Gauhati High Court
Page No.# 1/16 vs The Union Of India And 6 Ors on 6 January, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/16
GAHC010110712018
2025:GAU-AS:335
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3500/2018
MOHAMMAD ALI AND 6 ORS.
S/O LATE AHSAD ALI @ ARSHAD ALI, VILL SOLMARI, PS BHELOWGURI,
MOUZA-MOIRABARI, DIST. MORIGAON, ASSAM, PIN-782441
2: IKRAMUL HAQUE
S/O MOHAMMAD ALI VILL SOLMARI
PS BHELOWGURI
MOUZA-MOIRABARI
DIST. MORIGAON
ASSAM
PIN-782441
3: GULESSA BEGUM
D/O MOHAMMAD ALI
W/O FAKAR UDDIN
VILL AND PO GORAIMARI
PS LAHARIGHAT
DIST. MORIGAON
ASSAM
PIN-782104
4: NAZIMA KHATUN
D/O MOHAMMAD ALI
W/O ABDUL HANIF
VILL- GORIABAORI
PO LOCHANABARI
PS MOIRABARI
DIST. MORIGAON
ASSAM
PIN-782126
5: AMINA KHATUN
D/O MOHAMMAD ALI
Page No.# 2/16
VILLAGE SOLMARI
PS BHELOWGURI
MOUZA-MOIRABARI
DIST. MORIGAON
ASSAM
PIN-782441
6: MAMONI KHATUN
D/O MOHAMMAD ALI
W/O JAHIRUL ISLAM
VILL GORIABORI GAON
PO LOCHANABARI
PS MOIRABARI
DIST. MORIGAON
ASSAM
PIN-782126
7: ASMINA KHATUN @ ASPINA KHATUN @ ASIYA KHATUN
D/O ASMAT ALI
W/O MOHAMMAD ALI
VILL SOLMARI
PS BHELOWGURI
MOUZA-MOIRABARI
DIST. MORIGAON
ASSAM
PIN-78244
VERSUS
THE UNION OF INDIA AND 6 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY
OF HOME AFFAIRS, NEW DELHI-1
Advocate for the Petitioner : MR. M U MAHMUD, MR P K DAS,MR S ISLAM,MR S
HOQUE,MR. M ALI,SC, ELECTION COMMISSION.
Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, NRC
Page No.# 3/16
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
JUDGMENT AND ORDER
06.01.2025
(K.R. Surana, J)
Heard Mr. M.U. Mahmud, learned Counsel for the petitioners.
Also heard Mr. K.K. Parashar learned CGC for respondent no.1, Mr. H. Kuli,
learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for
respondent no.2, Ms. A. Verma, learned standing counsel for the F.T. matters
appearing for respondent nos. 3, 6 and 7, Mr. G. Sharma, learned standing
counsel for respondent no.4 and Mr. P. Sarmah, learned Addl. Senior Govt.
Advocate for respondent no.5.
2) By filing this writ petition under Article 226 of the Constitution of
India the petitioner has assailed the opinion dated 30.01.2018, passed by the
learned Member, Foreigners' Tribunal No. 5th, Morigaon, in Case No. F.T.(C)
281/2016 [F.T.(C)1330/12 (old), arising out of IM(D)T case no.565/2001 dated
27.09.2001], by which the petitioners were declared to be foreigners who have
entered into India (Assam) on or after 25.03.1971.
