Gauhati High Court
Soleman Fakir @ Salman Fakir vs The Union Of India And 6 Ors on 15 May, 2024
Author: Nelson Sailo
Bench: Nelson Sailo
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GAHC010077082024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2497/2024
SOLEMAN FAKIR @ SALMAN FAKIR
S/O- LATE AKKU FAKIR,
VILLAGE- KAJAIKATA PART-V,
P.S.- BILASIPARA, DISTRICT- DHUBRI,
ASSAM, PIN- 783348.
VERSUS
THE UNION OF INDIA AND 6 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA,
MINISTRY OF HOME AFFAIRS, NEW DELHI- 110001.
2:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTION COMMISSIONER
NEW DELHI-01.
3:THE STATE OF ASSAM
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT
OF ASSAM
HOME AND POLITICAL DEPARTMENT
DISPUR
GUWAHATI-6.
4:THE DISTRICT COMMISSIONER/ CUM DISTRICT ELECTION OFFICER/
CUM DISTRICT ELECTORAL OFFICER
DISTRICT- DHUBRI
ASSAM.
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5:THE CHIEF ELECTORAL OFFICER
HOUSEFED COMPLEX
BELTOLA ROAD
GUWAHATI- 781006.
6:THE ELECTORAL REGISTRATION OFFICER
26 BILASIPARA WEST L.A.C.
DIST- DHUBRI.
7:THE SUPERINTENDENT OF POLICE (B)
DISTRICT- DHUBRI
ASSAM
Advocate for the Petitioner : MR H R A CHOUDHURY
Advocate for the Respondent : DY.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE NELSON SAILO
ORDER
15.05.2024
Heard Mr. F.U. Barbhuiya, learned counsel for the petitioner, who submits
that the grievances projected by the petitioner in this writ petition is that
despite having submitted application to the Electoral Registration Officer (ERO)
for removing "D" voter mark from the voter list, the said authority has failed to
take necessary steps. The learned counsel submits that the petitioner has the
support of the order dated 02.08.2021 passed by the Division Bench of this
Court in WP(C) No.716/2021, wherein challenge made by the petitioner to the
order dated 12.09.2016 passed by the Member of Foreigners' Tribunal No.6,
Dhubri at Bilasipara ordering/referring back the matter to the jurisdictional
Superintendent of Police for further enquiry, the Division Bench has held that
once the Referral Authority has requested the Tribunal to drop the proceeding,
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the matter would end at that stage and no further observation would be
required from the end of the Foreigners' Tribunal. The learned counsel therefore
submits that the ERO concerned should be directed to remove "D" mark from
the Electoral Roll against the name of the petitioner.
Mr. J. Payeng, learned State Counsel and Mr. A.I. Ali, learned counsel for the
Election Commission of India, on the other hand submits that after the ERO
concerned puts "D" mark against the name of any person, the same is to be
sent to the Foreigners' Tribunal concerned through the Superintendent of Police
(Border) of the concerned district, who shall thereafter examine whether the
person concerned is an Indian citizen or otherwise.
In the instant case, the Superintendent of Police (Border) has made his own
independent investigation and has recommended before the Foreigners' Tribunal
concerned that the petitioner appears to be an Indian Citizen. The same
therefore is beyond the jurisdiction of the Superintendent of Police (Border)
concerned. However, as an order has been passed by the Division Bench on
02.08.2021, the matter should be placed before the Division Bench for
clarification or for any other appropriate order.
Mr. F.U. Barbhuiya, learned counsel for the petitioner on the other hand in
support of his contention submits that the mark "D" should be removed against
the name of the petitioner in the Voter List has relied upon the case of Sayam
Uddin vs. Union of India & Others, reported in (2019) 5 GLR 479. The
learned counsel refers particularly to paragraph 22 & 23 of the said Judgment.
However, from a perusal of the same it appears that the ERO concerned, as
per procedure, after putting the "D" mark against the name of a voter makes a
reference to the Foreigners' Tribunal concerned through the Superintendent of
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Police (Border) of the District and the function of the ERO is a quasi-judicial in
nature. Therefore, the question of making further enquiry by the Superintendent
of Police (Border) in such a case will not arise. It appears that the decision
relied upon by the petitioner's counsel does not favour the case of the petitioner.
Mr. Barbhuiya however submits that there are several other judgments, wherein
the Single Bench of this Court has given an appropriate direction and he may be
given some time to produce the same.
As prayed for, list the case again on 20.05.2024.
JUDGE
Comparing Assistant
