Partly allowed

Shyamal Ray v. State of Assam and 5 Ors.

Gauhati HC9 May 2018WP(C)/7464/2016

Case brief

AI extract

What is this about?

The Gauhati High Court quashed part of a Foreigners Tribunal order declaring the petitioner a post-1971 foreigner. While generally declining to interfere with the Tribunal's findings, the Court held the Tribunal exceeded its mandate by deciding outside the reference terms. The order was affirmed, modified to declare the petitioner a 1966-1971 foreigner, and directed registration within 60 days.

What did the court decide?

The order dated 25.10.2016 affirmed, modified to declare petitioner a foreigner of 1966-1971 stream, and directed registration with the Foreigners Regional Registration Officer within 60 days.

Shyamal Ray Vs State of Assam and 5 Ors. — Constitutional and Fundamental Rights | Gauhati HC (2018)

¶1

Page No.# 1/4

¶2

GAHC010032482016

¶3

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

¶4

Case No. : WP(C) 7464/2016

¶5

1:SHYAMAL RAY

¶6

S/O LT. RANGLAL RAY R/O NO. 3 LAKHIJHORA, SUB-DIV. BIJNI, P.S. BIJNI DIST. CHIRANG, ASSAM.

¶7

VERSUS

¶8

1:STATE OF ASSAM and 5 ORS

¶9

REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, HOME DEPARTMENT, DISPUR, GUWAHATI- 781006.

¶10

2:THE DEPUTY COMMISSIONER CHIRANG DISTRICT.

¶11

3:THE DIRECTOR GENERLA OF POLICE ASSAM ULUBARI GUWAHATI - 781007.

¶12

4:THE SUPERINTENDENT OF POLICE BORDER CHIRANG.

¶13

5:THE OFFICER-IN-CHARGE BIJNI POLICE STATION DIST. CHIRANG ASSAM.

¶14

6:THE UNION OF INDIA REP. BY THE SECRETARY TO THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NEW DELHI

¶15

Advocate for the Petitioner : MS.P BASFORE

¶16

Page No.# 2/4

¶17

Advocate for the Respondent : ASSTT.S.G.I.

¶18

BEFORE

¶19

HON’BLE MR. JUSTICE UJJAL BHUYAN

¶20

HON’BLE MR. JUSTICE NELSON SAILO

¶21

09.05.2018

¶22

By Ujjal Bhuyan, J.

¶23

Heard Mr. B. Sarkar, learned counsel for the petitioner and Mr. J. Payeng, learned Special Counsel, Foreigners Tribunal (FT).

¶24

By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 25.10.2016 passed by the Foreigners Tribunal, Chirang in Case No. BNGN/FT/ (CHR) 1095/2008 (Union of India Vs. Shyamal Ray) declaring the petitioner to be a foreigner of post 1971 stream who had illegally entered into India (Assam) from the specified territory i.e., present day Bangladesh.

¶25

This Court by order dated 15.12.2016 had issued notice while requisitioning the case record and passed an interim order granting bail to the petitioner.

¶26

We have heard learned counsel for the parties and perused the materials on record, including the record requisitioned from the Tribunal.

¶27

Record discloses that in the course of enquiry, the Enquiry Officer reported that petitioner had been residing in India since 1967. He had come to India because of communal trouble in Mymensing district which was then East Pakistan. He, therefore, opined that petitioner was suspected to be a foreigner of 1966-1971 stream vide his report dated 20.01.1988. This report was accepted by the then Superintendent of Police (Border), Kokrajhar whereafter reference was made.

¶28

It is thus evident that the allegation against the petitioner was that he had illegally entered into India (Assam)during the period 1966-1971 and this was the reference.

¶29

A perusal of the impugned order dated 25.10.2016 would go to show that after the Tribunal had answered the reference affirmatively in favour of the State, it was declared that petitioner was an illegal foreigner of post 1971 stream. This is beyond the terms of the reference. If a reference is not questioned as erroneous or faulty, Tribunal has to confine itself to the terms of the reference and cannot traverse beyond the same

¶30

Page No.# 3/4

¶31

In so far the merit of the order dated 25.10.2016 is concerned, we have looked into the materials on record and we do not find any justification to interfere with the finding returned by the Tribunal except what has been noticed above.

