X X X vs IN RE - NAYAN KHAN and ANR.

Ujjal Bhuyan J.

1.This order will dispose of WP (C) No. 4540 of 2017 and the connected four Suo Moto writ petitions being WP (C)(Suo Moto) Nos. 11, 12, 13 and

14 of 2017.

We have heard Mr. HRA Choudhury, learned senior counsel assisted by Mr. B Islam for the petitioner in WP (C) No. 4540 of 2017 and Mr. TJ

Mahanta, learned senior counsel for the Gauhati High Court in the connected Suo Moto writ petitions whereas Mr. AI Uddin, learned counsel appears

for the respective proceedees (respondent No.1) in the Suo Moto writ petitions. Also heard Mr. J Payeng, learned Special Counsel, FT.

We take up WP (C) No.4540 of 2017 first. This writ petition has been filed against the order dated 11.4.2017 passed by the Foreigners’

Tribunal 4th , Nalbari (Ghograpar) in FT Case No.(Gh) 277 of 2015 (State â€"vs- Md. Piyar Ali) declaring the petitioner Md. Piyar Ali to be a

foreigner who had illegally entered into India (Assam) from Bangladesh after 25.3.1971.

Following the aforesaid order passed by the Tribunal on 11.4.2017, petitioner was taken into custody.

This Court by order dated 2.8.2017 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner

should not be deported from India in the interregnum.

In the course of hearing WP ( C) No.4540 of 2017 on 20.09.2017, learned counsel for the petitioner submitted that in respect of four family

members of the petitioner, namely, uncle Md. Nayan Khan, mother Musstt. Ashiya Khatun, brother Md. Farman Ali and paternal uncle Md. Ajibat

Khan, the erstwhile Foreigners’ Tribunal, Nalbari had declared them to be not foreigners but citizens of India. In fact, in the case of Md. Ajibat

Khan, the same Tribunal i.e. Foreigners‘ Tribunal 4th, Nalbari (Ghograpar) had passed the order. Therefore, it was contended that the order passed

by the Tribunal in the case of the petitioner being contradictory to the above order would be untenable in law. On perusal of the orders passed in the

case of the above persons, Court noted that there was no appreciation of evidence. Court took the view that it would not be proper to have such

contradictory orders on record. Court also noted that in identical situation, it had directed registration of Suo Moto writ petitions. Accordingly, similar

direction was issued. Relevant portion of the order dated 20.9.2017 is extracted hereunder: “ By order dated 11.04.2017, passed by the Foreigners

Tribunal, 4th, Nalbari (Ghograpar) in FT Case No.(Gh) 277/2015, petitioner was declared to be a foreigner who had illegally entered into India

(Assam) from Bangladesh after 25.03.1971. In the course of hearing today, learned counsel for the petitioner submits that in respect of 3 family

members of the petitioner, the then Foreigners Tribunal, Nalbari had declared them to be not foreigners but citizens of India. These cases are as

under:---

(1) FT (Nal) Case No. (N) 1125/2006 (State vs. Md. Nayan Khan), decided on 28.01.2015

(2) FT (Nal) Case No. (N) 1243/2006 (State vs. Musst. Ashiya Khatun) decided on 29.04.2015

(3) FT (Nal) Case No. (N) 1244/2006 (State vs. Md. Farman Ali) decided on 26.09.2014 Recently, the present Tribunal has decided another case of a

family member, details of which are as under:--

(4) FT Case No.(Gh) 230/2015 (State vs. Md. Ajibat Khan) decided on 08.08.2017 by the Foreigners Tribunal, 4th, Nalbari at Ghagrapar. On going

through all the orders passed by the Tribunal as above, we find that there is no appreciation of evidence at all by the Tribunal. Only because the name

of the proceedee or that of his/her father was found enlisted in the voters list of 1966, the opinion was rendered that he/she was not a foreigner

without proper examination or appreciation of the evidence tendered. Prima facie such opinion rendered by the Tribunal may not be in accordance

with law besides being not in the public interest. In similar circumstances, we had directed the Registry to register suo-moto writ petitions, whereafter

we had issued notice to the concerned proceedees. We feel that similar course of action may be adopted in the present case as well. Accordingly, we

direct the Registry to register 4(four) suo-moto writ petitions in respect of the aforesaid 4(four) cases and list the cases before the Court after re-

opening.â€​

This is how the related suo moto writ petitions were registered.

Notice in the suo moto writ petitions were issued on 10.11.2017 while calling for the case record.

On receipt of such notice, Mr. AI Uddin, learned counsel has appeared on behalf of all proceedees i.e. respondent No.1 in each of the suo-moto

writ petitions.

We have heard learned counsel for the parties and also perused the materials on record, including the records requisitioned.

There is consensus at the Bar that the five orders in question passed by the Tribunal being contradictory are required to be reconciled so that there

is uniformity in orders passed by the Tribunal in the case of members of the same family.

We agree with the submission made at the Bar and we feel that diametrically opposite order passed in the case of the petitioner on the one hand

and respondent No.1 in the four Suo Moto writ petitions on the other hand needs to be reconciled.

Consequently, we set aside the following orders:

(i) Order dated 11.4.2017 passed by Foreigners’ Tribunal 4th , Nalbari (Ghograpar) in FT Case No. (Gh) 277 of 2015 (State-vs- Md. Piyar Ali) ;

(ii) Order dated 28.1.2015 passed by the Foreigners’ Tribunal, Nalbari in FT (Nal) Case No.(N) 1125 of 2006 (State â€"vs- Md. Nayan Khan);

(iii) Order dated 29.4.2015 passed by the Foreigners’ Tribunal, Nalbari in FT (Nal) Case No. (N) 1243 of 2006 (State â€"vs- Musst. Ashiya

Khatun);

(iv) Order dated 26.9.2014 passed by the Foreigners’ Tribunal, Nalbari in FT (Nal) Case No. (N) 1244 of 2006 (State â€"vs- Md. Farman Ali)

and ;

(v) Order dated 8.8.2017 passed by the Foreigners’ Tribunal 4th , Nalbari (Ghograpar) in FT Case No. (Gh) 230 of 2015 (State-vs- Ajibat Khan).

All the proceedees i.e. petitioner in WP ( C) No.4540 of 2017 and respondent No.1 in the four connected Suo Moto writ petitions i.e. Md. Nayan

Khan, Mustt. Ashiya Khatun, Md. Farman Ali and Md. Ajibat Khan shall appear before the Foreigners ‘ Tribunal 4th , Nalbari at Ghograpar on

2.4.2018 at 10.30 am whereafter the Tribunal shall rehear all the five references together in accordance with law from the stage of arguments on the

basis of the materials already on record.

In so far petitioner in WP ( C) No.4540 of 2017 Md. Piyar Ali is concerned, since he is in detention, Superintendent of Police ( Border), Nalbari

shall produce him before the Foreigners ‘ Tribunal 4th , Nalbari at Ghograpar on the date fixed i.e., on 2.4.2018 at 10.30 am.

Before parting with the record, we make it clear that we have not expressed any opinion on the merit of the respective cases including on the

claim of the petitioner that all the above proceedees belong to the same family.

All the five writ petitions are accordingly disposed of.

Registry to inform the concerned Foreigners’ Tribunal, Deputy Commissioner and the Superintendent of Police (Border) for doing the needful.

A copy of this order may be furnished to learned Standing Counsel, Election Commission of India and the State Coordinator, NRC.