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2017 DIGILAW 1133 (GAU)

Falani Bibi v. Union of India

2017-08-18

PARAN KUMAR PHUKAN, UJJAL BHUYAN

body2017
JUDGMENT : UJJAL BHUYAN, J. Heard Mr. M.U. Mondal, learned counsel for the petitioner and Mr. H.K. Hazarkia, learned Government advocate, Assam. By filing this petition under article 226 of the Constitution of India, petitioner seeks quashing of order dated 2.11.2015 passed by the Foreigners' Tribunal No. 7, Dhubri at Bilasipara in FT 7th, Dhubri Case No. 27/BBR/15 corresponding to FT Case No. 298/BBR/11 (State v. Falani Bibi) declaring the petitioner to be a foreigner, who had illegally entered into India (Assam) from Bangladesh on or after 25.3.1971. 2. This court by order dated 21.11.2015 had issued notice while requisitioning the case record. An interim order was passed suspending the operation of the impugned order dated 2.11.2015 subject to appearance of the petitioner before the Superintendent of Police (Border), Dhubri. 3. Primary contention of Mr. Mondal, learned counsel for the petitioner is that in the enquiry preceding the reference, enquiry officer had prima facie found the petitioner to be a foreigner belonging to the specified territory having illegally entered into Assam during the period from 01.1.1966 to 24.3.1971. This was also the reference made by the Superintendent of Police. Tribunal had noted the terms of the reference yet Tribunal went beyond the terms of the reference by declaring the petitioner to be a foreigner of post-25.3.1971 stream which was beyond its jurisdiction. In support of his contention, learned counsel for the petitioner has placed before us a recent judgment of this court in Santosh Das v. Union of India, (2017) 5 GLR 510; 2017 (2) GLT 1065. 4. On the other hand, learned Government advocate supports the order passed by the Tribunal. 5. We have heard the submissions made by learned counsel for the parties and have also perused the materials on record. From the record, we find that petitioner was initially marked as a doubtful “D” voter by the authorities of the Election Commission of India. Thereafter, an enquiry was conducted in respect of his citizenship status. In the enquiry report dated 19.1.2008, the enquiry officer, Sri Basanta Das, Sub-Inspector of Police (Border) of Bagribari Police Station, Dhubri opined that petitioner was a “D” voter and a foreigner and, therefore, action could be taken against her. However, Superintendent of Police (Border), Dhubri made the reference to the Foreigners' Tribunal, Dhubri with the endorsement that the suspect (petitioner) was a foreigner of 1966-71 stream. However, Superintendent of Police (Border), Dhubri made the reference to the Foreigners' Tribunal, Dhubri with the endorsement that the suspect (petitioner) was a foreigner of 1966-71 stream. This endorsement of the Superintendent of Police, to our mind, appears to be at variance with the report submitted by the enquiry officer. 6. Be that as it may, in the notice issued to the petitioner by the Tribunal, it was mentioned that she was suspected to be a foreigner/illegal migrant entering into Assam after 25.3.1971 and that she could not produce any valid document in support of her Indian citizenship for the period on or before 31.12.1965 or from 1.1.1966 to 25.3.1971. 7. Be that as it may, the reference was contested by the petitioner by contending that she was not a foreigner but a citizen of India by birth. 8. Tribunal in its order dated 2.11.2015 noted that reference made by the Superintendent of Police (Border), Dhubri was to the effect that petitioner was suspected to be a foreigner belonging to the 1966-71 stream. However, on examination of the materials on record, Tribunal came to the conclusion that as a matter of fact, petitioner was a foreigner, who had illegally entered into India (Assam) from Bangladesh on or after 25.3.1971. Relevant portion of the order dated 2.11.2015 passed by the Tribunal is extracted hereunder: “On perusal of the documents on record it is found that the proceedee by exhibit B has brought a link with Abed Ali as her father but the name of Abed Ali appearing in the voters list of 1977 showing his age as 30 years, does not appear in any other documents to prove his existence in Indian soil prior to 1977. Though the name of Abdul Bepari appears in the voters list of 1977 as father of Abed Ali, it is not proved by sufficient documentary evidence that Abdul Bepari whose name appears in the voters list of 1966 is the same