Sankar Seal @ Sri Sankar Shill vs Union Of India And 6 Ors

A.M. Bujor Barua, J

Heard Mr. H.A. Sarkar, learned counsel for the petitioner. Also heard Mr. A.I. Ali, learned counsel for the Election Commission of India, Mr. J. Payeng, learned counsel for the State of Assam appearing for the Foreigners' Tribunal and Border Areas, Ms. A. Verma, learned standing counsel for the authorities under the NRC as well as Ms. G. Sarma, learned counsel for the authorities under the Union of India.

On being referred by the Superintendent of Police, Border, Sonitpur, Ref.TZP(B) Case No.538/2003 was registered. Upon the IM(D)T Act, 1983 being declared ultra vires, the reference was transferred to the Foreigners Tribunal, No.8, Tezpur and was re-numbered as F.T.(8) Case No.1419/2017.

By the order dated 25.06.2018, the petitioner was declared that he is a foreigner, who entered Assam on or after 25.03.1971 and therefore, he is liable to be deported.

Mr. H.A. Sarkar, learned counsel for the petitioner urges upon a ground that the notice served on the petitioner vide memo No. R.T.(8)THM/L-1144/18 states that there is a reference against the petitioner that he had entered the territory of Assam/India between 01.01.1966 and 25.03.1971. Accordingly, the petitioner entered appearance, submitted his written statement and also led his evidence on the premises that he has to meet the requirement that he is not a foreigner who entered between 01.01.1966 and 25.03.1971.

But the Tribunal in its order dated 25.06.2018 had declared the petitioner to be a foreigner, who entered after 25.03.1971 and therefore, such opinion rendered is beyond the reference made against the petitioner. We have verified the original reference that was made against the petitioner by the Superintendent of Police, which indicates that the reference was made on the allegation that the petitioner entered the territory of India in an unauthorized manner and without valid document after 25.03.1971. So from the reference point of view, the opinion rendered against the petitioner cannot be said to be an opinion beyond the reference made.

But however from the notice received from the Tribunal, it is taken note of that the reference was on the allegation that he had entered between 01.01.1966 and 25.03.1971. As the petitioner would take up his defence before the Tribunal on the basis of the allegation made in the notice therefore we are of the view on being notified that he had entered between 01.01.1966 and 25.03.1971, if the reference is further continued on the allegation that he had entered after 25.03.1971 a serious prejudice would be caused to the petitioner in order to put up his defence.

In view of the above, we are of the view that the order dated 25.06.2018 is unsustainable and accordingly, the same is set aside. The petitioner shall now appear before the Foreigners Tribunal No.8, Tezpur on 18.03.2019 along with the written statement to meet the allegation made in the reference that he is a foreigner who entered the territory of India after 25.03.1971. Upon such written statement been filed, the petitioner would be at liberty to rely upon the evidence that had already led in the proceeding conducted earlier and would also be at liberty to bring in any further evidence that he may desire to rely upon. The Tribunal shall give its final adjudication within a period of 60 days from the date of appearance of the petitioner.

In the event, the petitioner does not appear or fails to appear, the Tribunal would be at liberty to pass any order under the law. As the interference of the order dated 25.06.2018 is for a technical reason of a defective notice being served, we do not offer any comments on the merit of the decision that the Tribunal had arrived at against the petitioner earlier and the Tribunal will be at liberty to take its own decision upon the re-adjudication.

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