR HAMJA @ AMIR ALI
S/O. HAJARAT ALI
R/O. VILL. BANTIPUR
JARABARI
P.S. BARPETA
DIST. BARPETA
ASSAM
PIN - 781314.
VERSUS
THE UNION OF INDIA AND ORS
REP. BY THE SECRETARY
MINISTRY OF HOME AFFAIRS
GOVT. OF INDIA
SHASTRI BHAWAN
NEW DELHI - 110001.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GUWAHATI
PIN - 781006.
3:THE DISTRICT COMMISSIONER
KAMRUP (METRO)
DIST. KAMRUP (M)
HENGRABARI
GUWAHATI
ASSAM
PIN - 781006.
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4:THE DEPUTY COMMISSIONER OF POLICE (BORDER)
KAMRUP (M)
PANBAZAR
GUWAHATI
DIST. KAMRUP (M)
ASSAM
PIN - 781001.
5:THE ELECTION COMMISSION OF INDIA
REP. BY THE CHIEF ELECTION COMMISSION
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI - 110001.
6:THE OFFICER-IN-CHARGE OF BARPETA POLICE STATION
DIST. BARPETA
ASSAM
PIN - 781319.
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Advocate for : MS. D GHOSH
Advocate for : GA
ASSAM appearing for THE UNION OF INDIA AND ORS
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 26.09.2025 (S.P.Khaund, J) Heard Ms. D. Ghosh, learned counsel for the applicant. Mr. J. Payeng, learned Standing Counsel for the FT matters, Mr. H. Kuli, learned counsel appearing on behalf of Mr. A. I. Ali, learned Standing Counsel for ECI and Mr. P. Sarmah, learned Additional Senior Govt. Advocate for the State.
2. The petitioner Amir Hamja@ Amir Ali has approached this court with a fervent request to accord him a last opportunity to contest the proceeding of F.T. Case no.348/2016. The learned counsel for the petitioner has submitted that the order of the Tribunal dated 13.07.2017 passed in FT Case No.348/2016 Page No.# 3/5 clearly reflects that notice was served on the petitioner, but the petitioner failed to appear before the Tribunal. It is submitted that the petitioner has a good case and sufficient documents to prove his citizenship and if he is accorded an opportunity, he can prove to the Tribunal that he is not a foreign national but a citizen of India.
3. It is further submitted on behalf of the petitioner that specific reference to the Tribunal is missing in the original case records. It is submitted that original case record is incomplete. Page 9 to 14 of the record clearly reveals that the record is not complete. It is also submitted that there is no reference in the record. No inquiry form is available in the record.
4. Per Contra, learned standing counsel, FT matters, Mr. J. Payeng has submitted that inquiry form purported to be signed by the SP (Border) or the DCP(Border) is not mandatory after the decision of the Hon'ble Supreme Court in the case of Sarbananda Sonowal -vs- Union of India reported in 2005(5) SCC 665. Inquiry form was mandatory only in cases under the Illegal Migrants (Determination by Tribunal) Act, 1983. After the Act was scrapped, the cases pending before the Tribunal under the IMDT Act were all transferred to the Foreigners Tribunal.
5. We have considered the submission at the bar with circumspection.
6. The trial court records are being scrutinized. The case was earlier registered as IMDT Police Case No.1471/2005. Thus, when the case was initially registered under the IMDT Act, there ought to have been an Inquiry Format in the record, which is invariably missing from the record. Notwithstanding the declaration of the IMDT Act as unconstitutional by the Supreme Court of India, there ought to have been a reference relating to the doubt over the nationality Page No.# 4/5 of the petitioner. This reference has not been found in the original record of the Tribunal which indicates that the Tribunal, without any reference, proceeded against the petitioner. This is a lacuna which cannot be ignored by this court.
7. On a reference after an inquiry or investigation, the Tribunal can proceed against the person whose citizenship was under surveillance. Without any reference or any inquiry, a Tribunal cannot suo motu proceed on its own against a person whose citizenship appears to be doubtful or a person who does not appear to be an Indian citizen as described under the Citizenship Act , 1955.
8. The order dated 05.03.2016 reflects that a reference under sub- paragraph-1 and paragraph-2 under the Foreigners (Tribunal) Order 1964 from the SP, Kamrup (Metro), Guwahati against the OP Amir Ali has been received and a case was directed to be registered under the Foreigners Act, 1946. However, no reference as mentioned above is available in the case record or the case diary (forwarded to the Tribunal). Thereby this court deems it appropriate to remand back the case for adjudication on the basis of a reference if any, after tracing out the reference which has been mentioned in the order dated 05.03.2016 passed by the learned Tribunal in FT Case no. 348/ 2016 and if no reference is traced out, necessary steps may be taken.
9. Accordingly, the opinion dated 12.09.2017 passed by learned Foreigners Tribunal, Kamrup (Metro) No.5, Assam in FT Case no.348/2016 arising out of F.T. Case no. 1471/2005 is interfered with and set aside to facilitate fresh determination in accordance with law.
10. Send back the original record of the Tribunal.
JUDGE JUDGE
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Comparing Assistant