Remanded

X-X-X v. in Re MD Mustafa and Anr.

Gauhati HC17 May 2018WP(C)(Suo Moto)/6/2018

Case brief

AI extract

What is this about?

The Gauhati High Court set aside three contradictory orders from Foreigners Tribunals regarding Rahulul Ali and his family members (brother and mother) and remanded their cases to the Tribunal-6, Tezpur, for a fresh disposal within 60 days with an opportunity to adduce evidence.

What did the court decide?

Three contradictory orders by Foreigners Tribunals were set aside; references remanded to Tribunal-6, Tezpur for fresh disposal within 60 days with bail liberty granted.

X-X-X Vs in Re MD Mustafa and Anr. — Constitutional and Fundamental Rights | Gauhati HC (2018)

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GAHC010123672017

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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) 1366/2017

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1:RAHIMUL ALI @ RAHIMUN ALI

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S/O LT. MOHAMMAD ALI R/O VILL NO. 1 BATAMARI P.S. JAMUGURIHAT DIST. SONITPUR, ASSAM.

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VERSUS

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1:THE UNION OF INDIA and 3 ORS.

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THROUGH - THE MINISTRY OF HOME AFFAIRS, GRIHA MANTRALAYA, NEW DELHI.

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2:THE STATE OF ASSAM THROUGH- THE SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6

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3:THE DEPUTY COMMISSIONER SONITPUR P.O. TEZPUR-784001 DIST. SONITPUR ASSAM

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4:THE SUPERINTENDENT OF POLICE BORDER TEZPUR, P.O. TEZPUR-784001, DIST. SONITPUR, ASSAM

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Advocate for the Petitioner : MR K K DAS

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

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WP(C)(Suo Moto) 6/2018

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X-X-X

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VERSUS 1:IN RE MD MUSTAFA AND ANR S/O- MAHAMUD VILL NO.1 BATAMARI P.S- JAMUGURI DIST- SONITPUR ASSAM 2:FOREIGNERS TRIBUNAL 2ND REP. BY ITS MEMBER SONITPUR, TEZPUR DIST- SONITPUR, ASSAM Advocate for the Petitioner : MR. T J MAHANTA Advocate for the Respondent :

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WP(C)(Suo Moto) 7/2018

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X-X-X

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VERSUS

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1:IN RE MUSSTT. RAHIMA BEGUM AND ANR W/O- MOHMAD, VILL NO.1 BATAMARI P.S- JAMUGURI, DIST- SONITPUR ASSAM 2:FOREIGNERS TRIBUNAL 2ND REP. BY ITS MEMBER, SONITPUR TEZPUR, DIST- SONITPUR ASSAM

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Advocate for the Petitioner : MR. T J MAHANTA Advocate for the Respondent :

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BEFORE

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

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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. U. S. Borgohain, learned counsel for the petitioner in WP(C) No. 1366/2017 and respondent No. 1 in WP(C) (Suo Moto) Nos. 6 & 7 of 2018; Mr. A. Kalita, learned Special Counsel, Foreigners Tribunal (FT) and Mr. B. Bora, learned counsel appearing for the Gauhati High Court.

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In WP(C) No. 1366/2017, Rahimul Ali @ Rahimun Ali is the petitioner. He has assailed the legality and correctness of order dated 21.12.2016 passed by the Foreigners Tribunal-6, Tezpur at Sootea in Case No. FTC (6) 162/2015 (State Vs Rahimul) declaring him to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971.

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Following the order dated 21.12.2016, petitioner was taken into custody.

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This Court by order dated 29.03.2017 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should not be deported from Indian until further orders.

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In the course of hearing of WP(C) No.1366/2017 on 19.02.2018, Mr. Borgohain, learned counsel for the petitioner relied upon 2 orders dated 05.01.2012 and 12.12.2013 passed by the Foreigners Tribunal (2^nd ), Sonitpur at Tezpur in the case of Md. Mustafa and Musstt. Rahima Begum respectively declaring them as not foreigners. It was submitted that Md. Mustafa was the younger brother of the petitioner and Musstt. Rahima Begum was the mother. It was therefore contended that since identical orders were passed in the case of members belonging to the same family, similar order ought to have been passed in the case of the petitioner, and on that basis petitioner should be declared as not a foreigner.

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Order dated 05.01.2012 was passed in FT (DC) Case No. 60/2008 (State Vs Md. Mustafa) and order dated 12.12.2013 was passed in the case of FT(DC) Case No. 276/2012 (State Vs Musstt Rahima Begum). Both the orders were passed by the same Tribunal, i.e.,

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Foreigners Tribunal (2^nd ) Sonitpur at Tezpur.

