X X X vs. In Re - State Of Assam

GAHC010225732017

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)(Suo Moto) 22/2017

In re: State of Assam represented by the Principal Secretary, Home and Political(B) Department, Government of Assam, Janata Bhawan, Dispur, Guwahati 781006.

Advocates:

For the Gauhati High Court	: Mr TJ Mahanta, Sr. Adv.
	Mr B Bora, Adv.
For the Foreigners Tribunal	:<br>Mr UK Nair
	Sr. Special Counsel, FT.

Date of hearing and judgment : 19.6.2018

BEFORE

HON'BLE MR. JUSTICE UJJAL BHUYAN HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN

JUDGMENT & ORDER(ORAL)

(Ujjal Bhuyan, J.)

Heard Mr TJ Mahanta, learned senior counsel assisted by Mr B Bora, learned counsel for the Gauhati High Court and Mr UK Nair, learned Senior Special Counsel, Foreigners Tribunal.

(2) This writ petition was registered suo motu on the basis of letters dated 20.11.2017 and 8.12.2017 addressed by the Member(in-charge), Foreigners Tribunal II, Nalbari to the Principal Secretary, Home and Political(B) Department, Government of Assam with copy marked to the Registrar(Judicial), Gauhati High Court.

(3) It was reported that the earlier Member, Foreigners Tribunal II, Nalbari, had disposed of eight references declaring the proceedees 'not foreigners' but these opinions did not carry the signature of the Member. On the other hand certified copies of these unsigned opinions were obtained by the respective proceedees.

(4) It was also reported that the said Member had shown twenty-two references as disposed of by declaring the proceedees as not foreigners but the opinions were not found available in the case record.

(5) Likewise, it was reported that twenty references were shown disposed of by the said Member by declaring the proceedees as not foreigners but detailed orders were not available in the case record.

(6) Similarly there are thirty-four references which were shown disposed of by declaring the proceedees not foreigners stating that detailed orders would follow but detailed orders are not available in the case record.

(7) This court on 3.1.2018 took note of the fact that a total of eighty-four references were shown to have been disposed of by the said Member by declaring the proceedees as not foreigners, either without any written opinion or without any signed opinion in the case record. Out of these eighty-four references, certified copies of unsigned orders of eight references were obtained by the proceedees concerned. Taking a serious note of this, notice was issued with direction to the Principal Secretary, Home and Political(B) Department, Government of Assam to seize the case records of all these eighty-four cases and to submit a detailed report to the court thereafter.

(8) Learned Senior Special Counsel on 9.2.2018 had informed the court that the entire case records were brought to the High Court. He, therefore, sought time for placing the case records before the appropriate authority for preparation of detailed statements to be submitted to the court.

(9) When the matter is called upon today, Mr Nair has drawn the attention of the court to a letter dated 15.6.2018 issued by Dr Dipak Majumder, ACS, Secretary to the Government of Assam, Home & Political(B) Department addressed to the Registrar(Judicial), Gauhati High Court and submitted that in terms of the order dated 3.1.2018 case records of 84 references were seized from the Foreigners Tribunal II, Nalbari whereafter the case records were scrutinized. After scrutiny the following irregularities were observed:

(i) In nineteen cases though operative portion of the order was signed by the Member stating that detailed order was appended, no detailed order/opinion was available on record; (ii) In twenty-three cases though date was fixed for judgment no opinion was found in the case record but all these cases were shown as disposed of(Indian) in the disposal register; (iii) In thirty cases, operative portion of the orders were not signed by the Member and no detailed opinions were also found in the record; (iv) In seven cases opinions were found in the record but

without any signature of the Member; however, certified copies of these opinions were obtained by the proceedees;

(v) In five cases, neither the operative portion of the orders was signed by the Member nor was the detailed opinions signed. However, certified copy in one of the references was obtained by the proceedee.

(10) Statement of the eighty-four cases as discussed above has been placed before the court along with the above letter in a sealed envelope which has been opened in the court by the Court Master. The statement runs into seven pages with each page signed by the Secretary to the Government of Assam, Home & Political(B) Department. The statement is extracted hereunder:

