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2021 DIGILAW 630 (GAU)

Sushil Mandal v. Union of India

2021-10-27

MALASRI NANDI, N.KOTISWAR SINGH

body2021
JUDGMENT : N. Kotiswar Singh, J. 1. Heard Mr. M. Biswas, learned counsel for the petitioner and Mr. J. Payeng, learned Standing counsel, Foreigners Tribunal. Also heard Ms. L. Devi, learned counsel for NRC; Mr. A.I. Ali, learned counsel for ECI; Ms. A. Gayan, learned CGC and Ms. K. Phukan, learned Government Advocate, Assam. 2. In this petition, the petitioner has challenged the opinion dated 21.11.2018 passed by the learned Member, Foreigners Tribunal, Kamrup (M) 2nd Guwahati, in FT Case No. 434/2018, whereby the petitioner was declared a foreigner. 3. Apart from various grounds urged before this Court in challenging the aforesaid impugned opinion dated 21.11.2018, learned counsel has submitted that the proceeding itself was beyond jurisdiction of the Foreigners Tribunal, inasmuch as, in this case cognizance was taken by the Foreigners Tribunal without valid reference being made by the Referral authority. It has been submitted that a reference can be made only on the basis of certain enquiry to be proceeded before the reference is made. 4. It has been submitted that in the present case, in the inquiry held by the competent authority, it has been specifically mentioned that the petitioner is not suspected to be a foreigner as the petitioner had placed valid documents in support of his nationality. Thus, in absence of any finding by the enquiring authority that the petitioner is suspected to be a foreigner, no reference could have been made by the Referral authority to the Foreigners Tribunal for its opinion. Learned counsel for the petitioner accordingly, submits that any reference made without a finding that the proceeded is suspected to be illegal emigrant, would be void and without jurisdiction. It is further submitted that if such procedure is allowed, it would open scope for arbitrary actions on the part of the Referral authority. 5. We have perused the original records requisitioned in this regard and also seen the enquiry report as contained in Form No. 1. In paragraph 21 of Form-1, which relates to the Enquiry Officer's final finding, it has been recorded by the enquiry officer as follows: “During enquiry, it appears to me that suspected Sushil Mandal son of Late Pashan Mandal is not an illegal migrant, who could produce sufficient valid document in support of his nationality. In paragraph 21 of Form-1, which relates to the Enquiry Officer's final finding, it has been recorded by the enquiry officer as follows: “During enquiry, it appears to me that suspected Sushil Mandal son of Late Pashan Mandal is not an illegal migrant, who could produce sufficient valid document in support of his nationality. Hence, the case is forwarded through proper channel to the Hon'ble Foreigners Tribunal for opinion judgment.” The aforesaid final finding was given by the Enquiry Officer. Thus, from the above, it is very clear that in the enquiry made in respect of the petitioner, there was a specific finding that he could produce sufficient valid documents in support of his claim of Indian nationality and, accordingly, the Enquiry Officer recorded the finding that he is not an illegal emigrant. In our opinion, under such circumstances, the question of referring the matter to the Foreigners Tribunal does not arise. 6. In our view, a reference can be made to the Tribunal for determining whether the proceeded is a foreigner or not only when a doubt arises about the nationality of the person concerned or when there is a specific finding by the enquiring authority that the proceeded is suspected to be a foreigner contrary to the claim made by the proceeded that he is an Indian. Thus, when a question has arisen as to the nationality of the proceeded, obviously that requires to be resolved by a competent neutral forum which has been provided under the Foreigners Order 1964 by creating the Foreigners Tribunal to determine this issue. It has been provided under Order 2 of the Foreigners Tribunal Order, 1964 that the Central Government may make an order for constitution of Foreigners Tribunal for the purpose for its opinion as to whether a person is or is not a foreigner, within the meaning of foreigner. 