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2024 Supreme(Online)(GAU) 9841
HIGH COURT OF GAUHATI
HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK, HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
HUSSAIN ALI – Appellant
Versus
THE UNION OF INDIA and 3 ORS. – Respondent
WP(C) / 3865 / 2017
MR.A R SIKDAR
Necessity of including all relevant parties for proper adjudication of citizenship cases
Headnote:
Citizenship - Foreigners Act, 1946 - Writ petition challenging the opinion of the Foreigners Tribunal that the petitioner is a foreigner - Inclusion of incorrect name in the reference made by the Superintendent of Police (Border) to the Foreigners Tribunal - Necessity of Election Commission of India and District Election Officer as necessary parties for proper adjudication
Fact of the Case:
The petitioner's citizenship was doubted by the Electoral Registration Officer (ERO) and the matter was referred to the Foreigners Tribunal, which opined the petitioner to be a foreigner. The petitioner filed a writ petition challenging the opinion of the Foreigners Tribunal, claiming that the reference made by the Superintendent of Police (Border) contained the name of another person from a different village.
Finding of the Court:
The Court found that the reference made against the petitioner was based on the incorrect name, and therefore, the Election Commission of India and District Election Officer were necessary parties for proper adjudication of the case.
Issues: Inclusion of incorrect name in the reference made by the Superintendent of Police (Border) to the Foreigners Tribunal
Ratio Decidendi: The necessity of including the Election Commission of India and District Election Officer as necessary parties for proper adjudication of the case
Final Decision: The Court directed the inclusion of the Election Commission of India and District Election Officer as necessary parties and scheduled the next hearing for further submissions.
ORDER
19-03-2024 (M.R.Pathak, J)
Heard Mr. A. R. Sikdar, learned counsel for the petitioner and Mr. G. Sarma, learned Standing counsel, Home Department, Assam for the respondent Nos. 2 and 3 as well as Mr. P. Sharma, learned Additional Senior Government Advocate, Assam for the respondent No.4.
2) From the records, we have seen that the concerned Electoral Registration Officer (ERO) of No.38 Goalpara West Legislative Assembly Constituency (LAC) in Srl. No. 251, P/S-88 expressed its doubt regarding the citizenship of Hussain Ali, son of Asad Ulla Sk of village Bamundaga Part-II, whose name figured in the Electoral Roll of the said LAC published in the draft Electoral Roll on 31.05.2005 and forwarded the same to the Superintendent of Police (Border), Goalpara along with the response from the Local Verification Officer (LVO) to decide the question, as to whether said Hussain Ali is a citizen of India or not.
3) Accordingly, the Superintendent of Police (Border), Goalpara after considering the matter by his letter under Memo No.GLP/B/Doubtful/2006/1216 dated 20.12.2006 referred the matter to the Foreigners Tribunal, Goalpara under Order 2 (1) of the Foreigners (Tribunals) Order, 1964 framed under the Foreigners Act, 1946 seeking its opinion whether said Hussain Ali of village Bamundaga Part-II under Baguan Police Station of District Goalpara is or is not a foreigner.
4) Pursuant to the same, Foreigners Tribunal Case No. FT(G-4) 283/15 was registered before the Foreigners Tribunal 4th, Goalpara and notice under the Foreigners Act, 1946 was issued to said Hussain Ali, son of Asad Ulla Sk of village Bamundaga Part-II. Said Hussain Ali participated in the proceeding before the Foreigners Tribunal 4th, Goalpara in said Case No. FT(G-4)283/15 by submitting his written reply/statement and after hearing the parties, considering the evidences adduced by said Hussain Ali, the learned Member, Foreigners Tribunal 4th, Goalpara by its opinion/order dated 26.12.2016, passed in said Case No. FT(G-4)283/15, arising out of ERO’s Case No. 65688/38 opined the petitioner to be a foreigner under the Foreigners Act, 1946, who had illegally entered into the territory of India (Assam) on or after 25.03.1971.
5) Aggrieved with the said opinion/order dated 26.12.2016, passed by the Foreigners Tribunal, 4th, Goalpara in said Case No. FT(G-4)283/15, the petitioner has filed this writ petition on 20.06.2017.
6) The record of the case further reveals that the report of the concerned LVO in Srl. No.115/83 submitted before the ERO of 38 No. Goalpara West LAC reflects that Hosen Ali, son of late Kholil Sk of village Lempara submitted in Annexure-A (Format for Verification Officer’s Report) that said Hosen Ali of Lempara village could not produce the documents regarding his citizenship.
7) On verification of the record and on finding that the LVO submitted the report pertaining to one Hosen Ali, son of late Kholil Sk of village Lempara of District Goalpara relating to No.38 Goalpara West LAC that does not belong to the petitioner, namely, Hussain Ali, son of Asad Ulla Sk of village Bamundaga Part-II, the counsel for the petitioner, for the first time in this Court, submitted that the reference that was made against the petitioner on 20.12.2006 is bad in law since the LVO’s report does not contain his name and that the same contains the name of another person from a different village i.e., Hosen Ali, son of late Kholil Sk of village Lempara of District Goalpara and not the petitioner i.e., Hussain Ali, son of Asad Ulla Sk of village Bamundaga Part-II.
8) As noted above, from the report of the LVO “Annexure-A Format for Verification Officer’s Report” we found that it is in the name of Hosen Ali, son of late Kholil Sk of village Lempara of No. 38 Goalpara West LAC is vide Srl. No. 115/83 and the report of the concerned ERO in “Annexure-B format for making reference to the Competent Authority” relates to one Hussain Ali, son of Asad Ulla Sk of village Bamundaga Part-II of No.3
