Dismissed

Musstt. Amina Khatun v. the Union of India and 3 Ors.

Gauhati HC17 May 2018WP(C)/7339/2015

Case brief

AI extract

What is this about?

This writ petition challenged an order declaring the petitioner a foreigner. While affirming that res judicata does not apply to Foreigners Tribunal proceedings, the Court dismissed the petition because the petitioner failed to prove her relationship with her claimed citizen father via admissible evidence.

What did the court decide?

The writ petition was dismissed; the interim order suspending the impugned order was vacated.

Musstt. Amina Khatun Vs the Union of… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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Page No.# 1/8

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GAHC010026612015

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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) 7339/2015

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1:MUSSTT. AMINA KHATUN W/O- MD. OMAR ALI, R/O VILL.- PANBARI, P.S.- DHEKIAJULI, DIST.SONITPUR, ASSAM.

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VERSUS

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1:THE UNION OF INDIA and 3 ORS REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI.

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2:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY- 6.

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3:THE SUPERINTENDENT OF POLICE BORDER SONITPUR DIST.- SONITPUR ASSAM. 4:THE OFFICER-IN-CHARGE SONITPUR POLICE STATION DIST.- SONITPUR ASSAM

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Advocate for the Petitioner : MD.GIASH UDDIN

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Advocate for the Respondent : AMICUS CURIAE

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BEFORE HONOURABLE MR. JUSTICE UJJAL BHUYAN HONOURABLE MR. JUSTICE NELSON SAILO

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Page No.# 2/8

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ORDER

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Date : 17-05-2018

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(Ujjal Bhuyan, J.)

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Heard Mr. Giasuddin, learned counsel for the petitioner and Mr. U. K. Nair, learned Senior Special Counsel, Foreigners Tribunal (FT).

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By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 28.09.2015 passed by the Foreigners Tribunal (9^th ), Sonitpur at Dhekiajuli in FT Case No. 18/2015 (State vs. Amina Khatun) declaring the petitioner to be a foreigner, who had illegally entered into India (Assam) from the specified territory i.e., present day Bangladesh on or after 25.03.1971.

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One of the grounds of challenge is that by order dated 29.04.2014 passed by the Foreigners Tribunal 3^rd , Sonitpur at Tezpur in F.T. (DC) Case No. 3198/2013 (State Vs Musstt. Amina Khatun) petitioner was declared to be not a doubtful citizen of India. Therefore, impugned order dated 28.09.2015 is legally unsustainable.

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This Court by order dated 04.12.2015 had issued notice while requisitioning the case record and passed an interim order suspending the impugned order subject to appearance of the petitioner before the Superintendent of Police (Border), Sonitpur and furnishing of adequate security.

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Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal.

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This case was tagged with a bunch of writ petitions where the following common question of law was taken up for consideration:-

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“Whether the plea of res judicata as provided under Section 11 of the Code of Civil Procedure, 1908 would be attracted to a proceeding under the Foreigners Act, 1946 read with the Foreigners(Tribunals) Order, 1964?”

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By order dated 19.04.2018, the above question of law was answered by this Court by holding that as a legal proposition principle of res judicata embodied in Section 11 of the Code

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Page No.# 3/8

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of Civil Procedure, 1908 would not be attracted to a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964. This Court held as under:-

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“71. In contradistinction, an opinion rendered by a Foreigners Tribunal upon a reference made to it by the referral authority under paragraph 2(1) of the Foreigners Tribunals Order remains an opinion even after the Central Government acts on it and takes steps for expulsion of the declared foreigner under Section 3 of the Foreigners Act based on such opinion. It does not change its character from opinion to judgment upon execution. In Mainul Hoque (supra), this Court has held that a Foreigners Tribunal assigned the task of rendering an opinion on a reference made to it by the Superintendent of Police (Border) is not a Court. Therefore, a Member of Foreigners Tribunal is not a judge. Viewed in the above context, a negative opinion rendered by a Foreigners Tribunal opining that the proceedee is not a foreigner is not a judgment and cannot bind the Central Government or the delegated Page No.# 41/44 authority i.e., the jurisdictional Superintendent of Police (Border) for all times to come and certainly cannot debar them from seeking a fresh opinion, if circumstances so warrant.

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Therefore, an opinion rendered by a Foreigners Tribunal is not a judgment. Foreigners Tribunal is only to render an opinion on the reference made to it but the ultimate decision rests with the Central Government under Section 3 of the Foreigners Act. If the Central Government or the delegated authority, which in the case of Assam is the Superintendent of Police (Border), finds that the negative opinion rendered was contrary to the materials on record or there was no proper appreciation of the materials on record or if new materials emerge against a suspect or if the opinion of a Foreigners Tribunal is palpably wrong, can the Central Government or the Superintendent of Police (Border) be debarred from seeking a fresh opinion from a Foreigners Tribunal? For example, we may take up the case of Md. Amiruddin, petitioner in WP(C) No.797/2017. In his case, the earlier Member of Foreigners Tribunal, Hojai in Case No. FT/H/303/2013 (State Vs. Amiruddin) after summing up the testimony of the proceedee and describing the exhibits, opined that the proceedee was not a foreigner. The opinion was rendered as under:- “I have gone through and examined all documents, produced and exhibited by the respondent very carefully and

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considering all these above, I give my opinion that the respondent Md. Amiruddin, son of late Ambor Ali is not a foreigner.”

