Gauhati hc santosh das v uoi

1. WP(C) 7551/2016
BEFORE
HON’BLE MR. JUSTICE UJJAL BHUYAN
HON’BLE MR. JUSTICE PARAN KUMAR PHUKAN
(Ujjal Bhuyan, J.)
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. Advo
cate, Assam.
2. 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 Tr
ibunal, Chirang in BNGN/FT(CHR)/295/08 declaring the petitioner to be a foreigne
r who had illegally entered into India (Assam) from the specified territory afte
r 25.03.1971.
3. In this case, reference was initially made under the Illegal Migrants (D
etermination by Tribunals) Act, 1983 but after declaration of the said Act as un
constitutional by the Supreme Court in Sarbananda Sonowal Vs. Union of India, (2
005) 5 SCC 665, the reference was re-registered under the Foreigners Act, 1946 r
ead with Foreigners (Tribunals) Order, 1964, as amended, as BNGN/FT(CHR)/295/200
8 and after creation of additional Tribunals, the reference was assigned to the
Foreigners Tribunal, Chirang (Tribunal) for opinion.
4. After hearing the matter, Tribunal passed the order dated 02.11.2016 in
the above manner.
5. Aggrieved, present writ petition has been filed.
6. 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 orde
r to the effect that petitioner should not be deported from India until further
orders.
7. Primary contention of Mr. Sarkar, learned counsel for the petitioner, is
that reference was made against the petitioner on the allegation that he was su
spected to be a foreigner belonging to the 1966-1971 stream. Tribunal committed
a manifest error and had exceeded its jurisdiction by declaring the petitioner t
o be a foreigner of post 25.03.1971 stream. Therefore, impugned order is bad in
law and is liable to be set aside and quashed.
8. In response, Mr. Pegu, learned Govt. Advocate, submits that in so far fi
nding of the Tribunal holding the petitioner to be a foreigner is concerned, the
said finding does not suffer from any infirmity to warrant interference. Howeve
r, on the point raised by learned counsel for the petitioner, he submits that Co
urt may take an appropriate decision in this regard.
9. Submissions made by learned counsel for the parties have been considered
. Also perused the materials on record.
10. From the materials on record, we find that reference was made against th
e petitioner by the then police authorities of Bongaigaon with the allegation th
at he had illegally entered into India from the specified territory during the p
eriod 01.01.1966 to 24.03.1971 on the basis of which the reference proceeding wa
s initiated against the petitioner. This fact was also acknowledged by the Tribu
nal and recorded in the impugned order dated 02.11.2016. However, in the final c
onclusion, Tribunal declared the petitioner to be a foreigner of post 1971 strea
m.
11. We will deal with this aspect of the matter a little later. For the mome
nt, we deal with first the conclusion reached by the Tribunal that the petitione
r was a foreigner who had illegally entered into the State.
12. We notice that in his written statement, petitioner disclosed that he wa
s a citizen of India by birth. But in his deposition before the Tribunal, he sta
ted that his father had migrated to India from the territory now known as Bangla
desh 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 p
etitioner had exhibited some documents to show presence of Late Suresh Das (fat
her of the petitioner) on Indian soil prior to 1971, Tribunal did not accept the

2. evidence adduced by the petitioner to establish his linkage with Suresh Das who
m 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 fo
r the petitioner also did not seriously challenge this finding of the Tribunal.
13. 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.
14. Section 3 of the Foreigners Act, 1946 empowers the Central Government to
make Orders dealing with foreigners. In exercise of powers conferred under Sect
ion 3 of the aforesaid Act, Foreigners (Tribunals) Order, 1964 was framed. Orde
r 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 f
or the purpose for its opinion. Order 2(1A) also confers such power on a registe
ring authority appointed under Sub-Rule (1) of Rule 16(F) of the Citizenship Rul
es, 1956.
15. We have been informed at the Bar that the power of the Central Governmen
t to make reference in terms of Order 2(1) has since been delegated to the conce
rned Superintendents of Police.
16. From a careful reading of Order 2(1), what is discernible is that a refe
rence is made to a Tribunal for its opinion whether a person is or is not a fore
igner within the meaning of Section 2(a) of the Foreigners Act, 1946. The Tribun
al 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 ma
de as above that the Tribunal assumes jurisdiction to render its opinion. Theref
ore, to our mind, Tribunal would have to confine to the terms of the reference m
ade 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) fr
om the specified territory during the period 01.01.1966 to 24.03.1971. The Tribu
nal was required to answer the reference either in favour of the State or in fav
our of the proceedee. 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 01.01.1966 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 cor
rect.
17. Accordingly, order dated 02.11.2016 passed by the Foreigners Tribunal, C
hirang in BNGN/FT(CHR)/295/2008 would stand modified as under:-
(1) The reference would stand answered in favour of the State by opining tha
t petitioner was a foreigner who had illegally entered into India (Assam) from t
he specified territory during the period 01.01.1966 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 fr
om 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.
18. Writ petition is allowed to the extent indicated above.
19. Registry to send down the LCR forthwith and inform the concerned Foreign
ers Tribunal, Deputy Commissioner and Superintendent of Police (B) for taking im
mediate follow-up steps.