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2019 DIGILAW 585 (GAU)

Firuj Ahmed v. Union of India

2019-05-13

UJJAL BHUYAN

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JUDGMENT : 1. Heard Mr. A Matlib, learned counsel for the petitioners and Mr. D Baruah, learned Standing Council, Election Commission of India. Also heard Ms. MD Bora, learned Government Advocate, Assam and Ms. U. Das, learned counsel appearing for the State Coordinator, National Register of Citizens (NRC). 2. Fifty six petitioners have joined together and have instituted the present common proceeding under Article 226 of the Constitution of India seeking a direction to the respondents to remove the tag of doubtful (D) voter against their names; or alternatively, to make reference to the Foreigners Tribunal to decide their nationality status once and for all. 3. Case of the petitioners is that they are working in various tea estates in Golaghat district, namely, Messamara, Karunating, Rangamati, Rangaliting, Nighereting, Balijan and Naharbari Tea Estates. They are inhabitants of Messamara Tea Estate. In the voters list of 1997, they were marked as doubtful (D) voters which has been continued thereafter. Petitioners contend that no inquiry was conducted prior to declaring them as doubtful (D) voters; besides the authority cannot continue to mark them as doubtful (D) voters for an indefinite period. 4. Notice in this case was issued on 12.02.2018. 5. Though no affidavit has been filed by the respondents, Mr. D. Baruah, learned Standing Counsel, Election Commission of India submits on the basis of written instructions from the Electoral Registration Officer, 96 Khumtai Legislative Assembly Constituency that 140 numbers of doubtful case records were referred by the Electoral Registration Officer, 96 Khumtai Legislative Assembly Constituency to the Tribunals constituted under the Illegal Migrants (Determination by Tribunals) Act, 1983 on 15.09.2000. This bunch of 140 included case of the petitioners. 6. Mr. Baruah submits that Illegal Migrants (Determination) Tribunal, Jorhat vide letter dated 09.08.2000 referred the cases back to the Superintendent of Police (Border), Golaghat taking the view that these references should be re-submitted to the Foreigners Tribunal constituted under the Foreigners (Tribunals) Order, 1964 to render opinion as to whether the proceedees were foreigners or not. In all 152 numbers of references were sent back starting from Case No.JTD 300/1998. Thereafter, Superintendent of Police (Border), Golaghat sent back the references to the Electoral Registration Officer, 96 Khumtai Legislative Assembly Constituency on 14.09.2000. However, it is not known what has happened to those references thereafter. 7. In Sarbananda Sonowal Vs. In all 152 numbers of references were sent back starting from Case No.JTD 300/1998. Thereafter, Superintendent of Police (Border), Golaghat sent back the references to the Electoral Registration Officer, 96 Khumtai Legislative Assembly Constituency on 14.09.2000. However, it is not known what has happened to those references thereafter. 7. In Sarbananda Sonowal Vs. Union of India, reported in (2005) 5 SCC 665 , Supreme Court declared the Illegal Migrants (Determination by Tribunals) Act, 1983 to be illegal and unconstitutional and accordingly struck down the same. Supreme Court directed that all pending references before the Tribunals constituted under the aforesaid Act should be transferred to the Foreigners Tribunals constituted under the Foreigners (Tribunals) Order, 1964. 8. That being the position, Superintendent of Police (Border), Golaghat shall make fresh references of the cases of the petitioners which were referred back by the Illegal Migrants (Determination) Tribunal, Jorhat on 09.08.2000 to the Foreigners Tribunal, Jorhat under Order 2 (1) of the Foreigners (Tribunals) Order, 1964 within a period of 30 days from today. While making such references, Superintendent of Police (Border), Golaghat shall inform the Border Wing of Assam Police which is monitoring references made before the Foreigners Tribunals. Superintendent of Police (Border), Golaghat shall also intimate office of the State Coordinator, NRC about making of such references. 9. Upon receipt of references from the referral authority i.e., Superintendent of Police, (Border), Golaghat, Foreigners Tribunal, Jorhat shall register the references and issue notice to the proceedees (petitioners) where after procedure prescribed under the Foreigners (Tribunals) Order, 1964 shall be followed. Following such registration, Superintendent of Police (Border), Golaghat shall collect the reference numbers and forward the same to the Border Wing of Assam Police for information and necessary follow-up steps. 10. Let a copy of this order be furnished to Mr. D. Baruah, learned Standing Counsel, Election Commission of India and Ms. A. Verma, learned Standing Counsel, State Coordinator, NRC. Copy of this order may also be furnished to Special Director General of Police (Border), Assam. This disposes of the writ petition.