FOREIGNER'S TRIBUNAL, 2ND NALBARI, ASSAM

MEMBER: SRI SURAJIT CHAKRABORTY

IRREGULARITY NO.1

Sl.N	F.T. M-2	S.P. Ref. No.	Name of the	Disposal	Remarks
o	Case No.		Proceedee	date
1	43/16	IM (D)T Case	Dipali Bala Das	30.9.201	Operative
		No.1055/2001		6	Order (s) was
					signed by the<br>Member stating
					that<br>detailed
					order<br>is
					appended, but
					no<br>detailed
					order<br>(s)<br>/<br>opinion<br>is
					available<br>on
					record
2	03/16	F.T. Case	Baser Ali	27.9.201	-Do
		No.211/07		6
3	44/16	F.T. Case	Joynal Ali	29/9/20	-Do
		No.166/12		16
4	29/16	F.T. Case<br>No.217/07	Mazibar Ali	16/9/20<br>16	-Do
5	53/16	F.T. Case	Lokman Ali	23/9/20	-Do
		No.243/09		16
6	48/16	IM (D)T Case<br>No.128/2001	Abdul Ali	27/6/20<br>16	-Do
7	124/15	IM (D)T Case	Jahanara	15/6/20	-Do-
		No.1034/2004	Begam	16

59/16	F.T. Case	Kurpan Ali	27/1/20	-Do
102/16	F.T. Case<br>No.10/2016	Jabu Ali	27/1/20<br>17	-Do
91/16	F.T. Case No.54/11	Ainul Haque	18/1/20<br>17	-Do
07/16	IM (D)T Case<br>No.1037/2004	Ranjura Begam	26/10/2<br>016	-Do
54/16	F.T. Case No.59/12	Md. Akabbar<br>Ali	20/6/17	-Do
136/16	F.T. Case<br>No.194/11	Md. Siddique<br>Ali	20/6/17	-Do
142/16	F.T. Case<br>No.215/2007	Md. Matiul<br>Rahman	20/6/17	-Do
122/16	F.T. Case<br>No.96/2008	Md. Pasan Ali	23/6/17	-Do
11/17	IM (D)T Case<br>No.1601/2004	Md. Abdul<br>Halim	23/6/17	-Do
65/16	F.T. Case<br>No.137/11	Tejek Ali	15/6/17	-Do
14/17	IM (D)T Case<br>No.2654/2004	Md. Jalal Ali	23/6/17	-Do
18/17	IM (D)T Case<br>No.2565/2004	Musstt. Jayada<br>Begam	23/6/17	-Do-
		No.281/2007		17

Sl.N	F.T. M	S.P. Ref. No.	Name of the	Disposal	Remarks
o	2 Case		Proceedee	date
	No.
1.	132/1	F.T. Case No.	Md. Bagha Ali	17/5/201	Though date
	6	72/12		7	is fixed for<br>judgement, no
					order (s) /
					opinion is
					available in
					the case<br>record.
					However, as
					informed by
					the Member,
					Disposal
					Register<br>shows the
					cases as
					Disposed
					(Indian). The
					word 'Indian'
					is also written
					in title pages.
2.	137/1	F.T. Case No.	Md. Baharul	24/6/201	-Do
	5	508/10	Islam	6
3.	70/16	F.T. Case No.	Jakiran Nessa	26/5/201	-Do
		372/10		7
4.	85/16	F.T. Case No.<br>162/08	Rafik Ali	23/5/201<br>7	-Do-

5.	128/1<br>5	F.T. Case No.<br>230/10	Chanbar Ali	21/4/201<br>6	-Do
6.	42/16	IM (D)T Case No.<br>542/2001	Padma Das	3/5/2017	-Do
7.	118/1<br>6	F.T. Case No.<br>234/07	Md. Babar Ali	9/5/2017	-Do
8.	109/1<br>5	IM (D)T Case No.<br>1959/2004	Md. Jamir Ali	19/7/201<br>6	-Do
9.	31/16	F.T. Case No.<br>238/07	Md. Sabed Ali	27/7/201<br>6	-Do
10.	130/1<br>5	F.T. Case No.<br>507/10	Md. Majamil<br>Haque	24/6/201<br>6	-Do
11.	128/1<br>6	IM (D)T Case No.<br>445/2001	Sarala Das	25/5/2017	-Do
12.	114/1<br>6	F.T. Case No.<br>338/07	Md. Ahab Ali<br>Khalifa	9/5/2017	-Do
13.	104/1<br>5	IM (D)T Case No.<br>419/2001	Ranjan Ali	27/9/2016	-Do
14.	126/1<br>5	IM (D)T Case No.<br>1790/2004	Abdul Ali	18/5/2016	-Do
15.	19/16	IM (D)T Case No.<br>127/2001	Jamaluddin	18/5/2016	-Do
16.	131/15	IM (D)T Case No.<br>715/2003	Sahjahan Ali	28/7/2016	-Do-

