Gauhati High Court
Jelekha Khatun vs The Union Of India And 3 Ors on 19 September, 2019
Author: Manojit Bhuyan
Bench: Manojit Bhuyan, Kalyan Rai Surana
Page No.# 1/4
GAHC010037732017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 5350/2017
1:JELEKHA KHATUN
W/O. AZID ALI, D/O. CHIKA SHEIKH @ SIKA SHEIKH @ BHIKA SHEIKH,
VILL. TOKRARCHARA PART-IV, P.S. GOLAKGANJ, DIST. DHUBRI ASSAM.
VERSUS
1:THE UNION OF INDIA and 3 ORS.
REP. BY ITS SECRETARY OF THE MINISTRY OF HOME AFFAIRS, UNION OF
INDIA, NEW DELHI.
2:THE STATE OF ASSAM
REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GUWAHATI-6.
3:THE DEPUTY COMMISSIONER OF DHUBRI DISTRICT
AT DHUBRI
P.O.
P.S. and DIST. DHUBRI
ASSAM.
4:THE SUPERINTENDENT OF POLICE B
DHUBRI
P.O.
P.S. and DIST. DHUBRI
ASSAM
Advocate for the Petitioner : MS. R RAHMAN
Advocate for the Respondent : ASSTT.S.G.I.
Page No.# 2/4
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
19.09.2019 (Manojit Bhuyan, J) Heard Mr. A.T. Sarkar, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no.1. Mr. J. Payeng, learned counsel represents respondent nos.2, 3 and 4.
Petitioner assails the order dated 15.07.2017 passed by the Foreigners' Tribunal No.8, Dhubri in F.T. Case No.8/88/GKJ/2016, declaring her to be a foreigner of post 25.03.1971, having illegally entered into India (Assam) without authority and valid documents.
In the proceedings of said F.T. Case No.8/88/GKJ/2016, the petitioner appeared, filed written statement with documents and also adduced evidence on affidavit. The case was decided on contest.
Before this Court and during the hearing of the writ petition today, the counsel for the writ petitioner have argued that the very initiation of the case was bad. In support, it is submitted that in the Interrogation Report dated 02.09.2002 the Enquiry Officer had observed that during the enquiry the suspect Jelekha Khatun did not appear to be an illegal migrant as the name of her father appeared in the Electoral Roll of 1966 at Sl. No.20 of village Pub Kanuri under 35 Golakganj LAC. The said report found approval of the Deputy Superintendent of Police (HQ), Dhubri and finally by the Referral Authority himself i.e. the Superintendent of Police, Dhubri, who observed in the following words -
"I agree with the recommendation of SC referred to the TBL for favour of disposal". On this, we have perused the case records received in original and find that the submissions made above stands vindicated.
It is, therefore, the case of the petitioner that in view of the report of the Enquiry Officer and that of the Referral Authority, the issuance of Notice by the Tribunal stood Page No.# 3/4 vitiated, more particularly of having offended the ratio laid down by the Full Bench of this Court at paragraph 98 in State of Assam and Others vs. Moslem Mondal and Others, reported in 2013 (1) GLT 809.
On having heard the learned counsels for the parties and on perusal of the materials on record, we first take note of the observations made in paragraph-98 of Moslem Mondal (supra) to the effect that while it is the obligation of the Referral Authority while making reference to produce all materials collected during investigation before the Tribunal, it is also the requirement of the Tribunal to prima facie satisfy itself about the existence of the main grounds before issuing Notice to a proceedee.
In the context above it is seen from the case at hand that the Enquiry Officer Shri Ganesh Roy, Sub-Inspector(B) of Golakganj Police Station made observation in the Interrogation Report that the petitioner is not an illegal migrant. The Superintendent of Police, Dhubri also made observation that the petitioner is not an illegal migrant and finally the Referral Authority also agreed with the recommendation and referred to Tribunal for favour of disposal.
On the face of the materials on record, evidently, the Tribunal had issued notice without first satisfying itself as to the requirement of issuing notice to the petitioner. Trite to say, a Foreigners' Tribunal assumes jurisdiction only after a reference is made. The jurisdiction is to render an opinion within the terms of the reference and not beyond. To reiterate, it is well settled that the Foreigners' Tribunal requires to prima facie satisfy itself with regard to the existence of the main grounds before issuing Notice. While going through the materials collected during investigation if a Tribunal finds that the reference made was incorrect or faulty or did not require a proceeding to be initiated on the basis of the report of the Referral Authority, the Tribunal should return back the reference to the Referral Authority, i.e. the Superintendent of Police to re-consider whether a fresh reference is required to be made.
Turning to the facts in hand, it is seen that when the Referral Authority had opined that the petitioner was not an illegal migrant, the question of issuing notice by the Page No.# 4/4 Tribunal could not have arisen at the first place.
On the findings above, we are of the considered view that the Tribunal had issued Notice and had initiated proceedings without satisfying itself as to the requirement of issuing notice to the petitioner. The proceeding so initiated vide F.T. Case No.8/88/GKJ/2016 being beyond jurisdiction, as such, the consequential impugned order passed on 15.07.2017 cannot stand the scrutiny of law and is liable to be set aside, which we accordingly do. We, however, leave it open to the Superintendent of Police (Border), Dhubri to make fresh investigation if the occasion arises, with further observation that if on such investigation it is found that there are materials available to proceed against the petitioner, fresh reference can be made to the Tribunal concerned.
To the extent above, the writ petition stands allowed.
Registry to inform the concerned Foreigners' Tribunal and the Superintendent of Police (Border), Dhubri. Records received from the Tribunal be returned forthwith.
JUDGE JUDGE Comparing Assistant