3) The learned counsel for the petitioner has submitted that along
with his written statement, the petitioner had submitted the voters list of 1965,
1970, 1977, 1985, 1989, 1997, 2017, certificate of Govt. Gaonbura, Ulubari,
Solmari, Sonarigaon. Moreover, alongwith the additional written statement filed
by all the petitioners, the voters list of 2011 was also submitted. The learned
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counsel for the petitioners has further submitted that as annexure to this writ
petition the petitioners have alleged all the documents referred above and
moreover the petitioners have also annexed the HSLC admit card and
provisional certificate for the year 2009 of petitioner no.2; transfer certificate of
petitioner no.3, voter list of 2013 and 2018 of petitioner no.3; transfer certificate
and voters list of 2018 of petitioner no.4; admit card, provisional certificate and
B.A. 4th Semester mark sheet of petitioner no.5; transfer certificate of petitioner
no.6, voters list of 1966 of grandfather of petitioner no.7, voters list of 1970 of
father of petitioner no.7 and Panchayat certificate of petitioner no.7 to show her
linkage. Accordingly, it is submitted that the petitioners have no reason not to
give evidence.
4) In this regard, by referring to the statements made in
paragraphs nos. 12 and 13 of the writ petition, it is submitted that the
petitioners did not get proper advice from the learned counsel and thus, they
did not adduce evidence before the learned Tribunal. It is further, submitted that
the learned counsel without asking the petitioners to adduce evidence filed
several petitions before the learned Tribunal and ultimately the learned Tribunal
had rejected the adjournment petitions and an ex parte opinion was rendered
against the petitioners. Accordingly, it is submitted that at least one opportunity
should granted to the petitioners to adduce evidence to prove their citizenship,
which is a valuable right.
5) By referring to page nos. 9 and 10 of the records of the Tribunal,
it is submitted that the enquiry officer had examined two witnesses in course of
his enquiry and the said witnesses had stated that petitioner no.1 is an Indian
citizen and accordingly, as per enquiry officer's report dated 10.11.2001, as
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entered in the case diary the petitioner was born in Solmari Gaon and his name
is entered in the voters list of 1993 and his father's name appeared in the voters
list of 1966 and therefore, the petitioner was a Indian citizen. Accordingly, it is
submitted that the reference made by the Superintendent of police (B),
Morigaon was illegal and not sustainable as there was no material before the
said authority to allege that the petitioners are foreigners who had illegally
entered into India (Assam) after 25.03.1971.
6) In support of his submission, the learned counsel for the
petitioner has relied on paragraph no.98 of the case of State of Assam & Ors. v.
Moslem Mondal, 2013 (1) GLT 809.
7) The learned standing counsel for the FT matters has submitted
that the learned Tribunal had granted more than reasonable time to the
petitioners to produce their evidence, but the petitioners had failed to do so.
Accordingly, it is submitted that vide order dated 27.11.2017, the learned
Tribunal had granted one last chance to the petitioners to produce evidence and
having failed to do so, an unsustainable allegation has been made by the
petitioners against their counsel by falsely projecting that they were not asked
and/or advised by their learned counsel to give evidence and that their counsel
took adjournment without informing them. Accordingly, by relying on the
decision of this Court in the case of Aziz Miya @ Aziz Mia v. Union of India &
Ors., (2023) 0 Supreme(Gau) 637, it is submitted that the writ petition deserves
to be dismissed.
8) Two issues arise for determination in this case. They are:-
i. Whether or not was a valid reference against the petitioner nos. 2 to
7? If not, then what would be the consequences?
ii. Whether the impugned opinion is liable to be interfered with?
