Gauhati High Court
Safikul Islam @ Md. Abikul Islam vs The Union Of India And 8 Ors on 23 January, 2019
Bench: Achintya Malla Bujor Barua, Ajit Borthakur
Page No.# 1/6
GAHC010286432018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 72/2019
1:SAFIKUL ISLAM @ MD. ABIKUL ISLAM
S/O- JASIMUDDIN @ JASI SEKH, VILL NO. 1, GADHOWA CHAPARI ( NON-K
GADHOWA CHAPARI), P.S- MANGALDAI, P.O- MANGALDAI, DIST-
DARRANG, ASSAM, PIN- 784125
VERSUS
1:THE UNION OF INDIA AND 8 ORS
REP. BY THE SECRETARY TO THE GOVT OF INDIA, MIN OF HOME
AFFAIRS, SHASTRI BHAWAN, TILOK MARG, NEW DELHI- 01
2:THE STATE OF ASSAM
REP. BY THE CHIEF SECRETARY TO THE GOVT OF ASSAM
DISPUR
GUWAHATI- 06
3:THE ELECTION COMMISSION OF INDIA
REP. BY THE CHIEF ELECTION COMMISSIONER
NEW DELHI- 01
4:THE COMMISSIONER AND SECRETARY
TO THE GOVT OF ASSAM
HOME DEPTT
DISPUR
GUWAHATI- 06
5:THE DIRECTOR GENERAL OF POLICE
ASSAM
ULUBARI
GUWAHATI- 05
Page No.# 2/6
6:THE SUPERINTENDENT OF POLICE (B)
DARRANG
P.O- MANGALDAI
DIST- DARRANG
ASSAM
PIN- 784125
7:THE DEPUTY COMMISSIONER
DARRANG
P.O- MANGALDAI
DIST- DARRANG
ASSAM
PIN- 784125
8:THE STATE COORDINATOR
NRC
BHANGAGARH
GUWAHATI
ASSAM
PIN- 781004
9:THE ELECTORAL REGISTRATION OFFICER
MANGALDAI (SC) LAC
P.O- MANGALDAI
DIST- DARRANG
ASSAM
PIN- 78412
Advocate for the Petitioner : MR. M U MONDAL
Advocate for the Respondent : ASSTT.S.G.I.
Page No.# 3/6 BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HONOURABLE MR. JUSTICE AJIT BORTHAKUR Date: 23.01.2019 JUDGMENT & ORDER( ORAL) (AM Bujor Barua, J) Heard Mr. MU Mandal, learned counsel for the petitioner and Mr. A Kalita, learned Counsel appearing for the Foreigners' Tribunal and Border Areas. Also heard Mr. AI Ali, learned counsel for the Election Commission of India and Ms. A Verma, learned standing counsel for the authorities under the NRC as well as Ms. G Sarma, learned counsel for the authorities under the Union of India.
2. The petitioner was referred by the Superintendent of Police (Border), Darrang at Mangaldoi, resulting in IM(D)T Case No.381 of 2000 before the Illegal Migrants (Determination) Tribunal, Darrang. Upon the IM(D)T Act of 1983 being declared ultra vires, the reference made against the petitioner was transferred to the Foreigners' Tribunal No. 1, Mangaldoi and it was re-numbered as F.T.Case No. 2826 of 2011.
3. By the order dated 30.08.2018, an opinion was rendered that the petitioner is a foreigner from the illegal migrants who had entered into India after 25.03.1971.
