MANU/GH/0296/2017

Equivalent Citation: 2017(2)GLT1065

IN THE HIGH COURT OF GAUHATI

W.P.(C) No. 7551 of 2016
Decided On: 03.04.2017
Appellants: Santosh Das
Vs.
Respondent: Union of India and Ors.
Hon'ble Judges/Coram:
Ujjal Bhuyan and Paran Kumar Phukan, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: H.A. Sarkar, Advocate
For Respondents/Defendant: P. Baruah, Advocate and G. Pegu, G.A.
ORDER
Ujjal Bhuyan, J.
1 . Heard Mr. H.A. Sarkar, learned counsel for the petitioner, Ms. P. Baruah, learned
counsel for the Central Government and Mr. G. Pegu, learned Govt. Advocate, Assam.
By filing this petition under Article 226 of the Constitution of India, petitioner seeks
quashing of order dated 02.11.2016 passed by the Foreigners Tribunal, Chirang in BNG
N/FT (CHR)/295/08 declaring the petitioner to be a foreigner who had illegally entered
into India (Assam) from the specified territory after 25.03.1971.
2 . In this case, reference was initially made under the Illegal Migrants (Determination
by Tribunals) Act, 1983 but after declaration of the said Act as unconstitutional by the
Supreme Court in Sarbananda Sonowal v. Union of India, MANU/SC/0406/2005 :
(2005) 5 SCC 665, the reference was re-registered under the Foreigners Act, 1946 read
with Foreigners (Tribunals) Order, 1964, as amended, as BNGN/FT (CHR)/295/2008 and
after creation of additional Tribunals, the reference was assigned to the Foreigners
Tribunal, Chirang (Tribunal) for opinion.
3 . After hearing the matter, Tribunal passed the order dated 02.11.2016 in the above
manner.
4. Aggrieved, present writ petition has been filed.
5. On 20.12.2016 when the writ petition was moved, Court was informed that petitioner
was taken into custody. In that context, Court passed an interim order to the effect that
petitioner should not be deported from India until further orders.
6. Primary contention of Mr. Sarkar, learned counsel for the petitioner, is that reference
was made against the petitioner on the allegation that he was suspected to be a
foreigner belonging to the 1966-1971 stream. Tribunal committed a manifest error and
had exceeded its jurisdiction by declaring the petitioner to be a foreigner of post
25.03.1971 stream. Therefore, impugned order is bad in law and is liable to be set

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aside and quashed.
7. In response, Mr. Pegu, learned Govt. Advocate, submits that in so far finding of the
Tribunal holding the petitioner to be a foreigner is concerned, the said finding does not
suffer from any infirmity to warrant interference. However, on the point raised by
learned counsel for the petitioner, he submits that Court may take an appropriate
decision in this regard.
8 . Submissions made by learned counsel for the parties have been considered. Also
perused the materials on record.
9. From the materials on record, we find that reference was made against the petitioner
by the then police authorities of Bongaigaon with the allegation that he had illegally
entered into India from the specified territory during the period 01.01.1966 to
24.03.1971 on the basis of which the reference proceeding was initiated against the
petitioner. This fact was also acknowledged by the Tribunal and recorded in the
impugned order dated 2.11.16. However, in the final conclusion, Tribunal declared the
petitioner to be a foreigner of post 1971 stream.
10. We will deal with this aspect of the matter a little later. For the moment, we deal
with first the conclusion reached by the Tribunal that the petitioner was a foreigner who
had illegally entered into the State.
11. We notice that in his written statement, petitioner disclosed that he was a citizen of
India by birth. But in his deposition before the Tribunal, he stated that his father had
migrated to India from the territory now known as Bangladesh when he was a young
boy. Certainly, these two statements are contradictory to each other. If one is to be
believed, the other has to be discarded. Though petitioner had exhibited some
documents to show presence of Late Suresh Das (father of the petitioner) on Indian soil
prior to 1971, Tribunal did not accept the evidence adduced by the petitioner to
establish his linkage with Suresh Das whom he claimed to be his father. Till this part of
the order, we are in agreement with the view expressed by the Tribunal. As a matter of
fact, learned counsel for the petitioner also did not seriously challenge this finding of
the Tribunal.
12. However, thereafter Tribunal took the view that there is nothing in the Foreigners
Act, 1946 or in the Orders made thereunder to bind it to the terms of the reference
whereafter Tribunal declared the petitioner to be a foreigner who had illegally entered
into India from the specified territory after 25.03.1971.
13. Section 3 of the Foreigners Act, 1946 empowers the Central Government to make
Orders dealing with foreigners. In exercise of powers conferred under Section 3 of the
aforesaid Act, Foreigners (Tribunals) Order, 1964 was framed. Order 2 deals with
constitution of Tribunals. As per Order 2(1), Central Government may by order refer the
question as to whether a person is or is not a foreigner within the meaning of the
Foreigners Act, 1946 to a Tribunal to be constituted for the purpose for its opinion.
Order 2(1A) also confers such power on a registering authority appointed under Sub-
Rule (1) of Rule 16(F) of the Citizenship Rules, 1956.
14. We have been informed at the Bar that the power of the Central Government to
make reference in terms of Order 2(1) has since been delegated to the concerned
Superintendents of Police.
15. From a careful reading of Order 2(1), what is discernible is that a reference is made

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to a Tribunal for its opinion whether a person is or is not a foreigner within the meaning
of Section 2(a) of the Foreigners Act, 1946. The Tribunal gets its jurisdiction to render
its opinion only when a reference is made to it. Without a reference being made,
Tribunal cannot exercise its jurisdiction to opine that a person is or is not a foreigner. It
is only when a reference is made as above that the Tribunal assumes jurisdiction to
render its opinion. Therefore, to our mind, Tribunal would have to confine to the terms
of the reference made to it and cannot go beyond the same. Admittedly, in this case,
reference was that petitioner was a foreigner who had illegally entered into India
(Assam) from the specified territory during the period 01.01.1966 to 24.3.1971. The
Tribunal was required to answer the reference either in favour of the State or in favour
of the procedee. If the reference was to be answered in favour of the State and it was
answered rightly so by the Tribunal, the natural corollary would be that petitioner is a
foreigner belonging to the 1.1.1966 to 24.03.1971 stream. Therefore, the view taken by
the Tribunal that the Foreigners Act, 1946 or the Orders framed thereunder do not bind
it to the terms of the reference is not correct.
16. Accordingly, order dated 02.11.2016 passed by the Foreigners Tribunal, Chirang in
BNGN/FT (CHR)/295/2008 would stand modified as under: -
(1) The reference would stand answered in favour of the State by opining that
petitioner was a foreigner who had illegally entered into India (Assam) from the
specified territory during the period 1.1.1966 to 24.03.1971;
(2) In view of such declaration, petitioner is given the liberty to register his
name as a foreigner of the aforesaid stream before the competent Foreigners
Regional Registration Officer. This shall be done within a period of 30 days
from today. Superintendent of District Jail, Goalpara shall render due assistance
to the petitioner for such registration;
(3) Once petitioner is registered as a foreigner belonging to the 01.01.1966 to
24.03.1971 stream by the competent Foreigners Regional Registration Officer,
he shall be released from detention by the Superintendent of Goalpara District
Jail.
17. Writ petition is allowed to the extent indicated above. Registry to send down the
LCR forthwith and inform the concerned Foreigners Tribunal, Deputy Commissioner and
Superintendent of Police (B) for taking immediate follow-up steps.
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