Remanded

Julhas Ali @ Md. Julhas Choudhary Hoque and 2 Ors. v. the Union of India and 3 Ors.

Gauhati HC9 Feb 2018WP(C)/5462/2016

Case brief

AI extract

What is this about?

Petitioners challenged an FT order declaring them illegal migrants of the 1966-1971 stream. The Court found the order vitiated as the reference was about entry after March 25, 1971, and remanded the matter for a fresh decision.

What did the court decide?

To set aside the order dated 10.05.2016 and remand the matter back to the Foreigners Tribunal (Second), Morigaon for a fresh decision within 60 days.

Julhas Ali @ Md. Julhas Choudhary Hoque and 2 Ors. Vs… — Service and Employment | Gauhati HC (2018)

¶1

Page No.# 1/4

¶2

GAHC010024742016

¶3

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

¶4

Case No. : WP(C) 5462/2016

¶5

1:JULHAS ALI @ MD. JULHAS CHOUDHARY HOQUE and 2 ORS S/O. LT. HARMUJ ALI @ HURMUJ ALI SARKAR,

¶6

2: MUST. MAFIYA KHATUN @ MAFIYA KHATUN

¶7

W/O. JULHAS ALI D/O. AJMAT ALI.

¶8

3: MUST. HAMIDA KHATUN @ HAMEDA KHATUN

¶9

W/O. JULHAS ALI D/O. HASEN ALI ALL ARE R/O. VILL. TENGAGURI KACHARIGAON P.O. TENGAGURI P.S. LAHARIGHAT DIST. MARIGAON ASSAM

¶10

VERSUS

¶11

1:THE UNION OF INDIA

¶12

REP. BY ITS COMM. and SECY. TO THE GOVT. OF INDIA, DEPTT. OF HOME, SHASTRI BHAWAN, NEW DELHI-110001.

¶13

2:THE STATE OF ASSAM REP. BY ITS COMM. and SECY. TO THE GOVT. OF ASSAM DEPTT. OF HOME DISPUR GHY.-06.

¶14

3:THE SUPDT. OF POLICE B MORIGAON P.O. and DIST. MORIGAON ASSAM PIN-782105.

¶15

Page No.# 2/4

¶16

4:THE DY. COMMISSIONER MORIGAON DIST. P.O. and P.S. MARIGAON ASSAM PIN-782105

¶17

Advocate for the Petitioner : MS.F INTAZ

¶18

Advocate for the Respondent :

¶19

BEFORE

¶20

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

¶21

ORDER

¶22

Date : 09-02-2018

¶23

(Ujjal Bhuyan, J.)

¶24

Heard Mr. M.A. Sheikh, learned counsel for the petitioners and Mr. J. Payeng, learned Senior Standing Counsel, Home and Political Department (FT), Govt. of Assam.

¶25

Three petitioners have joined together and have instituted the present common proceeding. Petitioner No.1 is the husband whereas petitioner Nos.2 and 3 are the wives of petitioner No.1.

¶26

Petitioners have challenged the legality and correctness of the order dated 10.05.2016 passed by the Foreigners Tribunal (Second), Morigaon in FT Case No.254/2012 (State Vs. Julhas Chaudhari Hoque and others) declaring the petitioners to be foreigners who had illegally entered into India (Assam) from Bangladesh (sic) during 1966-1971.

¶27

This Court by order dated 16.09.2016 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioners should be allowed to remain on bail subject to their appearance before the Superintendent of Police (Border), Morigaon and furnishing of adequate surety.

¶28

Though Mr. Sheikh, learned counsel for the petitioners, have made detailed

¶29

Page No.# 3/4

¶30

submissions, having regard to the order which we propose to pass, it may not be necessary to adjudicate on the submissions made.

¶31

On going through the impugned order dated 10.05.2016, more particularly in paragraph-1 thereof, we find that Tribunal had recorded that the allegation against the petitioners in the reference was that they were illegal migrants from Bangladesh belonging to the 1966-1971 stream.

¶32

First of all, if there is any reference to any foreigner belonging to the 1966-1971 stream, it has to be in the context of the specified territory, i.e., present day Bangladesh. In other words, allegation was that of being an illegal migrant from what was then East Pakistan because Bangladesh came into existence only during the year 1971. After rejecting the version presented by the petitioners, Tribunal answered the reference by declaring the petitioners to be illegal migrants belonging to the 1966-1971 stream.

¶33

On going through the record requisitioned from the Tribunal, we find that Superintendent of Police (Border), Morigaon in his order dated 13.05.2008 (Ext.3), noted that it was established in a prima facie manner that the proceedees (petitioners) had entered into India after 25.03.1971. So, allegation against the petitioners was that they had entered into India (Assam) from the specified territory, i.e., present day Bangladesh after 25.03.1971. Accordingly, the reference was made. If this be the position, then Tribunal proceeded on a wrong footing that the reference against the petitioners was that they were foreigners belonging to the 1966-1971 stream which has vitiated the impugned order. In such circumstances, we feel that the matter is required to be remanded back to the Tribunal for a fresh decision in accordance with law on the basis of the reference made by the Superintendent of Police (Border), Morigaon.

¶34

Accordingly, we set aside the order dated 10.05.2016 and remand the matter back to the Foreigners Tribunal (Second), Morigaon for a decision afresh in FT Case No.254/2012 on the basis of the materials already on record in terms of the reference made i.e., whether petitioners are foreigners who had illegally entered into India (Assam) from the specified territory after 25.03.1971?

¶35

Petitioners shall now appear before the Foreigners Tribunal (Second), Morigaon in

¶36

Page No.# 4/4

¶37

connection with FT Case No.254/2012 on 12.03.2018 at 10.30 am whereafter Tribunal shall proceed with the reference in accordance with law having regard to the discussions and observations made above and pass appropriate order within a period of 60 days from the date of appearance.

¶38

We make it clear that we have not expressed any opinion on the merit of the reference.

¶39

Before parting with the record, we would also like to point out that in paragraph 9 of the impugned order dated 10.05.2016, Tribunal had recorded that proceedees had filed some ‘procured documents’ but failed to prove the same. The expression ‘procured documents’ has a definite connotation having criminal implication. It would be advisable for the Tribunal to avoid use of such expression. Instead of using such expression, Tribunal can very well say that the documents filed by the petitioners are not acceptable or are not believable.

¶40

Writ petition is disposed of.

¶41

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

¶42

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

¶43

JUDGE JUDGE

¶44

Comparing Assistant

Julhas Ali @ Md. Julhas Choudhary Hoque and 2 Ors. v. the Union of India and 3 Ors.

Case brief

What is this about?

What did the court decide?

Julhas Ali @ Md. Julhas Choudhary Hoque and 2 Ors. v. the Union of India and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Kulsum Bibi @ Mustt. Kulsom Vs the Union of India and 5 Ors.

Drishti Baruah Vs the State of Assam and 8 Ors.

Sudhan Bowmik Vs the Union of India and 4 Ors.

Meenu Bala Arjya Vs the Union of India and 5 Ors.

Musstt. Rabiya Khatun Vs the Union of India and 3 Ors.

Md. Asab Uddin Vs the State of Assam and 4 Ors.