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9) Upon carefully perusing the records called from the learned
Tribunal, the same was handed over to the learned standing counsel for FT
matters for her perusal. However, nothing could be shown that any enquiry was
ordered to be made against the petitioner nos. 2 to 7. The Sub-Inspector of
Police (Border), who had conducted the enquiry, is not found to have recorded
the statement of the petitioner nos. 2 to 7 and moreover, no questions are
found to have been asked to the two witnesses examined by the said Sub-
Inspector of Police (Border) in respect of petitioner nos. 2 to 7. Accordingly, it is
seen from the learned Tribunal's record that vide memo no. MRG/B/33/200
dated 08.05.2003, bearing IM(D)T Case No. 565/01 dated 27.09.01, reference
was made by the Superintendent of Police (Border), Morigaon before the then
Illegal Migrants (Determination) Tribunal, Morigaon. In the case of Sarbananda
Sonowal v. Union of India & Ors., (2005) 5 SCC 665 , the provisions of the Illegal
Migrants (Determination by Tribunals) Act, 1983 and the Illegal Migrants
(Determination by Tribunals) Rules, 1984 were declared to be ultra vires the
Constitution of India and were struck down. Consequently, it was ordered that
the Tribunals and the Appellate Tribunals constituted under the Illegal Migrants
(Determination by Tribunals) Act, 1983 shall cease to function. Moreover, it was
directed that all cases pending before the Tribunals under the Illegal Migrants
(Determination by Tribunals) Act, 1983 shall stand transferred to the Tribunals
constituted under the Foreigners (Tribunals) Order, 1964 and shall be decided in
the manner provided in the Foreigners Act, 1946 the Rules made thereunder
and as per the procedure prescribed under the Foreigners (Tribunals) Order,
1964. It was also directed that it will be open to the authorities to initiate fresh
proceedings under the Foreigners Act against all such persons whose cases
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were not referred to the Tribunals by the competent authority whether on
account of the recommendation of the Screening Committee or any other
reason whatsoever.
10) Thus, in terms of the directions contained in the case of
Sarbananda Sonowal (supra), as the competent authorities are not found to
have referred to the Foreigners Tribunal, the proceedings against the petitioner
nos. 2 to 7 is not maintainable on facts and in law.
11) Moreover, in the case of Sudhir Roy & Ors. V. Union of India,
(2019) 5 GLR 489: (2019) 0 Supreme(Gau) 132 , the Division Bench of this Court
had held as follows:-
9. As regards the declaration of the wife, sons and daughters of the
petitioner to be foreigners, we have perused the records and have taken note of
that the reference was made only against the petitioner and not against his wife,
sons and daughters. Although the law in this respect has been settled by this Court
in Aktara Khatun Vs. State of Assam & Ors., reported in 2017 (2) GLT 974 that a
presumption can also be drawn against the family members of the proceedee who
has been declared as foreigner, but at the same time we are also of the view that
such presumption would by itself not lead to a conclusion that the family members
of a proceedee who has been declared to be a foreigner are also foreigners. The
same may be a good cause for initiating an enquiry and making a reference against
the family members, but without following the due procedure of law of conducting
an enquiry and making a reference and being adjudicated by the Tribunal, the
family members cannot be declared to be foreigners.
12) Therefore, the Court is of the unhesitant considered opinion that
as the Tribunal's record to not disclose that the competent authority, being the
Superintendent of Police (Border), Morigaon had specifically made any reference
against the petitioner nos. 2 to 7, the impugned opinion, insofar as it relates to
the petitioner nos. 2 to 7, namely, Ikramul Haque, Miss. Gulesa Begum, Miss.
Nazima Khatun, Miss. Amina Khatun, Miss. Mamoni Khatun and Miss. Asmina
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Khatun @ Aspina Khatun @ Asiya Khatun, is set aside and quashed. However,
the Court hastens to provide that in terms of the directions contained in the
case of Sarbananda Sonowal (supra), it will be open to the authorities to initiate
fresh proceedings under the Foreigners Act, 1946 against the petitioner nos. 2
to 7, whose cases were not referred to the Tribunals by the competent authority
after following the due process of law.
13) The first point of determination is answered accordingly.
14) In connection with the second point of determination, it is seen
that in the case of Sarbananda Sonowal (supra), the Supreme Court of India
had clearly held that the burden of proof would be upon the procedure as he
would be possessing the necessary documents to show that he is a citizen not
only within the meaning of the provisions of the Constitution of India but also
within the provisions of the Citizenship Act. It would be relevant to quote
paragraph 26 thereof below:-
"26. There is good and sound reason for placing the burden of proof upon the
person concerned who asserts to be a citizen of a particular country. In order to
establish ones citizenship, normally he may be required to give evidence of (i) his
date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and
citizenship. Sometimes the place of birth of his grandparents may also be relevant
like under Section 6-A(1)(d) of the Citizenship Act. All these facts would necessarily
be within the personal knowledge of the person concerned and not of the
authorities of the State. After he has given evidence on these points, the State
authorities can verify the fact and can then lead evidence in rebuttal, if necessary.
