Allowed

Raju Uddin v. the Union of India and 5 Ors.

Gauhati HC2 May 2018WP(C)/3827/2016

Case brief

AI extract

What is this about?

This judgment sets aside two contradictory orders passed by the Foreigners Tribunal regarding brother-petitioners. The Court directs a re-hearing of both cases together within 60 days to resolve the conflicting findings on citizenship status and determine the correct legal position.

What did the court decide?

Orders dated 16.10.2015 and 23.03.2015 passed by Foreigners Tribunal No.1, Karimganj in two separate cases involving brother-petitioners were set aside. Both parties were ordered to appear on 22.05.20

Raju Uddin Vs the Union of India and 5… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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GAHC010056152017

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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)(Suo Moto) 20/2017

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1:X X X

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VERSUS 1:IN RE- TAJ UDDIN. S/O LATE ABDUS SATTAR, VILL. MEDOL, P.S. KARIMGANJ, DIST. KARIMGANJ, ASSAM.

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2:FOREIGNERS TRIBUNAL NO.1 REP. BY ITS MEMBER KARIMGANJ DIST. KARIMGANJ ASSAM

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Advocate for the Petitioner : MR.T J MAHANTA

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Advocate for the Respondent : MRS. R CHOUDHURY

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Linked Case : WP(C) 3827/2016 1:RAJU UDDIN S/O LT. ABDUL SATTAR @ ABDUS SATTAR R/O MEDOL P.O. KANISHAIL P.S. and DIST- KARIMGANJ ASSAM

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VERSUS

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1:THE UNION OF INDIA REP. BY THE SECY. TO THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS SHASTRI BHAWAN, NEW DELHI

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2:THE STATE OF ASSAM

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REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-6 3:THE DY. COMMISSIONER KARIMGANJ P.O. and DIST- KARIMGNAJ ASSAM 4:THE FOREIGNERS REGISTRATION OFFICER KARIMGANJ P.O. and DIST- KARIMGNAJ ASSAM 5:THE SUPERINTENDENT OF POLICE B KARIMGANJ P.O. and DIST- KARIMGNAJ ASSAM 6:THE OFFICER IN CHARGE P.S. KARIMGANJ P.O. and DIST- KARIMGNAJ ASSAM Advocate for the Petitioner : MS.P SARMA Advocate for the Respondent :

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BEFORE

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HONBLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE NELSON SAILO

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ORDER

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Date : 02-05-2018

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( Ujjal Bhuyan,J )

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Heard Ms. R. Choudhury, learned counsel for the petitioner in WP(C) No.3827/2016 and respondent No.1 in WP(C) (Suo Moto) 20/2017; Mr. T.J. Mahanta, learned Senior counsel, assisted by Mr. B. Bora, learned counsel for the Gauhati High Court and Mr. A. Kalita, learned Special Counsel, FT.

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In WP(C) No.3827/2016, petitioner Raju Uddin has assailed the legality and correctness of the order dated 16.10.2015 passed by the Foreigners Tribunal No.1, Karimganj (Tribunal)

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in FT Case No.335/2013 (State Vs. Raju Uddin) whereby petitioner was declared to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971.

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Notice in this case was issued on 23.06.2016 while requisitioning the case record. An interim order was passed to the effect that petitioner should be allowed to remain on bail subject to his appearance before the Superintendent of Police (Border), Karimganj and furnishing of adequate surety.

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In the course of hearing of WP(C) No.3827/2016, it was submitted by learned counsel for the petitioner that brother of the petitioner Taj Uddin was declared to be not a foreigner but a citizen of India by the same Tribunal in FT Case No.165/2011 (State Vs. Taj Uddin) vide order dated 23.03.2015.

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A copy of this order dated 23.03.2015 has been placed on record as Annexure-11 to the writ petition.

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On 30.11.2017, the following order was passed:-

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“In this petition, petitioner Raju Uddin has challenged the legality and correctness of the order dated 16.10.2015 passed by the Foreigners Tribunal No.1, Karimganj in FT Case No.335/2013 (State Vs. Raju Uddin) whereby he was declared to be a foreigner who had illegally entered into India (Assam) from the specified territory, i.e., Bangladesh after 25.03.1971.

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In the course of hearing, it has been submitted that brother of the petitioner Taj Uddin was declared to be not a foreigner but a citizen of India by the Foreigners Tribunal-1, Karimganj in FT Case No.165/2011 (State Vs. Taj Uddin) vide order dated 23.03.2015, copy of which has been placed on record as Annexure-II.

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However, we have looked into the record and we find that neither in the written statement nor in the deposition of the petitioner did he mention that he had a brother by the name of Taj Uddin. However, since a statement has been made that in the case of the brother a divergent opinion was rendered by the Tribunal, we are of the view that both the contradictory views are required to be reconciled.

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In similar circumstances, suo moto cases have been registered whereafter necessary orders are passed.

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That being the position, Registry is directed to register a suo moto writ petition in respect of the order dated 23.03.2015 passed by the Foreigners Tribunal-1, Karimganj in FT Case No.165/2011 (State vs. Taj Uddin) and list the same in the motion column on 11.12.2017.”

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Thereafter, WP(C) (Suo Moto) No.20/2017 was registered and on 11.12.2017, notice was issued whereafter Ms. R. Choudhury, learned counsel, has appeared on behalf of respondent No.1.

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In WP(C) No.3827/2016, an affidavit-in-opposition has been filed on behalf of respondent No.5, i.e., Superintendent of Police (Border), Karimganj supporting the order passed by the Tribunal.

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It is submitted that respondent No.1 in WP(C) (Suo Moto) 20/2017 Taj Uddin has filed a counter affidavit on 14.03.2018, a copy of which has been placed before us. Court Master to requisition the counter affidavit from the concerned Section.

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In this counter affidavit, respondent No.1 Taj Uddin has supported the order passed by the Tribunal in his case and in support thereof, has placed on record all the documents relied upon by him before the Tribunal.

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Petitioner in WP(C) No.3827/2016 Raju Uddin has filed an additional affidavit on 14.03.2018 bringing on record additional documents in support of his case.

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As indicated in the order dated 30.11.2017 as extracted above, in identical matters, this Court has set aside contradictory orders in the case of family members while remanding the references back to the Tribunal for fresh decision. There is general consensus at the Bar that similar course of action may also be adopted in the present case.

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Having regard to the above, we pass the following order:-

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(1) Order dated 16.10.2015 passed by Foreigners Tribunal No.1, Karimganj in FT Case No.335/2013 is set aside;

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(2) Order dated 23.03.2015 passed by Foreigners Tribunal No.1, Karimganj in FT Case No.165/2011 is set aside;

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(3) Proceedees in both the cases, i.e., Raju Uddin and Taj Uddin shall appear before the Foreigners Tribunal No.1, Karimganj on 22.05.2018 at 10.30 am whereafter Tribunal shall re-hear both the references together from the stage of arguments and conclude both the references within a period of 60 days from the date of appearance.

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Both the writ petitions are accordingly disposed of.

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Registry to inform the concerned Foreigners Tribunal, Superintendent of Police (Border) and Deputy Commissioner for taking necessary follow-up steps.

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

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JUDGE JUDGE

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Raju Uddin v. the Union of India and 5 Ors.

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Raju Uddin v. the Union of India and 5 Ors.

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