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2019 DIGILAW 313 (GAU)

ALA UDDIN v. UNION OF INDIA

2019-03-07

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

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JUDGMENT : A. M. BUJOR BARUA, J. 1. Heard Mr. AJ Atia, learned counsel for the petitioner and Mr. J Payeng, learned counsel appearing for the Foreigners' Tribunal and Border Areas. Also heard Mr. AI Ali, learned counsel for the Election Commission of India 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) of the erstwhile Nagaon district, two references being FT (D) Case No. 33 of 2015 and FT (D) Case No.999 of 2015 respectively were registered against the petitioner. As two references were made against the same person, both the references were amalgamated and were adjudicated by a common order. 3. By the order dated 26.07.2017, the petitioner was declared to be a foreigner who entered the State of Assam in between 01.01.1966 and 25.03.1971. Being aggrieved, this present writ petition is preferred. 4. In the writ petition, amongst others, a ground had also been taken that an enquiry was made against the petitioner wherein it was concluded that he may be a foreigner who entered the State of Assam between 01.01.1966 and 25.03.1971. Upon such enquiry, a reference was made by the Superintendent of Police (Border) of the erstwhile Nagaon district. As the reference was made on the basis of the enquiry which arrived at its conclusion that the petitioner had entered between 01.01.1966 and 25.03.1971, therefore the reference made against the petitioner has to be construed to be a reference as to whether he is a foreigner who entered Assam between 01.01.1966 and 25.03.1971. 5. In the aforesaid circumstance, it is the contention of Mr. AJ Atia, learned counsel for the petitioner that the opinion rendered by the Tribunal in its order dated 26.07.2017 that he is a foreigner who entered after 25.03.1971, would be an opinion without jurisdiction, inasmuch, as the opinion rendered was beyond the reference made to the Tribunal. 6. In order to examine the correctness of the aforesaid contention, we have verified the Interrogation Report of the Enquiry Officer, based upon which the reference was made. Column-11 of the Interrogation Report clearly reveals that it was the conclusion of the Enquiry Officer that the petitioner had entered Assam after 01.01.1966. 6. In order to examine the correctness of the aforesaid contention, we have verified the Interrogation Report of the Enquiry Officer, based upon which the reference was made. Column-11 of the Interrogation Report clearly reveals that it was the conclusion of the Enquiry Officer that the petitioner had entered Assam after 01.01.1966. Further , in paragraph -17 of the Interrogation Report, it is clearly stated that the Enquiry Officer suspects that the petitioner had entered India between 01.01.1966 and 25.03.1971. Based upon such enquiry report, the Superintendent of Police (Border) of the erstwhile Nagaon had referred the case of the petitioner before the Tribunal. Accordingly, the reference made by the Superintendent of Police (Border) would have to be understood to be a reference as to whether the petitioner is a foreigner who entered the State of Assam in between 01.01.1966 and 25.03.1971. 7. The jurisdiction of a Tribunal to entertain a reference is provided under Rule 2 of the Foreigners (Tribunal) Order 1964, which provides that the Central Government may by order refer the question as to whether a person is or is not a foreigner to a Tribunal to be constituted for the purpose. Accordingly, in view of the provision of Rule 2 of the Foreigners (Tribunal) Order 1964, Tribunal would have to confine itself to answer the reference made to it and it cannot go beyond the question that had been referred to it. 8. In the instant case, in a circumstance where the reference was as to whether the petitioner is a foreigner who entered the State of Assam between 01.01.1966 and 25.03.1971, the Tribunal either decides it in favour of the proceedee i.e. he had not entered between 01.01.1966 and 25.03.1971 or it decides that he had so entered. In the absence of there being a specific reference whether the petitioner had entered India after 25.03.1971, which otherwise is also permissible to be done if the circumstance so warrants, we are again unable to accept that in deciding as to whether the petitioner had not entered Assam between 01.01.1966 and 25.03.1971, the Tribunal can venture into the question as to whether the petitioner had entered subsequent to 25.03.1971. 9. 9. In the instant case, as the reference was whether the petitioner entered Assam between 01.01.1966 and 25.03.1971 and the opinion rendered was that he had entered after 25.03.1971, such opinion cannot stand on the ground of it being without jurisdiction. Accordingly, the order dated 26.07.2017 by the Foreigners Tribunal No.10, Nagaon, Sankardev Nagar, Hojai in FT (D) Case No. 33 of 2015 and FT (D) Case No.999 of 2015 is hereby set aside. 10. It is stated that the petitioner is presently in detention at Central Jail, Tezpur but had recently been shifted to the Central Jail at Nagaon for some medical purpose. 11. As we have interfered with the order 26.07.2017, the petitioner shall be set at liberty forthwith subject to submission of two surety bonds from two prominent persons who give the surety subject to the satisfaction of the Superintendent of Police (Border) Nagaon who shall verify and satisfy himself as to the authenticity and acceptability of the two sureties to his satisfaction. 12. It is provided that the release of the petitioner from the detention camp shall be subject to the petitioner being required to be kept in custody in any other proceeding under any law. As the order of the Tribunal 26.07.2017 has been interfered on a technical ground of it being without jurisdiction, the Superintendent of Police (Border), Hojai shall be at liberty to make any further reference i.e. whether the petitioner is a foreigner who entered between 01.01.1966 and 25.03.1971 or whether he entered subsequent to 25.03.1971, as may be advised under the law. 13. Writ petition stands allowed to the extent as indicated above.