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2019 DIGILAW 273 (GAU)

Maimana Bibi v. Union of India

2019-03-01

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

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JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. M Ali, learned counsel for the petitioner. Also heard Mr. AI Ali, learned counsel for the Election Commission of India and Mr. J Payeng, learned counsel for the State of Assam appearing for the Foreigners' Tribunal and Border Areas as well as Ms. G Sarma, learned counsel for the authorities under the Union of India. 2. On being referred by the Superintendent of Police(Border), Kokrajhar, FT Case No. 3865/K/87 was registered in the Foreigners Tribunal (Dhubri, Kokrajhar, & Goalpara past) Kokrajhar for a determination as to whether the petitioner is a foreigner, who had entered India/Assam between 01.01.1996 and 25.03.1971 and since then has been residing in the village Aminkata, Police Station Gossaigaon, Kokrajhar. 3. The Tribunal by its order dated 03.10.1997 had declared that the petitioner is a foreigner who came to India between the year 01.01.1966 and 25.03.1971. 4. Although upon being declared to be a person, who came into the territory of India between 01.01.1966 and 25.03.1971, a person is required to register himself/herself with the Regional Foreigners Registration Office of the concerned district, but in the instant case, the petitioner had not done so. As the petitioner was not registered, the authorities sought to deport her from the territory of India and in the said circumstances, this writ petition has been preferred. 5. In this writ petition, the petitioner pray for a direction that she be allowed to register herself before the Regional Foreigners Registration Office as provided under Section 6A(3) of the Citizenship Act of 1955. 6. 5. In this writ petition, the petitioner pray for a direction that she be allowed to register herself before the Regional Foreigners Registration Office as provided under Section 6A(3) of the Citizenship Act of 1955. 6. We have perused the provisions of Section 6A(3) which is as follows: (3) Subject to the provisions of sub-sections (6) and (7), every person of Indian origin who- (a) came to Assam on or after the 1st day of January, 1966 but before the 25th day of March, 1971 from the specified territory; and (b) has, since the date of his entry into Assam, been ordinarily resident in Assam; and (c) has been detected to be a foreigner, shall register himself in accordance with the rules made by the Central Government in this behalf under section 18 with such authority (thereafter in this sub-section referred to as the registering authority) as may be specified in such rules and if his name is included in any electoral roll for any Assembly or Parliamentary constituency in force on the date of such detection, his name shall be deleted there from. Explanation.-In the case of every person seeking registration under this sub-section, the opinion of the Tribunal constituted under the Foreigners (Tribunals) Order, 1964 holding such person to be a foreigner, shall be deemed to be sufficient proof of the requirement under clause (c) of this sub-section and if any question arises as to whether such person complies with any other requirement under this sub-section, the registering authority shall,- (i) if such opinion contains a finding with respect to such other requirement, decide the question in conformity with such finding; (ii) if such opinion does not contain a finding with respect to such other requirement, refer the question to a Tribunal constituted under the said Order hang jurisdiction in accordance with such rules as the Central Government may make in this behalf under section 18 and decide the question in conformity with the opinion received on such reference. 7. The requirement of registering with the Foreigners Registration Authority under Section 6A(3) of the Citizenship Act is subject to the following condition precedent: (i) that the proceedee came to Assam after 01.01.1966 but before 25.03.1971; (ii) and since the date of his entry into Assam, been ordinarily resident in Assam; and (iii) has been detected to be a foreigner. 8. The requirement of registering with the Foreigners Registration Authority under Section 6A(3) of the Citizenship Act is subject to the following condition precedent: (i) that the proceedee came to Assam after 01.01.1966 but before 25.03.1971; (ii) and since the date of his entry into Assam, been ordinarily resident in Assam; and (iii) has been detected to be a foreigner. 8. We find that in the order of the Tribunal dated 03.10.1997 there is no finding of a fact that since the date of her entry into Assam, the petitioner had continuously been residing in Assam. The only finding arrived is that the petitioner had entered India between 01.01.1966 and 25.03.1971. As the condition precedent of Section 6 A(3) had not been fulfilled in the case of the petitioner as revealed from the order of the Tribunal, we are of the view that the finding of fact that the petitioner has ordinarily been residing in Assam since the date of her entry which is a requirement of law, is absent in this case. 9. In view of the above, we are of the view that interest of justice would be met, if the petitioner is required to reappear before the Foreigners Tribunal at Kokrajhar for a determination as to whether she had been a resident of Assam since the date of her entry between 01.01.1966 and 25.03.1971. 10. For the purpose, the Tribunal may take any further evidence that may be required in order to enable the petitioner to establish that she has ordinarily been a resident in Assam since the date of her entry. For the purpose, the petitioner shall appear before the Tribunal on 20.03.2019 and upon her appearance, the Tribunal shall decide the requirement as indicated above within a period of 30 days thereafter. It is provided that in the event, the petitioner does not appear or does not cooperate with the Tribunal, the Tribunal would be at liberty to pass any order as it may deem fit and proper. 11. In terms of the above, this writ petition stands disposed of.