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2017 DIGILAW 1522 (GAU)

Bahej Ali v. Union of India

2017-12-11

NELSON SAILO, UJJAL BHUYAN

body2017
ORDER : Ujjal Bhuyan, J. 1. Heard Mr. H.R.A. Choudhury, learned Senior counsel for the petitioner, Ms. P. Baruah, learned Central Govt. counsel and Ms. D. Das Barman, learned Govt. Advocate, Assam. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 20.04.2017 passed by the Foreigners Tribunal No. 7, Dhubri at Bilasipara in FT-7th Dhubri Case No. 31/CPR/17 (State v. Bahej Ali) declaring the petitioner to be a foreigner of post 25.03.1971 stream who had illegally entered into India from the specified territory. 2. It appears that reference was made against the petitioner Bahej Ali and his wife Mustt. Surjyavanu Bibi by the Superintendent of Police (Border), Dhubri under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) with the allegation that they were illegal migrants as defined under the IMDT Act. It may be mentioned that under Section 3(1)(C) of the IMDT Act, an illegal migrant was defined as a foreigner who had unauthorisedly entered into India after 25.03.1971. 3. After the IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665 , the reference was reregistered under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964 as FT Case No. 394/CPR/2011 and after creation of additional Tribunals, it was re-numbered as FT 7th Dhubri Case No. 31/CPR/2017 and was assigned to the Foreigners Tribunal-7th, Dhubri at Bilasipara (Tribunal) for opinion. 4. On 16.03.2017, petitioner was present but written statement was not filed. It was also stated that his wife Mustt. Surjyavanu Bibi had expired. In this connection, Tribunal recorded the statement of the Process Server who confirmed the death of the wife. Therefore, Tribunal recorded that 'case' against the procedee Mustt. Surjyavanu Bibi stood 'abated' and answered the reference accordingly. 5. This is the first issue before us. 6. In so far petitioner is concerned, further time was granted to file written statement and to adduce evidence, fixing 03.04.2017 and thereafter on 20.04.2017. 7. Since petitioner did not file written statement and did not adduce evidence, Tribunal decided to proceed ex parte. 8. Tribunal noted long pendency of the reference from 1988 onwards and also found from the record that petitioner had first appeared before the Tribunal on 22.03.1994. 7. Since petitioner did not file written statement and did not adduce evidence, Tribunal decided to proceed ex parte. 8. Tribunal noted long pendency of the reference from 1988 onwards and also found from the record that petitioner had first appeared before the Tribunal on 22.03.1994. As written statement was not filed for as long as 23 years, Tribunal proceeded ex parte and passed the order dated 20.04.2017 answering the reference in favour of the State in the above manner. 9. This is the second issue before us. 10. We take up the second issue first. 11. It is submitted by Mr. Choudhury, learned Senior counsel, that petitioner was taken into custody following his declaration as a foreigner on 04.10.2017 and is now lodged in the Detention Camp at Dhubri. 12. It is no doubt true that there has been considerable lapse and delay on the part of the petitioner but at the same time the nature and character of the reference had also undergone substantial change following declaration of the IMDT Act as unconstitutional. Now in the reference proceeding, burden is on the procedee to prove that he is not a foreigner but a citizen of India. Thereafter, following creation of additional Tribunals, the reference was renumbered and assigned to the Tribunal for opinion. Tribunal had also recorded about the death of petitioner's wife though date of death is not mentioned. Perhaps in such circumstances Tribunal could have granted one more opportunity to the petitioner to file written statement in view of the mourning period of 40 days. 13. That being the position, we are of the view that petitioner may be granted one last opportunity to file written statement and to adduce evidence. 14. In so far the first issue is concerned, going by the scheme of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964, the referral authority, i.e., Superintendent of Police (Border) seeks an opinion from the competent Foreigners Tribunal as to whether the suspect is a foreigner or not. Therefore, on a reference made by the referral authority, Tribunal is required to render its opinion. This Court has held on more than one occasion that a proceeding before the Tribunal is not of the nature of a civil suit or of a criminal trial. It is a summary proceeding following which opinion is to be rendered by the Tribunal on the reference made. This Court has held on more than one occasion that a proceeding before the Tribunal is not of the nature of a civil suit or of a criminal trial. It is a summary proceeding following which opinion is to be rendered by the Tribunal on the reference made. Therefore, question of 'abatement' of a reference may not arise. If the suspect has expired, the reference is required to be returned back to the referral authority, i.e., Superintendent of Police (Border) with the note that the procedee has expired, who shall, thereafter, take appropriate steps in accordance with law. Since the materials on the basis of which the reference was made continues to remain on record, it would be open to the referral authority, i.e., the Superintendent of Police (Border) to make subsequent references against the other family members of the deceased procedee drawing lineage from the same father. If a person is suspected to be a foreigner on the basis of materials on record, it would be a logical corollary to take the view that the other family members of the procedee drawing lineage from the same father would also be suspected foreigners whose citizenship status would have to be gone into by a Foreigners Tribunal. This is a decision which has to be taken by the referral authority. Therefore, it would not be just and proper on the part of the Tribunal to close a reference as having 'abated" on the death of a procedee. 15. That being the position, we pass the following orders:- (1) In so far reference against Mustt. Surjyavanu Bibi is concerned, the order of the Tribunal dated 16.03.2017 that it had 'abated' is set aside; the reference in respect of Mustt. Surjyavanu Bibi would now stand returned to the referral authority, i.e., Superintendent of Police (Border), Dhubri. On the basis of the materials on record, Superintendent of Police (Border), Dhubri may make further references against the other family members of Mustt. Surjyavanu Bibi drawing lineage from the same father. (2) In respect of the petitioner, order dated 20.04.2017 is set aside. Matter is remanded back to the Tribunal. On the basis of the materials on record, Superintendent of Police (Border), Dhubri may make further references against the other family members of Mustt. Surjyavanu Bibi drawing lineage from the same father. (2) In respect of the petitioner, order dated 20.04.2017 is set aside. Matter is remanded back to the Tribunal. (3) Superintendent of Police (Border), Dhubri shall produce the petitioner Bahej Ali from the detention center before the Foreigners Tribunal-7th, Dhubri in connection with FT 7th Dhubri Case No. 31/CPR/17 on 4.1.2018 at 10.30 am on which date petitioner shall file his written statement whereafter Tribunal shall proceed with the reference in accordance with law and conclude the same within a period of 60 days from the date of appearance as above. Superintendent of Police (Border), Dhubri shall produce the petitioner before the Tribunal from the detention center on subsequent dates as well. 16. If the petitioner files an application for bail before the Tribunal, the same may be considered by the Tribunal in accordance with law. No opinion is expressed. 17. Writ petition is disposed of. 18. Registry to circulate this order to all the Foreigners Tribunals with copies to the Commissioner and Secretary to the Govt. of Assam, Home and Political Department and Additional Director General of Police (Border), Assam. Copy of this order may also be forwarded to State Coordinator, National Register of Citizens (NRC) to ensure that names of Mustt. Surjyavanu Bibi (expired) and petitioner are not entered in the NRC. 19. Needless to say, if there is any default on the part of the petitioner henceforth, Tribunal would be at liberty to pass appropriate order that may be deemed fit and proper. 20. Before parting with the record, we make it clear that we have not expressed any opinion on merit. Registry to also inform the concerned Foreigners Tribunal, Superintendent of Police (Border) and Deputy Commissioner for necessary follow-up steps.