person and father of Abed Ali and grandfather of the proceedee. The proceedee has not produced any reliable and trust worthy documents to prove that Abdul Bepari is her grandfather. There are no link documents to prove that the person Abdul Bepari of the 1966 voters list is the father of Abed Ali in order to prove that Abdul Bepari is the grandfather of the proceedee. The proceedee has not produced any reliable and trust worthy documents to prove that Abdul Bepari is her grandfather. There are no link documents to prove that the person Abdul Bepari of the 1966 voters list is the father of Abed Ali in order to prove that Abdul Bepari is the grandfather of the proceedee. In fact there are no materials on record to believe that Abdul Bepari is the grandfather of the proceedee. Hence, considering the entire materials on record and the discussion above, I am of the considered opinion that the proceedee has failed to discharge her burden of proof that she was born through genuine India parents in India and as such acquired citizenship of India by birth. The documents produced are not at all sufficient, reliable and trustworthy, and the proceedee has miserably failed to produce any reliable documents to prove her existence or existence of her parents and grandparents in India soil prior to 25.3.1971. Rather it appears that the proceedee had illegally entered into India (Assam) without authority on or after 25.3.1971 and, hence, she is a foreigner/illegal migrant of the post-25.3.1971 stream.” 9. In Santosh Das (supra), this court had considered section 3 of the Foreigners Act, 1946 as well as order 2 of the Foreigners' (Tribunals) Order, 1964 in the context of making of reference to a Foreigners' Tribunal. It was held that a Tribunal gets its jurisdiction to render its opinion only when a reference is made to it. Without a reference being made, Tribunal cannot exercise its jurisdiction to opine that a person is or is not a foreigner. It is only when a reference is made that the Tribunal assumes jurisdiction to render its opinion. It was further held that the Tribunal would have to confine to the terms of the reference made to it and cannot go beyond the same. Relevant portion of the decision in Santosh Das (supra) is extracted hereunder: “14. Section 3 of the Foreigners' Act, 1946 empowers the Central Government to make Orders dealing with foreigners. In exercise of powers conferred under section 3 of the aforesaid Act, Foreigners (Tribunals) Order, 1964 was framed. Order 2 deals with constitution of Tribunals. Relevant portion of the decision in Santosh Das (supra) is extracted hereunder: “14. Section 3 of the Foreigners' Act, 1946 empowers the Central Government to make Orders dealing with foreigners. In exercise of powers conferred under section 3 of the aforesaid Act, Foreigners (Tribunals) Order, 1964 was framed. Order 2 deals with constitution of Tribunals. As per order 2(1), Central Government may be order refer the question as to whether a 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. Order 2(1A) also confers such power on a registering authority appointed under sub-rule (1) of rule 16F of the Citizenship Rules, 1956. 15. We have been informed at the Bar that the power of the Central Government to make reference in terms of order 2(1) has since been delegated to the concerned Superintendents of Police. 16. From a careful reading of order 2(1), what is discernible is that a reference is made to a Tribunal for its opinion whether a person is or is not a foreigner within the meaning of section 2(a) of the Foreigners Act, 1946. The Tribunal gets its jurisdiction to render its opinion only when a reference is made to it. Without a reference being made, Tribunal cannot exercise its jurisdiction to opine that a person is or is not a foreigner. It is only when a reference is made as above that the Tribunal assumes jurisdiction to render its opinion. Therefore, to our mind, Tribunal would have to confine to the terms of the reference made to it and cannot go beyond the same. Admittedly, in this case, reference was that petitioner was a foreigner who had illegally entered into India (Assam) from the specified territory during the period 1.1.1966 to 24.3.1971. The Tribunal was required to answer the reference either in favour of the State or in favour of the proceedee. If the reference was to be answered in favour of the State and it was answered rightly so by the Tribunal, the natural corollary would be that petitioner is a foreigner belonging to the 1.1.1966 to 24.3.1971 stream. Therefore, the view taken by the Tribunal that the Foreigners' Act, 1946 or the Orders framed thereunder do not bind it to the terms of the reference is not correct.” 