Allowed

Nurjahan Khatun and 9 Ors. v. the Union of India and 5 Ors.

Gauhati HC3 Feb 2020WP(C)/4074/2019

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a writ petition challenging the declaration of nine petitioners, who were family members of a person declared a foreigner, as foreigners. Relying on Sudhir Roy, the court held that presumption alone is insufficient; a due inquiry, reference, and adjudication by the Tribunal are required.

What did the court decide?

The order/opinion of the Foreigners' Tribunal declaring petitioners as foreigners was set aside.

Nurjahan Khatun and 9 Ors. Vs the… — Constitutional and Fundamental Rights | Gauhati HC (2020)

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Page No.# 1/5

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GAHC010128042019

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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) 4074/2019

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1:NURJAHAN KHATUN AND 9 ORS.

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D/O MD. NURJAMAL, VILLAGE- PALAHJURI, P.O. GARUKHUTI, P.S.LAHARIGHAT, DISTRICT- MORIGAON, ASSAM, PIN- 782106.

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2: ABUL HUSSAIN S/O MD. NURJAMAL VILLAGE- PALAHJURI P.O. GARUKHUTI P.S.- LAHARIGHAT DISTRICT- MORIGAON ASSAM PIN- 782106.

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3: NEKIBOR ALI S/O MD. NURJAMAL BEING MINOR REPRESENTED BY NATURAL GUARDIAN SL. NO. 1 NURJAHAN KHATUN VILLAGE- PALAHJURI P.O. GARUKHUTI P.S.- LAHARIGHAT DISTRICT- MORIGAON ASSAM PIN- 782106.

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4: DILUWARA KHATUN D/O MD. NURJAMAL BEING MINOR REPRESENTED BY NATURAL GUARDIAN SL. NO. 1 NURJAHAN KHATUN VILLAGE- PALAHJURI P.O. GARUKHUTI P.S.- LAHARIGHAT DISTRICT- MORIGAON

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Page No.# 2/5

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ASSAM PIN- 782106.

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5: RAJINA KHATUN D/O MD. NURJAMAL BEING MINOR REPRESENTED BY NATURAL GUARDIAN SL. NO. 1 NURJAHAN KHATUN VILLAGE- PALAHJURI P.O. GARUKHUTI P.S.- LAHARIGHAT DISTRICT- MORIGAON ASSAM PIN- 782106.

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6: MAMTAJ KHATUN D/O MD. NURJAMAL BEING MINOR REPRESENTED BY NATURAL GUARDIAN SL. NO. 1 NURJAHAN KHATUN VILLAGE- PALAHJURI P.O. GARUKHUTI P.S.- LAHARIGHAT DISTRICT- MORIGAON ASSAM PIN- 782106.

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7: ASMINA KHATUN D/O MD. NURJAMAL BEING MINOR REPRESENTED BY NATURAL GUARDIAN SL. NO. 1 NURJAHAN KHATUN VILLAGE- PALAHJURI P.O. GARUKHUTI P.S.- LAHARIGHAT DISTRICT- MORIGAON ASSAM PIN- 782106.

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8: MOKIBUR RAHMAN S/O MD. NURJAMAL BEING MINOR REPRESENTED BY NATURAL GUARDIAN SL. NO. 1 NURJAHAN KHATUN VILLAGE- PALAHJURI P.O. GARUKHUTI P.S.- LAHARIGHAT DISTRICT- MORIGAON

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Page No.# 3/5

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ASSAM PIN- 782106.

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9: BULIMA KHATUN D/O MD. NURJAMAL BEING MINOR REPRESENTED BY NATURAL GUARDIAN SL. NO. 1 NURJAHAN KHATUN VILLAGE- PALAHJURI P.O. GARUKHUTI P.S.- LAHARIGHAT DISTRICT- MORIGAON ASSAM PIN- 782106.

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10: HASINA BEGUM D/O MD. NURJAMAL BEING MINOR REPRESENTED BY NATURAL GUARDIAN SL. NO. 1 NURJAHAN KHATUN VILLAGE- PALAHJURI P.O. GARUKHUTI P.S.- LAHARIGHAT DISTRICT- MORIGAON ASSAM PIN- 782106

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VERSUS

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1:THE UNION OF INDIA AND 5 ORS.

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

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2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GHY-6.

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3:THE DEPUTY COMMISSIONER MORIGAON PIN- 782104.

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4:THE ELECTION COMMISSION OF INDIA NEW DELHI- 110001.

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5:THE STATE COORDINATOR NATIONAL REGISTER OF CITIZENS ASSAM GUWAHATI- 781005.

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6:THE SUPERINTENDENT OF POLICE (B) MORIGAON DISTRICT- MORIGAON PIN- 782104

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Advocate for the Petitioner : MR H R A CHOUDHURY

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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 PARTHIVJYOTI SAIKIA

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O R D E R

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03.02.2020

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( Manojit Bhuyan, J )

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Heard Ms. S. Das, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no.1. Also heard Mr. A. Kalita, learned counsel represents respondent nos.2, 3 and 6; Ms. B. Das, learned counsel represents respondent no.4 and Ms. A. Verma, learned counsel for respondent no.5.

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The petitioners are the sons and daughter of Md. Nurjamal and all of them along with their father and mother were proceeded against in Case No. F.T.(C) 417/2012 and by opinion dated 31.07.2018 they were declared as foreigners of post 1971 stream.

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Grievance raised is that no independent reference having been made against the present petitioners, they could not have been declared as foreigners in the proceeding initiated against them. In this, the petitioner placed reliance in the judgment and order dated 04.01.2019 passed by a coordinate 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, being the sons and daughters of Md. Nurjamal, who have been declared to be foreigners, cannot ipso facto be termed as foreigners unless due inquiry is 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 31.07.2018 passed by the Foreigners’ Tribunal 2^nd , Morigaon, Assam, declaring (i) Nurjahan Khatun, (ii) Abul Hussen, (iii) Nekbor Ali, (iv) Diluwara Khatun, (v) Rajina Khatun, (vi) Mamtaj Khatun, (vii) Asmina Khatun, (viii) Mokibur Rahman, (ix) Bulima Khatun and (x) Hasina Khatun 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 the petitioners, the same has to be done by initiating proceeding as required under the law.

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The writ petition stands allowed.

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JUDGE JUDGE

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Comparing Assistant

Nurjahan Khatun and 9 Ors. v. the Union of India and 5 Ors.

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Nurjahan Khatun and 9 Ors. v. the Union of India and 5 Ors.

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