Dismissed

Mustt. Sahera Khatun v. the Union of India and 4 Ors.

Gauhati HC5 Dec 2019WP(C)/4545/2017

Case brief

AI extract

What is this about?

Writ petition assailing a Foreigner Tribunal order declaring the petitioner a post-1971 entrant. Court held order unsustainable as it exceeded reference scope. Petitioner admitted entry between 1966-1971. Writ dismissed; petitioner directed to register with FRRO within 30 days.

What did the court decide?

Impugned order set aside. Petitioner directed to register with FRRO within 30 days. Voting rights denied for 10 years.

Mustt. Sahera Khatun Vs the Union of… — Constitutional and Fundamental Rights | Gauhati HC (2019)

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Page No.# 1/4

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GAHC010032612017

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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) 4545/2017

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1:MUSTT. SAHERA KHATUN

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D/O LATE KAJIMUDDIN BHUYAN @ KAJIMUDDIN, W/O MD. SURUJ ALI, VILL-NO.1 SURJYAPUR, PS-DHEKIAJULI, DIST. SONITPUR, ASSAM

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VERSUS

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1:THE UNION OF INDIA and 4 ORS.

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REP. BY THE SECRETARY OF THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI-1

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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 DEPUTY COMMISSIONER SONITPUR DISTRICT ASSAM

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4:THE SUPERINTENDENT OF POLICE B SONITPUR ASSAM

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5:THE OFFICERIN-CHARGE DHEKIAJULI POLICE STATION DIST- SONITPU

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Advocate for the Petitioner : MR C KALITA

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Advocate for the Respondent : GA, ASSAM

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Page No.# 2/4

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BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

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ORDER

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Date : 05-12-2019

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Suman Shyam, J

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Heard Mr. M.U. Mahmud, learned counsel appearing for the petitioner. We have also heard Mr.A. Kalita, learned Standing Counsel, Foreigner’s Tribunal, Ms. U. Das, learned Standing Counsel, NRC and Ms. G. Hazarika, learned CGC, appearing for the Union of India.

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This writ petition has been filed assailing the order dated 23/05/2017 passed by the learned Member, Foreigners Tribunal No.9, Sonitpur at Dhekiajuli, in connection with FT(9) Case No. 78/2016, whereby the learned Tribunal has declared that the petitioner has entered India subsequent to 25/03/1971 and, therefore, is a foreigner of the post 25/03/1971 stream.

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Assailing the impugned order dated 23/05/2019, Mr. Mahmud submits that the learned Tribunal has gone beyond the reference and declared the petitioner as a post 25/03/1971 entrant to India although, the reference was on the question as to whether the petitioner has entered India between 01/01/1966 and 24/03/1971.

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Relying upon the decision rendered by this Court in the case of Santosh Das Vs. Union of India reported in 2017(2) GLT 1065, Mr. Mahmud has argued that law is well settled that the Tribunal cannot exercise its jurisdiction to opine as to whether a person is or is not a foreigner by going beyond the reference. On such count, the learned counsel has prayed for setting aside the impugned order. Mr. Mahmud has, however, fairly contended that his client does not have any document to show that she has entered India before 01/01/1966 and, therefore, is ready to accept the fact that she is a foreigner, who had entered India between 01/01/1966 and 24/03/1971. On such count, Mr. Mahmud has prayed that 30 (thirty) days time be granted to his client to approach the Foreigners Regional Registration Officer (FRRO), Sonitpur by making an application for registration.

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Mr. Kalita, learned Standing Counsel, Foreigner’s Tribunal has also submitted in his usual fairness that after the decision rendered in this case in Santosh Das (Supra), there was no scope for the Tribunal to go beyond the reference and render an opinion which was not sought for by the State. The learned Standing Counsel has, therefore, submitted that the impugned order be set aside and the matter be remanded for a fresh decision of the reference case by the Tribunal.

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Page No.# 3/4

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We have considered the submissions advanced by the learned counsel for both the parties and have also gone through the LCR.

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A perusal of the LCR goes to show that the reference of this case was a pointed one and that was whether the petitioner had entered the State/Country “between 01/01/1966 and 24/03/1971”. As noticed above, the learned tribunal has declared that the petitioner had entered India after 25/03/1971 and, therefore, is a foreigner.

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The aforesaid opinion, on the face of the record, is clearly beyond the terms of the reference. In the case of Santosh Das (Supra), this Court has held in categorical terms that the Tribunal gets its jurisdiction to render its opinion only when a reference is made to it and, therefore, the opinion of the Tribunal has to remain confined to the terms of the reference made to it. Therefore, the Tribunal cannot go beyond the reference.

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In view of the law laid down in the case of Santosh Das (Supra), we are of the unhesitant opinion that the impugned order dated 23/05/2017 is beyond the reference and therefore, unsustainable in the eye of law. The order dated 23/05/2017 is therefore, set aside.

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On the question of remand of the matter as urged by the learned Standing Counsel, Foreigner’s Tribunal, we deem it appropriate to record the categorical submission of Mr. Mahmud that his client is unconditionally accepting the fact that she is a foreigner coming to India between 01/01/1966 and 24/03/1971. The reference sent to the learned Tribunal is also to that effect. Therefore, even if the matter is remanded, the maximum that the State can achieve in this case is to get a declaration in terms of the reference, to which the petitioner is readily conceding. As such, in our opinion, no practical purpose would be served by remanding the matter to the Tribunal. Rather, we are of the view that if such a recourse is adopted, it will lead to unnecessary harassment to the petitioner.

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In view of the above and for the ends of justice, instead of remanding the matter back to the Tribunal, we direct the petitioner to appear before the FRRO, Sonitpur within 30 days from today seeking registration of her name as a foreigner.

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The petitioner shall not be allowed any voting right for a period of 10(ten) years with effect from the date of registration and her name shall also not be reflected in the electoral roll during the said period.

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Subject to the above conditions, the petitioner shall be entitled to the rights and protection that are available to her under the law.

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Page No.# 4/4

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With the above observation, the writ petition stands disposed of.

Send back the LCR.

JUDGE JUDGE

Sukhamay

Comparing Assistant

Mustt. Sahera Khatun v. the Union of India and 4 Ors.

Case brief

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Mustt. Sahera Khatun v. the Union of India and 4 Ors.

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