Remanded

Rahima Khatun @ Rohima Khatun v. the Union of India and 4 Ors.

Gauhati HC21 Mar 2018WP(C)/6535/2016

Case brief

AI extract

What is this about?

The High Court quashed a Foreigners Tribunal order declaring the petitioner a post-1971 foreigner. Holding the referral by SP(Border) faulty for misclassifying the suspect's stream despite lack of nationality documents, the Court remanded the case for a fresh reference distinguishing between 1966-1971 and post-1971 categories.

What did the court decide?

Order dated 05.08.2016 set aside; matter remanded to Superintendent of Police (Border), Dhubri to make a fresh reference within 6 weeks.

Rahima Khatun @ Rohima Khatun Vs the… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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GAHC010028462016

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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) 6535/2016

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1:RAHIMA KHATUN @ ROHIMA KHATUN

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D/O. ABDUL AZAZ SHEIKH @ AJIT S.K @ ABDUL AJIJ SHEIKH, W/O. OSMAN GANI, VILL. NO.2 SADHU BHASHA, P.O. MAKRIJHORA, P.S. GAURIPUR, DIST. DHUBRI, ASSAM.

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VERSUS

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1:THE UNION OF INDIA

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REP. BY THE SECRETARY TO THE GOVT. OF INDIS, THE MINISTRY OF HOME AFFAIRS, NEW DELHI.

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2:THE STATE OF ASSAM

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REP. BY THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM HOME DEPTT.

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DISPUR

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GUWAHATI -6.

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3:THE DIRECTOR GENERAL OF POLICE ADMIN. ASSAM ULUBARI GUWAHATI -7.

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4:THE SUPERINTENDENT OF POLICE B DHUBRI P.O. and DIST. DHUBRI ASSAM.

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5:THE DEPUTY COMMISSIONER DHUBRI P.O. and P.S. DHUBRI ASSAM

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Advocate for the Petitioner : MR.A A MONDAL

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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 : 21-03-2018

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( Ujjal Bhuyan, J )

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Heard Mr. B. Islam, learned counsel for the petitioner and Mr. J. Payeng, learned Special Counsel, FT.

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2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 05.08.2016 passed by the Foreigners Tribunal No.7, Dhubri at Bilasipara in FT 7^th Dhubri Case No.21/BBR/16 (State Vs. Rahima Khatun) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from the specified territory, i.e., Bangladesh on or after 25.03.1971.

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3. This Court by order dated 03.11.2016 had issued notice while requisitioning the case record. An interim order was passed to the effect that petitioner should not be taken into custody and deported from India subject to her appearance before the Superintendent of Police (Border), Dhubri and furnishing of adequate surety.

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4. Submissions made by learned counsel for the parties have received the due consideration of the Court. Also perused the materials on record, including the record requisitioned from the Tribunal.

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5. From the record, we find that in the interrogation report of the Enquiry Officer which was the foundation of the reference, Enquiry Officer noted against Column No.15 that petitioner could not produce any document in support of her Indian nationality. But after saying so, Enquiry Officer remarked that it appeared that petitioner was a foreigner belonging to the 1966 to 1971 stream. Superintendent of Police (Border), Dhubri agreed with the report of the Enquiry Officer that the petitioner was suspected to be a foreigner of 1966 to 1971 stream and thereafter the reference was made to the then Foreigners Tribunal, Dhubri suspecting the petitioner to be a foreigner belonging to the 1966 to 1971 stream.

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6. We notice that till the reference was assigned to the present Tribunal, there was no progress at all in the reference for all these years.

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7. Be that as it may, Tribunal in its notice dated 23.02.2016, intimated the petitioner that a reference was made against her with the allegation that she had illegally entered into India without any valid documents after 25.03.1971/01.01.1966 to 24.03.1971, without striking off the inapplicable portion.

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8. After the petitioner filed her written statement and adduced evidence, the matter was heard whereafter the impugned order was passed on 05.08.2016 declaring the petitioner to be a foreigner of post 25.03.1971 stream.

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9. On going through the order dated 05.08.2006 as well as the order-sheet of the Tribunal, we do not find that learned Member had adverted to this aspect of the matter.

