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2017 DIGILAW 1160 (GAU)

Paran Uddin @ Paran Ali v. Union of India

2017-08-24

PARAN KUMAR PHUKAN, UJJAL BHUYAN

body2017
JUDGMENT : Ujjal Bhuyan, J. Heard Mr. M.U. Mondal, learned counsel for the petitioner and Ms. D. Das Barman, learned Govt. Advocate, Assam. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 19.08.2016 passed by the Foreigners Tri bunal No.7, Dhubri at Bilasipara in FT 7th Dhubri Case No. 18/BBR/16 (State v. Paran Ali) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from the specified territory, i.e., Bangladesh on or after 25. 3.1971. 3. From the materials on record, it is seen that Superintendent of Police (Border), Dhubri made the reference under the Foreigners Act, 1946 read with Foreigners (Tribunals) Order, 1964 with the allegation that petitioner was a foreigner who had illegally entered into India (Assam) from the specified territory, i. e., Bangladesh on or after 25.03.1971. 4. Though the reference was registered earlier, following creation of additional Tribunals, the same was re-numbered as FT 7th Dhubri Case No. 18/BBR/2016 and was assigned to the Foreigners Tribunal No.7, Dhubri at Bilasipara (Tribunal). 5. Notice issued by the Tribunal was served upon the petitioner where after he had entered appearance before the Tribunal and filed written statement denying the allegation made that he was a foreigner by claiming to be a citizen of India by birth. He also adduced evidence, both oral and documentary. 6. After hearing the matter, Tribunal passed the order dated 19.08.2016 answering the reference in favour of the State by declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from the specified territory, i.e., Bangladesh on or after 25.03.1971. 7. Aggrieved, present writ petition has been filed. 8. This Court by order dated 07.06.2017 had issued notice while requisitioning the case record. An interim order was passed to the effect that petitioner should not be taken into custody and deported from India subject to his appearance before the Superintendent of Police (Border), Dhubri. 9. Mr. Mondal, learned counsel for the petitioner, strenuously argued that the reference made by the Superintendent of Police (Border), Dhubri was to the effect that petitioner was a foreigner who had illegally entered into India (Assam) from the specified territory during the period from 01.01.1966 to 24.03.1971. Therefore, Tribunal had exceeded its jurisdiction by declaring the petitioner to be a foreigner of post 25.03.1971 stream. Therefore, Tribunal had exceeded its jurisdiction by declaring the petitioner to be a foreigner of post 25.03.1971 stream. On this ground itself, impugned order is liable to be set aside. In this connection, learned counsel for the petitioner has placed reliance on a decision of this Court in Santosh Das v. Union of India, 2017 (2) GLT 1065. Additionally, he submits that even otherwise also, petitioner had adduced sufficient evidence to prove that he was not a foreigner but a citizen of India. Thus, he had discharged his burden under Section 9 of the Foreigners Act, 1946. Therefore, Tribunal had committed a manifest error in answering the reference against the petitioner which has caused serious prejudice to the petitioner. Impugned order should, therefore, be set aside. 10. On the other hand, learned Government Advocate, Assam strongly supports the order passed by the Tri bunal and submits that finding recorded by the Tribunal is based on appreciation of evidence and, therefore, such a finding of fact may not be interfered with by the writ Court in a proceeding under Article 226 of the Constitution of India. 11. Submissions made by learned counsel for the parties have received the due consideration of the Court. Also perused the materials on record. 12. Petitioner has raised the question of jurisdiction of the Tribunal by contending that when the reference was to the effect that petitioner was suspected to be a foreigner belonging to the 01.01.1966 to 24.03.1971 stream, Tribunal could not have declared the petitioner to be a foreigner of post 25.03.1971 stream thereby going beyond the terms of the reference. To appreciate this contention, we have looked into the record. 13. The interrogation report of the Enquiry Officer dated 14.07.2001 is on record as well as the undated endorsement of the Superintendent of Police (Border), Dhubri. Neither the enquiry report of the Enquiry Officer nor the formal reference of the Superintendent of Police (Border), Dhubri are on record. 14. In the interrogation report, Enquiry Officer noted that the individual concerned, i.e., the petitioner did not furnish his address of original country. However, he could not produce any valid document in support of his nationality. Thereafter, he remarked that during enquiry, it appeared that petitioner was a foreigner of 1966-1971 stream as he could not produce any document in support of his nationality. However, he could not produce any valid document in support of his nationality. Thereafter, he remarked that during enquiry, it appeared that petitioner was a foreigner of 1966-1971 stream as he could not produce any document in support of his nationality. This remark of the Enquiry Officer, according to us, was sudden and abrupt. If the petitioner could not produce any valid document in support of his Indian nationality, he ought to have been suspected to be foreigner from the specified territory of post 25.03.1971 stream; where was the question of suspecting the petitioner to be a foreigner of 1966-1971 stream? Be it stated that as per Sections 6A(3) and (4) of the Citizenship Act, 1955, as amended, a person declared to be a foreigner from the specified territory belonging to the aforesaid stream of 1.1.1966 to 24.3.1971, upon registration, would be disenfranchised for a period of only 10 years though he would be entitled to all the other rights and privileges of a citizen of India; after 10 years he would even get back his voting rights. Therefore, such remark of the Enquiry Officer was totally uncalled for which appears to be a case of providing indirect benefit to the suspect. 