17.	136/15	F.T. Case No.	Md.	26/10/2016	-Do
		340/07	Rahimuddin Ali
18.	8/16	F.T. Case No.<br>161/08	Md. Kasim Ali	24/6/2016	-Do
19.	88/15	IM (D)T Case No.<br>2344/2004	Md. Abubakkar<br>Siddique	18/5/2016	-Do
20.	107/15	IM (D)T Case No.	Shamir Ali	19/7/2016	-Do
		1957/2004
21.	10/17	IM (D)T Case No.	Md. Jalal Ali	14/3/2017	-Do
		664/2004
22.	08/17	IM (D)T Case No.	Musstt. Jayada	14/3/2017	-Do
		665/2004	Begam
23.	56/16	IM (D)T Case	Safiour	16/6/17	-Do
		No.1318/2004	Rahman

Sl.No	F.T. M-2	S.P. Ref. No.	Name of the	Disposal	Remarks
	Case		Proceedee	date
	No.
1.	83/15	IM (D)T Case No.	Abu Bakkar Ali	12/7/201	Operative
		1308/2004		6	order (s) was
					not signed
					by the
					Member and

					no detailed<br>order (s)/<br>opinion is<br>also<br>available on<br>record
2.	112/15	IM (D)T Case No.<br>1312/2004	Mahim Ali	12/7/201<br>6	-Do
3.	138/15	F.T. Case No. 231/10	Phulbar Ali	25/7/201	-Do
				6
4.	91/15	IM (D)T Case No.	Birbal Ali	29/6/201	-Do
		1036/2004		6
5.	142/15	IM (D)T Case No.	Johura	5/5/2016	-Do
		1396/2004	Khatoon
6.	47/16	IM (D)T Case No.	Pashan Ali	29/6/201	-Do
		1377/2001		6
7.	13/16	IM (D)T Case No.	Pasan Ali	29/6/201	-Do
		1776/2004		6
8.	02/15	IM (D)T Case No.	Lakhi Bala Das	17/5/201	-Do
		1168/2001		6
9.	100/15	F.T. Case No.	Fakir Ali	23/6/201	-Do
		66/2011		6
10.	93/15	IM (D)T Case No.	Tayab Ali	23/6/201	-Do
		1955/2004		6
11.	110/15	IM (D)T Case No.	Jakir Ali	16/5/201	-Do
		1960/2004		6
12.	108/15	IM (D)T Case No.	Rahima	16/5/201	-Do-

		1961/2004	Begam	6
13.	114/15	F.T. Case No.	Lalchan Ali	22/6/201	-Do
		269/2010		6
14.	94/15	IM (D)T Case No.	Saleha Begam	12/5/201	-Do
		1956/2004		6
15.	05/16	IM (D)T Case No.	Ostam Ali	10/5/201	-Do
		1038/2004		6

16.	04/16	IM (D)T Case No.	Bahar Ali	10/5/2016	-Do
		1039/2004
17.	30/15	F.T. Case No.	Sukur	12/7/2016	-Do
		234/2009	Mamud
18.	133/15	F.T. Case No.	Md. Rajek	4/7/2016	-Do
		224/2012	Ali
19.	132/15	IM (D)T Case No.	Md.	28/7/2016	-Do
		124/2003	Sukumuddi
			n
20.	26/16	F.T. Case No.	Md. Maksed	27/7/2016	-Do
		313/2007	Ali
21.	25/16	F.T. Case	Md.	27/7/2016	-Do
		No.311/2007	Rupchan Ali
22.	14/16	IM (D)T Case	Jahura	29/6/2016	-Do-
		No.1777/2004	Khatoon

23.	117/15	IM (D)T Case	Puspa Rani	21/4/2016	-Do
		No.545/2001	Das
24.	121/15	F.T. Case<br>No.210/2012	Md.<br>Bahajuddin	5/5/2016	-Do
25.	118/15	F.T. Case No.18/2012	Md.	5/5/2016	-Do
			Afazuddin<br>Ali
26.	30/16	F.T. Case	Md. Abed Ali	28/7/2016	-Do
		No.236/2007
27.	135/16	F.T. Case	Md. Anowar	25/5/2016	-Do
		No.122/2012	Ali
28.	16/16	F.T. Case No.40/2012	Md. Asan Ali	28/7/2016	-Do
29.	39/16	F.T. Case<br>No.106/2009	Md. Ohed Ali	26/8/2016	-Do
30.	37/16	F.T. Case No.84/2009	Md. Bakkar	26/8/2016	-Do
			Ali

Sl.N	F.T. M-2	S.P. Ref. No.	O.P's Name	Disposal	Remarks
o	Case No.			date
1.	53/2015	F.T. Case	Anjuwara	15/2/201	Judgement(s)<br>/
		No.110/2007	Begam	6	opinion is available
					on record but no
					signature of the

