WP(C)/1153/2017
2022 Latest Caselaw 4918 Gua

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GAHC010123112017




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

                        Case No. : WP(C)/1153/2017

         1. ABDUL AZID @ AZIZ @ AJID ALI,
         S/O. LT. ASMAT ALI @ ASMAT, VILL. THANAGORA,
          P.S. and DIST. MORIGAON, ASSAM.

         2: NURJAHAN BEGUM.
          D/O. LT. ABDUL SUVAN.
         W/O. ABDUL AZID @ AZIZ @ MD. AJID ALI.,
          S/O. LT. ASMAT ALI.
         VILL. THANAGORA.
          P.S. and DIST. MORIGAON.
         ASSAM.
                                                          ......Petitioners
         -VERSUS-

         1. THE UNION OF INDIA,.
         REP. BY THE COMMISSIONER and
         SECRETARY TO THE GOVT. OF INDIA,
         HOME DEPTT., NEW DELHI-1, INDIA.

         2:THE STATE OF ASSAM,
          REP. BY THE COMMISSIONER and
          SECRETARY TO THE GOVT. OF ASSAM
          HOME DEPTT., DISPUR, GHY.- 06.

         3:THE DY. COMMISSIONER, MORIGAON,
          DIST. MORIGAON, ASSAM.

         4:THE SUPERINTENDENT OF POLICE (B), MORIGAON,
          DIST. MORIGAON, ASSAM.

         5:THE OFFICER-IN-CHARGE,
          MORIGAON POLICE STATION,
          P.S. MORIGAON, DIST. MORIGAON, ASSAM.
                                                         ...... Respondents.

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For the Petitioners : Mr. Z. Hammad, Adv.

                                       :         Mr. E. Ahmed, Adv.
                                       :         Mr. R.A. Choudhury, Adv.
                                                                                  Advocates
      For the Respondent No.1           :        Ms. L. Devi, on behalf of
                                                 Mr. R.K.D. Choudhur, Dy.SGI,
      For the Respondent Nos.2,4 & 5 :        Mr. G. Sarma, SC, FT,
      For the Respondent No.3          :      Ms. K. Phukan, Govt. Adv., Assam.


                                                                                   Advocates
                                            BEFORE
                     HON'BLE MR. JUSTICE N. KOTISWAR SINGH
                    HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY


             Date of Hearing and Judgment              :    13.12.2022


                            JUDGMENT AND ORDER (ORAL)

[N. Kotiswar Singh, J.]

Heard Mr. Z. Hammad, learned counsel for the petitioners. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K.D. Choudhury, learned Dy. SGI for respondent No.1; Mr. G. Sarma, learned Standing Counsel, Foreigners Tribunal appearing for respondent Nos.2, 4 & 5 and Ms. K. Phukan, learned Government Advocate, Assam for respondent No.3.

2. In this petition, the petitioners have challenged the opinion dated 30.06.2016 passed

by the learned Foreigners Tribunal No.3rd, Morigaon, Assam in Case No. F.T.(C) 265/2015 by which the petitioners, namely, Abdul Azid and his wife, Musstt. Nurjahan Begum and his son, namely, Md. Sahifuddin @ Saiful Islam and daughter, Miss Rahima Khatoon have been declared foreigners of post 24.03.1971 stream.

3. The petitioners have challenged the opinion dated 30.06.2016, primarily, on two Page No.# 3/5

grounds.

4. First of all, it has been submitted by the learned counsel for the petitioners that though the initial enquiry was made against the petitioner No.1, Abdul Azid, there was no enquiry made against his wife, son and daughter. In fact, the enquiry report only mentions that the petitioner No.1, Abdul Ajeed is suspected to be an illegal migrant. There is no such opinion or finding in the enquiry report about the petitioner No.2, son and daughter though the names were reflected in the enquiry report, it does not mention that they are also suspected to the foreigners.

5. It has been submitted that, under the circumstances, if no enquiry was made against the petitioner No.2, son and daughter, and if their citizenship is not suspected, the reference could not have been made and the Tribunal could not have proceeded against them.

6. As regards this issue, it has been settled in terms of a number of decisions rendered by this Court and also that where no enquiry was made against any particular individual, reference could not have been made inasmuch as reference has to be based on enquiry report and since in the present case, no enquiry was made against the petitioner No.2, son and daughter, except petitioner No.1, the reference or proceeding by the authorities cannot be sustained in law.

7. Under the circumstances, we allow this petition as far as the petitioner No.2, Nurjahan Begum, son, Md. Sahifuddin @ Saiful and daughter, Miss Rahim Khatoon are concerned

8. Accordingly, we hold that the impugned opinion dated 30.06.2016 passed by the

learned Foreigners Tribunal No.3rd, Morigaon, Assam in Case No.F.T.(C) 265/2015 will not apply to the petitioner No.2, Nurjahan Begum, son, Md. Sahifuddin @ Saiful and daguther, Miss Rahim Khatoon.