If the State authorities dispute the claim of citizenship by a person and assert that
he is a foreigner, it will not only be difficult but almost impossible for them to first
lead evidence on the aforesaid points. This is in accordance with the underlying
policy of Section 106 of the Evidence Act which says that when any fact is
especially within the knowledge of any person, the burden of proving that fact is
upon him."
15) As per paragraph 3(8) of the Foreigners (Tribunals) Order, 1964
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the Tribunal is required to give ten days time to a proceedee to produce
evidence in support of his/her case. However, in the present case, the learned
Tribunal has granted more than sufficient time to the petitioner no.1 to produce
evidence.
16) On perusal of the records received from the learned Foreigners
Tribunal, it is seen that upon service of notice of the proceedings of F.T. (C)
281/2016, which was addressed only to Mohammad Ali, son of Late Arsad Ali
(petitioner no.1), he had entered appearance and submitted petition no. 879/17
dated 04.04.2017, stating that his father's name is Asad Ali but in the notice his
father's name is stated to be Arsad Ali and accordingly, prayer was made for
correction of his father's name. Thereupon, the learned Tribunal, by order dated
04.04.2017, called for a police report. Accordingly, the Sub-Inspector of Police,
Border Branch, Moirabari P.S. submitted a report dated 28.04.2017 to the effect
that on local enquiry from Gaonbura and some other people the name was
clarified he found that the actual name of petitioners father is Lt. Asad Ali.
Thereafter, the petitioner has filed his written statement on 20.06.2017.
However, it is seen that upon receipt of the Police Report, no consequential
order was passed by the learned Tribunal. As per order dated 24.07.2017, the
learned Tribunal took notice that there are other persons also being involved in
the reference. Therefore, notice was also issued to all the family members of
the petitioner no.1. Accordingly, notice was issued upon the petitioner's nos. 2
to 7 and the case was fixed on 14.08.2017 for additional written statement. The
proceeding was adjourned on 14.08.2017, 30.08.2017 and 03.10.2017 and on
16.10.2017, additional written statement was filed by all the 7 (seven)
petitioners.
Page No.# 10/16
17) Thereafter, the matter was fixed on 10.11.2017 and 27.11.2017
for evidence of the petitioners and by order dated 27.11.2017, the petitioners
were put to notice that 25.12.2017 was fixed as a last chance for evidence,
failing which matter would be decided in accordance with law. As 25.12.2017
was a holiday, the matter was taken up on 26.12.2017 and by rejecting the
prayer for adjournment, it was ordered that the case will proceed for argument
and accordingly, the date of argument was fixed on 08.01.2018. On 08.01.2018,
a prayer for adjournment from the petitioners' was rejected and it was ordered
that the Tribunal will determine the case without hearing of argument and the
matter was fixed on 25.01.2018 for opinion as opinion could not delivered on
the said date, the opinion was delivered on 30.01.2018 by declaring the
petitioners' as foreigners to enter India (Assam) on or after 1971.
18) Thus, the petitioner no.1 had deliberately not filed his evidence
despite last chance granted by order dated 27.11.2017. The Tribunal is not
expected to wait endlessly for the petitioner no.1 to file his evidence at his own
sweet will.