					Member<br>is<br>available. However,<br>certified copy is<br>obtained by the<br>proceedee.
2.	25/2015	F.T. Case	Sahjahan	21/1/201	-Do
		No.138//2007	Ali	6
3.	45/2015	F.T. Case	Jakir Ali	21/1/201	-Do
		No.431/2007		6
4.	51/2015	F.T. Case	Meherjan	20/1/201	-Do
		No.107/2007	Nessa	6
5.	01/2016	F.T. Case	Jilal Haque	29/6/201	-Do
		No.45/2008		6
6.	22/15	F.T. Case	Md. Mister	18/1/201	-Do
		No.142/2007	Ali	6
7.	122/2015	F.T. Case	Md.	4/5/2016	-Do
		No.136/2007	Rustam Ali

Sl.N	F.T. M-2	S.P. Ref. No.	O.P's Name	Disposal date	Remarks
o	Case No.
1.	96/15	IM (D)T Case No.	Madhumal	9/12/2016	Operativ
		545/2002	a Khatun		e Order
					(s) was
					not

					signed<br>by the<br>Member<br>and also<br>detailed<br>opinion<br>was not<br>signed.
2.	86/15	IM (D)T Case<br>No.2337/2004	Sapiya<br>Khatoon	8/1/2016	-Do
3.	106/15	IM (D)T Case<br>No.1598/2004	Rahima<br>Begum	01/2/2016	-Do
4.	23/15	F.T. Case<br>No.141/2007	Haki Ali	18/1/2016	-Do
5.	116/2015	IM (D)T Case<br>No.540/2001	Khusimoha<br>n Das	17/8/2016	Operativ<br>e Order<br>(s) was<br>not<br>signed<br>by the<br>member<br>and also<br>detailed<br>opinion<br>was not<br>signed.<br>However,<br>certified<br>copy is<br>obtained<br>by the<br>proceede

(11) Similar irregularities were detected in Foreigners Tribunal IV, Nagaon at Juria, and Foreigners Tribunal V, Nagaon at Dhing, which were dealt with in WP(C)(suo motu) No.1/2018 holding that such disposal of references was no disposal in the eye of law. Accordingly in those cases all the orders shown to have been passed by the Tribunals disposing of the references were set aside with further direction to rehear the references.

(12) Mere noting in the note-sheet or passing an order that the reference was disposed of without a reasoned opinion in the file or without a reasoned opinion being signed by the Member would be no order at all in the eye of law. Such a noting or order cannot be construed to be disposal of a reference by a Foreigners Tribunal. There has to be an opinion on record carrying the seal and signature of the Presiding Officer of the Tribunal. In the absence thereof, such a reference should be treated as having not been disposed of, that is to say a pending reference, and would have to be heard afresh.

(13) Therefore, in all the above eighty-four references of Foreigners Tribunal II, Nalbari, "orders of disposal" would be treated as nonest in the eye of law and such orders are accordingly set aside.

(14) All the above eighty-four references shall now be heard afresh from their respective stages.

(15) Learned Member, Foreigners Tribunal II, Nalbari shall list the above eighty-four references in the notice board of the Tribunal by giving fresh dates, and fresh notices may also be issued to the proceedees.

(16) As discussed above, any disposal order in the above manner in these eighty-four references shall have no legal consequences as also the so-called certified copies and shall not be acted upon by the Superintendent of Police(Border), Nalbari as well as by the Deputy Commissioner, Nalbari. All these 84 references shall now be treated as pending references.

(17) The list furnished by the Secretary to the Government of Assam, Home & Political(B) Department, shall form part of the record.

(18) Before parting with the record we express our disappointment over the way the Member had conducted himself. This was not expected. In the ordinary course this could have called for some action, disciplinary or otherwise, but we have been informed that his services had not been extended and he is no longer a Member of the Foreigner Tribunal. We leave at that. However, Superintendent of Police(Border), Nalbari shall look into the aspect as to how certified copies could be issued by the office of the Foreigners Tribunal II, Nalbari without the opinions being signed by the Member and consequential action may be taken.

(19) Writ petition is accordingly disposed of.

(20) Registrar(Judicial) to communicate this order to the Foreigners Tribunal, Deputy Commissioner and Superintendent of Police(Border) concerned for doing the needful.

(21) Copy of this order may also be furnished to Mr SC Keyal, learned Asst. Solicitor General of India, and learned Standing Counsel, Election Commission of India and State Coordinator, NRC.

JUDGE JUDGE

Comparing Assistant

na/