order

10-11-2021 [N. Kotiswar Singh, J]

Heard Mr. M. Ali, learned counsel for the petitioners. Also heard Ms. L. Devi, leraned counsel appearing on behalf of Mr. R.K.D. Choudhury, learned Asstt. SGI, for respondent No.1; Ms. A. Verma, learned Special Counsel, F.T. appearing for respondent Nos. 3, 6 & 7; Mr. A. Bhuyan, learned Standing Counsel, ECI, appearing for respondent No.2, Ms. L. Devi, learned Standing Counsel, NRC, appearing for the respondent no.4 and Ms. U. Das, learned State Counsel, Assam, appearing for the respondent no.5.

2. Records have been received and we have perused the records.

3. In this petition the petitioners have challenged the impugned order dated 20.09.2019 passed by the Foreigners Tribunal No.5, Nagaon, Assam, in F.T. Case No.4547/2019, by which the petitioners were declared foreigners of post 1971 stream.

3. Learned counsel for the petitioners submits that without going to the merit of the case, in view of the fact that the Tribunal went beyond the reference, it would be sufficient for this Court to interfere with the findings arrived at by the Foreigners Tribunal.

4. It is the case of the petitioners that as per the report of the Inquiring Authority, there was a finding that the petitioners had entered India between 01.01.1966 to 25.03.1971 and on the basis of the said finding, the matter was referred to the Foreigners Tribunal for necessary opinion. However, the Foreigners Tribunal made an opinion that the proceedees had entered India post 1971. According to the learned counsel for the petitioners, the aforesaid opinion rendered by the FT is accordingly vitiated, inasmuch as, no opinion was sought for by the authorities as to whether they had entered into India after 25.03.1971.

5. We have perused the records.

6. The Superintendent of Police (Border), Nagaon at the relevant time vide his inquiry report dated 09.12.1987 held that Habizuddin (petitioner no.1 herein), son of late Jabox, is a foreigner who had settled in India after 01.01.1966 but before 25.03.1971 and accordingly, referred the case before the Foreigners Tribunal, Nagaon, for taking necessary action to delete the names of the petitioner and his family from the Electoral Rolls as per rules on the ground that the petitioner had entered Assam after 01.01.1966 but before 25.03.1971 and he has been ordinarily residing in Assam since their entry. Thus, from the reference made by the Superintendent of Police (Border), Nagaon, it is very clear that the reference was made before the Foreigners Tribunal for deleting the name of the petitioner along with his family members from the electoral rolls as they were foreigners, though they had entered India after 01.01.1966 and before 25.03.1971 and as such, unless they are registered themselves as citizens under Section 6A(3) read with sub-section (5) of the Citizenship Act,1955, they cannot be deemed to be citizens of India. In other words, even if a person is declared to be a foreigner but if he/she has come from Bangladesh or erstwhile East Pakistan between 01.01.1966 and 25.03.1971 and has been residing in the state of Assam since then, even though he/she may be declared a foreigner unless he/she registered himself with the competent authority as provided under the aforesaid Section 6A(5) of the Act, the person cannot get the benefit of citizenship. Rules also provide that till such registration is made, the person, who has been declared a foreigner, his/her name shall be deleted from the Electoral Rolls. It is the deletion of the names of the petitioners from the Electoral Rolls till the petitioner no.1 registered himself before the registering authority for which purpose the reference was made by the Superintendent of Police (Border), Nagaon as per order dated 09.12.1987.

7. It has been further clarified in the explanation to sub-section 3 of the Section A of the Citizenship Act, 1955 that in case of every person seeking registration under Sub-Section 3, the opinion of the Tribunal constituted under t