JUDGMENT :

N. Kotiswar Singh, J.

1. Heard Mr. M. Biswas, learned counsel for the petitioner and Mr. J. Payeng, learned Standing counsel, Foreigners Tribunal. Also heard Ms. L. Devi, learned counsel for NRC; Mr. A.I. Ali, learned counsel for ECI; Ms. A. Gayan, learned CGC and Ms. K. Phukan, learned Government Advocate, Assam.

2. In this petition, the petitioner has challenged the opinion dated 21.11.2018 passed by the learned Member, Foreigners Tribunal, Kamrup (M) 2nd Guwahati, in FT Case No. 434/2018, whereby the petitioner was declared a foreigner.

3. Apart from various grounds urged before this Court in challenging the aforesaid impugned opinion dated 21.11.2018, learned counsel has submitted that the proceeding itself was beyond jurisdiction of the Foreigners Tribunal, inasmuch as, in this case cognizance was taken by the Foreigners Tribunal without valid reference being made by the Referral authority. It has been submitted that a reference can be made only on the basis of certain enquiry to be proceeded before the reference is made.

4. It has been submitted that in the present case, in the inquiry held by the competent authority, it has been specifically mentioned that the petitioner is not suspected to be a foreigner as the petitioner had placed valid documents in support of his nationality. Thus, in absence of any finding by the enquiring authority that the petitioner is suspected to be a foreigner, no reference could have been made by the Referral authority to the Foreigners Tribunal for its opinion.

Learned counsel for the petitioner accordingly, submits that any reference made without a finding that the proceeded is suspected to be illegal emigrant, would be void and without jurisdiction. It is further submitted that if such procedure is allowed, it would open scope for arbitrary actions on the part of the Referral authority.

5. We have perused the original records requisitioned in this regard and also seen the enquiry report as contained in Form No. 1. In paragraph 21 of Form-1, which relates to the Enquiry Officer's final finding, it has been recorded by the enquiry officer as follows:

“During enquiry, it appears to me that suspected Sushil Mandal son of Late Pashan Mandal is not an illegal migrant, who could produce sufficient valid document in support of his nationality. Hence, the case is forwarded through proper channel to the Hon'ble Foreigners Tribunal for opinion judgment.”

The aforesaid final finding was given by the Enquiry Officer.

Thus, from the above, it is very clear that in the enquiry made in respect of the petitioner, there was a specific finding that he could produce sufficient valid documents in support of his claim of Indian nationality and, accordingly, the Enquiry Officer recorded the finding that he is not an illegal emigrant.

In our opinion, under such circumstances, the question of referring the matter to the Foreigners Tribunal does not arise.

6. In our view, a reference can be made to the Tribunal for determining whether the proceeded is a foreigner or not only when a doubt arises about the nationality of the person concerned or when there is a specific finding by the enquiring authority that the proceeded is suspected to be a foreigner contrary to the claim made by the proceeded that he is an Indian. Thus, when a question has arisen as to the nationality of the proceeded, obviously that requires to be resolved by a competent neutral forum which has been provided under the Foreigners Order 1964 by creating the Foreigners Tribunal to determine this issue.

It has been provided under Order 2 of the Foreigners Tribunal Order, 1964 that the Central Government may make an order for constitution of Foreigners Tribunal for the purpose for its opinion as to whether a person is or is not a foreigner, within the meaning of foreigner.

7. The aforesaid provision, however, does not mean that any reference can be made even if there is a finding that a person is an Indian. If a person claims to be Indian and the enquir