7. The aforesaid provision, however, does not mean that any reference can be made even if there is a finding that a person is an Indian. If a person claims to be Indian and the enquiring authority, after necessary enquiry also holds that he is an Indian, it cannot be said that there is dispute or any controversy as regards the nationality of such a person, which requires reference to the Tribunal as the need for determination is not there. If a person claims to be Indian and the enquiring authority, after necessary enquiry also holds that he is an Indian, it cannot be said that there is dispute or any controversy as regards the nationality of such a person, which requires reference to the Tribunal as the need for determination is not there. The Foreigners Tribunal, which has been created in terms of the 1964, is meant to give its opinion only when there is a dispute or doubt about the nationality of a person. The question of referring a matter to the Foreigners Tribunal does not arise when no such dispute or doubt exists. The purpose of constituting a Tribunal is to decide the nationality of a person when there is a doubt or dispute about it. 8. A valid reference can be made by the Referral authority only on the basis of certain finding, which has been arrived at by the Enquiring Officer. In the present case, the Enquiring Officer has given a finding that the proceeded is not a foreigner. Under the circumstances, the Referral authority could not have referred the matter to the Foreigners Tribunal for its opinion. If the Referral authority does not agree with the finding of the enquiry officer, it must be based on cogent reliable materials and not based on ipse-dixit of the Referral authority. There could not have been a reference to the Foreigners Tribunal to get an opinion when there is already a finding that the petitioner is an Indian and there is no dispute about the nationality and as such any such exercise by the Tribunal based on such reference will be a futile exercise. 9. The importance of proper reference by the Referral authority has been highlighted by Full Bench decision of this Court in State of Assam and Others vs. Moslem Mondal and Others, by emphasizing that the reference by the Referral authority cannot be mechanical and the Referral authority has to apply his mind on the materials collected by the Investigating Officer during investigation and make the reference on being satisfied that there are grounds for making reference. It was also emphasized that the Referral authority, while making the reference, shall produce all the materials collected during investigation before the Tribunal, as the Tribunal is required prima facie to satisfy itself about the existence of main grounds before issuing the notice to the proceeded. It was also emphasized that the Referral authority, while making the reference, shall produce all the materials collected during investigation before the Tribunal, as the Tribunal is required prima facie to satisfy itself about the existence of main grounds before issuing the notice to the proceeded. Para 98 of the above decision in Moslem Mandal (supra) is reproduced herein-below: “98. The reference by the referral author also cannot be mechanical. The referral authority has to apply his mind on the materials collected by the investigating officer during investigation and make the reference on being satisfied that there are grounds for making such reference. The Referral authority, however, need not pass a detailed order recording his satisfaction. An order agreeing with the investigation would suffice. The referral authority also, while making the reference, shall produce all the materials-collected during investigation before the Tribunal, as the Tribunal is required prima facie to satisfy itself about the existence of the main grounds before issuing the notice to the proceeded. From the above, it is clear that the Referral authority must be satisfied that there are grounds for making such reference. It is trite that grounds for making reference will arise only when there is a doubt about the nationality. As a corollary, when there is no doubt there cannot be any ground for reference.” 10. In the present case, there is a finding rendered by the enquiring authority that the proceeded is not a foreigner, and no dispute or doubt has been also raised about the nationality of the petitioner, as such, the question of referring to the Foreigners Tribunal by the Referral authority does not arise. 11. Accordingly, for the reasons discussed above, we are of the view that the impugned opinion dated 21.11.2018 passed by the learned Member, Foreigners Tribunal, Kamrup (M) 2nd Guwahati, in FT Case No. 434/2018 is void ab initio as it lacks jurisdiction to decide the matter since no jurisdiction has been conferred upon the Tribunal to give an opinion where there is no dispute about the citizenship of the proceeded. Accordingly, the impugned order dated 21.11.2018 is set aside. 12. Resultantly, this petition stands allowed. 13. Record be remitted to the concerned Tribunal.