Gauhati High Court
Maleka Bibi vs The Union Of India And 3 Ors on 12 February, 2019
Author: A.M. Bujor Barua
Bench: Achintya Malla Bujor Barua, Ajit Borthakur
Page No.# 1/3
GAHC010032682016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 7506/2016
1:MALEKA BIBI
W/O. FORID ALI, D/O. LT. SABANI SK, R/O. VILL. ALOMGANJ PART-IV, P.O.
ALOMGANJ, P.S. GAURIPUR, DIST. DHUBRI, ASSAM, PIN. 783339.
VERSUS
1:THE UNION OF INDIA and 3 ORS.
REPRESENTED BY THE MINISTRY OF HOME AFFAIRS, NEW DELHI-01.
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER and SECRETARY TO THE GOVT.
OF ASSAM
DEPTT. OF HOME
DISPUR
GHY.-6.
3:THE SUPERINTENDENT OF POLICE B
DHUBRI
P.O. DHUBRI
DIST. DHUBRI
ASSAM
PIN. 783301.
4:THE DEPUTY COMMISSIONER OF DHUBRI
P.O. and P.S. DHUBRI
DIST. DHUBRI
ASSAM
PIN. 783301
Advocate for the Petitioner : MR.S HOQUE
Advocate for the Respondent : GA, ASSAM
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BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 12-02-2019 (A.M. Bujor Barua, J) Heard A.R. Sikdar, learned counsel for the petitioner. Also heard Mr. A.I. Ali, learned counsel for the Election Commission of India, Mr. J. Payeng, learned counsel for the State of Assam appearing for the Foreigners' Tribunal and Border Areas, 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. On being referred by the Superintendent of Police, Border, Dhubri, IM(D)T Case No.5290/98 was registered against the petitioner. On the IMDT Act 1983 being declared ultra vires, the reference was transferred to the Foreigners Tribunal No.5, Dhubri and was re-numbered as Case No-FT- 5/G/199/2016.
3. Upon receipt of notice, the petitioner contested the reference before the Tribunal resulting in the opinion dated 18.08.2016, whereby, the petitioner was declared to be a foreigner who entered into India after 25.03.1971.
4. Being aggrieved, the present writ petition has been preferred.
5. In the writ petition amongst other ground, Mr. A.R. Sikdar, learned counsel for the petitioner takes us to an endorsement of the AERO dated 10.10.1997, wherein, it is provided as "seen LVO's report, proceeding dropped". But inspite of such endorsement by the AERO, the Superintendent of Police, Border Dhubri had referred the matter to the Tribunal for adjudication.
6. The reference made by the Superintendent of Police, Border Dhubri shows that the aforesaid endorsement of the AERO was not taken into consideration while making the reference against the petitioner. In the circumstance, it is the contention of Mr. A.R. Sikdar, learned counsel for the petitioner that the reference made against the petitioner is defective and therefore all further proceedings before the Tribunal are unsustainable.
7. In order to substantiate his contention Mr. A.R. Sikdar, learned counsel relies upon an earlier pronouncement of this Court rendered in Monowara Khatun -vs- The Union of India & Ors., in WP(C) 2674/2016 dated 12.01.2018, wherein, in similar circumstance, when the reference made was defective, it was held that the Tribunal ought to have returned the reference back to the Superintendent of Police Border for a proper reference.
8. In the instant case, we do not find any reason as to why we are required to deviate from the said provision laid down by this Court in its judgment and order dated 12.01.2018. As the reference was defective to the extent that the endorsement made by the AERO that the proceeding had been dropped was not taken into consideration, we are of the view that ends of justice will be met, if the opinion Page No.# 3/3 dated 18.08.2016 in Case No-FT-5/G/199/2016 is set aside and the reference is returned back to the Superintendent of Police, Border Dhubri for a fresh consideration as to whether a reference is required to be made against the petitioner under the law.
9. Accordingly, the opinion dated 18.08.2016 is set aside and the reference is returned back to the Superintendent of Police, Border Dhubri for a due consideration as to whether any reference under the law is required to be made against the petitioner. Upon such consideration, the Superintendent of Police, Border shall pass a reasoned order either requiring or not requiring a reference to be made. In the event, the Superintendent of Police, Border Dhubri is of the view that no further reference is required to be made, a reasoned order to be passed thereto be provided to the petitioner. In the event, on the other hand, the Superintendent of Police is of the view that the reference is required to be made, the same be done and the petitioner be issued with an appropriate notice by the Tribunal in the resultant process.
Writ petition is allowed to the extent as indicated above.
JUDGE JUDGE Comparing Assistant