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72.1. There was no appreciation of the evidence tendered by the proceedee – whether the evidence were admissible? Whether the documents were proved? Whether there was relevancy of evidence? No reasons were mentioned and no reasonings given while rendering the aforesaid opinion. Such an opinion is no opinion at all in the eye of law and on the basis of such an opinion, neither the Central Government nor the delegated authority, i.e., the jurisdictional Superintendent of Police (Border) can be debarred from seeking a fresh opinion.

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In the light of what we have discussed above and particularly having regard to the fact that State of Assam is facing external aggression and security and integrity of the nation has been threatened on account of large scale illegal migration of foreigners from Bangladesh into Assam, to hold that principle of res judicata would be applicable to a proceeding under the Foreigners Act and the Foreigners (Tribunals) Order would be self-defeating and against the overarching public policy, i.e., to ensure national security and to protect the integrity of the nation.

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It naturally follows that a Foreigners Tribunal cannot decline to render an opinion on the ground of res judicata. If a previous opinion favourable to the proceedee is placed before the Foreigners Tribunal by a proceedee, Foreigners Tribunal will consider the same (provided it is found to be genuine and proved) and thereafter render its opinion. If the subsequent opinion is adverse to the proceedee and is challenged by the proceedee in a proceeding under Article 226 of the Constitution of India, then the High Court will consider both the opinions while examining the correctness of the latter. Each challenge would have to be decided on case to case basis.

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Though the principle of res judicata is based on public policy, the same will stand subsumed under the overarching public policy governing a sovereign nation while dealing with illegal foreigners under the Foreigners Act and the Foreigners (Tribunals) Order.

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For all the aforesaid reasons, we hold that as a legal proposition, principle of res judicata embodied in Section 11 of the Code would not be attracted to a proceeding under the Foreigners Act and the Foreigners (Tribunals) Order.”

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Before we avert to the impugned order of the Tribunal, it would be apposite to refer to the previous order dated 29.04.2014 of the Foreigners Tribunal 3^rd , Sonitpur whereby the petitioner was declared to be not a doubtful citizen of India. After recording what the petitioner stated in her written statement and what she deposed in her evidence the earlier Tribunal held as under:-

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“It is an admitted position that the OP is daughter of Late Rahman Ali. It is comes out in evidence that father of OP originally resided in village-No.1 Borsala, PSLaharighat, District-Nagaon now Morigaon Assam and subsequently shifted residence to Village- Nagabandha, PS- Laharighat, District- Nagaon now Morigaon Assam. Exhibits A and B shows that father of OP was a voter of 1966 from said village- No.1 Barsala under 84 Laharighat LAC. Its comes out in evidence that OP got married to Omar Ali of village- Panbari PS- Dhekiajuli, District- Sonitpur, Assam and she has been living in her matrimonial home there at since her marriage. Exhibit C shows that she was a voter of 1993 from said village under 71 Dhekiajuli LAC. Witness No.2, sister in law of OP and a voter of 1997 from village- Nagabandha under 81 Laharighat LAC has supported OP on all matrimonial points including marriage of OP. There is no rebuttal evidence. Documents exhibits are legally acceptable documents. Evidence including documentary evidence adduced by OP side as discussed above in reliable evidence and accordingly relied upon. OP has discharged her burden to prove her case. Evidence clearly reveals that the OP is not a doubtful citizen of India.

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In view of the discussion made above this Tribunal arrives at the opinion that the opposite party namely, Musstt Amina Khatun, wife of Md. Omar Ali is not a doubtful citizen of India.”

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There was no documentary evidence to establish linkage of the petitioner with Raham Ali. In the voters list of 1993 she was shown as wife of Omar Ali. Therefore, no linkage of the petitioner with Raham Ali was established. Therefore, it is not understood as to how the earlier Tribunal could proceed on the assumption that it was the admitted position that petitioner was

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the daughter of Lt. Raham Ali. This fact in issue was required to be proved by the petitioner by adducing evidence which were cogent, reliable and admissible. No such evidence were tendered by the petitioner. Therefore, such a finding returned by the Tribunal is clearly erroneous and cannot have a binding effect. On the basis of such erroneous finding contrary to the materials on record, the referral authority cannot be compelled to accept the said position for all times to come and cannot be debarred from seeking a fresh reference.

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Thus, on due consideration we are of the considered view that the opinion rendered on 29.04.2014 was no opinion at all in the eye of law.

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Proceeding to the impugned order dated 28.09.2015 we find that this reference is relatable to IMDT Case No. 285/2003. It may be mentioned that an inquiry was conducted regarding the citizenship of the petitioner under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act). As per report of the Inquiry Officer dated 21.04.2003 petitioner was found to be a suspected illegal migrant who had entered into India after 25.03.1971 from Bangladesh.

