Hazera Khatun @ Hazara Bibi v. The Union of India and 5 Ors

ORDER Date : 06.11.2024 (K.R. Surana, J) Heard Mr. A.T. Sarkar, learned counsel for the petitioner. Also heard Ms. K. Deka, learned counsel appearing on behalf of Ms. R. Devi, learned CGC for respondent no.1; Mr. H. Kuli, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for the ECI, respondent no.2; Ms. A. Verma, Page No.# 3/6 learned standing counsel for the Home Department, respondent nos.3 and 6; and Mr. P. Sarma, learned Govt. Advocate for respondent no.5. None appears on call for the respondent no.4.

¶2By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned opinion dated 04.07.2022, passed by the learned Member, Foreigners Tribunal No.1, Dhubri in F.T. Case No. 2416/D/11 [Police Ref. Case No. IM(D)T/159/ 2003], by which the petitioner was declared as an illegal migrant.

¶3In the proceedings of said F.T. Case No. 2416/D/11, the petitioner appeared, filed written statement with documents and also adduced evidence on affidavit. The case was decided on contest.

¶4Before this Court and during the hearing of the writ petition today, the counsel for the writ petitioner has argued that the very initiation of the case was bad. In support, it is submitted that in the Enquiry Report of the enquiry officer as at paragraph 20(1) it has been recorded that "her father name appeared in the NRC of 1951 vide H/No. 44, H/H-81, Sl. No-12, vill-Khodarchar, P.S.-Dhubri". In the next sub-paragraph, there is a note which is illegible. As against paragraph-22, it is recorded that "during my enquiry, it appears a prima facie …. (illegible) Hazara Bibi, W/o. Nobi Hussain, vill-Gaspara is not an illegal migrant". The same is signed by the Enquiry Officer Ajit Bhattacharjee, who is a Sub Inspector, W.P., which perhaps is the abbreviation of "Watch Post". The Enquiry Report was signed on 10.07.2003. The Inspector of Police, Dhubri has made an endorsement on 31.07.2003 to the effect that "It appears during enquiry that the suspect is not appears as I.M.". His signature is illegible. The Deputy Superintendent of Police has also made an endorsement that "It appears during enquiry that the suspect is not appears as I.M.", I.M. perhaps is the Page No.# 4/6 abbreviation of "Illegal Migrant". His signature is illegible and is counter signed by Sub Divisional Judicial Magistrate (Sadar) on 10.02.2004, which is also illegible. The Superintendent of Police, Dhubri has also made an endorsement in the said report of the enquiry officer that "I agree with the recommendation of S/c referred to TBL for favour of disposal". The endorsement is on 08.04.2004 and the signature is illegible.

¶5We have perused the case records received in original and find that the submissions made above stands vindicated.

¶6It is, therefore, the case of the petitioner that in view of the report of the Enquiry Officer and that of the Referral Authority, the issuance of Notice by the Tribunal stood vitiated, more particularly of having offended the ratio laid down by the Full Bench of this Court at paragraph 98 in State of Assam & Ors. v. Moslem Mondal & Ors., reported in 2013 (1) GLT 809; and Jelekha Khatun v. Union of India, 2021 (5) GLT 202.

¶7On having heard the learned counsel for the parties and on perusal of the materials on record, we first take note of the observations made in paragraph-98 of Moslem Mondal (supra) to the effect that while it is the obligation of the Referral Authority while making reference to produce all materials collected during investigation before the Tribunal, it is also the requirement of the Tribunal to prima facie satisfy itself about the existence of the main grounds before issuing Notice to a proceedee.

¶8In the context above it is seen from the case at hand that the Enquiry Officer Shri Ajit Bhattacharjee, Sub-Inspector (B), Gaspara Watch Post, Dhubri Police Station made observation in the Enquiry Report that the petitioner is not an illegal migrant. The Deputy Superintendent of Police, Dhubri, also made Page No.# 5/6 observation that the petitioner is not an illegal migrant and finally the Referral Authority i.e. the Superintendent of Police (Border), also agreed with the recommendation and referred to Tribunal for favour of disposal.

