IMPORTANT POINT
The court established that a Foreigners Tribunal must have a proper reference to exercise jurisdiction over individuals, ensuring due process in citizenship determinations.

JUDGMENT :

MRIDUL KUMAR KALITA, J.

1. Heard Mr. S. C. Biswas, learned counsel for the petitioners and Mr. G. Sarma, learned Standing Counsel for the Home Department, Assam for the respondent Nos.2 and 6. Also heard Mr. H. Kuli, learned Counsel appearing for the Election Commission of India namely the respondent No.3; and Mr. H. K. Hazarika, learned Government Advocate, Assam for the respondent No.3.

2. This Writ Petition, under Article 226 of the Constitution of India, has been filed by the petitioners, namely, (1) Bishambar Mandal, (2) Smti Adavi Mandal @ Adavi Biswas, (3) Niranjan Mandal @ Nira Mandal, (4) Nibaran Mandal, (5) Smti Prabhati Mandal @ Prabhati Biswas, and (6) Smti Ranu Mandal @ Ranu Biswas impugning the opinion/order dated 21.08.2018 passed by the learned Foreigners Tribunal No. 1, Morigaon in FT(C) Case No. 706/2010, 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. We have perused the case record of FT(C) Case No. 706/2010, which was requisitioned in connection with the instant writ petition from the Foreigners Tribunal No. 1, Morigaon.

4. On perusal of the records of the FT(C) Case No. 706/2010, it appears that suspecting one Shri Bishambar Mandal to be a foreigner, an inquiry was initiated against him. During the police enquiry, it appeared that Shri Bishambar Mandal was suspected to be an illegal migrant who entered into India (Assam) on or after 25.03.1971.

5. Considering the report of the Inquiry Officer, the Superintendent of Police (Border), Morigaon, referred the matter, i.e., IM(D)T Case No. 1035/2002, 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 Bishambar Mandal is a citizen of India or not.

6. 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. 706/2010 considering it as a proceeding under the Foreigners Act, 1946 and Foreigners (Tribunals) Order, 1964.

7. We have noticed from the records available before us, that the learned Foreigners Tribunal No. 1, Morigaon, on 22.07.2016, had issued notice not only to the petitioner No.1 Bishambar Mandal but against other petitioners also, fixing 17.11.2016 as the date for their appearance and submission of written statement by them.

8. It is pertinent to mention herein that the petitioner No. 2 is the wife of the petitioner No. 1. The petitioner Nos. 3 and 4 are the sons of petitioner No.1, whereas, the petitioner Nos. 5 and 6 are the daughters of petitioner No.1.

9. It is also important to note that no references were made against the petitioner Nos. 2 to 6, and, in spite of that, the Tribunal issued notice to them in the FT(C) Case No. 706/2010 and further by the impugned opinion dated 21.08.2018, all 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.

10. We intend to first discuss the matter regarding petitioner Nos. 2 to 6, against whom, it appears from record, that no reference was made against them. Thereafter, we shall discuss the case of the petitioner No. 1.

11. The learned counsel for the petitioners has submitted that in the instant case the enquiry was conducted and the reference was made only with regard to the petitioner No.1 Bishambar Mandal and neither any enquiry was conducted with regard to the nationality of other petitioners, nor any references were made in respect of the said petitioners, therefore, the learned Foreigners Tribunal No. 1, Morigaon had