X X X vs IN RE- SUMALA KHATUN @ SALEMA KHATUN @ SAMELA KHATUN and SUMALA KHATUN ANR.

Ujjal Bhuyan, J.

Heard Mr. S Islam, learned counsel for the petitioner in WP ( C) No.5369 of 2016 and respondent No.1 in WP (C ) (Suo Moto) 17 of 2017; Mr. A

Kalita, learned Special Counsel, Foreigners’ Tribunal (FT) and Mr. TJ Mahanta, learned senior counsel assisted by Mr. B Bora, learned counsel

for the Gauhati High Court.

In WP (C) No.5369 /2016, Abdul Ali is the petitioner. He has assailed the legality and correctness of the order dated 20.07.2016 passed by the

Foreigners’ Tribunal No.2, Kamrup at Boko in Case No.BFT 165/2015 (State â€"vs- Abdul Ali) declaring him to be a foreigner. Following the

aforesaid order passed by the Tribunal, petitioner was taken into custody. This Court by order dated 07.09.2016 had issued notice while requisitioning

case records and passed an interim order to the effect that petitioner should not be deported from India.

In the course of the hearing on 17.11.2017, learned counsel for the petitioner relied upon Annexure-13 order dated 08.02.2016 passed by the same

Tribunal in Case No. BFT 164/2015 (State â€"vs- Sumala Khatun @ Salema Khatun @ Samela Khatun ) declaring her to be not a foreigner. It was

contended that Sumala Khatun was the mother of the petitioner and therefore similar order be passed in the case of the petitioner as well. Upon

hearing learned counsel for the parties, this Court had passed the following order on 17.11.2017:

 “In the course of hearing today, learned counsel for the petitioner submits that mother of the petitioner was declared to be not a foreigner by the

same Foreigner Tribunal No. 2 Kamrup at Boko in Case No. BFT 164/2015 (State-vs-Sumala Khatun @Salema Khatun @ Samela Khatun) decided

on 08.02.2016. Therefore, the same benefit be extended to the petitioner, he contends.

We find that in the written statement petitioner did not mention that his mother was facing a proceeding before the Foreigners Tribunal. As a matter of

fact, in the written statement petitioner did not even mention the name of his mother. If indeed Sumala Khatun is the mother of the petitioner, as is

now being claimed, petitioner could have apprised the Tribunal about the order dated 08.02.2016 because petitioner's case was decided thereafter on

20.07.2016. We also notice that the petitioner did not produce the said Sumala Khatun before the Tribunal as his witness.

On a query by the Court, learned counsel for the petitioner admitted that both mother and son are living together. If that be so, it is un-believable that

the mother will not depose before the Tribunal in favour of the son by placing reliance on the order passed by the Tribunal in her case. However, now

that this fact has been brought to the notice of the Court and an apparent ingongruity has been presented before us, we feel that the same is required

to be resolved.

In all such identical matters, this Court has directed the Registry to register Suo Moto cases and thereafter, hearing of the matters together. That being

the position, Registry is directed to register a Suo Moto case in respect of order dated 08.02.2016 passed by the Foreigners Tribunal No. 2, Kamrup at

Boko in Case No. BFT 164/2015 (State-vs-Sumala Khatun @Salema Khatun @ Samela Khatun), whereafter the same may be listed before the

Court for consideration along with this case.â€​

It was thereafter that WP ( C) ( Suo Moto) 17/2017 was registered in which notice was issued on 04.12.2017 pursuant to which Mr. S Islam, learned

counsel has entered appearance on behalf of respondent No.1 Sumala Khatun.

Having regard to the order passed by us on 17.11.2017, relevant portion of which has been extracted above and on due consideration, we feel that if

indeed Sumala Khatun is the mother of the petitioner as has been claimed than we will have two diametrically opposite orders passed by the same

Tribunal in the case of the petitioner on the one hand and in the case of respondent No.1 on the other hand. However, we would hasten to add that it

is for the petitioner to prove that Sumela Khatun is his mother. In identical matters, this Court had remanded both the references to the Tribunal for

fresh decisions so that contradictory orders are reconciled. At the same time, we would like to clarify that claim of the petitioner to citizenship would

be through his father and both the proceedees would have to discharge their burden under Section 9 of the Foreigners’ Act, 1946.

Be that as it may, we set aside both the orders dated 08.02.2016 in the case of Sumala Khatun and 20.07.2016 in the case of Abdul Ali (petitioner).

Sumala Khatun shall appear before the Foreigners’ Tribunal No.2, Boko, Kamrup in connection with Case No. BFT 164/2015 on 10.05.2018 at

10.30 am. Lkewise, Superintendent of Police (B), Kamrup (Rural) shall produce the petitioner from detention before the same Tribunal in connection

with Case No. BFT 165/2015 on the same date and time whereafter the Tribunal shall rehear both the references together in accordance with law

from the stage of arguments on the basis of the materials already on record and conclude the same within a period of 60 days from the date of

appearance and production.

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 he and Sumala Khatun belong to the same family. Both the writ petitions are disposed of. Registry to send down the LCR and

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.