Point of Law : Tribunal is required to prima facie to satisfy itself about the existence of the main grounds before issuing the notice to the proceeded.

JUDGMENT :

N. KOTISWAR SINGH, J.

1. Heard Mr. Z. Hammad, learned counsel for the petitioner. Also heard Ms. A. Verma, learned Standing Counsel, Foreigners Tribunal appearing for respondent Nos. 2, 4 and 5 and Ms. U. Das, learned Additional Senior Government Advocate, Assam appearing for respondent No. 3.

2. In this petition, the petitioner has challenged the opinion dated 21.11.2016 passed by the learned Foreigners Tribunal-5th, Morigaon, Assam in Case No. F.T. 29/15 (New Number) and F.T. 757/12 (Old Number) arising out of Case No. 379/06 dated 26.7.2006 by which the petitioner who was the proceeded No. 2 was declared a foreigner of post 25.03.1971.

3. In the aforesaid proceeding, not only the present petitioner, Musstt. Jahura Khatun @ Sahura Khatun @ Sahura but also her husband Abdul Rashid and their two children, namely Md. Fakaruddin and Md. Jahirul Islam were also proceeded.

4. By the aforesaid impugned opinion dated 21.11.2016, the Tribunal held declared the petitioner’s husband Abdul Rashid and son Jahirul Islam as Indians. However, the Tribunal held that the O.P. No. 2 Musstt. Jahura Khatun @ Sahura Khatun @ Safura Khatun, wife of Abdul Rashid resident of village Saruchala, P.S. Moirabai, District-Morigaon, the present petitioner has miserably failed to establish her linkage with Jinnat Ali whom she claimed as father and accordingly, declared the petitioner, wife of Abdul Rashid to be a foreigner.

5. For the aforesaid reason, the impugned order dated 21.11.2016 has been challenged only by the present petitioner Musstt. Jahura Khatun @ Sahura Khatun @ Sahura who was a proceeded No. 2 before the Tribunal.

6. The learned Counsel for the petitioner has raised the preliminary issue contending that the opinion rendered by the Tribunal is illegal inasmuch as before the reference was made and the Tribunal gave its finding, there was no enquiry or reference against her and as such, it has been submitted on the strength of the decision of this Court rendered in Sudhir Roy and Others vs. Union of India and Others, 2019 (1) GLT 353 [WP (C) No. 6790/2018, decided on 04.01.2019] that if there was no valid reference, the proceeding would be rendered illegal.

7. In the present case, it has been submitted that since there was no enquiry or reference against the present petitioner, the opinion rendered by the Tribunal is illegal.

8. As regards the above position, Ms. Verma, learned Standing Counsel, Foreigners Tribunal has submitted that before the proceeded is proceeded, there must be a valid reference proceeded by an enquiry.

9. Having heard the learned counsel for the parties and on perusal of the original records requisitioned, what we have noted is that in the enquiry conducted by the competent authority, it was made only against Md. Abdul Rashid though the name of the present petitioner is reflected as wife of the said Abdul Rashid and two children are also mentioned in the enquiry report. The Superintendent of Police (Border), Morigaon while making the reference held that “it is established in a prima-facie manner that Md. Abdul Rashid, S/o Ahmed Ali, Vill. Sarusala, P.S. Moirabari, District-Morigaon, Assam and his family members were entered India after 25th March, 1971.” Accordingly, the Superintendent of Police (Border), Morigaon referred the matter to the Foreigners Tribunal No. 2, Morigaon for taking necessary action as per provision of the Foreigners Tribunal Order, 1964 amended 1985 and 2006 with reference to the criteria under Citizenship (amended) Act 1985 by stating that the persons and his family members had entered India after 25th March 1971 and they were ordinarily resident of Assam since their entry and they were detected as foreigners.

10. As regards the requirement of proper reference to be made after an enquiry before the a Tribunal gives its opinion, we may refer to the decision of the Full Bench of this Court in State of Assam and Others vs. Moslem Mondal, 2013 (1) GLT 809.

While dealing with this issue, it was observed b