State of Assam vs Moslem Mondal - 2013 Supreme(Gau) 6

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2013 Supreme(Gau) 6

IN THE HIGH COURT OF GAUHATI
B.P. KATKEY, A.K.GOSWAMI AND UJJAL BHUYAN, JJ.
State of Assam and Ors. – Appellants
Vs.
Moslem Mondal and Ors. – Respondent
AND
Firoza Khatoon – Appellants
Vs.
State of Assam and Ors. – Respondent
[Alongwith W.A. Nos. 264, 266, 268, 280, 281, 370 of 2008, 71 of 2009]
AND
Mutt. Kulsan Nessa – Appellants
Vs.
Union of India and Ors. – Respondent
[Alongwith W.A. Nos. 59 of 2009, 171 of 2010 and 313 of 2011]
Review Petition No. 22 of 2010 and W.A. Nos. 258 and 265 of 2008
Decided On: 03.01.2013

Advocates:
Advocate Appeared
For Appellant/Petitioner/Plaintiff: Nagendra Rai, Mr. A.C. Buragohain, Mr. B. Gogoi, Mr. M.A. Sheikh, Ms. A. Begum, Mr. S.H. Rahman, Mr. R. Ali, Mr. N.N. Ahmed, Mr. M.H. Ahmed, Mr. N. Sultana, Mr. M.A. Sheikh, Mr. A. Begum, Mr. K.U. Ahmed, Mr. M.H. Choudhury, Mr. H. Hussain, Mr. J. Abedin, Mr. F.U. Borbhuya, Mr. A. Matin, Mr. A.H.M.R. Choudhury, Mr. A. Choudhury, Mr. S. Islam, Mr. F.K.R. Ahmed, Mr. A.B. Choudhury, Mr. S.A. Choudhury, Mr. G. Dutta, Mr. B. Islam, Mr. A. Haque, Mr. M.U. Mahmud, Mr. B. Islam, Mr. S.A. Mondal, Mr. S. Hoque, Mr. B. Islam, Mr. A. Haque, Mr. A. Hussain, Mr. M.U. Mahmud, Mr. A.T. Sarkar, Mr. M.I. Hussain and Mr. S. Hoque
For Respondents/Defendant: Mr. R. Sachar, Mr. B.C. Das, Mr. D.N. Bhattacharjee, Mr. J. Mollah, Mr. S. Islam, Mr. A. Bhanu, Mr. N. Dutta, Mr. S. Shyam, Mr. M.U. Mahmud, Mr. M. Khan, Mr. A. Saikia, Mr. A.T. Sarkar, Mr. S.K. Roy, Mr. M.I. Hussain, Mr. A.C. Buragohain, Mr. R. Sharma, Mr. A.C. Buragohain, Mr. B.J. Talukar, Mr. B. Goyal and Mr. R. Sharma

Headnote:
Constitution of India,1950 – Articles 226, 5 to 9 , 246(1) , 14 , 21 and 233 - Foreigners Act, 1946 - Sections 9 and 6A - Evidence Act - Sections 101 and 106 - Immigrants (Expulsion from Assam) Act, 1950 - Parliament has enacted the 1955 Act - Indian evidence Act, 1872 - Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 - Section 11(1) - Violation of the mandatory provisions - Acquisition of citizenship - State of Assam, represented by Commissioner & Secretary, Home Department, as well as Superintendent of Police, Barpeta, have filed the Review Petition seeking review of judgment and order passed by a Division Bench of this Court in Writ Appeal No. reported grounds set forth in review petition - On when review petition was taken up for consideration by a Division Bench, a prayer was made by learned counsel appearing for appellants in W.A. No. 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 – Held, Having regard to nature of duties and responsibilities of members of the Foreigners Tribunals – Court are of view such a Selection Committee should be headed by a retired High Court Judge with Commissioner & Secretary to Govt. of Department of Home and Legal Remembrancer-cum-Secretary Law, Govt. of Assam, as members - Aforesaid discussion and having regard to the constitutional requirement of speedy trial and quality disposal of the proceedings before Tribunal, this Court directs the Government of India as well as Government of Assam - selection committee consisting of a retired Judge of this High Court, to be nominated by Honble Chief Justice, as Chairman - Commissioner & Secretary to the Govt. of Assam, Department of Home and the Legal Remembrancer-cum-Secretary Law, Govt. of Assam, as members, to select as required by law - Constitute a separate cell of Assam police personnel, for each of Tribunals, within l(one) month from today, who shall be entrusted with the job of service of notice only - Shall be placed at disposal and control of the Presiding Officers of respective Tribunals - Persons detected to be foreigners shall be taken into custody immediately and kept in detention camp(s) till they are deported from India within the aforesaid time-frame - Petition dismissed

JUDGMENT

B.P. Katkey, 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. v. 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 W.A. 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 W.A. 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 W.A. 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 W.P. (C) Nos. 1355/2008, 1358/2008, 1359/2008 and 1364/2008, challenging the common judgment and order dated 25.07.2008 passed in W.P. (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 W.A. No. 238/2008 and one each in connection with W.A. 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 W.A. Nos. 238/2008, 264/2008 and 265/2008 discussed the aforesaid reports. The petitioners in W.P. (C) Nos. 1355/2008 and 1359/2008 were found to be Indian citizens. One of the petitioners in W.P. (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 W.P. (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 W.A. No. 264/2008 were found to be foreigners and the sole appellant in W.A. No. 265/2008 an Indian citizen.

3. The Division Bench thereafter decided only the W.A. 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 W.P. (C) No. 1355/2008, where 4 out of 18 appellants were the petitioners, set

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