Gauhati High Court
Sahitan Nessa vs The Union Of India And 5 Ors on 21 October, 2022
Author: M.R.Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/4
GAHC010080902018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2506/2018
SAHITAN NESSA
D/O- LT ANSER ALI, W/O- JAMAL UDDIN, R/O- VILL- PAKRIGURI, PO AND
PS SALBARI, MOUZA- BIJNI, DIST- BAKSA (BTAD), ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS
REP. BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF
INDIA, NEW DELHI
2:THEE ELECTION COMMISSION OF INDIA
REP. BY THE CHIEF ELECTION COMMISSIONER OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI
3:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-6
4:THE DEPUTY COMMISSIONER
BARPETA
DIST- BARPETA
ASSAM
5:THE SUPERINTENDENT OF POLICE (B)
BARPETA
DIST- BARPETA
ASSAM
Page No.# 2/4
6:THE STATE CO-ORDINATOR OF NRC
ASSAM
PO AND PS BHANGAGARH
GHY-5
DIST- KAMRUP (M)
ASSA
Advocate for the Petitioner : MR. S ISLAM
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 21-10-2022 (M.R.Pathak, J) Heard Mr. S. A. Ahmed, learned counsel for the petitioner. Also heard Ms. K. Phukan, learned CGC for the respondent No. 1, Mr. A. I Ali, learned Standing counsel, Election Commission of India for the respondent No. 2, Ms. U. Das, learned Government Advocate, Assam for the respondent No. 3. Mr. G. Sarma, learned Standing counsel, Foreigners' Tribunal for the respondent Nos. 4 & 5 and Ms. L Devi, learned Standing counsel, State Co-ordinator, NRC for the respondent No. 6.
By communication dated 25.08.2022, the Superintendant of Police (Border) Barpeta, Assam requested the Registry of this Court to make necessary correction of the cause title of the concerned respondents, as the petitioner is a resident of Village Pakriguri, Police Station Salbari, Mouza Bijni in the District of Baksa. By the said communication dated 25.08.2022, it is also clarified that the impugned opinion/order dated 14.03.2018 passed by learned Member Foreigner's Tribunal Barpeta 10th in F. T. Case No. 07/2017 had already been sent to the Superintendent of Police (Border) Baksa.
It is to be noted herein that after the creation of BTC/BTAD Baksa District under BTC/BTAD was curved out from the erstwhile District of Barpeta and it is seen that the petitioner is a resident of Pakriguri, Salbari, Bijni District Baksa, the erstwhile District of Barpeta.
Page No.# 3/4 From the records of the relevant F.T. case No. 07/2017 it is seen that the Superintendant of Police (Border) Barpeta in November 1997 by its reference made under the IMDT Act 1983 sought for an opinion from the Foreigner's Tribunal Act 1993 in November 1997, during the force of said 1983 Act as to whether the petitioner is a foreigner or not.
After the said 1983 Act, was declared as unconstitutional in the case of Sarbananda Sonowal Vs. Union of India & Others by the Hon'ble Apex Court, the said reference was registered under the Foreigner's Act 1946 as F.T. Case No. 07/2017 and notice was issued to the petitioner by the concerned Tribunal, wherein she appeared and also filed her written statement and adduced evidence.
Accordingly, for proper adjudication of this case, the Deputy Commissioner, Barpeta, District-Barpeta, Assam respondent no. 4 as well as the Superintendant of Police (Border), Barpeta, District-Barpeta, Assam respondent No. 5 be substituted as the Deputy Commissioner, Baksa, BTAD, Baksa and the Superintendant of Police (Border) Baksa District Assam, respectively.
Registry shall accordingly do the needful by correcting the cause title.
Registry shall reflect the name of Mr. S. A. Ahmed as the counsel for the petitioner in the cause list who has entered appearance on behalf of the petitioner by filing the necessary vakalatnama yesterday i.e., on 20.10.2022.
Issue rule, returnable by 8 (eight) weeks.
As the learned CGC; learned Standing Counsels and learned Government Advocate, Assam, named above, have accepted notices on behalf of the respondents, no formal notice need be issued to them.
Petitioner shall serve requisite extra copies of this writ petition including the Annexures appended thereto to Ms. K. Phukan, learned CGC, Mr. A. I Ali, learned Standing counsel, Election Commission of India, Mr. G. Sarma, learned Standing counsel, Foreigners' Tribunal, Ms. L Devi, learned Standing counsel, State Co-ordinator, NRC and Ms. U. Das, learned Government Advocate, Assam, by 26.10.2022, obtaining necessary acknowledgements from them in that regard.
As the petitioner has been declared to be a foreigner of post 25.03.1971 stream under the Foreigners Act, 1946 by the impugned opinion dated 14.03.2018 passed by learned Member Page No.# 4/4 Foreigner's Tribunal 10th Barpeta, Bajali, Pathsala in F. T. Case No. 07/2017 and without obtaining any prior written permission from the said authority, the petitioner shall not leave the jurisdiction of said Superintendent of Police (Border), Barpeta, Assam.
Until further order, the petitioner shall not be arrested/detained in custody in terms of the impugned opinion dated 14.03.2018, passed by the learned Foreigners' Tribunal 10 th Barpeta in F. T. Case No. 07/2017.
Further the petitioner shall not be deported from the territory of India in pursuance of the impugned opinion dated 14.03.2018, passed by the learned Foreigners' Tribunal 10 th Barpeta in F. T. Case No. 07/2017.
List accordingly on a date to be fixed by the Registry.
JUDGE JUDGE Comparing Assistant