State of Assam, Represented by the Commissioner & Secy. , Home Deptt. , Assam, Dispur, Guwahati-6 vs Moslem Mondal, S/o Lt. Sadar Mondal and Ors. etc. etc.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2013 Supreme(Gau) 4

IN THE HIGH COURT OF GAUHATI
B.P. Katakey, A.K. Goswami and Ujjal Bhuyan, JJ.
The State of Assam, Represented by the Commissioner & Secy., Home Deptt., Assam, Dispur, Guwahati-6 and The Superintendent of Police, Barpeta, Dist. Barpeta, Assam and Ors. etc. etc.
Vs.
Moslem Mondal, S/o Lt. Sadar Mondal and Ors. etc. etc.
Review Petition No. 22 of 2010, WA Nos. 258, 264, 265, 266, 268, 280, 281 and 370/2008, WA Nos. 59 and 71/2009, WA No. 171/2010 and WA No. 313/2011
Decided On: 03.01.2013

Advocate Appeared:
For Appellant/Petitioner/Plaintiff:Mr. Nagendra Rai, Sr. Adv., Mr. A.C. Buragohain, Addl. AG. Mr. B. Gogoi, Sr. GA, Assam. in Review Petition No. 22 of 2010, Mr. M.A. Sheikh, Ms. A. Begum, Advs., in WA No. 266/2008 and Mr. S.H. Rahman, Advocate in WA No. 258/2008, Mr. M.U. Mahmud, Adv., in WA No. 71/2009, 171/2010 and 313/2011, Mr. M. Khan, Mr. A. Saikia, Mr. S.K. Roy and Mr. A.T. Sarkar, Advocates in WA No. 264/2008, 171/2010 and WA No. 313/2011, Mr. R. Ali, Mr. N.N. Ahmed, Mr. M.H. Ahmed and Ms. N. Sultana, Advocates in WA No. 265/2008, Mr. K.U. Ahmed, Mr. M.H. Choudhury and Mr. M. Hussain, Advocates in WA No. 266/2008, Mr. J. Abedin, Mr. F.U. Borbhuya, Mr. A. Matin Adv., in WA No. 59/2009 Mr. A.H.M.R. Choudhury, Advocate in WA No. 268/2008, Mr. A. Choudhury, Mr. S. Islam, Advs., in WA No. 59/2009 and Mr. F.K.R. Ahmed, Advocate in WA No. 280, 281/2008, Mr. A. Ali, Advocate in WA No. 281/2008, Mr. A.B. Choudhury, Mr. S.A. Choudhury and Mr. G. Dutta, Advocates in WA No. 370/2008, Mr. B. Islam, Mr. A. Haque, Mr. A. Hussain, Mr. S.A. Mondal and Mr. S. Hoque, Advocates in WA No. 71/2009, 171/2010 and 313/2011, Mr. M.I. Hussain, Advocate in WA No. 171/2010 and 313/2011, Mr. H.R. Choudhury, Mr. G.P. Bhowmik and Mr. R. Hazarika, Advocates in WA No. 313/2011
For Respondents/Defendant:Mr. R. Sachar and Mr. B.C. Das, Sr. Advs, Mr. D.N. Bhattacharjee, Mr. J. Mollah, Mr. S. Islam, Mr. A. Bhanu, Mr. N. Dutta and Mr. S. Shyam, Advs., Mr. M.U. Mahmud, Mr. M. Khan, Mr. A. Saikia, Mr. A.T. Sarkar, Mr. S.K. Roy and Mr. M.I. Hussain, Advocates in Review Petition No. 22 of 2010, Mr. A.C. Buragohain Addl. AG, Assam, Mr. R. Sharma, Asstt. S.G.I. in Review Petition No. 22 of 2010, WA No. 258, 264, 265, 266, 268, 280, 281, 370/2008, 59, 71/2009, 171/2010 and 313/2011, Mr. B.J. Talukdar, Sr. GA, Assam. in WA No. 266/2008, Mr. C. Baruah, Central Govt. Advocate. in WA No. 268/2008 and 59/2009, Ms. B. Goyal, GA, Assam, 370/2008, 59/2009, 171/2010 and 313/2011