10. Therefore, the view taken by the Tribunal that the Foreigners' Act, 1946 or the Orders framed thereunder do not bind it to the terms of the reference is not correct.” 10. There can be no dispute to the proposition of law as enunciated in Santosh Das (supra). Question is, if the Tribunal on appreciation of the materials on record, finds that the reference itself is faulty and contradictory to the materials on record, in such a situation what is the course of action open to the Tribunal? 11. Let us take a hypothetical case. The enquiry report discloses that the person concerned is a foreigner from the specified territory who had entered into India (Assam) illegally on or after 25.3.1971 but the Superintendent of Police makes the reference that the person concerned is suspected to be a foreigner of 1966 to 1971 stream. In the course of the proceeding, Tribunal is prima facie satisfied that the reference is faulty being contrary to the enquiry report. In such a situation what should the Tribunal do? Is the Tribunal required to mechanically answer the reference as forwarded to it by the referral authority or whether it should itself decide the issue or whether the Tribunal should send back the reference to the referral authority pointing out the discrepancy in the reference made and thereafter to make a correct reference? 12. To our mind and having regard to the decision in Santosh Das(supra), the prudent course of action would be that if a Tribunal prima facie arrives at a satisfaction that the reference made to it is faulty and contrary to the materials on record, the Tribunal should send back the reference to the referral authority with a disagreement note pointing out the error or fault in the reference. Once such reference is returned back to the referral authority, it would be the duty of the referral authority to make a fresh reference to the Tribunal after removing the defect or fault as pointed out by the Tribunal. 13. We say this because we feel that if the above course of action is not adopted by the Tribunals and the Tribunals on their own decide the reference by going beyond the terms of the reference, this would be untenable in law, besides leading to chaos and confusion. 13. We say this because we feel that if the above course of action is not adopted by the Tribunals and the Tribunals on their own decide the reference by going beyond the terms of the reference, this would be untenable in law, besides leading to chaos and confusion. On the other hand, if the Tribunal mechanically answers the reference as forwarded by the referral authority despite finding it to be faulty, it would not be in the public interest. 14. By way of clarification, it is made clear that the above direction would be applicable in a case where the referral authority, i.e., the Superintendent of Police (Border) makes the reference that the person concerned is a foreigner belonging to the 1966 to 1971 stream despite the enquiry report saying that the said person is a foreigner of post-1971 stream. 15. Reverting back to the facts of the present case, we have already noticed that the reference made by the Superintendent of Police (Border), Dhubri that the petitioner was suspected to be a foreigner of 1966-71 stream was at variance with the materials on record which disclosed that the petitioner was a “D” voter and a foreigner of post-1971 stream. 16. Consequently and having regard to the discussions made above, we set aside the order passed by the Tribunal dated 2.11.2015 and remand the matter back to the Superintendent of Police (Border), Dhubri for making a fresh reference in respect of the petitioner after duly considering the report of the enquiry officer and the materials on record. 17. Let the aforesaid exercise be carried out by the Superintendent of Police (Border), Dhubri within a period of 1 month from the date of appearance of the petitioner before him. Petitioner shall appear before the Superintendent of Police (Border), Dhubri on 15.9.2017 at 10:30 a.m. 18. This disposes of the writ petition. 19. This order be circulated to all the Foreigners Tribunals and Superintendents of Police (Border). Registry to send down the LCR forthwith and inform the concerned Foreigners Tribunal, Deputy Commissioner and Superintendant of Police (B) for doing the needful.