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2021 DIGILAW 676 (GAU)

Hafiz Uddin v. Union of India

2021-11-10

MALASRI NANDI, N.KOTISWAR SINGH

body2021
JUDGMENT : N. KOTISWAR SINGH, J. Heard Mr. M. Ali, learned counsel for the petitioners. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K.D. Choudhury, learned Asstt. SGI, for respondent No. 1; Ms. A. Verma, learned special counsel, F.T. appearing for respondent Nos. 3, 6 and 7; Mr. A. Bhuyan, learned standing counsel, ECI, appearing for respondent No. 2, Ms. L. Devi, learned standing counsel, NRC, appearing for the respondent No. 4 and Ms. U. Das, learned State counsel, Assam, appearing for the respondent No. 5. 2. Records have been received and we have perused the records. 3. In this petition the petitioners have challenged the impugned order dated 20.9.2019 passed by the Foreigners Tribunal No. 5, Nagaon, Assam, in F.T. Case No. 4547/2019, by which the petitioners were declared foreigners of post-1971 stream. 3.1 Learned counsel for the petitioners submits that without going to the merit of the case, in view of the fact that the Tribunal went beyond the reference, it would be sufficient for this court to interfere with the findings arrived at by the Foreigners Tribunal. 4. It is the case of the petitioners that as per the report of the Inquiring Authority, there was a finding that the petitioners had entered India between 1.1.1966 to 25.3.1971 and on the basis of the said finding, the matter was referred to the Foreigners Tribunal for necessary opinion. However, the Foreigners Tribunal made an opinion that the proceedees had entered India post-1971. According to the learned counsel for the petitioners, the aforesaid opinion rendered by the FT is accordingly vitiated, inasmuch as, no opinion was sought for by the authorities as to whether they had entered into India after 25.3.1971. 5. We have perused the records. 6. The Superintendent of Police (Border), Nagaon at the relevant time vide his inquiry report dated 9.12.1987 held that Habizuddin (petitioner No. 1 herein), son of late Jabox, is a foreigner who had settled in India after 1.1.1966 but before 25.3.1971 and accordingly, referred the case before the Foreigners Tribunal, Nagaon, for taking necessary action to delete the names of the petitioner and his family from the.Electoral Rolls as per rules on the ground that the petitioner had entered Assam after 1.1.1966 but before 25.3.1971 and he has been ordinarily residing in Assam since their entry. Thus, from the reference made by the Superintendent of Police (Border), Nagaon, it is very clear that the reference was made before the Foreigners Tribunal for deleting the name of the petitioner along with his family members from the electoral rolls as they were foreigners, though they had entered India after 1.1.1966 and before 25.3.1971 and as such, unless they are registered themselves as citizens under section 6 A(3) read with sub-section (5) of the Citizenship Act, 1955, they cannot be deemed to be citizens of India. In other words, even if a person is declared to be a foreigner but if he/she has come from Bangladesh or erstwhile East Pakistan between 1.1.1966 and 25.3.1971 and has been residing in the State of Assam since then, even though he/she may be declared a foreigner unless he/she registered himself with the competent authority as provided under the aforesaid section 6 A(5) of the Act, the person cannot get the benefit of citizenship. Rules also provide that till such registration is made, the person, who has been declared a foreigner, his/her name shall be deleted from the Electoral Rolls. It is the deletion of the names of the petitioners from the Electoral Rolls till the petitioner No. 1 registered himself before the registering authority for which purpose the reference was made by the Superintendent of Police (Border), Nagaon as per order dated 9.12.1987. 7. It has been further clarified in the Explanation to sub-section (3) of the section 6 A of the Citizenship Act, 1955 that in case of every person seeking registration under sub-section (3), the opinion of the Tribunal constituted under the Foreigners (Tribunals) Order, 1964 holding such person as foreigner shall be deemed to be sufficient proof of the requirement under clause (c) of the sub-section (3). Therefore, this reference made by the competent authority that the petitioner entered between 1.1.1966 and 25.3.1971 has to be answered only in respect of the aforesaid period sought. In other words, the Tribunal has to declared on the basis of the materials whether the said proceedee is foreigner who entered Assam between the aforesaid period of 1.1.1966 to 25.3.1971. However, the Tribunal went on merit of the case without getting the aforesaid reference in mind and held that the petitioners had not been able to prove that they are Indian Citizens and declared them foreigners who illegally entered into India after 25.3.1971. However, the Tribunal went on merit of the case without getting the aforesaid reference in mind and held that the petitioners had not been able to prove that they are Indian Citizens and declared them foreigners who illegally entered into India after 25.3.1971. 