Bakul Chandra Das vs The Union Of India And 6 Ors
2021 Latest Caselaw 3276 Gua

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GAHC010284282018




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : WP(C)/1138/2019

         BAKUL CHANDRA DAS
         S/O BASANTA KUMAR DAS
         R/O GOGARA BASTI, P.S. GOHPUR, DIST. SONITPUR, ASSAM, PIN - 784168.

         VERSUS

         THE UNION OF INDIA AND 6 ORS.
         TO BE REP. BY THE SECRETARY, GOVT. OF INDIA DEPARTMENT OF
         (HOME AFFAIRS), NEW DELHI, INDIA

         2:THE STATE OF ASSAM
         TO BE REP. BY THE SECRETARY
         TO THE GOVT OF ASSAM
          DEPARTMENT OF HOME
          DISPUR GUWAHATI-6.

         3:THE NRC OFFICER
         ASSAM
          REP. BY THE STATE CO-ORDINATOR
         ASYUT PLAZA
          BHANGAGARH, KAMRUP.

         4:THE ELECTION OFFICER
          DIST. SONITPUR
         ASSAM

         5:THE SUPERINTENDENT OF POLICE (B)
          SONITPUR
          DIST. SONITPUR
         ASSAM

         6:THE DEPUTY COMMISSIONER
          SONITPUR
          DIST. SONITPUR ASSAM.
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            7:THE CENTRAL BUREAU OF INVESTIGATION
            TO BE REP. BY THE RETAINER COUNSEL
             C.B.I

Advocate for the Petitioner   : MR A R BHUYAN

Advocate for the Respondent : ASSTT.S.G.I.


                                      BEFORE
                      HON'BLE MR. JUSTICE N. KOTISWAR SINGH
                        HON'BLE MRS. JUSTICE MALASRI NANDI
                                       :: O R D E R ::

03.12.2021 [N. Kotiswar Singh, J]

Heard Mr. M.U. Ahmed, learned counsel for the petitioner. Also heard Ms. A. Verma, learned Special Counsel, Foreigners Tribunal appearing for respondent Nos.2 & 5 and Mr. A.I. Ali, learned Standing Counsel, ECI for respondent No.4; Ms. L. Devi, learned counsel appears on behalf of Mr. R.K.D. Choudhury, learned ASGI for respondent No.1; Ms. Devi also appears for respondent No.3 as the learned Standing Counsel, NRC and Ms. K. Phukan, learned Govt. Advocate, Assam appears for respondent No.6.

2. In this petition, the petitioner has sought for a direction to be issued to the respondent No.6 i.e. Deputy Commissioner, Sonitpur, District-Sonitpur, Assam to do the needful for the purpose of deletion of the word 'D' from the Electoral Roll against the name of the petitioner included in the Electoral Roll of 1997 vide Sl. No.718, House No. 167 under 78 No. Gahpur LAC.

3. The contention of the petitioner is that before the name of the petitioner was included as a 'D' voter, no proper enquiry was made. It has been submitted that if proper enquiry had been made, the authority would not have included the name of the petitioner as 'D' voter.

4. The learned counsel for the petitioner has submitted that there are sufficient materials on record including the Relief Eligibility Certificate and other documents issued by the Government of India to indicate that he had migrated to Assam before 01.01.1964 and as Page No.# 3/5

such, the question of entering the name of the petitioner as a 'D' Voter does not arise.

5. On the other hand, Ms. Verma, learned Special Counsel, Foreigners Tribunal submits that once a person's name is entered in the list of 'D' voters, it is the mandate of law that the concerned Electoral Registration Officer has to forward the case of the person in the prescribed format to the office of the Superintendent of Police who shall in turn make a reference as provided under Order 2(1) of the Foreigners (Tribunals) Order, 1964 to the Foreigners Tribunal having jurisdiction and thereafter, on the basis of the opinion of the Foreigners Tribunal, deletion of the names of the 'D' voters will be decided.

6. In this regard, learned counsel for the State has relied on the decision of the Single Bench of this Court in Sayam Uddin Vs. Union of India and 7 Others., [WP(C) No. 91/2019, decided on 19.02.2019] wherein the Court in para Nos. 21, 22, 23 and 24 made the following observations.

