Gauhati High Court
Sital Biswas vs The Union Of India And 6 Ors on 6 December, 2023
Author: M.R.Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/6
GAHC010250902019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/386/2020
SITAL BISWAS
S/O- LT. SASHI BHUSHAN BISWAS, R/O- VILL. GARMUR, P.O. LALUK, DIST.
LAKHIMPUR, ASSAM.
VERSUS
THE UNION OF INDIA AND 6 ORS.
REP. BY THE SECY., MINISTRY OF HOME AFFAIRS, NEW DELHI, PIN-
110001.
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY.-06.
3:THE MEMBER
FOREIGNERS TRIBUNAL-1
NORTH LAKHIMPUR
DIST. NORTH LAKHIMPUR
ASSAM
PIN- 787001.
4:THE ELECTION COMMISSION OF INDIA
NEW DELHI
PIN- 110001.
5:THE COORDINATOR
NRC
ASSAM
GUWAHATI- 781005.
Page No.# 2/6
6:THE DY. COMMISSIONER
NORTH LAKHIMPUR
DIST.- LAKHIMPUR
ASSAM
PIN- 787001.
7:THE SUPDT. OF POLICE (B)
NORTH LAKHIMPUR
DIST.- LAKHIMPUR
ASSAM
PIN- 787001
Advocate for the Petitioner : MS. S G BARUAH
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
06-12-2023 (M.R.Pathak, J) This writ petition filed on 04.10.2019 is against the impugned final order & opinion dated 29.04.2019 passed by the learned Member, Foreigners' Tribunal, Lakhimpur (1 st), North Lakhimpur in Lakhimpur FT (1st) Case No. 5341/2017 (District No. 51/2002), whereby upon hearing the petitioner the said learned Tribunal opined him to be a Foreigner under the Foreigners' Act, 1946, who had illegally entered into the territory of India (Assam) from the specified territory of Bangladesh on or after 25.03.2071.
2. We have seen that the learned Member, Foreigners' Tribunal, Lakhimpur (1 st), North Lakhimpur has been made party respondent No. 3 in the present proceeding and we found that the said respondent is not a necessary party for adjudication of this case.
3. As such, name of the respondent No. 3 be struck off from the cause title of this case and the respondent Nos. 4, 5, 6, 7 be re-numbered as respondent No. 3, 4, 5 & 6 respectively.
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4. Registry shall accordingly do the needful.
5. Heard Ms. S G Baruah, learned counsel for the petitioner and Ms. B Sarma, learned CGC for the respondent No. 1. Also heard Ms. A Verma, learned Standing counsel, Home Department, Assam for the respondent No. 2, 6 (7); Mr. A I Ali, learned Standing counsel, Election Commission of India for the respondent No. 3 (4) as well as Mr. P Sharma, learned Additional Senior Government Advocate, Assam for the respondent No. 5 (6).
6. During the deliberation of the matter, Ms. Baruah, learned counsel appearing on behalf of the petitioner has submitted that on the basis of the same Migration Certificate, i.e., M.C. No. T 0095692 dated 09.03.1965 issued by the authorities of Mahishashan Police Passport Check Post, District-Karimganj vide Check Post Sl. No. 1429-35 dated 24.06.1965, the learned Member, Foreigners' Tribunal-1 st, Lakhimpur, North Lakhimpur in Lakhimpur FT-1 Case No. 3331/2011 (District F.T. Case No. 417/04) disposed of on 21.03.2016 and the learned Member, Foreigners' Tribunal, Lakhimpur, North Lakhimpur in LFT Case No. 1093(D)/11 (District No. 320) disposed of on 13.03.2012, declared his elder brother, namely, Bhagawati @ Bhuboti Biswas as well as his younger brother, namely, Sadhan Biswas, respectively, as not foreigners, deciding both the references in negative.
7. However, Ms. Baruah, learned counsel for the petitioner has submitted that in his case, the learned Member, Foreigners' Tribunal-1 st, Lakhimpur, North Lakhimpur by the impugned final order & opinion dated 29.04.2019 passed in Lakhimpur FT (1 st) Case No. 5341/2017 (District No. 51/2002) rejected the said Migration Certificate , noted above and declared the petitioner to be a foreigner under the Foreigners' Act, 1946, answering the reference positively.
8. Issue Notice, returnable by 8 (eight) weeks.
9. As Ms. B Sarma, learned CGC; Ms. A Verma, learned Standing counsel, Home Department, Assam; Mr. A I Ali, learned Standing counsel, Election Commission of India as well as Mr. P Sharma, learned Additional Senior Government Advocate, Assam have accepted notices on behalf of the respondent Nos. 1; 2, 6; 3 and 5 respectively, no formal notice be issued to those respondents.