8. From the records it is very clear that it is not the case of the State authority to prove as to whether the petitioner No. 1 is an illegal entrant to India after 25.3.1971, but an illegal entrant who entered between 1.1.1966 to 25.3.1971 and as such, the aforesaid finding of the Tribunal in our view cannot be sustained. 9. In this regard, the learned counsel for the petitioners relied on the decision of this court in Sona Kha @ Sona Khan v. Union of India, (2012) 3 Gau LT 12 in which this court has referred to the jurisdiction of the Foreigner Tribunal to give its opinion qua the reference and in the present case when the reference was made in respect of the period of entry that the petitioner No. 1 had entered India after 1.1.1966 but before 25.3.1971, the Tribunal could not have given an opinion that the petitioner entered in India after 25.3.1971 because it was not the opinion sought from the Tribunal by way of reference. Accordingly, we are satisfied that the Tribunal had made an error in giving an opinion that the petitioner entered in India after 25.3.1971 as it was never the case of the State authorities. 10. This court on a number of occasions earlier had observed the importance of the Tribunal to give an opinion based on the reference made by the Referral Authority. It has been made very dear by the Full Bench in State of Assam v. Moslem Mondal, (2013) 1 Gau LT 809, in paragraph 89 thereof, that the Tribunal gets its jurisdiction to give an opinion on the question as to whether a person is a foreigner or not only when a reference is made by the authorities mentioned in clause 2 of the Foreigners (Tribunals) Order, 1964. 11. Thus, it goes without saying that the Tribunal is to give opinion only on the basis of the reference so made. In view of the provisions of section 6 A of the Citizenship Act, 1955, the reference can be made only on the following circumstance. 11. Thus, it goes without saying that the Tribunal is to give opinion only on the basis of the reference so made. In view of the provisions of section 6 A of the Citizenship Act, 1955, the reference can be made only on the following circumstance. If a foreigner enters India between 1.1.1966 and before 25.3.1971 from the specified territory in the State of Assam and had been ordinarily resident of Assam and he has been detected to be a foreigner, he would be entitled to register himself with the competent authority as provided under section 6 A(3) of the Citizenship Act, 1955 and after such registration and on expiry of 10 years from the date of determination that he is a foreigner by the Tribunal, such a person shall be deemed to be citizen of India for all purposes as provided under section 6 A(4)/(5) of the Citizenship Act. It may be also noted that Explanation 2 to sub-section (3) of section 6 A of the Citizenship Act, 1955 provides that in case of every person seeking registration under sub-section (3), the opinion of the Tribunal constituted under the Foreigners (Tribunals) Order, 1964, holding such a person to be a foreigner shall be deemed to be sufficient proof of the requirement under clause (c) of sub-section (3). Thus, the opinion of the Tribunal will have a reference to the time of entry of the suspected illegal immigrant, i.e., between 1.1.1966 to 25.3.1971 as only such foreigners who come to Assam from the specified territory during the aforesaid period are entitled to register themselves under sub-section (3) of section 6 A of the Citizenship Act, 1955. 12. However, in respect of persons who had entered India after 25.3.1971, no such benefit is given and, as such, reference is generally made as regards the status of a person with reference to the aforesaid period of entry during 1.1.1966 and 25.3.1971 in Assam from the specified territory or whether he entered after the aforesaid period. As far as those who have entered before 1.1.1966, there is no requirement for determining the citizenship as section 6 A(2) itself provides that he shall be deemed to be Indian provided he had been ordinarily resident of Assam since the date of entry before 1.1.1966. As far as those who have entered before 1.1.1966, there is no requirement for determining the citizenship as section 6 A(2) itself provides that he shall be deemed to be Indian provided he had been ordinarily resident of Assam since the date of entry before 1.1.1966. However, in respect of those who entered Assam from the specified territory within 1.1.1966 to 25.3.1971, it needs to be determined as to whether he had entered within the aforesaid period and if any opinion is given by the Tribunal that he had entered from the specified territory during the aforesaid period, he shall be entitled to the benefits under section 6 A(3)/(4)/(5) of the Citizenship Act. 13. On the other hand, if a reference is made that a person had entered India after 25.3.1971, such a person will not be entitled to any such benefit of registration as citizen of this country and would be liable to be deported. 