Gauhati High Court
Md. Sultan Khan vs Union Of India And 5 Ors on 8 May, 2024
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
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GAHC010042552024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1203/2024
MD. SULTAN KHAN
S/O MD. NABIN KHAN, R/O WARD NO. 10, DHEKIAJULI, DIST- SONITPUR,
ASSAM
VERSUS
UNION OF INDIA AND 5 ORS
REPRESENTED BY THE SECRETARY TO THE MINISTRY OF HOME
AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI-110006
2:STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6
3:ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI-110001
4:STATE COORDINATOR OF NATIONAL REGISTRAR OF CITIZENSHIP (NRC)
ASSAM
BHANGAGARH
G.S. ROAD
GUWAHATI-3
5:THE DEPUTY COMMISSIONER
DISTRICT-SONITPUR
ASSAM
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6:THE SUPERINTENDENT OF POLICE (B)
DISTRICT-SONITPUR
ASSA
Advocate for the Petitioner : MR. D K BAGCHI
Advocate for the Respondent : DY.S.G.I.
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
O R D E R
08.05.2024
(M.R. Pathak, J)
Heard Mr. D.K. Bagchi, learned counsel for the petitioner and Ms. S.
Barua, learned CGC for the respondent No.1, Union of India. Also heard
Mr. J. Payeng, learned Standing Counsel, Home Department, Assam for
the respondent Nos.2 & 6; Mr. A.I. Ali, learned Standing Counsel, Election
Commission of India for the respondent No.3 and Mr. H.K. Hazarika,
learned Government Advocate, Assam for the respondent No.5.
2. Perused the records of F.T(9) Case No.609/2017 of the Foreigners'
Tribunal (9th), Sonitpur, Tezpur at Dhekiajuli that was called for by order
dated 04.03.2024.While making intensive revision of Electoral Rolls of No.
71 Dhekiajuli Legislative Assembly Constituency during the year 1997, the
Electoral Registration Officer (ERO) of District Sonitpur, Tezpur doubted
the nationality and citizenship of the petitioner and after going through
the report of the Local Verification Officer (LVO), the said Officer authority
made request to the competent authority, i.e., the Superintendent of
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Police (Border), Sonitpur to refer the case of the petitioner to the Tribunal
constituted under the Illegal Migrants (Determination by Tribunals) Act,
1983 and the Rules framed thereunder for its opinion whether the
petitioner is an illegal migrant and a citizen of India or not.
3. After considering the matter, the Superintendent of Police (Border),
Sonitpur in July, 1998 referred the matter to the Tribunal at Sonitpur,
Tezpur under the IM (D)T Act, 1983, during its force, requesting the
Tribunal to determine the nationality of the petitioner as per said 1983
Act.
4. The Hon'ble Supreme Court by its judgment dated 12.07.2005 passed
in the case of Sarbananda Sonowal (I) -Vs- Union of India and another,
reported in (2005) 5 SCC 665, struck down the said IM(D)T Act, 1983,
directing that all the matters pending before the Tribunals under the said
1983 Act have to be decide as per the provisions of the Foreigners Act,
1946 and the Foreigners (Tribunals) Orders, 1964.
5. The Hon'ble Supreme Court by its judgment dated 05.12.2006
passed in the case of Sarbananda Sonowal (II) -Vs- Union of India ,
reported in (2007) 1 SCC 174, quashed the Foreigners (Tribunals for
Assam) Orders, 2006 that was brought into force by the Government
publishing it in the Gazette of India on 10.02.2006, purportedly to comply
with the direction of the Hon'ble Apex Court passed in the case of
Sarbananda Sonowal (I) (supra).
6. After striking down of said 2006 Orders, the issue with regard to the
nationality of a person residing in Assam the competent authority
including the Superintendent of Police (Border) is required to refer such
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matter to the Foreigners Tribunals under the provisions of the Foreigners
Act, 1946 and the Foreigners (Tribunals) Order, 1964.