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10. At this stage, we may mention that under Section 6A of the Citizenship Act, 1955, as amended, which was incorporated in the Citizenship Act, 1955 following signing of the Assam Accord, there are two classes of foreigners but before that Section 6A(2) provides that those persons of Indian origin who had entered into India from the specified territory, i.e., present day Bangladesh prior to 01.01.1966 even in an unauthorized manner but was ordinarily resident of Assam since then would be deemed to be citizens of India with effect from 01.01.1966. As per Section 6A(3), all those persons of Indian origin, who had entered into Assam unauthorisedly during the period from 01.01.1966 to 25.03.1971 would have to register themselves before the registering authority as foreigners belonging to the said stream and upon such registration, they would be disenfranchised for a period of 10 years, though entitled to other rights and privileges as citizens of India. After expiry of this period of 10 years, such category of foreigners would regain even their voting rights. However, those persons who had unauthorisedly entered into India post 25.03.1971 would be treated as foreigners and liable to be deported from the country.

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11. Therefore, declaration of a person as a foreigner belonging to the 1966 to 1971 stream in the facts and circumstances, would virtually amount to extending an indirect benefit to such a person as for all intent and purpose he would continue to remain a citizen of India sans voting rights for 10 years. Therefore, when a reference is made that the suspect is

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alleged to be a foreigner of 1966 to 1971 stream, Tribunal is required to examine the reference with care and caution. Why only the Tribunal? The referral authority, i.e., Superintendent of Police (Border), Dhubri before agreeing with such a report of the Enquiry Officer and making the reference should minutely scrutinize the record and only if he is satisfied about the correctness of the enquiry report, then only he should make the reference as suggested in the report; otherwise, he should modify the same and make the reference that the suspect was a foreigner of post 25.03.1971 stream.

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12. In so far the present case is concerned, we have noticed that the Enquiry Officer had remarked against Column No.15 of the interrogation report that the petitioner could not produce any document in support of her nationality.

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13. In the context of Section 6A of the Citizenship Act, 1955, as amended, when a person is unable to produce any documentary evidence to prima facie show that he/she is a citizen of India, the natural corollary would be that such person is a foreigner of post 25.03.1971 stream. We fail to understand on what basis Enquiry Officer had remarked that petitioner was a foreigner of 1966-1971 stream when he himself had recorded that petitioner failed to produce any document in support of her Indian nationality. Referral authority, i.e., Superintendent of Police (Border), Dhubri did not apply his mind to this aspect of the matter and very mechanically and in a casual manner had forwarded the reference to the Tribunal. We are sorry to note that even the learned Member of the Tribunal did not apply his mind to this aspect of the matter before issuing notice to the petitioner.

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14. In Santosh Das Vs. Union of India, 2017 (2) GLT 1065 , this Court has held that a Foreigners Tribunal gets its jurisdiction to render its opinion only upon a reference made to it by the referral authority. Without a reference being made, a Foreigners Tribunal has got no jurisdiction to render an opinion. Therefore, a Foreigners Tribunal is required to confine itself to the terms of the reference made to it and cannot traverse beyond the same.

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15. In the subsequent case of Falani Bibi Vs. Union of India, WP(C) No.7104/2015 , decided on 18.08.2017 , this Court has however clarified that if the Tribunal finds that the reference itself is faulty (like in the present case), then, in such a case, the reference should be sent back to the referral authority with a disagreement note pointing out the fault or error

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in the reference whereafter it would be the duty of the referral authority to make a fresh reference after rectifying the defect.

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16. This Court has held that while going beyond the terms of the reference may be untenable in law and may lead to a situation of chaos and disorder, mechanically answering the reference as forwarded despite knowing the fact that reference is faulty would neither be in the public interest nor in the national interest.

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17. Adverting to the facts of the present case, while we have no hesitation to note that the reference made was faulty, we find that Tribunal did not adopt the procedure as discussed above and instead took upon itself to answer the reference in the manner in which it has been answered.

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18. That being the position, without entering into the merit of the impugned order passed by the Tribunal and having regard to the similar orders passed in identical cases, we feel that the matter should be remanded back to the referral authority, i.e., Superintendent of Police (Border), Dhubri. Accordingly, we set aside the order dated 05.08.2016 and direct the Superintendent of Police (Border), Dhubri to make a fresh reference in accordance with law keeping in mind the discussions made above within a period of 6 weeks from today. Petitioner shall appear before the Superintendent of Police (Border), Dhubri on 10.04.2018 at 10.30 am.

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19. This disposes of the writ petition.

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20. Registry to send down the LCR forthwith and also inform the concerned Foreigners Tribunal, Superintendent of Police (B) and Deputy Commissioner for taking immediate followup steps.

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21. Copies of this order may also be forwarded to learned Standing counsel, Election Commission of India and State Coordinator, NRC.

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JUDGE JUDGE

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Comparing Assistant

Rahima Khatun @ Rohima Khatun v. the Union of India and 4 Ors.

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Rahima Khatun @ Rohima Khatun v. the Union of India and 4 Ors.

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