10. Petitioner shall serve requisite extra copies of this writ petition including the Annexures appended thereto, to Ms. B Sarma, learned CGC; Ms. A Verma, learned Standing counsel, Page No.# 4/6 Home Department, Assam; Mr. A I Ali, learned Standing counsel, Election Commission of India as well as Mr. P Sharma, learned Additional Senior Government Advocate, Assam by 07.12.2023, obtaining necessary acknowledgments from them in that regard.
11. Petitioner shall take step for service of notice upon the respondent No. 4 by Registered Post with A/D by 07.12.2023, providing its correct and proper address with requisite postal stamp.
12. Call for the records of Lakhimpur FT (1st) Case No. 5341/2017 (District No. 51/2002) from the office of the learned Member, Foreigners' Tribunal, Lakhimpur (1st), North Lakhimpur wherein the impugned opinion was passed on 29.04.2019 as well as the records of
- (a) Lakhimpur FT-1 Case No. 3331/2011 (District F.T. Case No. 417/04) disposed of on 21.03.2016, from the Office of the learned Member, Foreigners' Tribunal-1 st, Lakhimpur, North Lakhimpur and (b) LFT Case No. 1093(D)/11 (District No. 320) disposed of on 13.03.2012, from the Office of the learned Member, Foreigners' Tribunal, Lakhimpur, North Lakhimpur.
13. A copy of this order requisitioning the case records and the forwarding letters by which the case records of the above mentioned F.T. cases are sent to this Court be made part of the record file of the concerned Tribunals.
14. In the interim, the petitioner, namely, Sri Sital Biswas, if not arrested earlier, shall not be taken into custody and deported from the territory of India pursuant to the impugned final order & opinion dated 29.04.2019 passed by the learned Member, Foreigners' Tribunal, Lakhimpur (1st), North Lakhimpur in Lakhimpur FT (1st) Case No. 5341/2017 (District No. 51/2002) , subject to the condition that he shall appear before the Superintendent of Police (Border), Lakhimpur, North Lakhimpur on or before 21.12.2023 during the office hours and shall furnish a bail bond of Rs. 5,000/- with one local surety of like amount to the satisfaction of the said authority.
15. On his appearance before the SP (Border), Lakhimpur, North Lakhimpur, as directed above, the said authority shall obtain necessary information and documentation as required under the Rules from the petitioner, noted above, for securing his presence.
16. Further, the Superintendent of Police (Border), Lakhimpur, North Lakhimpur is directed that on appearance of the petitioner within the period indicated above, the biometrics of the iris of Page No.# 5/6 both eyes, the fingerprints of both hands and photographs of the petitioner shall be obtained, where after, he shall be allowed to remain on bail.
17. It is made clear that without giving full details of the petitioner's new address and/or destination before the Superintendent of Police (Border), Lakhimpur, North Lakhimpur and without obtaining any prior written permission from the said authority, the petitioner shall not leave the jurisdiction of said SP (Border), Lakhimpur, North Lakhimpur, Assam.
18. Failure on the part of the petitioner to comply with the aforesaid directions, the bail granted to the petitioner shall stand automatically vacated and he shall be liable to be taken back into custody.
19. This order be brought to the notice of the Registrar (Judicial) forthwith.
20. On the returnable date, the petitioner shall apprise the Court as to when he appeared before the Superintendent of Police (Border), Lakhimpur, North Lakhimpur, as directed above.
21. At this stage, Ms. Baruah, learned counsel for the petitioner has submitted that presently all the records regarding registration and issuance of Migration Certificate by Mahishashan Police Passport Check Post, District-Karimganj are with the Border Security Force (BSF).
22. Both, the respondent No. 1, Ministry of Home Affairs, Government of India, New Delhi as well as the respondent No. 2, Home Department, State of Assam shall verify the correctness/genuineness of the Migration Certificate No. T 0095692 dated 09.03.1965 issued by the authorities of Mahishashan Police Passport Check Post, District-Karimganj, on the basis of which a Duplicate Certificate in that regard was issued to the petitioner by the Mahishashan Police Passport Check Post on 31.08.2000.
23. The respondent Nos. 1 & 2 shall submit the relevant reports, as directed above, on the next date of listing of the matter.
24. The Home Department of the State through the Superintendent of Police (Border), Karimganj may verify the correctness/genuineness of the Duplicate Migration Certificate, allegedly issued to the petitioner, as noted above.
25. Registry shall list this matter for Admission, immediately on receipt of the relevant records from the concerned Tribunals.
26. Copy of the orders dated 13.03.2012 and 21.03.2016 passed by the learned Member, Page No.# 6/6 Foreigners' Tribunal, Lakhimpur, North Lakhimpur and the learned Member, Foreigners' Tribunal-1st , Lakhimpur, North Lakhimpur, noted above, be kept as part of the record.
27. Copy of this order be furnished to Ms. B Sarma, learned CGC and Ms. A Verma, learned Standing counsel, Home Department, Assam, for their necessary use.
JUDGE JUDGE Comparing Assistant