Allowed

Fulmala Khatoon and 4 Ors. v. the Union of India and 7 Ors.

Gauhati HC1 Jun 2018WP(C)/3342/2018

Case brief

AI extract

What is this about?

Petitioners challenged an order declaring them foreigners under the NRC stream. The court observed they were unaware of prior proceedings. It granted a fresh opportunity to contest the reference before the Foreigners Tribunal.

What did the court decide?

Orders dated 11.06.2012 and 29.07.2017 were set aside; petitioners granted opportunity to contest reference within 60 days.

Fulmala Khatoon and 4 Ors. Vs the… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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GAHC010101952018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 3342/2018

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1:FULMALA KHATOON AND 4 ORS. W/O- LATE AMIR ALI, R/O- VILL- JANPAR (MIKIRGAON), P.SDHARAMTUL, DIST- MORIGAON, ASSAM, PIN- 782412

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2: JABBAR ALI S/O- LATE AMIR ALI R/O- VILL- JANPAR (MIKIRGAON) P.S- DHARAMTUL DIST- MORIGAON ASSAM PIN- 782412

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3: RAJAB ALI S/O- LATE AMIR ALI R/O- VILL- JANPAR (MIKIRGAON) P.S- DHARAMTUL DIST- MORIGAON ASSAM PIN- 782412

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4: MANTAJ ALI @ MONTAB ALI S/O- LATE AMIR ALI R/O- VILL- JANPAR (MIKIRGAON) P.S- DHARAMTUL DIST- MORIGAON ASSAM PIN- 782412

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5: KADARA BEGUM D/O- LATE AMIR ALI R/O- VILL- JANPAR (MIKIRGAON)

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P.S- DHARAMTUL DIST- MORIGAON ASSAM PIN- 78241

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VERSUS

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1:THE UNION OF INDIA AND 7 ORS.

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REP. BY THE SECRETARY, MIN OF HOME AFFAIRS, GOVT OF INDIA, SHASTRI BHAWAN, NEW DELHI- 01

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2:THE STATE OF ASSAM REP. BY THE SECRETARY TO THE GOVT OF ASSAM HOME DEPTT DISPUR GUWAHATI- 781006

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3:THE SUPERINTENDENT OF POLICE(B) MORIGAON ASSAM- 782105

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4:THE DIRECTOR DIRECTORATTE OF FORENSIC SCIENCE GOVT OF ASSAM KAHILIPARA GUWAHATI ASSAM PIN- 781019

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5:DEPUTY COMMISSIONER OFFICE MORIGAON ASSAM PIN- 782105

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6:THE OFFICER-IN-CHARGE DHARMTUL POLICE STATION DIST- MORIGAON ASSAM PIN- 782105 7:THE STATE COORDINATOR OFFICE OF THE STATE COORDINATOR NRC

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ASSAM 1ST FLOOR ACHYUT PLAZA G S ROAD BHANGAGARH GUWAHATI ASSAM PIN- 781005

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8:THE ELECTION COMMISSIONER OF INDIA ASHOKA ROAD NEW DELHI- 11000

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Advocate for the Petitioner : MS. D GHOSH

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Advocate for the Respondent : ASSTT.S.G.I.

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BEFORE

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HON'BLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE AJIT BORTHAKUR

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ORDER

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Date : 01-06-2018

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(UJJAL BHUYAN, J)

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Heard Ms. D. Ghosh, learned counsel for the petitioner and Mr. J. Payeng, learned Special Counsel, Foreigners Tribunal (FT).

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5 petitioners have joined together and have filed the present writ petition. Petitioner No. 1 is the widow of Late Amir Ali whereas petitioner Nos. 2 to 5 are the sons and daughter of Late Amir Ali.

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By order dated 11.06.2012 passed by the Foreigners Tribunal (1^st ), Morigaon in FT Case No. 295/2007 (State Vs Md. Amir Ali & 5 Ors), petitioners and Amir Ali were declared to be foreigners who had entered into India (Assam) during the period from 01.01.1966 to 25.03.1971 and granted liberty for registration as foreigners belonging to the said stream.

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Learned counsel for the petitioners submits that the reference was made against Md. Amir Ali only. But the Tribunal had made all the family members proceedees. Notice was issued to

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Md. Amir Ali in the year 2007 whereas he had expired in the year 2006. The remaining family members i.e. the petitioners did not know about the proceeding and as a result did not contest the same. They were thus unaware of the adverse order dated 11.01.2016 whereby they were declared to be foreigners belonging to the 01.01.1966 to 25.03.1971 stream. It was only during the National Register of Citizens (NRC) updation exercise that the petitioners could come to know about the aforesaid order. Thereafter they had filed an application for setting aside the ex-parte order dated 11.06.2012 which was registered as Misc. Case No. 45/2016. Tribunal vide order dated 29.07.2017 rejected the said application.

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Learned counsel for the petitioners further submits that the second petitioner i.e. Md. Jabbar Ali was arrested by the police in April, 2018.

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On the other hand, learned Special Counsel supports the order passed by the Tribunal. He submits that since the petitioners were made proceedees in FT Case No. 295/2007 certainly notice was issued to each of the proceedees by the Tribunal. Therefore, to say that petitioners did not receive the notice and were unaware of the proceedings before the Tribunal would not be correct.

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Be that as it may taking an overall view of the matter, we feel that it would be in the interest of justice, if one more opportunity is granted to the petitioners to contest the reference on merit.

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Accordingly, we set aside the orders dated 11.06.2012 and 29.07.2017.

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Petitioners Nos. 1, 3, 4 & 5 shall appear before the Foreigners Tribunal (1^st ), Morigaon in connection with FT Case No. 295/2007 alongwith their written statement on 21.06.2018 at 10:30 a.m. and on which date and time Superintendent of Police (Border), Morigaon shall produce petitioner No. 2, Md. Jabbar Ali from detention before the Foreigners Tribunal, Morigaon . Upon such appearance and production, Tribunal shall proceed with the reference in accordance with law and conclude the same within a period of 60 (sixty) days from 21.06.2018.

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Before parting with the record, we make it clear that we have not expressed any opinion on the merit of the case.

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This disposes of the writ petition.

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Registry to inform the concerned Foreigners’ Tribunal, Deputy Commissioner and Superintendent of Police (B) for doing the needful.

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Copies of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC.

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JUDGE JUDGE

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Comparing Assistant

Fulmala Khatoon and 4 Ors. v. the Union of India and 7 Ors.

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Fulmala Khatoon and 4 Ors. v. the Union of India and 7 Ors.

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