15. To make matters worse, Superintendent of Police (Border), Dhubri without mentioning the date, simply remarked that he agreed with the report of the Enquiry Officer that the person was suspected to be a foreigner of 1966-1971 stream and, therefore, matter was referred to the Foreigners Tribunal for opinion. 16. This is how the reference came to the Tribunal. 17. In the notice issued by the Tribunal dated 10.02.2016, it was mentioned that allegation against the petitioner was that he had illegally entered into India (Assam) after 25.3.1971/within 1.1.1966 and 24.3.1971. Firstly, report of the Enquiry Officer was prepared in a very perfunctory manner and was contrary to the materials collected during the enquiry. The enquiry clearly disclosed that petitioner could not show any document to prima facie establish his Indian nationality. He could neither produce the extract of the National Register of Citizens (NRC) of 1951 nor the voters list of 1966. The enquiry clearly disclosed that petitioner could not show any document to prima facie establish his Indian nationality. He could neither produce the extract of the National Register of Citizens (NRC) of 1951 nor the voters list of 1966. If that be so, ultimate report of the Enquiry Officer that petitioner was suspected to be a foreigner of 1966-1971 stream was totally contrary to the materials on record as it was a case of petitioner failing to establish prima facie that he was a citizen of India in which event he ought to have been suspected to be a foreigner of post 25.03.1971 stream. Whether it was a case of mischief or a case of non-application of mind is difficult to say but certainly Enquiry Officer did not do his duty properly. 18. Secondly, if the Enquiry Officer did not do his job properly, there was total non-application of mind on the part of the then Superintendent of Police (Border), Dhubri, who simply agreed with such a report and made the reference that petitioner was suspected to be a foreigner of 1966-1971 stream, without even mentioning the date of the endorsement. 19. Thirdly, Tribunal also did not examine the record properly and issued notice on 10.02.2016 without striking off the inapplicable portion in the reference. 20. Be that as it may, in the facts and circumstances of the case, Tribunal ought to have remanded the matter back to the referral authority, i.e., Superintendent of Police (Border), Dhubri by pointing out the fault in the reference and calling upon the referral authority to make a correct reference. Instead of doing that, Tribunal took the reference upon itself where after it had recorded the finding that petitioner was a foreigner belonging to the post 25.03.1971 stream. This Court has already held in a number of cases that if the Tribunal finds that the reference is faulty, the best course of action would be to remand the matter back to the referral authority to make a fresh reference. In Falani Bibi v. Union of India, WP(C) No. 7104/2015, decided on 18.08.2017, this Court held as follows:- "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. In Falani Bibi v. Union of India, WP(C) No. 7104/2015, decided on 18.08.2017, this Court held as follows:- "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. 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(1 A) also confers such power on a registering authority appointed under Sub-Rule (1) of Rule 16(F) 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. 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 01.01.1966 to 24.03.1971 stream. Therefore, the view taken by the Tribunal that the Foreigners Act, 1946 or the Orders framed there under do not bind it to the terms of the reference is not correct." 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 contrary to the materials on record, in such a situation what is the course of action open to the Tribunal? 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 25.03.1971 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? 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? 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. 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. 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." 21. Having regard to the above, we are of the view that the reference made to the Tribunal was faulty and, therefore, the Tribunal ought to have remanded the matter back to the referral authority with a disagreement note for making a correct reference. 22. That being the position, impugned order dated 19.08.2016 is set aside. Matter is remanded back to the Superintendent of Police (Border), Dhubri to consider the entire materials on record and make a fresh reference to the Tribunal having regard to the discussions and observations made above. 22. That being the position, impugned order dated 19.08.2016 is set aside. Matter is remanded back to the Superintendent of Police (Border), Dhubri to consider the entire materials on record and make a fresh reference to the Tribunal having regard to the discussions and observations made above. Petitioner shall appear before the Superintendent of Police (Border), Dhubri on 25.9.2017 at 10.30 am where after Superintendent of Police (Border), Dhubri shall carry out the necessary exercise in accordance with law. 23. Writ petition is disposed of. 24. Registry to send down the LCR forthwith and also inform the concerned Foreigners Tribunal, Superintendent of Police (B) and Deputy Commissioner for taking immediate follow-up steps. Copy of this order may also be forwarded to the Additional Director General of Police (Border), Assam.