The Foreigners Tribunal cannot assume jurisdiction without a proper inquiry and reference regarding the nationality of individuals.

ORDER :

(M.K. Kalita, J.) :

1. Heard Ms. A. Hussain, learned counsel appearing on behalf of Mr. J. Ahmed, learned counsel for the petitioners. Also heard Ms. A. Verma, learned Standing Counsel, Home Department, Assam for the respondent Nos. 2, 6 & 7; Mr. A. I. Ali, learned Standing Counsel, Election Commission of India for the respondent No. 3 as well as Mr. P. Sharma, learned Additional Senior Government Advocate, Assam for the respondent No. 5.

2. This Writ Petition, under Article 226 of the Constitution of India, has been filed by the petitioners, namely, (1) Smt. Bhagya Biswas; (2) Smt. Kamala Biswas; (3) Smt. Sushila Biswas; (4) Smt. Anima Biswas; and (5) Smt. Susanti Biswas @ Santi Bala impugning the opinion/order dated 19.02.2018 passed by the learned Foreigners Tribunal No. 1, Morigaon in FT(C) Case No. 225/2010, whereby the above-named petitioners were declared as foreigners under the Foreigners Act, 1946, who had illegally entered into India (Assam) on or after 25.03.1971.

3. The above-named petitioners have also prayed for quashing and setting aside of the order dated 19.06.2018 passed by the learned Foreigners Tribunal No. 1, Morigaon, in Review Misc Case No. 8/2018, arising out of the FT(C) Case No. 225/2010, whereby their prayer for reviewing and setting aside the order dated 19.02.2018 passed in the FT(C) Case No. 225/2010 was rejected.

4. Notice in this case was issued on 21.12.2018 and the interim protection against detention and deportation from the territory of India was granted to the petitioners.

5. The Registry has already received the case records of the FT(C) Case No. 225/2010 from the learned Foreigners Tribunal No. 1, Morigaon, Assam, which was called for by this Court in connection with the instant writ petition.

6. On perusal of the records of the FT(C) Case No. 225/2010, it appears that suspecting one Shri Paresh Chandra Biswas to be a foreigner, an inquiry was initiated against him. During the police enquiry, said Paresh Chandra Biswas failed to produce any documentary evidence regarding his nationality, before the Enquiry Officer. Considering the report of the Enquiry Officer, the Superintendent of Police (Border), Morigaon, referred the matter, i.e., IMDT Case No. 436/2004, to the learned Illegal Migrants Determination Tribunal under Illegal Migrants (Determination by Tribunals) Act, 1983 [hereinafter referred to as IM(D)T Act], during its force, for its opinion as to whether the said Paresh Chandra Biswas is a citizen of India or not.

7. Later on, after striking down of the IM(D)T Act, 1983 by the Hon’ble Supreme Court of India in the case of “Sarbananda Sonowal vs Union of India & Anr” reported in (2005) 5 SCC 665 and as per the direction of Hon’ble Apex Court passed therein, the aforesaid case was transferred to the learned Foreigners Tribunal No. 1, Morigaon, which was registered as FT(C) Case No.225/2010 considering it as a proceeding under the Foreigners Act 1946 and Foreigners (Tribunals) Order, 1964.

8. We have noticed from the records available before us, that after the registration of the FT(C) Case No. 225/2010, the learned Foreigners Tribunal No. 1, Morigaon, by its order dated 01.04.2016, issued notice not only to the said Paresh Chandra Biswas but also to the present petitioners, fixing 13.06.2016 as the date for their appearance and submission of written statement by them.

9. It is pertinent to mention herein that the petitioners of the instant writ petition are the wife (Petitioner No. 5) and daughters (Petitioner Nos. 1, 2, 3 and 4) of the said Paresh Chandra Biswas. It is also important to note that no reference was made against the aforesaid petitioners, however, in spite of that, notices were issued to them in the FT(C) Case No. 225/2010.

10. It also appears from the report of the process server in respect of the notice issued to the present petitioners by the learned Foreigners Tribunal No. 1, Morigaon, which is available on record, that the said notice was served only on the petitione