19) In this writ petition the petitioners have taken two pleas for not
filing evidence. Firstly, it is alleged that their learned counsel did not advice
them to file evidence and therefore, evidence could not be filed for improper
advice of their advocate. Secondly, it is alleged that without asking them to file
their evidence, their counsel had taken adjournment. In the considered opinion
of the Court, both the allegations cannot be said to be good or sufficient reason
for not filing evidence by the petitioners. Moreover, the allegations against the
advocate for the petitioners before the Foreigners Tribunal cannot be examined
in the absence of the said advocate as a respondent in this writ petition.
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Accordingly, it is held that the plea of improper advice by the petitioners'
advocate and or taking adjournment without asking the petitioners to file their
evidence is hit by the principles of non-joinder of necessary parties.
20) Now coming to the plea that the Enquiry Officer had found the
petitioner no.1 to be a citizen of India by birth, the same is countered by the
learned standing counsel for the FT matters by citing the case of Aziz Miya @
Aziz Mia (supra). Paragraph nos. 10, 11 and 13 to 16 thereof are quoted below:-
"10. Clause 2 of the Foreigners (Tribunal) Orders, 1964 provides that the
Central Government may by order refer the question as to whether the person is or
is not a foreigner within the meaning of the Foreigners' Act, 1946 to a Tribunal to
be constituted for the purpose for its opinion. It is stated that the Central
Government by an appropriate notification had delegated its power under Clause 2
of the Foreigners (Tribunal) Orders, 1964 to the Superintendant of Police
Superintendant of Police (Border) of the respective districts to make any order
referring the question on the citizenship of a person to a Tribunal constituted for
the purpose for its opinion. The provisions of Clause 2 of the Foreigners (Tribunal)
Orders, 1964 makes it explicit that it is the Superintendant of Police Superintendant
of Police (Border) who would be the authority to take a decision based upon the
report of the inquiry or any further materials that may be available as to whether a
person concerned is required to be referred to a Tribunal for its opinion as to
whether he is a foreigner or not.
11. A reading of the provisions of Clause 2 of the Foreigners (Tribunal) Orders,
1964 as indicated above also leads to a conclusion that the report of the
investigating authority that may have been submitted as to whether the suspected
person is a foreigner or not would be merely indicative in nature and cannot be
said to have attained a finality on the status of the suspected person as to whether
he is a foreigner. From such point of view, we are unable to accept the submission
of Mr. R Ali learned counsel for the petitioner that as because the inquiring
authority in the instant case had given a report that the petitioner is not a
foreigner, therefore, the Superintendant of Police (Border) did not have any
jurisdiction to make a reference to the Tribunal for an opinion as to whether he is a
citizen or not and accordingly the reference itself made is a defective reference
which is required to be returned back.
* * *
13. In the matter of Monowara Khatun v. The Union of India & Ors., [W.P.(C)
Page No.# 12/16
2674/2016], the factual situation was that the Superintendant of Police (Border)
after proper application of mind on the report of the inquiring authority came to a
conclusion that the suspected person therein did not appear to be a foreigner. In
other words, it was the Superintendant of Police Superintendant of Police (Border)
who had arrived at such a conclusion and no finality was given to any report of an
inquiring authority. In the instant case, it is noticed that although the report of the
inquiring authority may be that the petitioner is not a foreigner but the
Superintendant of Police (Border) upon going through the materials on record did
not arrive at any conclusion that the petitioner is not a foreigner which again also
impliedly flows from his conduct that he had made a reference to the Tribunal for
rendering an opinion on the said question.
14. On facts of the present case, we have noticed that the inquiring authority
in its report dated 28.03.2001 had stated that during the inquiry the petitioner had
produced the voters' list of 1966 which belonged to his father and therefore, the
petitioner is not a foreigner.
15. We are constrained to observe that a mere claim by a suspected person by
referring to a voters' list claiming a person therein to be his father is not a
conclusive proof and that by doing so, the person has discharged the burden that
he is not a foreigner. This is because there is also a further requirement to prove
that the person who is reflected in the voters' list relied upon is actually the father
of the person who makes the claim the claim will have to be substantiated with
further material/ materials acceptable in law.
