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2018 DIGILAW 751 (GAU)

Jyotsna Biswas v. Union of India

2018-05-07

NELSON SAILO, UJJAL BHUYAN

body2018
JUDGMENT : Ujjal Bhuyan, J. 1. Heard Ms. M. Bhattacharjee, learned counsel for the petitioner and Mr. U.K. Nair, learned Senior Special Counsel, Foreigners' Tribunal (FT). By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 16.06.2015, passed by the Foreigners' Tribunal (2nd), Morigaon, in FT (D) Case No. 494 of 2011, State vs. Smt. Jyotsna, declaring her to be a foreigner, who had illegally entered into India (Assam) from Bangladesh after 25.03.1971. 2. On going through the materials on record, we find that order dated 16.06.2015 was passed on merit after the reference was fully contested by the petitioner. 3. This Court by order 18.12.2015 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to her appearance before the Superintendent of Police (Border), Morigaon, and furnishing of adequate surety. 4. When the case was called upon for hearing on 02.01.2018, learned counsel for the petitioner submitted that petitioner had expired and in this connection had produced a death certificate dated 13.10.2017. In such circumstances, this Court had passed the following order:- "Learned counsel for the petitioner has placed before us a death certificate dated 13.10.2007 (sic), which has certified the death of the petitioner, Jyotsna Biswas @ Jyotsna Mazumdar. Since this is a reference and notwithstanding death of the procedee, the allegations of the State and the findings of the Foreigners' Tribunal remain on record, which may have an adverse bearing on the near relations of the procedee, learned counsel for the petitioner may examine substitution of the petitioner by anyone of her relatives." 5. Today, when the matter is called upon, learned counsel for the petitioner submits that she has no instructions. 6. This Court has held in the case of Bahej Ali vs. Union of India, 2018 (2) GLT 837: WP (C) No. 7526 of 2017, decided on 11.12.2017 that question of abatement of a reference on the death of a procedee does not arise. If the procedee had expired, the reference is required to be returned back to the referral authority, i.e., Superintendent of Police (Border), informing him that the procedee had expired, who shall, thereafter, make a fresh reference against the other family members of the procedee. If the procedee had expired, the reference is required to be returned back to the referral authority, i.e., Superintendent of Police (Border), informing him that the procedee had expired, who shall, thereafter, make a fresh reference against the other family members of the procedee. This is be-cause the allegations against the deceased procedee remained unrebutted and the materials on the basis of which he was suspected to be a foreigner continues to remain on record. In fact, it would be a logical corollary that once a person is suspected to be a foreigner, 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 the Foreigners' Tribunal. 7. In view of above, the impugned order dated 16.06.2015 would remain on record notwithstanding the death of the petitioner, Smt. Jyotsna. Superintendent of Police (Border), Morigaon, shall now make a fresh reference against the other family members of the petitioner. 8. Writ petition is disposed of. 9. Registry to send down the LCR and inform the concerned Foreigners Tribunal, Superintendent of Police (Border) and Deputy Commissioner for necessary follow-up steps. Copies of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC, Assam.