Remanded

Momina Bibi v. the Union of India and 4 Ors.

Gauhati HC3 Apr 2018WP(C)/4121/2016

Case brief

AI extract

What is this about?

This Court adjudicated a writ petition challenging a Foreigners Tribunal order. Due to anomalies in record maintenance, including missing evidence of a notice issued to the Superintendent of Police, this Court set aside the impugned order and remanded the reference for fresh consideration.

What did the court decide?

Impugned order set aside; matter remanded to Foreigners Tribunal for re-hearing; petitioner to appear on 26.04.2018; Tribunal to conclude proceedings within 60 days.

Momina Bibi Vs the Union of India and 4 Ors. — Writ and Judicial Review | Gauhati HC (2018)

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Page No.# 1/4

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GAHC010020112016

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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) 4121/2016

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1:MOMINA BIBI

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W/O- JOMSHER ALI, VILL.- ANGARKATA PT.- II, P.O. and P.S.- BAGRIBARI, DIST.- KOKRAJHAR BTAD, ASSAM.

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VERSUS

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1:THE UNION OF INDIA and 4 ORS

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REP. BY ITS SECY., GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI- 110001.

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2:THE STATE OF ASSAM REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY- 6.

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3:THE DIRECTOR GENERAL OF POLICE ADMINISTRATION ASSAM ULUBARI GHY- 7.

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4:THE DIST. MAGISTRATE DY. COMMISSION DHUBRI P.O. and DIST.- DHUBRI ASSAM, PIN- 783301.

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5:THE SUPERINTENDENT OF POLICE BOARDER DHUBRI, P.O. and DIST.- DHUBRI ASSAM, PIN- 783301

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Advocate for the Petitioner : MR. M KHAN

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Advocate for the Respondent : GA, ASSAM

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

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ORDER

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Date : 03-04-2018

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(Ujjal Bhuyan, J)

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Heard Mr. M. Khan, learned counsel for the petitioner and Mr. U. K. Nair, learned Senior Special Counsel, Foreigners Tribunal (FT) assisted by Ms. P. Borgohain, learned counsel for the respondents.

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By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 28.10.2015 passed by the Foreigners’ Tribunal 6^th , Dhubri at Bilasipara in FT Case No. 6^th Dhubri 43/2015 (State of Assam Vs Momina Bibi) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971.

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On 23.08.2016, this Court had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to her appearance before the Superintendent of Police (Border), Dhubri and furnishing of adequate surety.

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In the course of the hearing on 28.02.2018, this Court noticed that the record was not maintained properly by the Tribunal. When the reference was fixed for delivery of order on 28.10.2015, a notice was issued by the learned Member to the Superintendent of Police (Border), Dhubri for appearance before the Tribunal on 21.12.2015 regarding proof of a document. This notice was issued on 13.10.2015. We found that the order-sheet did not contain any corresponding order of 13.10.2015 for issuing notice to the Superintendent of Police. While the reference was finally answered on 28.10.2015, the reply of the Superintendent of Police was received thereafter on 19.12.2015 with an endorsement thereon mentioning Misc. Case No. 5/2015 with the date 21.12.2015(possibly meaning that the misc case was fixed on 21.12.2015).

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On going through the record, we did not find any application before the Tribunal for registration of a Misc. Case. In such circumstances, this Court passed an order dated 28.02.2018 directing personal appearance of the learned Member on 26.03.2018 to explain the anomalies noticed in the record.

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This Bench was not available on 26.03.2018 and therefore the case was taken up on 27.03.2018 in chamber.

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When the anomalies were pointed out to the learned Member, he provided certain explanations and also acknowledged his mistakes which is recorded in the order dated 27.03.2018. While dispensing with the personal appearance of the learned Member, this Court observed that learned Member should be careful in future with the hope and trust that there would be no such occasion in future.

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There is a general consensus at the Bar with which we are also in agreement that in view of the anomalies in the record, it would be just and fair to remand the matter back to the Tribunal for re-hearing of the reference. On remand, it would be open to the petitioner to adduce further evidence if she so desires in which event the State would be entitled to crossexamine. However, we make it clear that we have not expressed any opinion on the merit of the impugned order passed by the Tribunal.

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Consequently, in view of the remand, impugned order dated 28.10.2015 is set aside. Petitioner shall now appear before the Foreigners Tribunal 6^th Dhubri at Bilasipara in connection with FT Case No. 6^th Dhubri 43/2015 on 26.04.2018 at 10:30 a.m. whereafter Tribunal shall proceed with the reference in accordance with law and conclude the same within a period of 60 (sixty) days from the date of appearance.

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Needless to say, if there is any default on the part of the petitioner henceforth, Tribunal would be at liberty to pass such order(s) as may be deemed fit and proper.

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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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Writ petition is disposed of.

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Registry to inform the concerned Foreigners’ Tribunal, Deputy Commissioner and

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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

Momina Bibi v. the Union of India and 4 Ors.

Case brief

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Momina Bibi v. the Union of India and 4 Ors.

Case brief

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