ABEYA BIBI @ RABEYA BIBI @ MUSSTT. RABEYA KHATOON BIBI v. THE UNION OF INDIA & Ors.

BEFORE HONOURABLE MR. JUSTICE N. KOTISWAR SINGH HONOURABLE MR. JUSTICE NANI TAGIA ORDER Date : 25-03-2022 (N. Kotiswar Singh, J.) Heard Mr. A. Hussain, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel, who appears on behalf of Mr. R.K.D. Choudhury, learned ASGI; Mr. G. Sharma, learned Special Counsel, FT; Mr. A.I. Ali, learned Standing Counsel, ECI; Ms. L. Devi, learned Standing Counsel, NRC and Ms. U. Das, learned Government Advocate, Assam.

2. In this writ petition, the petitioner has challenged the opinion dated 03.10.2017 rendered by the Foreigners Tribunal, Kokrajhar in Case No. K/FT/1563/06 by which the petitioner was declared to be a foreigner of post 1971 stream.

3. Learned counsel for the petitioner submits that the said order is ex facie illegal inasmuch as the reference against the petitioner was as to whether the petitioner was an illegal migrant during the period of 1966-1971 as clearly mentioned in the impugned opinion. Though the petitioner has adduced evidence to show that she is not a foreigner but a citizen of India, the Tribunal proceeded to give the opinion that she is a foreigner of post 1971 stream.

4. At this stage, learned counsel for the petitioner submits that the petitioner would be satisfied and would accept the reference made against her that she is a foreigner of post 1966-1971 stream if she is allowed to register herself under Section 6(A)(3) and (5) of the Page No.# 3/4 Citizenship Act, 1955 (Amendment Act, 2005).

5. We have perused the records.

6. It is mentioned in the order of the Tribunal that the point for determination is whether the OP is a foreigner of 1966-1971 stream.

7. In the enquiry report, it has been categorically mentioned that it appears in a prima facie manner that the suspect, Abeya Bibi @ Rabeya Bibi @ Musstt. Rabeya Khatoon Bibi is a foreigner of 1966-1971 stream.

8. Learned counsel for the petitioner submits that it has been held by this Court in a number of cases that the Tribunal cannot go beyond the terms of the reference and any finding rendered by the Tribunal beyond the terms of the reference will be illegal as held by this Court in Santosh Das Vs. Union of India and others, reported in 2017 (2) GLT 1065, in which it has been held as follows:- “16. From a careful reading of Order 2(1), what is discernible is that a reference made to a Tribunal for its opinion whether a person is or is not a foreigner within the meaning of Section 2(a) of the Foreigners Act, 1946. The Tribunal 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 made as above that the Tribunal assumes jurisdiction to render its opinion. Therefore, to our mind, Tribunal would have to confine to the terms of the reference made to it and cannot go beyond the same. Admittedly, in this case, reference was that the petitioner was a foreigner who had illegally entered into India (Assam) from the specified territory during the period

01.01.1966 to 24.03.1971. The Tribunal was required to answer the reference either in favour of the State or in favour 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 thereuder do not bind it to the terms of the reference is not correct.” Page No.# 4/4

9. Under the circumstances, the impugned order will be liable to be set aside in which event the Tribunal has to only determine as to whether the petitioner is a foreigner of 1966- 1971 stream or not.

10. At this stage, learned counsel for the petitioner submits that the petitioner is not keen to contest the reference and would accept the reference in which event she has to be considered to be a foreigner of 1966-1971 stream and prays that she may be given some time to register herself under the provisions of Sections 6(A)(3) and (5) of the Citizenship Act, 1955 (Amendment Act, 2005) and such registration should not be denied on the ground of delay as such registration has to be made within a period of 60 days.

11. Accordingly, we allow this petition by setting aside the impugned order dated

03.10.2017 passed by the Foreigners Tribunal, Kokrajhar in Case No. K/FT/1563/06. However, as submitted by the learned counsel for the petitioner since the petitioner is not keen to contest the reference, she will be treated to be a foreigner of 1966-1971 in which event she will be entitled to register herself under the provisions of Sections 6(A)(3) and (5) of the Citizenship Act, 1955 (Amendment Act, 2005). The petitioner may do so and the authorities will allow her to be registered without being encumbered by the fact that she has belatedly approached the registering authorities.

12. The petitioner will, accordingly, appear before the competent Registering Authority within 27.04.2022 and the Registering Authority will do the needful in accordance with law for registration without being impeded by the delay provided she applies within the aforesaid period of 27.04.2022.

13. LCR be remitted forthwith to the concerned Foreigners Tribunal.

14. The writ petition is, accordingly, disposed of. JUDGE JUDGE Comparing Assistant