9. The learned counsel for the petitioners submits that the petitioner's another brother, namely, Md. Abdul Rajek @ Abdul Rejak and others had been declared to be Indians by a

subsequent order dated 29.09.2021 passed by the learned Foreigners Tribunal No.3 rd, Morigaon, Assam in Case No.F.T.29/2015 and as such, if the said Md. Abdul Rajek @ Abdul Rejak who is the brother of petitioner No.1 who was declared to be Indian, the petitioner No.1 should also be declared to be an Indian.

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10. It has been submitted that since the said opinion in favour of Md. Abdul Rajek @ Abdul Rejak and others was passed only on 29.09.2021, the petitioners could not rely on the said opinion before the learned Tribunal in their case in Case No.F.T.(C) 265/2015 before the Tribunal.

11. The learned counsel for the petitioners submits that the said opinion dated 29.09.2021

was rendered by the learned Foreigners Tribunal No.3 rd, Morigaon in Case No.F.T.29/2015 has not been questioned or challenged by the State and if the said Md. Abdul Rajek @ Abdul Rejak is indeed the brother of the present petitioner, Abdul Azid, perhaps, the present petition can make a legitimate plea that he is also an Indian as in the case of his brother Md. Abdul Rajek @ Abdul Rejak.

12. In the present proceeding in Case No.F.T.(C) 265/2015, the learned Foreigners Tribunal

No.3rd, Morigaon had no occasion to deal with the issue that Md. Abdul Rajek @ Abdul Rejak was declared to be Indian who the petitioner No.1 claims to be his brother and since this aspect has been brought on record, we are of the view that the learned Foreigners Tribunal requires to examine as to whether said Md. Abdul Rajek @ Abdul Rejak is indeed the brother of the petitioner No.1, Abdul Azid and if it is found that the said Md. Abdul Rajek @ Abdul Rejak, is the brother of the present petitioner No.1, Abdul Azid, the Tribunal would require to review its opinion dated 30.06.2016 by which the petitioner No.1 was declared to be a foreigner.

On examination, if the learned Tribunal comes to a conclusion that the said Md. Abdul Rajek @ Abdul Rejak, who was declared to be an Indian vide opinion dated 29.09.2021

rendered by the learned Foreigners Tribunal No.3 rd, Morigaon in Case No.F.T.29/2015, is the real brother of the present petitioner No.1 and the said opinion dated 29.09.2021 has not been questioned or challenged by the State and as such, had attained finality, the learned Tribunal in the present proceeding will requires to review its opinion dated 30.06.2016 passed in Case No.F.T.(C) 265/2015.

13. In view of above, we direct that the opinion dated 30.06.2016 rendered by the learned

Foreigners Tribunal, 3rd, Morigaon in Case No.F.T.(C) 265/2015 will be put on hold till a fresh opinion is rendered by the learned Tribunal after considering the plea of the petitioner No.1 Page No.# 5/5

that he is the brother of Md. Abdul Rajek @ Abdul Rajek who had been declared to be Indian along with others vide opinion dated 29.09.2021 rendered in Case No.F.T.29/2015 by the

learned Foreigners Tribunal No.3rd, Morigaon, Assam.

14. For the aforesaid reasons, the petitioner No.1 will accordingly appear before the

learned Foreigners Tribunal No.3rd, Morigaon, Assam on or before 06.01.2023 and he will be allowed to lead evidence to prove that he is the brother of Md. Abdul Rajek @ Abdul Rajek who was declared Indian vide opinion dated 29.05.2021 rendered in Case No. F.T.29/2015.

15. Thereafter, the learned Tribunal will proceed in accordance with law in terms of the observations made above by us.

16. Learned Tribunal after hearing the petitioner as mentioned above, will give a fresh opinion.

Accordingly, if the learned Tribunal comes to a conclusion that the present petitioner No.1 is indeed the brother of the said Md. Abdul Rajek @ Abdul Rejak who had been declared to be Indian along with others vide opinion dated 29.09.2021 rendered in Case

No.F.T.29/2015 by the learned Foreigners Tribunal No.3 rd, Morigaon, Assam, the opinion dated 30.06.2016 passed in Case No.F.T.(C) 265/2015 requires to be recalled and the learned Tribunal will pass an order to the effect that the petitioner No.1 is an Indian.

However, in the event, the learned Tribunal takes a decision that the said Md. Abdul Rajek @ Abdul Rejak is not the brother of the present petitioner No.1, the opinion dated 30.06.2016 passed by learned Foreigners Tribunal No.3, Morigaon in Case No.F.T.(C) 265/2015 will have its force in respect of petitioner No.1 and the petitioner No.1 would be entitled to challenge the said opinion before this Court afresh.

17. With the above observations and directions, the present petition stands disposed of.

18. LCR be remitted forthwith to the concerned Foreigners Tribunal.

                            JUDGE                                           JUDGE

Comparing Assistant