¶9On the face of the materials on record, evidently, the Tribunal had issued notice without first satisfying itself as to the requirement of issuing notice to the petitioner. Trite to say, a Foreigners Tribunal assumes jurisdiction only after a reference is made. The jurisdiction is to render an opinion within the terms of the reference and not beyond. To reiterate, it is well settled that the Foreigners Tribunal requires to prima facie satisfy itself with regard to the existence of the main grounds before issuing Notice. While going through the materials collected during investigation, if a Tribunal finds that the reference made was incorrect or faulty or did not require a proceeding to be initiated on the basis of the report of the Referral Authority, the Tribunal should return back the reference to the Referral Authority, i.e. the Superintendent of Police to re-consider whether a fresh reference is required to be made.

¶10Turning to the facts in hand, it is seen that when the Referral Authority had opined that the petitioner was not an illegal migrant, the question of issuing notice by the Tribunal could not have arisen at the first place.

¶11On the findings above, we are of the considered view that the Tribunal had issued notice and had initiated proceedings without satisfying itself as to the requirement of issuing notice to the petitioner. The proceeding so initiated vide F.T. Case No.2416/D/11, being beyond jurisdiction, as such, the consequential impugned opinion passed on 04.07.2022 cannot stand the scrutiny of law and is liable to be set aside, which we accordingly do. We, however, leave it open to the Superintendent of Police (Border), Dhubri to make fresh investigation if the occasion arises, with further observation that if on such Page No.# 6/6 investigation it is found that there are materials available to proceed against the petitioner, fresh reference can be made to the Tribunal concerned.

¶12To the extent above, the writ petition stands allowed.

¶13Registry to inform the concerned Foreigners Tribunal and the Superintendent of Police (Border), Dhubri.

¶14Let the records received from the Tribunal be returned back.

JUDGE JUDGE Comparing Assistant

PageoNo.#o1/6 GAHC010194412024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/4854/2024o HAZERAoKHATUNo@oHAZARAoBIBIo D/O-oASIRUDDINoBEPARIo@oASIRUDDIN,o W/O-oNABIoHUSSEIN,o VILL-oGASPARA,o P.O.-oDHARMASALA,o P.S.oANDoDIST.-oDHUBRI,oASSAM. VERSUSo THEoUNIONoOFoINDIAoANDo5oORSo REPRESENTEDoBYoTHEoSECRETARYoTOoTHEoGOVT.oOFoINDIA,o MINISTRYoOFoHOMEoAFFAIRS,oSHASTRIoBHAWAN,o TRILOKoMARG,oNEWoDELHI-o110001. 2:THEoELECTIONoCOMMISSIONoOFoINDIA oREPRESENTEDoBYoTHEoCHIEFoELECTIONoCOMMISSIONER o NEWoDELHI-o110001. 3:THEoSTATEoOFoASSAM oREPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.o OFoASSAM o HOMEoDEPARTMENT oDISPUR oGUWAHATI-o781006. 4:THEoSTATEoCOORDINATORoOFoNATIONALoREGISTERoOFoCITIZENS oASSAM o1SToFLOOR oACHYUToPLAZA o Page No.# 2/6 GUWAHATI SHILLONG ROAD BHANGAGARH GUWAHATI ASSAM PIN- 781005. 5:THE DISTRICT COMMISSIONER OF DHUBRI DISTRICT DHUBRI P.O. P.S. AND DIST.- DHUBRI ASSAM PIN- 783301. 6:THE SUPERINTENDENT OF POLICE (BORDER) DHUBRI DISTRICT DHUBRI P.O. P.S. AND DIST.- DHUBRI ASSAM PIN- 783301 Advocate for the Petitioner : MR. A T SARKAR, MR. S HANDIQUE,MR S HUSSAIN Advocate for the Respondent : DY.S.G.I., SC, ECI,SC, F.T,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE KARDAK ETE