¶32

In the written statement petitioner mentioned that his father had migrated from East Pakistan to India in the year 1964 without mentioning the name of the father but at the same time it was mentioned that father became the voter in 1966 of Bijni Constituency.

¶33

Exhibit 1 is stated to be a duplicate copy of migration certificate issued by the Government of West Bengal. The original migration certificate was stated to have been issued by the Indian Mission Dacca and the name of the migrant was Ranga lal Ray. It was mentioned therein that altogether 7 family members had migrated with the migrant Ranga lal Ray and date of entry into India was 26.10.1964.

¶34

Though we have grave doubts about bonafides of this certificate as it was not proved, yet we take into consideration this certificate to examine the case of the petitioner.

¶35

Exhibit 2 is a photostat copy of Voters List of 1966 in respect of Bijni Constituency where the two voters were Rangalal Das, son of Satish, aged 29 years; and Sushma Rani Das, wife of Rangalal Das aged 22 years.

¶36

We have noticed that exhibit 1 indicated entry of Rangalal Das into India on 26.10.1964 through West Bengal but when Ranglal Ray moved from West Bengal to Assam more particularly to Bijni Constituency has not been mentioned. Again, the question is whether Rangalal Ray and Rangalal Das was one and the same person. That apart, under Section 5(1)(a) of the Citizenship Act, 1955, the Central Government on an application may register a person as a citizen of India who is not an illegal migrant provided he is ordinarily residing in India for 7 years before making the application for registration.

¶37

Therefore, if the version of the petitioner is accepted that his father Rangalal Ray had entered into India on 26.10.1964, then he could not have been registered as a voter in 1966 because preceding registration as a voter, he was required to be registered as a citizen of India but under Section 5(1)(a) of the Citizenship Act, 1955 he could have been registered as a citizen only after being a resident of India for 7 years after his entry. Therefore, if Exhibit 1 is believed, Exhibit 2 cannot be believed. Thus, the narrative presented by the petitioner suffers from material contradictions rendering the same untenable in law.

¶38

Page No.# 4/4

¶39

We, therefore, do not find any good ground to interfere with the finding returned by the Tribunal but as discussed above the reference was made by the referral authority to the effect that the petitioner was a foreigner belonging to the 1966-1971 stream. Therefore, the answer to the reference, which was in the affirmative, must confine to the terms of the reference.

¶40

That being the position, the order dated 25.10.2016 passed by the Foreigners Tribunal, Chirang is affirmed subject to the modification that petitioner is declared to be a foreigner belonging to the 01.01.1966 to 25.03.1971 stream. In view of such declaration, petitioner should register himself as a foreigner belong to the said stream before the competent Foreigners Regional Registration Officer within a period of 60 days from today whereafter the provisions of Sections 6A(3) and (4) of the Citizenship Act, 1955, as amended, would be attracted.

¶41

Writ petition is disposed of.

¶42

Registry to send down the LCR forthwith and inform the concerned Foreigners Tribunal, Superintendent of Police (Border) and Deputy Commissioner for doing the needful.

¶43

A copy of this order may also be furnished to the learned Standing Counsel, Election Commission of India and State Co-ordinator, NRC for doing the needful.

¶44

JUDGE JUDGE

¶45

Comparing Assistant

Shyamal Ray v. State of Assam and 5 Ors.

Case brief

What is this about?

What did the court decide?

Shyamal Ray v. State of Assam and 5 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

Sayed Ali Sheikh @ Soiyed Ali Vs the Union of India and 7 Ors.

The National Investigation Agency Vs Shri K. Hutoi Sema and Anr.

The National Investigation Agency Vs Vilepral Aja and Anr.

Md. Babul Islam Vs the State of Assam and 4 Ors.

Jayeda Khatun @ Begum Khatun Vs Union of India and 3 Ors.

Tapan Biswas and 3 Ors. Vs the Union of India and 9 Ors.