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On going through the orders dated 05.01.2012 and 12.12.2013, this Court noticed that the said Tribunal did not appreciate the evidence tendered and had abruptly rendered the opinion that the proceedees were not foreigners. Court observed that since three contradictory orders were before the Court in respect of members of the same family (as contended), it would be just and proper, if the contradictions are reconciled. In identical situations, this Court had directed registration of suo moto cases whereafter contradictory orders were set aside while remanding the related references to the concerned Foreigners Tribunal for decision afresh in accordance with law. Relevant portion of the order dated 19.02.2018 is extracted hereunder:-

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“ In the course of hearing, Mr. Borgohain has brought to our notice two orders dated 05.01.2012 and 12.12.2013, passed by the Foreigners Tribunal (Second), Sonitpur at Tezpur in the case of Md. Mustafa and Musstt. Rahima Begum declaring them as not foreigners. He submits that Md. Mustafa is the younger brother of the petitioner and Musstt. Rahima Begum is the mother of the petitioner. Pointing out the apparent anomaly in the three orders, he submits that while on the one hand younger brother and mother have been declared to be not foreigners, on the other hand petitioner has been held to be a foreigner.

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We have carefully examined the orders dated 05.01.2012 and 12.12.2013. On going through the above orders, we prima facie find that the Tribunal did not appreciate the evidence tendered by the parties in detail and abruptly rendered the opinion that the proceedees were not foreigners. Be that as it may, since three contradictory orders are before this Court, we feel that it would be just and proper if the contradictions are reconciled.

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Following the procedure adopted in identical cases, we direct the Registry to register suo moto writ petitions in respect of order dated 05.01.2012, passed in FT(DC) Case No.60/2008 (State-Vs-Md. Mustafa) and in respect of order dated 12.12.2013 passed in FT(DC) Case No.276/2012 (State Vs. Musstt. Rahima Begum); both the orders passed by the same Foreigners Tribunal (Second), Sonitpur at Tezpur and, thereafter list the two suo moto writ petitions before us in the motion column.”

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This is how the two suo-moto writ petitions came to be registered.

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On 12.03.2018 notices were issued in both the suo-moto writ petitions while requisitioning the case record.

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Mr. U. S. Borgohain, learned counsel has entered appearance on behalf of respondent No. 1 in both the cases. The requisitioned records have since been received.

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Submissions made by learned counsel for the parties have been considered. Also perused

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the materials on record.

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We find that there is general consensus at the Bar that all the three references should be remanded back to the Tribunal for a fresh decision in accordance with law. However, Mr. Borgohain, learned counsel for the proceedees has submitted that proceedees should be given an opportunity to adduce further evidence if considered necessary and also to make a prayer for grant of bail during pendency of the related references on remand.

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Having heard learned counsel for the parties and on due consideration, we pass the following orders:-

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Order dated 21.12.2016 passed by the Foreigners Tribunal-6, Tezpur at Sootea in Case No. FTC(6) 162/2015 (State Vs Rahimun) is set aside;

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Order dated 05.01.2012 passed by the Foreigners Tribunal (2^nd ), Sonitpur at Tezpur in FT(DC) Case No. 60/2008 (State Vs Md. Mustafa) is set aside;

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Order dated 12.12.2013 passed by the Foreigners Tribunal (2^nd ) Sonitpur at Tezpur in FT(DC) Case No. 276/2012 (State Vs Musstt. Rahima Begum) is set aside;

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All the three references as above are remanded back to the Foreigners Tribunal 6^th , Tezpur at Sootea. On receipt of the case records, Foreigners Tribunal (2^nd ), Sonitpur at Tezpur shall transmit the same to Foreigners Tribunal-6^th , Tezpur at Sootea;

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Superintendent of Police (Border), Sonitpur shall produce the petitioner Rahimul Ali from detention before the Foreigners Tribunal No. 6, Tezpur at Sootea in Case No. FT C (6) 162/2015 on 07.06.2018 at 10:30 a.m.;

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On that date and time, the other two proceedees, namely, Md. Mustafa and Musstt. Rahima Begum, shall appear before the said Tribunal;

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If the proceedees desire to adduce further evidence, the same may be considered by the Tribunal with right of cross-examination by the State;

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Petitioner Rahimul Ali would be at liberty to move application for bail before the Tribunal during pendency of his reference in which event the same may be considered by the Tribunal in accordance with law;

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All the three references shall be disposed of by the Foreigners Tribunal 6^th , Tezpur at Sootea on remand within a period of 60 (sixty) days from 07.06.2018.

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With the above directions all the three writ petitions are disposed of.

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Registry to send down the LCRs forthwith and inform the concerned Foreigners’ Tribunal, Deputy Commissioner and 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

X-X-X v. in Re MD Mustafa and Anr.

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X-X-X v. in Re MD Mustafa and Anr.

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