16. Accordingly, the report of the inquiring authority on its own cannot be
viewed to be conclusive in nature that the petitioner is not a foreigner. From such
point of view, we do not notice any infirmity in the reference made by the
Superintendant of Police (Border), Kamrup to the Foreigners' Tribunal No. 2,
Kamrup (M) for rendering an opinion as to whether the petitioner is a foreigner
who entered the State of Assam from the specified territory."
21) Therefore, as the Superintendent of Police (Border) is the
competent authority to make reference, the finding of the Enquiry Officer is
inconsequential. The Tribunal's record reveals that the Superintendent of Police
(Border), Morigaon had specifically stated in the reference to the then Illegal
Migrants (Determination) Tribunal that "there is no evidence that he entered
into India before 25-3-1971. But there are more evidence that he entered into
India after 25-3-1971." Accordingly, by following the ratio laid down in the case
Page No.# 13/16
of Aziz Miya @ Aziz Mia (supra) , the Court is inclined to hold that the reference
by the Superintendent of Police (Border), Morigaon against the petitioner no.1 is
valid and sustainable on facts and in law.
22) In this case, the petitioners have neglected and failed to produce
evidence in support of their defence despite more than reasonable opportunity
granted to them. Therefore, in the considered opinion of the Court, the learned
Foreigners Tribunal did not commit any legal infirmity in deciding the reference
in absence of filing of evidence by the petitioners despite being given
reasonable opportunity.
23) Therefore, a corollary issue also arises as to whether the Writ
Court, in exercise of certiorari jurisdiction can substitute its discretion over the
decision of the Tribunal, which is otherwise lawful.
24) In the quest to answer the said corollary issue, it would be
apposite to refer to the decision of the Supreme Court of India in the case of
Central Council for Research in Ayurvedic Sciences & Anr. v. Bikartan Das & Ors.,
2023 INSC 733: (2023) 0 Supreme(SC) 763 . Paragraphs 51 to 53 thereof [as
extracted from (2023) 0 Supreme(SC) 763] are quoted below:-
"51. The second cardinal principle of exercise of extraordinary jurisdiction
under Article 226 of the Constitution is that in a given case, even if some action or
order challenged in the writ petition is found to be illegal and invalid, the High
Court while exercising its extraordinary jurisdiction thereunder can refuse to upset
it with a view to doing substantial justice between the parties. Article 226 of the
Constitution grants an extraordinary remedy, which is essentially discretionary,
although founded on legal injury. It is perfectly open for the writ court, exercising
this flexible power to pass such orders as public interest dictates & equity projects.
The legal formulations cannot be enforced divorced from the realities of the fact
situation of the case. While administering law, it is to be tempered with equity and
if the equitable situation demands after setting right the legal formulations, not to
take it to the logical end, the High Court would be failing in its duty if it does not
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notice equitable consideration and mould the final order in exercise of its
extraordinary jurisdiction. Any other approach would render the High Court a
normal court of appeal which it is not.
52. The essential features of a writ of certiorari, including a brief history, have
been very exhaustively explained by B.K. Mukherjea, J. in T.C. Basappa v. T.
Nagappa and Another, reported in AIR 1954 SC 440. The Court held that a writ in
the nature of certiorari could be issued in 'all appropriate cases and in appropriate
manner' so long as the broad and fundamental principles were kept in mind. Those
principles were delineated as follows:
"7. ... In granting a writ of 'certiorari', the superior court does not exercise
the powers of an appellate tribunal. It does not review or reweigh the
evidence upon which the determination of the inferior tribunal purports to be
based. It demolishes the order which it considers to be without jurisdiction or
palpably erroneous, but does not substitute its own views for those of the
inferior tribunal .....