7. The petitioner stated that his father came from Pakhtoonistan to
India in the year 1947 itself and after marrying his mother, who hails from
Sivasagar, he stayed back in Assam by settling down at Dhekiajuli doing
his business, till his death.
8. Though the case of the petitioner was referred to the Foreigners'
Tribunal (9th), Tezpur at Dhekiajuli, but the learned Tribunal by the
impugned decision dated 15.02.2022 came to the conclusion that it does
not have the jurisdiction to determine the nationality of the petitioner,
since he and his father did not come from the specified territory of
Bangladesh (erstwhile East Pakistan) as provided under Section 6-A of the
Citizenship Act, 1955, as amended.
9. By the impugned opinion dated 15.02.2022, the learned Tribunal
came to the conclusion that said reference is not maintainable and
therefore, referred back the matter to the referral authority, i.e., the
Superintendent of Police (Border), Sonitpur, Tezpur for necessary action.
10. From the Notification dated 24.01.2006 published in the Assam
Gazette Extraordinary on 04.03.2006, it can be seen that the State
Government as per the provisions of the Foreigners (Tribunals) Order,
1964 and in terms of the judgment dated 12.07.2005 passed by the
Hon'ble Supreme Court of India in the case of Sarbananda Sonowal (I)
(supra) constituted the Foreigners Tribunals in Assam.
11. It is to be noted herein that regarding determination of nationality of
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people who originated from Nepal, the competent authority, i.e.,
concerned Superintendents of Police (Border) also referred their cases to
the Foreigners Tribunals constituted under the Foreigners Act, 1946 and
Foreigners (Tribunals) Order, 1964.
12. With regard to determination of nationality of people originated from
Nepal, a co-ordinate Bench of this Court by a common judgment dated
29.11.2019 passed in the case of Indira Newar and others -Vs- Union of
India and others [WP(C) No.8490/2018] and other connected cases,
reported in 2020 (1) GLT 413, considering the provisions of Section 6-A of
the Citizenship Act, 1955, as amended, have held that in respect of
references made under sub-Section (3) of Section 6-A of the Citizenship
Act, 1955 to a Tribunal constituted under the Foreigners (Tribunals) Order,
1964 having jurisdiction over a district or part thereof in the State of
Assam, in terms of Rule 21 of the Citizenship Rules, 2009, the primary and
necessary ingredient or the condition precedent is that the references can
only be made in respect of persons who have come to Assam from the
"specified territory", meaning thereby the territories included in
Bangladesh, immediately before the commencement of the Citizenship
(Amendment) Act, 1985 and also having regard to the cut off date of
migration into Assam as prescribed under Section 6-A of the Citizenship
Act, 1955.
13. Issue notice to the respondents, more particularly, the respondent
No. 1 Union of India and the respondent No.2, the State Government in its
Home Department who shall clarify their respective stands as to whether
the Foreigners' Tribunals in Assam constituted under the Foreigners Act,
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1946 and Foreigners (Tribunals) Order, 1964 have the jurisdiction to
determine the nationality/citizenship of persons not only coming from the
specified territory of Bangladesh, but also from other Countries including
Pakistan, Afghanistan, Pakhtoonistan, Myanmar etc., if the competent
authority, either on the basis of the report of the Electoral Registration
Officer or on the basis of the Police Enquiry, refers the matter to the
Foreigners' Tribunals for its opinion and/or determination whether such
person is a foreigner or not.
14. Petitioner shall serve requisite extra copies of this writ petition
appended thereto to Ms. S. Barua, learned C.G.C as well as Mr. J. Payeng,
learned Standing Counsel, Home Department, Assam representing the
respondent Nos. 1 and 2 respectively, within two days from today,
obtaining necessary acknowledgment from them in that regard.
15. The respondent Nos. 1 and 2 shall file their respective affidavits in
the matter on or before 19th June, 2024.
16. List on 21.06.2024.
17. Copy of this order be furnished to Ms. S. Barua, learned C.G.C as
well as Mr. J. Payeng, learned Standing Counsel, Home Department,
Assam for their necessary use.
JUDGE JUDGE
Comparing Assistant