"21. Thus from the above, what transpires is that there are two categories of "D" Page voters:-

(i). those who were marked as "D" voters in the electoral roll by the Electoral Registration Officer following enquiry by Local Verification Officer; and

(ii). those whose references are pending before the Foreigners Tribunals.

22. In so far Electoral Registration Officer is concerned the exercise undertaken by him while marking a person as a "D" voter in the electoral roll is a quasi judicial exercise. If he holds the view after examining the enquiry report of the Local Verification Officer that the concerned person is not a citizen of India he is required to forward the case of that person to the competent authority i.e., the Superintendent of Police. If it is so forwarded by the Electoral Registration Officer, the jurisdictional Superintendent of Police has to make a reference to the competent Foreigners Tribunals under order 2(1) of the Foreigners (Tribunals) Order, 1964 based on the report received from the Electoral Registration Officer. Question of making further enquiry by the Superintendent of Police in such a case would not arise because enquiry has already been made by the Electoral Registration Officer by exercising quasi judicial powers and the Superintendent of Police cannot sit over such decision of the Electoral Registration Officer. He has to forward the same by making the reference to the competent Foreigners Tribunal for its opinion.

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23. It is also true that marking of a person as a doubtful "D" voter is only a temporary measure and therefore it cannot be continued for an indefinite period. A decision one way or the other has to be taken after marking the concerned person as a "D" voter within a reasonable time. But such decision can be taken only after obtaining the opinion of the Foreigners Tribunal.

24. That being the position and having regard to the above, Court is of the view that the following directions may be issued which will meet the ends of justice:-

1. Electoral Registration Officer, Nagaon shall forward the case of the petitioner in the prescribed format to the Office of the Superintendent of Police, Nagaon within a period of 30 (thirty) days from the date of receipt of a copy of this order.

2. Upon receipt of the above from the Electoral Registration Officer, Superintendent of Police, Nagaon shall make the reference under order 2(1) of the Foreigners (Tribunals) Order, 1964 to the Foreigners Tribunal having jurisdiction. This shall be done within a period of 30 (thirty) days from the date of receipt of the reference papers from the Electoral Registration Officer.

3. While making such reference, Superintendent of Police shall inform the Border wing of Assam Police, which is monitoring references before the Foreigners Tribunals. Special Director General of Police (Border), Assam shall constitute a nodal officer or a team of officials in his office to monitor such references. Superintendent of Police shall also intimate the Office of the State Coordinator, NRC about making of such reference.

4. Upon receipt of reference from the referral authority i.e. Superintendent of Police, the concerned Foreigners Tribunal shall register the reference and issue notice to the proceedee whereafter the procedure prescribed under the Foreigners (Tribunals) Order, 1964 shall be followed.

5. Following such registration, the jurisdictional Superintendent of Police shall collect the reference case number and forward the same to the Border wing of Assam Police and to the NRC authority for information and regular monitoring."

7. We have also gone through the aforesaid judgment and we are also of the view that once the name of a person has been entered as doubtful "D" voter in the electoral roll, it would be the competent Foreigners Tribunal which will be the competent authority to decide Page No.# 5/5

on the basis of materials which may be made available as regards the characterisation as a "D" voter, and accordingly, the petitioner would be at liberty to show before the Foreigners Tribunal that the said inclusion of his name as "D" voter is unreasonable on the basis of materials and documents which may be furnished before the Tribunal.

8. Accordingly, the present petition is disposed of with the direction to the Superintendent of Police (Border), Biswanath to refer the case of the petitioner to the concerned Foreigners Tribunal having jurisdiction within a period of 30(thirty) days so that the petitioner can clear the doubt as regards his citizenship by adducing evidence before the Tribunal.

9. Since the delay in deletion of the categorization as doubtful "D" voter of the petitioner will not be in his own interest, the petitioner may also co-operate with the Tribunal by appearing before the Tribunal as soon as he receives such summons from the Tribunal.

10. The Tribunal on receipt of such reference from the Superintendent of Police (Border), Biswanath will initiate the proceeding by issuing summons to the petitioner without any delay.

11. The petitioner on his own may also appear before the Tribunal once the reference is made to the competent Foreigners Tribunal for expeditious conclusion of the proceeding before the Tribunal.

12. With the above observations and directions, the present petition is disposed of.

                                  JUDGE                                        JUDGE




Comparing Assistant