8. The supervision of the superior court exercised through writs of certiorari
goes on two points, as has been expressed by Lord Summer in King v. Nat
Bell Liquors Limited [(1922) 2 AC 128, 156]. One is the area of inferior
jurisdiction and the qualifications and conditions of its exercise; the other is
the observance of law in the course of its exercise. ....
9. Certiorari may lie and is generally granted when a court has acted
without or in excess of its jurisdiction."
53. Relying on T.C. Basappa (supra), the Constitution Bench of this Court in the
case of Hari Vishnu Kamath v. Ahmad Ishaque & Ors., AIR 1955 SC 233, laid down
the following propositions as well established:
"(1) Certiorari will be issued for correcting errors of jurisdiction, as when an
inferior court or tribunal acts without jurisdiction or in excess of it, or fails to
exercise it.
(2) Certiorari will also be issued when the court or tribunal acts illegally in
the exercise of its undoubted jurisdiction, as when it decides without giving an
opportunity to the parties to be heard, or violates the principles of natural
justice.
(3) The court issuing a writ of certiorari acts in exercise of a supervisory and
not appellate jurisdiction. One consequence of this is that the court will not
review findings of fact reached by the inferior court or tribunal, even if they
be erroneous."
25) On the facts of this case, the Tribunal's records do not reveal that
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the reference was decided without giving a reasonable opportunity to the
petitioners to be heard or that the principle of natural justice has been violated
in respect of the petitioners. Therefore, the Writ Court should be a loathe to
interfere with the opinion of the learned Tribunal in a causal manner by
substituting the opinion of the Court on the otherwise lawful opinion, which was
rendered after giving a fair warning to the petitioners vide order dated
27.11.2017, thereby granting a last chance to produce evidence.
26) Therefore, in light of the discussions above, the second point of
determination is answered in the negative and against the petitioner no.1 by
holding that the petitioners have not been able to make out a case warranting
interference of this Court in respect of the opinion dated 30.01.2018, passed by
the learned Member, Foreigners' Tribunal No. 5th, Morigaon, in Case No. F.T.(C)
281/2016 [F.T.(C)1330/12 (old), arising out of IM(D)T case no.565/2001 dated
27.09.2001], by which the petitioners were declared to be foreigners who have
entered into India (Assam) on or after 25.03.1971.
27) Before parting with the record, it would be appropriate to refer to
paragraph 16 above that the name of father of the petitioner was not Late
Arshad Ali but Late Asad Ali. In this regard, it is seen that in the cause title of
this writ petition, the petitioners have referred the name of the father of the
petitioner no.1 as Late Ashad Ali @ Arshad Ali. Similarly, in the affidavit filed by
the petitioner no.1 in support of this writ petition the name of the father of the
petitioner no. 1 is stated to be Late Ashad Ali @ Arshad Ali. Therefore, the Court
is inclined to hold that the issuance of notice to the petitioner by the learned
Foreigners Tribunal by referring the name of the father of the petitioner no. 1 as
Arshad Ali has not caused any perceivable prejudice to the petitioners as the
Page No.# 16/16
identity of the petitioner no.1 is otherwise well established by way of
admission.
28) Accordingly, the Court is inclined to pass the following-
ORDER
a. This writ petition fails in so far as it relates to the petitioner no.1,
namely, Mohammad Ali, against whom thus writ petition stands
dismissed.
b. However, this writ petition is allowed, in so far as petitioner nos. 2 to
7, namely, Ikramul Haque, Miss. Gulesa Begum, Miss. Nazima Khatun,
Miss. Amina Khatun, Miss. Mamoni Khatun and Miss. Asmina Khatun @
Aspina Khatun @ Asiya Khatun. However, as indicated hereinbefore, it
will be open to the authorities to initiate fresh proceedings under the
Foreigners Act, 1946 against the petitioner nos. 2 to 7, whose cases
were not referred to the Tribunals by the competent authority after
following the due process of law.
29) The parties are left to bear their own cost.
JUDGE JUDGE
Comparing Assistant
