Sahera Khatun and 7 Ors. Vs the Union of India and 5 Ors.

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GAHC010174172019

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2025:GAU-AS:2580

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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)/5555/2019

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SAHERA KHATUN AND 7 ORS.

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W/O MD. ABDUL MOTIN,D/O LT. ABDUL GOFUR, R/O VILL. SARUCHALA, P.S. MOIRABARI, DIST. MORIGAON,ASSAM

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2: SOFIQUL ISLAM S/O SAHERA KHATUN R/O VILL. SARUCHALA P.S. MOIRABARI DIST. MORIGAON ASSAM 3: SAHIDUL ISLAM S/O SAHERA KHATUN R/O VILL. SARUCHALA P.S. MOIRABARI DIST. MORIGAON ASSAM 4: SIRAJUL ISLAM S/O SAHERA KHATUN R/O VILL. SARUCHALA P.S. MOIRABARI DIST. MORIGAON ASSAM 5: RASHIDUL ISLAM S/O SAHERA KHATUN R/O VILL. SARUCHALA P.S. MOIRABARI DIST. MORIGAON ASSAM

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6: MOZIKUL ISLAM S/O SAHERA KHATUN

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R/O VILL. SARUCHALA P.S. MOIRABARI DIST. MORIGAON ASSAM 7: KHUDEJA KHATUN D/O SAHERA KHATUN R/O VILL. SARUCHALA P.S. MOIRABARI DIST. MORIGAON ASSAM 8: MONJUWARA KHATUN D/O SAHERA KHATUN R/O VILL. SARUCHALA P.S. MOIRABARI DIST. MORIGAON ASSA

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VERSUS

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THE UNION OF INDIA AND 5 ORS. TO BE REP. BY THE SECRETARY TO THE GOVT. OF INDIA, DEPTT. OF HOME AFFAIRS, NEW DELHI, INDIA, NEW DELHI-1

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2:THE STATE OF ASSAM TO BE REP. BY THE SECRETARY TO THE GOVT. OF ASSAM DEPTT. OF HOME DISPUR GUWAHATI-6 3:THE SUPERINTENDENT OF POLICE (B) MORIGAON DIST. MORIGAON ASSAM PIN-782105 4:THE DEPUTY COMMISSIONER MORIGAON DIST. MORIGAON ASSAM PIN-782105 5:THE ELECTION COMMISSIONER OF INDIA NEW DELHI-1 6:THE NRC CO-ORDINATOR NATIONAL REGISTER OF CITIZEN (NRC)

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ASSAM BHANGAGARH GUWAHATI-

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Advocate for the Petitioner : MR. A R SIKDAR, M M ZAMAN,MR. S I TALUKDAR,MD A ALI Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, NRC,SC, ECI

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BEFORE

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HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI

ORDER

11.03.2025

(K.R. Surana, J)

Heard Mr. A. R. Sikdar, learned counsel for the petitioners. Also heard Mr. S. P. Choudhury, learned CGC, Mr. M. Islam, learned counsel appearing on behalf of Mr. A. I. Ali, learned Standing Counsel for the ECI, Mr. G. Sarma, learned Standing Counsel for the FT and NRC, and Mr. P. Sarmah, learned Additional Senior Govt. Advocate for the State.

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By filing this writ petition under Article 226 of the Constitution of India, the petitioners have assailed the impugned opinion dated 28.02.2019, passed by the learned Member, Foreigner’s Tribunal No. 5^th , Morigaon, Assam in No. M.F.T(J).2019/1409, in Case No. F.T. 291/2016 (New Number) in F.T. 888/2012 (Old Number) in F.T. Case No. 431/2010 dt. 29/11/2010, thereby declaring them as well as one Md. Abdul Motin, son of Late Nasaruddin as a foreigner who entered into India (Assam) after 25.03.1971.

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The said opinion is assailed on the ground that as per the records of the learned Tribunal, the Border Police under the Superintendent of Police, (Border),

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Morigaon did not conduct any enquiry against the petitioners and that the enquiry was only directed against Md. Abdul Motin. In support of his contention,the learned counsel for the petitioners have relied upon the decision of this Court in the Case of Sudhir Roy & Ors vs Union of India & Ors 2019 (2) GLT 61.

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On perusal of the records of the learned Tribunal, the Court did not did not find any enquiry being directed against the present petitioners and the reference made by the Superintendent of Police (Border), Morigaon vide Memo under F.T.C. No. 431/10 dated 29.11.2010, by which the enquiry was initiated and only directed against Md. Abdul Motin. The interrogation report under FormI, Form-II and Form-III are also in respect of Md. Abdul Motin. However, in column 13 of the interrogation report under Form-I, it contains the name of the petitioners as other family members of Md. Abdul Motin. However, in the report of the Superintendent of Police (Border), Morigaon dated 29.11.2010, the said authority has mentioned that the person i.e. Md. Abdul Motin and his family members had entered into India after 25.03.1971. It may be mentioned that the Border Police had only taken the finger print, photographs and the statement of only Md. Abdul Motin and for no one else including the petitioners.

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The Tribunal records were sent over to the learned Standing Counsel for the FT matters to verify from the records as to whether any formal reference was made against the petitioners, as it is seen that the records also do not contain a formal reference by the Superintendent of Police (Border), Morigaon, to the concerned Foreigner's Tribunal. This is the second aspect on which the learned Standing Counsel for the FT matters was requested to peruse the records. Upon perusal of the records, the response by the learned Standing

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Counsel for the FT matters was in the negative.

