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2019 DIGILAW 104 (GAU)

Hasina Khatun W/o Anowar Hussain v. Union of India

2019-01-25

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

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JUDGMENT : Heard Mr. A. R. Sikdar, learned counsel for the petitioner, Mr. J. Payeng, learned counsel for the State of Assam, appearing for the Foreigners’ Tribunal and Border Areas, Ms. V. Verma, learned Standing Counsel for the authorities under the NRC, Ms. G. Sarma, learned counsel for the authorities under the Union of India. 2. The petitioner was referred by the Superintendent of Police, Goalpara resulting in FT Case No. FT(G-4)415/2016 before the Foreigners Tribunal No. 4, Goalpara. The counsel for the petitioner filed an application, dated 25.04.2016 that while she is wife of the another person Anwar Hussain, daughter of late Kashem Ali Sheikh and granddaughter of late Jubanullah Sheikh village Palashbari, but the reference has been made in the name of Hasina Khatun @ Habiya Khatun, daughter of Habibur Rahman Mollah and granddaughter of late Sekandar Ali Mollah, resident of Narangabari. Considering the said application, the Tribunal passed order dated 31.01.2018 satisfying itself that the name of the father and grandfather of the petitioner does not match with those person referred but however, the Tribunal was of the view that the matter required to be verified. In the process, order dated 22.08.2017 was passed requiring the Officer-in-Charge of Baguan Police Station to submit report on this aspect. The Officer-in-Charge submitted a report, dated 13.10.2017 which deals with many other aspect but the core question as to whether the present petitioner whose father is Kashem Ali Sheikh and grandfather is late Jubanullah Sheikh is the person referred, was not answered. 3. Mr. J. Payeng, learned counsel for the State of Assam, appearing for the Foreigners’ Tribunal and Border Affairs submits that upon the reference being made, the Tribunal does not have any jurisdiction requiring the police to submit any further report. According to Mr. Payeng, the Tribunal can verify from its record pertaining to the reference and arrive at its own satisfaction as to whether the name, father’s name etc. of the referred person and the name of father, grandfather etc. of the person appearing before the Tribunal are one and the same. Depending upon the conclusion that may arrived appropriate orders required to be passed. 4. We are in the agreement with the submission of Mr. J. Payeng. of the referred person and the name of father, grandfather etc. of the person appearing before the Tribunal are one and the same. Depending upon the conclusion that may arrived appropriate orders required to be passed. 4. We are in the agreement with the submission of Mr. J. Payeng. Accordingly, instead of police to make and submit a report, a more appropriate course of action would be for the Tribunal itself to verify from the original record of the reference as to whether the reference was made against the petitioner Hasina Khatun, daughter of daughter of late Kashem Ali Sheikh and granddaughter of late Jubanullah Sheikh village Palashbari, Dist. Goalpara or it was made against some other person. If the conclusion of the Tribunal is that the petitioner and the person referred are one and the same person, the proceeding may follow as per law and if it is concluded that the two persons are different, then, as the jurisdiction of the Tribunal is assumed on the basis of a reference, no reference can further be continued against the petitioner if she is not the person who was referred by the authorities. However, liberty is also given to the Superintendent of Police, Goalpara to arrive at its own conclusion as to whether the petitioner being Hasina Khatun, daughter of late Kashem Ali Sheikh and granddaughter of late Jubanullah Sheikh Village Palashbari is also required to be referred, and in doing so, the Superintendent of Police, Goalpara shall act as per law. 5. As the Tribunal, without arriving at a proper conclusion of the question regarding identity of the petitioner had passed the order, the order dated 30.1.2018 is set aside and the petitioner shall now appear before the Tribunal on 11.02.2019 for a proper consideration as indicated above. 6. The writ petition is allowed to the extent as indicated above.