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2022 DIGILAW 432 (GAU)

Amina Khatun v. Union Of India

2022-04-28

N.KOTISWAR SINGH, NANI TAGIA

body2022
JUDGMENT : (N. Kotiswar Singh, J.) :- 1. Heard Mr. A.R. Sikdar, learned counsel for the petitioner. Also heard Ms. A. Verma, learned Special Counsel, Foreigners Tribunal; Mr. A. Bhuyan, learned Standing Counsel, ECI; Ms.L. Devi, learned Standing Counsel, NRC and Ms. U. Das, learned Additional Senior Govt. Advocate, Assam. 2. When this matter was taken up, it has been submitted by Mr. Sikdar, learned counsel for the petitioner that he would like to raise a preliminary objection without going into the merit of the case. 3. It has been submitted by Mr. Sikdar that perusal of the Enquiry Report would indicate that no enquiry in fact had been conducted. It has been held by Full Bench of this Court in The State of Assam and Ors. Vs. Moslem Mondal and Ors., 2013 (1) GLT 809, that the proper enquiry is a sine qua non before instituting a proceeding against a proceedee. Accordingly, Mr. Sikdar has submitted that in the present case as no enquiry was held at all, the entire proceeding will be vitiated. 4. In view of above submission made, we have perused the records. We have also shown the records to Ms. A. Verma, learned Special Counsel, Foreigners Tribunal. 5. On perusal of the records, we see that the reference was made by the Superintendent of Police (Border) on the ground that the person, namely, Anima Khatun, Wife of Ismail of village-Kulamua Choto Nichinpur, P.S. Fakirganj, District- Dhubri is a "Doubtful" voter. The said reference is based on certain reports of the E.R.O. which in turn is based on the LVO's report. 6. In the ERO's report which is based on the LVO's report, some doubt has been expressed about the citizenship of the aforesaid person. However, when we see the LVO's report, we have noticed that the entire format is blank except the name mentioned as Amina Khatun, W/o Ismail. As regards the various other particulars required to be filled up, there is nothing mentioned except the word 'Absent' on the top of the format. If the basis of the doubt on the citizenship of the person is based on LVO's report, we are of the view that since the LVO's report is devoid of any particular or any finding or for that matter any remark or observation, the said reference cannot be said to have been made after proper application of mind. 7. If the basis of the doubt on the citizenship of the person is based on LVO's report, we are of the view that since the LVO's report is devoid of any particular or any finding or for that matter any remark or observation, the said reference cannot be said to have been made after proper application of mind. 7. In Moslem Mondal (supra), the Full Bench of this Court had observed that fair investigation and fair trial is one of the basic fundamental rights of a person and it has been also observed that though investigation need not be detailed or an exhaustive one, keeping in view the nature of the proceeding of the before the Tribunal, the reference by the referral authority cannot be mechanical. The Referral Authority has to apply his mind on the materials collected by the Investigating Officer during his investigation and make the reference on being satisfied that there are grounds for materials for such reference. Referral Authority, however, need not pass a detail order recording his satisfaction and order agreeing with the investigation would suffice and the Referral Authority while making reference shall produce all the materials collected during the investigation before the Tribunal as the Tribunal prima is required facie to satisfy itself about the existence of the main grounds before issuing the notice to the proceedee as mentioned in para Nos.97 and 98 of the aforesaid decision. 8. In the present case, what we have noted is that there is no material at all to indicate that the LVO had conducted any proper enquiry. 9. Under the circumstances, we are of the view that the entire proceeding will be vitiated and accordingly, the impugned opinion also cannot be sustained in law. 10. For the reasons discussed above, the impugned order dtd. 13/2/2019 passed by learned Foreigners Tribunal (II), Dhubri in F.T. Case No.345/F/15 is set aside. 11. Since we have set aside the impugned order without going into the merit of the case but purely on procedural ground, the said opinion which has been set aside cannot be relied upon for the purpose of application of principle of res judicata. The same has been set aside not on merit but purely on procedural ground. 12. Respondents thus, will be at liberty to initiate a fresh proceeding to clear the doubt on the citizenship of the petitioner by the authorities, if so advised. The same has been set aside not on merit but purely on procedural ground. 12. Respondents thus, will be at liberty to initiate a fresh proceeding to clear the doubt on the citizenship of the petitioner by the authorities, if so advised. 13. We would also like to make an observation that the proceeding was initiated purportedly on the ground that the petitioner was found to be a "Doubtful" Voter sometime in the year 2004 and ultimately the opinion was rendered on 13/2/2019. Now the matter has come before this Court in 2022. Long time has lapsed since the initiation of the proceeding in 2004. It is unfortunate that so much time and resources of the authorities concerned have been invested to deal with the issue of citizenship of the petitioner which unfortunately has to be set aside because of the glaring deficiency and shortcoming on the part of the investigating authorities as mentioned above. We feel that such deficiencies which are absolutely preventable should not be repeated, as otherwise, a person has to go through the entire legal process for decades causing immense hardships, both financial and mental agony. 14. We also have noted that the learned Tribunal ought to have also made a prima facie satisfaction about the existence of the grounds before notice was issued as mandated under Para No.98 of Moslem Mondal (supra), which reads as follows: "(98) The reference by the referral authority 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 proceedee." 15. From the records of the case, it does not appear that the learned Tribunal has made any such exercise which is required to be done. On this ground also, the impugned order is vitiated. 16. From the records of the case, it does not appear that the learned Tribunal has made any such exercise which is required to be done. On this ground also, the impugned order is vitiated. 16. We accordingly, direct that the learned Tribunal before issuing notice to the proceedee must record its satisfaction about the existence of the grounds, failing which, the entire proceeding may be vitiated as has happened in the present case resulting in untold inconveniences and hardships to the person concerned and also wastage of precious time and resources of the State. If such instances recurs, it will be colossal waste of time and resources of the State which ought to be prevented. 17. We, accordingly, direct the Investigating authorities, the Referral authorities and the learned Tribunals to be careful in taking up the proceedings and ensure the procedures as laid down by the Full Bench of this Court in Moslem Mondal (supra) are scrupulously adhered to. 18. A copy of this order be circulated to all the learned Members of the Foreigners Tribunals, all the Superintendents of Police (Border) of the districts and also to the authorities of the Election Commission. 19. With the above observations and directions, the present petition stands disposed of. 20. LCR be remitted to the concerned Foreigners Tribunal forthwith.