Gauhati High Court
Fazal Ali vs The Union Of India And 5 Ors on 30 March, 2021
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GAHC010078132020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2317/2020
FAZAL ALI
S/O. LT. MANIR UDDIN @ MANUR UDDIN, VILL. N.K. DARANGA, P.S.
TAMULPUR, DIST. BAKSA, BTC, ASSAM, PIN-781360.
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECRETARY TO THE GOVT. F INDIA, MINISTRY OF HOME
AFFAIRS, NEW DELHI-110001.
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY.-06.
3:THE DY. COMMISSIONER
BAKSA
DIST. BAKSA
BTC
PIN-781367.
4:THE ELECTION COMMISSION OF INDIA
NEW DELHI-110001.
5:THE STATE CO-ORDINATOR
NATIONAL REGISTER OF CITIZENS
ASSAM
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GUWAHATI-781005.
6:THE SUPDT. OF POLICE (B)
BAKSA
DIST. BAKSA
PIN-781367
Advocate for the Petitioner : MR H R A CHOUDHURY
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
Date : 30.03.2021
(N. Kotiswar Singh, J)
Heard Mr. A. M. Ahmed, learned counsel appearing for the petitioner. Also heard Mr. H.
Teranpi, learned counsel representing respondent nos. 1, Mr. G. Sarma, learned counsel
represents respondent no. 2, 3 and 6, Ms. B. Das, learned counsel represents respondent
no.5 whereas Ms. B. Das, learned counsel appears for respondent no.4.
We have perused the record.
The record also clearly reveals that the initial reference was made by the
Superintendent of Police (B), Baksa, BTAD on 31.08.2007, where the reference was made as
follows:-
"F.T. Case No.50/07
Memo No. BSA/B/06/314-37 Dated 31.08.2007
122/Baksa/2017
Order reference M/S 2 (1) (A) under Foreigners (Tribunal;) Order
1964 against suspected foreigners Md. Fazal Ali, s/o- Manir Uddin,
Vill-NK Darranga, P/S- Tamulpur in the district of Baksa.
I have gone through the Enquiry Report of suspected Foreigners
Md. Fazal Ali, s/o--late Manir Uddin, village-NK Darranga,
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suspected by SI (B) Akan Ch Medhi during enquiry the suspect
Md. Fazal Ali appears to be a foreigners who entered into India
after 1st January, 1966 and before 25th March, 1971.
Under the circumstances, I Sri P. K. Dutta, APS Superintendent of
Police (B), Baksa hereby forward the case to Foreigners Tribunal,
Nalbari, for favour the opinion whether the suspect Md. Fazal Ali
alongwith his other family members mentioned in Col. No. 13 are
the foreigners coming into Assam after 1st January, 1966 and
before 25th March, 1971. The interrogation form alongwith the
statement of witnesses etc, are sent herewith for favour of
perusal.
Superintendent of Police (B)
Baksa (BTAD), Assam"
It is abundantly clear that the reference made was that the petitioner had illegally
entered during the aforesaid period of 01.01.1966 and before 25.03.1971 and is not an illegal
entrant during the period on or after 25.03.1971.
It has been submitted that if the reference is made to the effect that the petitioner is
an illegal entrant during the aforesaid period of 01.01.1966 and before 25.03.1971, the
Tribunal has to examine the case as to whether the petitioner was an illegal entrant during
the aforesaid period and cannot render an opinion that the proceedee is an illegal immigrant
on or after 25.03.1971.
The learned counsel for the petitioner submits that it is no more res-integra that the
Tribunal cannot give a finding not consistent with the reference made.
In this regard the learned counsel for the petitioner has also relied on the Judgment of
this court rendered in Santosh Das Vs Union of India reported in (2017) 2 GLT 1065.
Mr. A. M. Ahmed, learned counsel for the petitioner submits that the reference made
against the proceedee was that he was an illegal immigrant during the period of 01.01.1966
and before 25.03.1971, where the Tribunal made the opinion that the proceedee is an illegal
immigrant of post 25.03.1971 stream.
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We also heard the learned counsel for the parties and perused the Judgment of this
Court. We subscribe to the view taken in the aforesaid Judgment of this Court in Santosh
Das (supra).
Though the reference was made by the Superintendent of Police (Border), Baksa that
the petitioner is an illegal immigrant who entered India during 01.01.1966 and before
25.03.1971, the Tribunal gave the view that the petitioner entered India on or after
25.03.1971 which is not permissible.
We accordingly, allow this petition by setting aside the impugned opinion dated
27.11.2019 passed by the learned Foreigners Tribunal, Baksa in F. T. Case No.
122/Baksa/2017.
Consequently, the matter is remanded to the learned Foreigners Tribunal for a fresh
decision as to whether the petitioner was an illegal entrant during the aforesaid period of
01.01.1966 and before 25.03.1971 as mentioned in the reference by the Superintendent of
Police (B), Baksa, BTAD, Assam on 31.08.2017.
It is also made clear that on being remanded, the learned Foreigners Tribunal will
confine his opinion as to whether the petitioner was an illegal entrant within the aforesaid
period or not, and if the petitioner is able to prove that he was not an illegal entrant during
the aforementioned period, obviously, he cannot be denied the benefits of being a citizen of
this country.
On the other hand, even if the Foreigners Tribunal gives an opinion that the petitioner
is an illegal entrant during aforesaid period, he would get the benefit of registration and
citizenship as provided under Section 6 (A) of the Indian Citizenship Act, 1955 read with Rule
19 of Citizenship Rules, 2009.
Accordingly, this writ petition stands disposed of with the above observations and
directions.
JUDGE JUDGE
Comparing Assistant