Headnote:
Provisions of Foreigners Act, 1946 - Constitution of India, 1950- Article 233 - Seeking review of judgment and order – Notice – Prayer was made by counsel for appellants in WA to hear all learned counsel appearing for parties in appeal including amicus curiae assisting Court and to hear review petition along with other matters, which was accepted by Court - Vide order while issuing notice in review petition, aforesaid Division Bench consisting of Honble then Chief Justice and Honble Judge, who was one of members of the Division Bench which decided WA referred the matter to a Full Bench considering the "importance of issue involved in matter and that there are number of judgments - Held, It will also not be possible to appoint an efficient and competent person as member of Foreigners Tribunal, who is required to decide question of nationality of a proceedee, unless the present system of appointment, that is, whoever approaches State Government, is not discontinued and appointment is made based on selection by a duly constituted Selection Committee - Presently no such Selection Committee exists. Having regard to nature of duties and responsibilities of members of Foreigners Tribunals, court view that such a Selection Committee should be headed by a retired High Court Judge with Commissioner & Secretary to Govt. of Assam, Department of Home and the Legal Remembrancer-cum-Secretary Law, Govt. of Assam, as members - Constitutional requirement of speedy trial and quality disposal of proceedings before Tribunal, this Court directs Government of India as well as Government of Assam - Writ appeal dismissed.

JUDGMENT

Katakey, J.

1. The State of Assam, represented by the Commissioner & Secretary, Home Department, as well as the Superintendent of Police, Barpeta, have filed the Review Petition No. 22/2010 seeking review of the judgment and order dated 01.02.2010 passed by a Division Bench of this Court in Writ Appeal No. 238/2008 (Moslem Mondal & ors. Vs. Union of India & ors. reported in 2010 (2) GLT 1), on the grounds set forth in the review petition. On 28.04.2010 when the review petition was taken up for consideration by a Division Bench, a prayer was made by the learned counsel appearing for the appellants in WA No. 238/2008 to hear all the learned counsel appearing for the parties in the appeal including amicus curiae assisting the Court and to hear the review petition along with other matters, which was accepted by the Court. Vide order dated 17.05.2010, while issuing notice in the review petition, the aforesaid Division Bench consisting of the Hon'ble the then Chief Justice and the Hon'ble Judge, who was one of the members of the Division Bench which decided the WA No. 238/2008, referred the matter to a Full Bench considering the "importance of the issue involved in the matter and that there are number of judgments, which if are not taking contrary view but are taking different view" than the view taken by the Division Bench in the aforesaid judgment dated 01.02.2010 passed in WA No. 238/2008. Accordingly the review petition along with other connected matters, relevant facts of which are discussed below, relating to detection and deportation of foreigners under the provisions of Foreigners Act, 1946 (in short 1946 Act) read with Foreigners (Tribunals) Order, 1964 (in short the 1964 Order), have been placed before this Full Bench for hearing.

Relevant facts in Review Petition No. 22/2010

This review petition arises out of the judgment and order dated 01.02.2010 passed by a Division Bench of this Court in Writ Appeal No. 238/2008, which was filed by Moslem Mondal and 17 others, who were the petitioners in WP(C) Nos. 1355/2008, 1358/2008, 1359/2008 and 1364/2008, challenging the common judgment and order dated 25.07.2008 passed in WP(C) No. 1094/2008 and batch, including the aforesaid writ petitions.

2. The Division Bench vide order dated 14.08.2008 while admitting the appeal for hearing, passed an interim direction to re-examine the cases of each one of the appellants by the Tribunal after giving an appropriate opportunity to them as well as to the State to produce such evidence as each of the parties deem fit in the circumstances. The Tribunal was directed to conduct fresh enquiry and to record appropriate conclusion based on the evidence that may be produced by either parties and to place the same before the Division Bench. Accordingly, the Tribunal submitted 6(six) reports, 4(four) pertaining to WA No. 238/2008 and one each in connection with WA Nos. 264/2008 and 265/2008. Copies of the said reports were also furnished to the learned counsel appearing for the parties. The Division Bench in its order dated 02.12.2008 passed in WA Nos. 238/2008, 264/2008 and 265/2008 discussed the aforesaid reports. The petitioners in WP(C) Nos. 1355/2008 and 1359/2008 were found to be Indian citizens. One of the petitioners in WP(C) No. 1358/2008, namely, Shri Iman Ali and his 4(four) children were found to be Indian citizens. The wife, however, was concluded to be a foreigner. In WP(C) No. 1364/2008, while the husband was found to be not an Indian citizen along with the children, his wife was found to be an Indian citizen. The appellants in WA No. 264/2008 were found to be foreigners and the sole appellant in WA No. 265/2008 an Indian citizen.

3. The Division Bench thereafter decided only the WA No.238/2008, filed by 18 appellants, vide judgment and order dated 01.02.2010 interfering with the decision of the learned Single Judge in WP(C) No. 1355/2008, where 4 out of 18 appellants were the petitioners, setting aside the same, apart from setting a

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