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2019 DIGILAW 66 (GAU)

Basanti Biswas v. Union of India

2019-01-21

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

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ORDER : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Ms. D. Ghosh, learned counsel for the petitioners, Mr. A Ali, learned counsel for the Election Commission of India, Mr. J. Payeng, learned standing counsel for the State of Assam appearing for the Foreigners Tribunal and Border Affairs, Ms. A. Verma, learned standing counsel for the authorities under the NRC as well as Ms. G Sarma, learned counsel for the authorities under the Union of India. 2. The husband of the petitioner No. 1 late Ashok Biswas was referred by the Superintendent of Police (Border), Morigaon for an adjudication as to whether he is a foreigner from the specified territory, who had entered into India after 25.3.1971. The said reference resulted in IM(D)T Case No. 590/2002 before the IM(D)T, Morigaon. On the Illegal Migrants (Determination by Tribunal) Act 1983 being declared ultra-vires by the Supreme Court, the said reference was transferred to the Foreigners Tribunal No. 3, Morigaon and was renumbered as FT Case No. 287/2015. By the order dated 16.5.2018, the Foreigners Tribunal No. 3, Morigaon in FT (C) No. 287/2015 arrived at a conclusion that the present petitioners are foreigners, who had entered the territory of India after 25.3.71. 3. Ms. D Ghosh, learned counsel for the petitioners has raised a contention that no reference was made by the competent authority against the present petitioners. The entire proceeding against the petitioners was based on the reference made by the Superintendent of Police (Border), Morigaon against the husband of the petitioner No. 1, who had died even before the notice could be served on him 4. We have perused the records as regards the reference being made and from the records, it is revealed that the reference was made only against Ashok Biswas, who is the husband of the petitioner No. 1 and no separate reference was made against either of the petitioners. In view of the above, we are of the view that there is a procedural aberration in the proceeding being made against the petitioners and accordingly the order dated 16.05.2018 in FT(C) No. 287/2015 is unsustainable. Accordingly, the order of 16.5.2018 passed in FT(C) No. 287/2015 is set aside. 5. As there is no proper reference against the petitioners, it is left to the discretion of the Superintendent of Police (Border), Morigaon to proceed against the petitioners, if so advised, but strictly in accordance with law. 6. Accordingly, the order of 16.5.2018 passed in FT(C) No. 287/2015 is set aside. 5. As there is no proper reference against the petitioners, it is left to the discretion of the Superintendent of Police (Border), Morigaon to proceed against the petitioners, if so advised, but strictly in accordance with law. 6. It is stated that pursuant to the order dated 16.05.2018 in FT(C) No. 287/2015, the petitioner No. 1 is in detention. As the order by which she was opined to be a foreigner has been interfered with, the respondent authorities shall forthwith release the petitioner No. 1 from the detention. 7. The writ petition stands allowed to the extent indicated above. LCR be sent back immediately.