4. The order of the Tribunal dated 30.08.2018 is assailed in this writ petition on the ground that upon the matter being transferred to the Foreigners' Tribunal No.1, a notice was Page No.# 4/6 served on the petitioner that he is alleged to be a person who entered into India between 01.01.1966 and 25.03.1971. As a consequence, according to the petitioner, the Tribunal in its order of 30.08.2018 could not have declared the petitioner to be a foreigner who entered the territory of India after 25.03.1971. In this respect, the petitioner relies upon an earlier pronouncement of this Court rendered in Santosh Das -vs- Union of India & Ors reported in 2017 (2) 1065 wherein in paragraph-16, it has been provided as below:
" 16. From a careful reading of Order 2(1), what is discernible is that a reference is made to a Tribunal for its opinion whether a person is or is not a foreigner within the meaning of Section 2(a) of the Foreigners Act, 1946. The Tribunal gets its jurisdiction to render its opinion only when a reference is made to it. Without a reference being made, Tribunal cannot exercise its jurisdiction to opine that a person is or is not a foreigner. It is only when a reference is made as above that the Tribunal assumes jurisdiction to its opinion. Therefore, to our mind, Tribunal would have to confine to the terms of the reference made to it and cannot go beyond the same. Admittedly, in this case, reference was that petitioner was a foreigner who had illegally entered into India (Assam) from the specified territory during the period 01.01.1966 to 24.03.1971. The Tribunal was required to answer the reference either in favour of the State or in favour of the proceedee. If the reference was to be answered in favour of the State and it was answered rightly so by the Tribunal, the natural corollary would be that petitioner is a foreigner belonging to the 01.01.1966 to 24.03.1971 stream. Therefore, the view taken by the Tribunal that the Foreigners Act, 1946 or the Orders framed thereunder do not bind it to the terms of the reference is not correct."
5. The law laid down by this Court clearly postulates that a person cannot be declared to be an illegal migrant who entered India after 25.03.1971 in a proceeding where the notice served indicates that the allegation is that he entered between 01.01.1966 and 25.03.1971.
6. Mr. A Kalita, learned counsel for the State respondents further points out that there is another pronouncement of the co-ordinate Bench of this Court rendered in Ananda Ghosh - vs- Union of India & Ors reported in (2017) 2 GLT 996, wherein in paragraph -13, it has been held as under:
Page No.# 5/6 "13. Having regard to the above, we have no hesitation to hold that when the reference was as to whether petitioner was a foreigner belonging to the post 25. 03.1971 stream, non-mentioning of the same or wrong-mentioning of the stream of foreigners to which the petitioner belongs in the notices would not vitiate the ultimate conclusion reached by the Tribunal that petitioner was a foreigner of post 25.03.1971 stream. Since the reference was answered in favour of the State, it ought to be and has rightly been answered in the above manner. As a matter of fact, this issue was not even raised by the petitioner in his written statement possibly because he was fully aware that the allegation against him was of being a foreigner belonging to the post 25.03.1971 stream. Therefore, this ground urged on behalf of the petitioner stands rejected.
However, before moving on to the next ground, we would like to observe that the Tribunal ought to have been careful while issuing the notices. We hope and expect that such mistakes would not be repeated in future."
7. The later decision of this Court provides that in the event, the reference was made in a correct manner but the notice was issued in a manner otherwise, the same would not vitiate the proceeding. Upon going through the two orders of the Co-ordinate Bench of this Court rendered in Santosh Das (supra) in paragraph-16 and Ananda Ghosh (supra) in paragraph-13, we are of the view that the proposition laid down in paragraph-13 of the Ananda Ghosh (supra) is in the nature of clarificatory order of the proposition laid down in paragraph-16 of the Santosh Das (supra) and the two propositions does not appear to be in conflict with each other.
8. In view of the above, as the contentious issue is as to in what manner the reference was made in the case of the petitioner, we deem it proper to remand back the matter to the Tribunal for a consideration by going through the records and to arrive at a conclusion as to the manner in which the reference was made against the petitioner. If the reference was against the petitioner by alleging him to be a foreigner who entered after 25.03.1971, the Tribunal shall follow the proposition laid down in paragraph-13 of the Ananda Ghosh (supra) Page No.# 6/6 and in the event, Tribunal arrives at a conclusion that the reference was made that the petitioner is a foreigner who entered between 01.01.1966 and 25.03.1971, it shall follow paragraph-16 of the Santosh Das (supra) and pass its reasoned order. In the event, the Tribunal is of the view that paragraph-16 of the Santosh Das (supra) is to be followed, the Tribunal shall pass appropriate order requiring the Superintendent of Police (Border) of Darrang to arrived at its own conclusion as to whether any further reference is required to be made against the petitioner as per law.
9. Writ petition is disposed off to the extent indicated above.
JUDGE JUDGE Comparing Assistant