Allowed

Gias Uddin and 2 Ors. v. the Union of India and 7 Ors.

Gauhati HC1 Nov 2019WP(C)/4963/2019

Case brief

AI extract

What is this about?

High Court held family members cannot be declared foreigners solely based on a parent's declaration without independent inquiry. Ordered Foreigners Tribunal opinion setting petitioners as foreigners be set aside and directed release of detained petitioner.

What did the court decide?

Order declaring petitioners as foreigners set aside; petitioner no. 1 released from detention; case records sent back to Tribunal.

Gias Uddin and 2 Ors. Vs the Union of India… — Pension and Retirement Benefits | Gauhati HC (2019)

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GAHC010164872019

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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) 4963/2019

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1:GIAS UDDIN AND 2 ORS.

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S/O. LT. DIL MOHAMMAD @ DIL MAMUD, R/O. VILL. PUB MIKIRBHETA, P.S.- MIKIRBHETA, DIST. MORIGAON, ASSAM.

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2: JAHUR @ JAHUR ALI

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S/O. LT. DIL MOHAMMAD @ DIL MAMUD R/O. VILL. PUB MIKIRBHETA P.S.- MIKIRBHETA DIST. MORIGAON ASSAM.

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3: SHAHIDA BEGUM

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D/O. LT. DIL MOHAMMAD @ DIL MAMUD R/O. VILL. PUB MIKIRBHETA P.S.- MIKIRBHETA DIST. MORIGAON ASSAM

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VERSUS

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1:THE UNION OF INDIA AND 7 ORS.

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REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI, 110001.

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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. DISPUR

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GHY.- 781006.

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3:THE ELECTION COMMISSION OF INDIA NEW DELHI

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4:THE STATE COORDINATOR NRC ASSAM ACHYUT PLAZA BHANGAGARH GUWAHATI- 781005. 5:THE STANDING COUNCIL SPECIAL FT AND BOARDER.

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6:THE DEPUTY COMMISSIONER MORIGAON ASSAM- 782105. 7:THE SUPERINTENDENT OF POLICE (B) MORIGAON ASSAM- 782126. 8:THE O/C MIKIRBHETA POLICE STATION MORIGAON- 782126

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Advocate for the Petitioner : MR. J AHMED

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

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BEFORE

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HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE AJIT BORTHAKUR

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O R D E R

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01.11.2019

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( Manojit Bhuyan, J )

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Heard Mr. J. Ahmed, learned counsel for the petitioner as well as Ms. G.

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Hazarika, learned counsel representing respondent no.1. Mr. J. Payeng, learned counsel represents respondent nos.2, 5, 6, 7 and 8 whereas Ms. B. Das, learned counsel represents respondent no.3. Ms. A. Verma, learned counsel appears for respondent no.4.

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Petitioners Giasuddin, Jahur @ Jahur Ali and Shahida Begum are the sons and daughter of one Jubeda Begum. Their mother was proceeded against in F.T. Case No.06/2016 and by opinion dated 13.06.2016 was declared as a foreigner, having illegally entered into Assam from Bangladesh after the cut off date i.e. 25.03.1971.

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Grievance raised is that no independent reference having been made against them, they could not have been declared as foreigners in the proceeding initiated against their mother Jubeda Begum. In this, the petitioners placed reliance in the judgment and order dated 04.01.2019 passed by a co-ordinate Bench in WP(C) 6790/2018 (Sudhir Roy and Ors. vs. Union of India and Ors.).

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It is seen from the order in Sudhir Roy (supra) that the Division Bench duly took note of the decision rendered earlier in Aktara Khatun vs. State of Assam, reported in 2017(2) GLT 974 and held that although in Aktara Khatun (supra) an observation was made that a presumption can be drawn against family members of the proceedee who had been declared as foreigners, such presumption would by itself not lead to a conclusion that such family members of a proceedee, who has been declared to be a foreigner, are also foreigners. In Sudhir Roy (supra) it was thus observed that the presumption may be a good cause for initiating an inquiry and making a reference against family members, but if the family members are to be declared as foreigners, the same has to be done by following due procedure of law by way of conducting an inquiry, making reference and by an adjudication of the Tribunal.

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Turning to the case in hand, we are of the considered view that the law laid down in Sudhir Roy (supra) is squarely applicable. The petitioners Gias Uddin, Jahur @ Jahur Ali and Shahida Begum, being the sons and daughter of Jubeda Begum, who has been declared to be foreigners, cannot ipso facto be termed as foreigners unless due inquiry is

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initiated, reference is made and necessary adjudication is made by the competent Tribunal.

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In this view of the matter, that part of the order/opinion dated 13.06.2016 passed by the Foreigners’ Tribunal No.3^rd , Morigaon, Assam, declaring Giasuddin, Jahur @ Jahur Ali and Shahida Begum as foreigners, the same not being in terms of Sudhir Roy (supra), is set aside. Needless to say, if the concerned authorities are inclined to proceed against Giasuddin, Jahur @ Jahur Ali and Shahida Begum, the same has to be done by initiating proceeding as required under the law. It is stated that the petitioner no.1 Giasuddin was arrested on 07.05.2019 and is presently lodged at the Tezpur Detention Camp. We, therefore, direct the Superintendent of Police (Border), Morigaon to take necessary steps towards release of Giasuddin from the Tezpur Detention Camp forthwith.

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The writ petition stands allowed.

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Office to send back the case records to the Tribunal forthwith.

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Petitioners would be at liberty to produce a copy of this order before the Superintendent of Police (Border), Morigaon for his doing the needful in terms of the above.

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A copy of this order be made part of the case records of the Tribunal for future reference.

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JUDGE JUDGE

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Comparing Assistant

Gias Uddin and 2 Ors. v. the Union of India and 7 Ors.

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Gias Uddin and 2 Ors. v. the Union of India and 7 Ors.

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