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Therefore, the Court is inclined to hold that in course of the enquiry ordered by the Superintendent of Police (Border), Morigaon, the only reference to the Investigating Officer was to enquire if the suspect, Md. Abdul Motin, aged 52 years, son of Late Nasaruddin of Village- Saruchalla, P.S.- Moirabari in the district of Morigaon, is suspected to be a foreign national who has entered into India between 01.06.1966 to 25.03.1971 or after 25.03.1971. The enquiry is not found to be made against the present petitioners. Therefore, it is held that there was no enquiry by the Border Police of District- Morigaon against the present petitioners.

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In so far as a valid reference is concerned, on examination of the records, it is seen that page 7 of the records, the Superintendent of Police (Border), Morigaon, has directed the Sub-Inspector (Border) of Moirabari Police Station to cause an enquiry. The Form-I of the interrogation report contains the name of Md. Abdul Motin as the suspected foreign national, and the said report is signed by the Sub-Inspector of Police (Border). Similarly, in Form-II, the name of the suspect is Md. Abdul Motim and the said form is signed by the Enquiry Officer. Form- III, regarding finding and enquiry report of the Enquiry Officer, the name of the suspect is again Md. Abdul Motin and in paragraph-22 thereof, it has been mentioned as follows:-

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"During enquiry, it appears to me that in prima facie manner, that the suspected person entered into India after 25.03.1971, and he could not produce any document in support of Indian nationality. Hence, the case referred to the Hon'ble Tribunal Court for trial".

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The said report is signed by the sub-inspector of Police.

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The said Form-I and Form-II referred above, the same do not contain the counter signature of the Superintendent of Police (Border), Morigaon. The said Form nos. I, II and III are at page 8, 9 and 10 of the records. The records also contains an order by the Superintendent of Police (Border), Morigaon dated 29.11.2010, suspecting Md. Abdul Motin to have entered into India after 25.03.1971 along with his family members. Nonetheless, the records do not contain a formal reference letter by the Superintendent of Police (Border), Morigaon, addressed to the learned Foreigners.

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This Court in the case of Sudhir Roy (supra) held as follows :-

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The petitioner, Sudhir Roy was enquired upon by the respondent authorities and on being satisfied that appropriate grounds do exist, his case was referred to the Foreigners Tribunal of Cachar for an opinion as to whether he is a foreigner within the definition under the Foreigners Act of 1946. The Tribunal by its order dated 17.05.2018 has held the petitioner to be a foreigner and in its order had accordingly declared the petitioner, Sudhir Roy, his wife Romita Roy, Sons Sontosh Roy and Piyush Roy and daughters Smti Rimpi Roy and Smti Mampi Roy also to be foreigners, who had entered Assam/India after 25.03.1971 from the specified territory.

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X X X

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As regards the declaration of the wife, sons and daughters of the petitioner to be foreigners, we have perused the records and have taken note of that the reference was made only against the petitioner and not against his wife, sons and daughters. Although the law in this respect has been settled by this Court in Aktara Khatun Vs. State of Assam & Ors., reported in 2017 (2) GLT 974 that a presumption can also be drawn against the family members of the proceedee who has been declared as foreigner, but at the same time we are also of the view that such presumption would by itself not lead to a conclusion that the family members of a proceedee who has been declared to be a foreigner are also foreigners. The same may be a good cause

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for initiating an enquiry and making a reference against the family members, but without following the due procedure of law of conducting an enquiry and making a reference and being adjudicated by the Tribunal, the family members cannot be declared to be foreigners.

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In view of the above, the portion of the order dated 17.05.2018 by which the wife of the petitioner, Smti Romita Roy, his two sons Sontosh Roy and Piyush Roy and two daughters, namely, Smti Rimpy Roy and Smti Mampi Roy were also declared to be foreigners, is accordingly set aside.

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In view of the above, the proceeding shall now be initiated only against the petitioner, Sudhir Roy.

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Following the ratio laid down in the case of Sudhir Roy (supra), the Court is of the considered opinion that though the learned Member, Foreigners Tribunal- 2^nd , Morigaon has held Md. Abdul Motin as a foreigner of post 25.03.1971 stream, but said opinion shall not lead to a presumption that the petitioners herein namely, (1) Musstt. Sahera Khatun, (2) Sofiqul Islam, (3) Sahidul Islam, (4) Sirajul Islam, (5) Rashidul Islam, (6) Mozikul Islam (7) Khudeja Khantun and (8) Monjuwara Khatun are also foreigners, unless due enquiry is made against them and only after reference being made against them, and they are unsuccessful, they can be declared to be foreigners by the competent Tribunal having jurisdiction.

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Accordingly, in view of the above, that part of the impugned opinion dated 28.02.2019, passed by the learned Member, Foreigner’s Tribunal No. 5^th , Morigaon, Assam in No. M.F.T(J).2019/1409, in Case No. F.T. 291/2016 (New Number) in F.T. 888/2012 (Old Number) in F.T. Case No. 431/2010 dated. 29/11/2010, declaring the petitioners, who are procedee nos. 2 to 9

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respectively, before the learned Tribunal, to be a foreigners of post 25.03.1971 stream, is accordingly, set aside.

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Resultantly, the said opinion dated 28.02.2019, shall only be operable against and limited to declaration of Md. Abdul Motin, son of Late Nasaruddin as a foreigner of post 25.03.1971 stream.

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Accordingly, this writ petition stands allowed to extend as indicated above.

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There shall be no order as to cost.

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The Registry shall send the Tribunal records back along with a downloaded copy of this order so that it can be made a part of record of Case No. F.T. 291/2016 (New Number).

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JUDGE JUDGE

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Comparing Assistant

Sahera Khatun and 7 Ors. v. the Union of India and 5 Ors.

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Sahera Khatun and 7 Ors. v. the Union of India and 5 Ors.

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