14. In view of the above position of law, the period of reference assumes critical significance as far as a person proceeded by a Foreigners Tribunal is concerned. 15. Confronted with similar situation on earlier occasions, this court, in Santosh Das v. Union of India, (2017) 2 Gau LT 1065 and Sonakha @ Sona Khan v. Union of India, WP(C) No. 1293/2021, decided on 24.3.2021, held that it would not be permissible for the Tribunal to give its opinion beyond the reference made. 16. The aforesaid decisions were relied upon by this court in Golapi Begum v. Union of India, WP(C) No. 2434/2020, decided on 15.7.2021. 17. Further, it may be noted that this court in Rina Rani Das v. Union of India, WP(C) No. 2706/2019, decided on 10.3.2021, had made the following directions “20. Accordingly, we also direct that, (i) The referral authority must scrupulously adhere to the norms laid down by this court in Moslem Mondal (supra), more particularly, as mentioned in para Nos. 96, 97 and 98 therein quoted above, as otherwise, the proceeding before the Tribunal would be vitiated. (ii) The Tribunal must be also prima fade satisfied about the existence of the main grounds before issuing notice to the proceedee and initiating the process. We would also add that, the Tribunal, must also properly cross check the identity of the proceedee based on the materials furnished by the referral authority. (ii) The Tribunal must be also prima fade satisfied about the existence of the main grounds before issuing notice to the proceedee and initiating the process. We would also add that, the Tribunal, must also properly cross check the identity of the proceedee based on the materials furnished by the referral authority. (iii) The Foreigners Tribunal cannot go beyond the term of reference as furnished by the referral authority under order 2(1) of the Foreigners (Tribunals) Order, 1964, if the reference is for determination that the proceedee is an illegal entrant during the period of 1.1.1966 and before 25.3.1971. The Tribunal has to decide accordingly, and cannot give an opinion that the proceedee has entered after 25.3.1971. (iv) However, if the reference is for determining that the proceedee had illegally entered on or after 25.3.1971, the proceedee has not only the option to prove that he/she is an Indian citizen who had entered India before 1.1.1966 and has been ordinarily resident of Assam since then but also that he/she entered Assam during die aforesaid period of 1.1.1966 and before 25.3.1971 and the Tribunal can accordingly, give its opinion. 21. The Registry is directed to circulate this order to all the Foreigners’ Tribunals under the State of Assam as well as to all the referral authorities.” 18. Thus, it is now well-settled that the Tribunal cannot go beyond the terms of the reference and if the Tribunal gives an opinion beyond the terms of the reference, the same cannot be sustained in law. 19. In view of the specific reference made by the referring authority, the Tribunal could have given opinion that the petitioner was an entrant to the State of Assam during the period of 1.1.1966 to 25.3.1971 and this opinion could have enabled him to register himself with the competent authority. Learned counsel for the petitioner submits that the petitioners would not contest the claim of the State that the petitioner No. 1 entered in India after 1.1.1966 and before 25.3.1971. 20. Learned counsel for the petitioner submits that the petitioners would not contest the claim of the State that the petitioner No. 1 entered in India after 1.1.1966 and before 25.3.1971. 20. Accordingly, we set aside the impugned order dated 20.9.2019 passed by the Foreigners Tribunal No. 5, Nagaon, Assam, in F.T. Case No. 4547/2019 to enable the petitioners, in respect of whom the Foreigners Tribunal had made observation which has been interfered by this court, to register himself with the competent authority in terms of section 6 A(5) of the Citizenship Act, 1955 which provides that a person registered under sub-section (3) of section 6 A of the Citizenship Act, 1955 shall be deemed to be citizen of India for all purposes after expiry of 10 years from the date when he has been detected to be an foreigner. It may be also noticed that it has been further provided under section 6 A(4) of the Act that a person registered under sub-section (3) as on the date which he has been detected to be a foreigner and till the expiry of 10 years from the date, the same rights and obligations as a citizen of India but shall not be entitled to have his/her name included in any electoral roll for any Assembly or Parliamentary constituency at any time before the expiry of the aforesaid period of 10 years. Accordingly, the authority will do the needful in terms of the aforesaid provisions of Citizenship Act, 1955, which includes deletion of the names of the petitioners from the electoral rolls in respect of whom the Foreigners Tribunal has made observation which has been interfered by this court. 21. The writ petition stands disposed of accordingly. 22. Let the LCR of the Foreigners Tribunal No. 5, Nagaon be remitted immediately.