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Be it stated that under Section 3 (1) (C) of the IMDT Act an illegal migrant was defined as a foreigner who had unauthorizedly entered into India after 25.03.1971. Illegal Migrants (Determination by Tribunals) Rules, 1984 (IMDT Rules) framed under the IMDT Act provided for constitution of Screening Committee. Inquiry report of the Inquiry Officer were required to be scrutinized by the Screening Committee and only after the Screening Committee recommended making of reference, the concerned Superintendent of Police could make the reference. In the instant case the report of the Inquiry Officer was duly scrutinized by the Screening Committee whereafter recommendation was made for making of reference. Following the same reference was made by the Superintendent of Police, Sonitpur under Section 8 (1) of the IMDT Act to the IMDT Tribunal at Tezpur.

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IMDT Act and IMDT Rules were declared unconstitutional by the Supreme Court in Sarbananda Sonowal Vs Union of India, (2005) 5 SCC 665 with the further direction that all the reference which were pending before the Tribunals constituted under the IMDT Act should be transferred to the Tribunals constituted under the Foreigners (Tribunals) Order, 1964 read with the Foreigners Act, 1946. This is how the related reference came to be registered as F.T. Case No. 18/2015 before the Foreigners Tribunal No. 9, Sonitpur at Dekiajuli.

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Thus, from the above it is evident that in so far the related reference is concerned it was made at an earlier point of time i.e., in the year 2003 itself whereas the reference which resulted in the opinion dated 29.04.2014 was of the year 2013, much later. It is not understood when the earlier reference was pending why the second reference was made that too so belatedly and thereafter decided at an earlier point of time with a favourable opinion in favour of the proceedee which has now been held to be legally not sustainable.

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Be that as it may, in view of what we have discussed above this aspect of the matter need not detain us any further.

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In so far the related reference is concerned, petitioner in her written statement filed on 09.09.2015 stated that she was born and brought up at village Nagabhandha under Laharighat Police Station in the district of Nagaon, Assam. Petitioner’s father was Lt. Raham Ali, son of Lt. Ahed Ali. He was a voter in 1966. Elder brother of petitioner Md. Jahed Ali became a voter in 1997. Petitioner also referred to the order dated 29.04.2014 passed by the Foreigners Tribunal, Sonitpur at Tezpur whereby it was held that petitioner was not a doubtful citizen of India. Petitioner had married Md. Omar Ali, son of Lt. Aniruddin of village Panbari under Dhekiajuli Police Station in the district of Sanitpur and after her marriage she had been residing at her matrimonial home. Though the written statement was devoid of crucial materials particulars, what is discernible there from is that according to the petitioner her father Raham Ali was a citizen of India and she being his daughter was, therefore, a citizen of India.

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Let us now examine whether petitioner could prove the above fact in issue by adducing cogent, reliable and admissible evidence.

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Petitioner deposed as her witness before the Tribunal on 09.09.2015 declaring herself as 45 years of age. IF the petitioner was 45 years of age in 2015 it would mean that she was born sometime in the year 1970. She referred to the previous order dated 29.04.2014. She further stated that after her marriage her name appeared in the voters list of 1993 in respect of Dhekiajuli Constituency.

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Proceeding to the exhibits, we find that Ext. A is a voters list of 1966 in respect of Laharighat Constituency where the sole voter was Raham Ali, son of Ahed Ali, aged 32 years.

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Ext. B is a certified copy extract of the voters list in respect of Laharighat Constituency for

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the year 1997 where the two voters were Jahar Ali, son of Raham Ali, aged 38 years; and Lutpun, wife of Zahed, aged 32 years.

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Ext. C is a copy of order dated 29.04.2014 passed by the Foreigners Tribunal 3^rd , Sonitpur at Tezpur in F.T. (DC) Case No. 3198/2013 whereby petitioner was declared to be not a doubtful citizen of India. This we have already discussed and we have held this to be legally unsustainable.

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Ext. D is a certified copy extract of the voters list of 1993 where two of the voters were Omar Ali, son of Amiruddin, aged 28 years; and Amina Khatun, wife of Omar Ali, aged 24 years. From this document what is discernible is that Amina Khatun was mentioned as wife of Omar Ali.

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No other documents were either filed or exhibited. On the basis of such evidence the crucial linkage between Amina Khatun and Raham Ali whom the petitioner claimed to be her father cannot be said to have been proved. Petitioner was required to establish that Raham Ali was her father and thereafter to further prove that Raham Ali was a citizen of India but she failed to prove that she was the daughter of Raham Ali as there was no evidence on record to establish this fact in issue. Thereafter, in view of the failure to establish the first aspect it would not be necessary to examine the second aspect i.e., whether Raham Ali was a citizen of India or not.

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Resultantly, we find no merit in the writ petition which is accordingly dismissed.

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Interim order passed earlier stands vacated.

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26 . Registry to send down the LCR and inform the concerned Foreigners Tribunal, Superintendent of Police (B) 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.

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JUDGE JUDGE

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Comparing Assistant

Musstt. Amina Khatun v. the Union of India and 3 Ors.

Case brief

What is this about?

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Musstt. Amina Khatun v. the Union of India and 3 Ors.

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