Page No.# 1/7 GAHC010155962019 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4881/2019 CHAHAR BANU BEGUM @ SAHAR BHANU BIBI W/O. MAHAMMAD ALI, D/O. LT. NAYEB ALI AND LT. SUKURI NESSA, VILL. DWARKUCHI, P.O. DWARKUCHI, P.S. TAMULPUR, PIN-781367, DIST. BAKSA (BTAD), ASSAM. VERSUS THE UNION OF INDIA AND 6 ORS. REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI. 2:THE CHIEF ELECTION COMMISSIONER ELECTION COMMISSION OF INDIA ASHOKA ROAD NEW DELHI-110001. 3:THE STATE OF ASSAM REP. BY ITS SECRETARY GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-06. 4:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GUWAHATI-781007. 5:THE STATE COORDINATOR Page No.# 2/7 OFFICE OF THE STATE COORDINATOR OF NATIONAL REGISTER OF CITIZENS (NRC) ASSAM 1ST FLOOR ACHYUT PLAZA G.S. ROAD BHANGAGARH GUWAHATI-781005. 6:THE DY. COMMISSIONER BAKSA (BTAD) DIST. BAKSA (BTAD) ASSAM. 7:THE SUPDT. OF POLICE (B) BAKSA DIST. BAKSA (BTAD) ASSAM Advocate for the Petitioner : MR. K LAHKAR, MR. K M HASSAN,MR. I AHMED,MS R BISWAS Advocate for the Respondent : ASSTT.S.G.I., SC, NRC,SC, ECI,SC, F.T BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 16-03-2026 (Kalyan Rai Surana, J) [1] Heard Mr. K. Lahkar, learned counsel appearing for the petitioner as well as Mr. N. Kalita, learned counsel appearing on behalf of Mr. A.I. Ali, the learned Standing Counsel, ECI. [2] By filing this writ petition under Article 26 of the Constitution of India, the petitioner has assailed, the Opinion dated 27.05.2019, passed by the Page No.# 3/7 learned Member, Foreigners Tribunal, Baksa, Tamulpur, Assam, in F.T. Case No. 2222/BAKSA/2016, arising out of S.P.(B) Baksa Referance: FT Case No. 406/2010 by which, the petitioner was declared to be a Foreigner of post 25.03.1971 stream. [3] In view of the nature of order which is proposed to be passed, the stand taken by the petitioner in the written statement, and if the evidence of the petitioner's PW-1, Ganesh Boro (PW-2) have not been referred to. [4] It is suffice to mention that although as per the enquiry report, in Form (I), Form (II), and Form (III), the recommendation of the Superintendent of Police was to the effect that the petitioner is a foreigner, who entered into India illegally, but in the forwarding of the reference vide Memo No. BSA/B/39/10/142-178 dated 05.02.2010, under Order 2(1) (a) of the Foreigners (Tribunals) Order, 1963, (sic., ought to have been ‘1964’), which is available in page 8 of the Tribunal’s records, by which the reference was made, it has been mentioned that the petitioner has entered into Assam after 01.01.1966, and before 25.03.1971 illegally. [5] In the said context, the learned counsel for the petitioner has referred to the stand taken in the written statement, and in the evidence-on-affidavit filed by the petitioner to project that the specific defence taken by the petitioner related to the period between 01.01.1966 and before 25.03.1971. [6] Accordingly, it is submitted that the learned Tribunal had decided the reference outside the scope of the reference. This, which, according to him, is not sustainable in view of the law laid down in the case of Santosh Das Vs. Union of India, 2017 (2) GLT, 1065. [7] Per contra on the said issue, the learned Standing Counsel, F.T. and Border matters, has submitted that the opinion is sustainable in light of the law Page No.# 4/7 laid down in the case of Rukia Begum Barbhuiya @ Rukia Begum @ Vs. The Union Of India And Ors., 2023 (4) GLT 1208, wherein the co-ordinate Bench of this Court has laid down the point of law that Order 2 (1) of the Foreigners (Tribunals) Order, 1964, makes it discernible that the Central Government may by order, refer the question as to whether a person is or is not a foreigner within the meaning of Section 2(1) the Foreigners Act, 1946 to a Tribunal constituted for the purpose. [8] In the said decision reference is made to the decision of this Court in the case of Falani BiBi Vs. The Union of India and Ors., WP(C) No. 7104/2015, decided on 18.08.2017, wherein under the same fact and situation, where the accusation in the reference was that the petitioner therein had come into Assam between 01.01.1966 to 24.03.1971. In the said case, the Tribunal had held the petitioner to be a foreigner of post 25.03.1971. This Court, by referring to Section 2 (a) of the Foreigners Act, 1946 where a foreigner is defined to mean a person who is not a citizen of India, had held that as per the statutory provision of Order 2 (1) of the Foreigners (Tribunals) Order, 1964, any reference has to be understood to be a reference to the Tribunal on a question whether the person so referred is a foreigner or not within the meaning of the Foreigners Act, 1946, where again a foreigner is given the meaning of a person, who is not a citizen and where as a citizen is defined under the Citizenship Act, 1945. Accordingly, it is submitted that the reference can only be answered as to whether the petitioner in this case was a foreigner or not. [9] In view of the law as laid down by this court in the case of Rukia Begum Barbhuiya @ Rukia Begum (supra) is found to be correct and appropriate in view of the definition of “foreigner” contained in Section 2 (a) of the Foreigners Act, 1946. This Court cannot take any view other than what has Page No.# 5/7 been taken down in the case of Rukia Begum Barbhuiya @ Rukia Begum (supra) to the effect that the reference can only be answered as to whether a person is or is not a foreigner. [10] However, notwithstanding the decision of the learned Tribunal, the Court is of the considered opinion that the submission made by the learned counsel for the petitioner has force as the entire defence of the petitioner is based on the nature of reference alleging that the petitioner is a foreigner, who has entered into India between 01.01.1966 and 24.03.1971. Accordingly, in view of the submissions made by the learned counsel for the petitioner, the petitioner has been able to make out a case that she has suffered prejudice by limiting her defence for the period between 01.01.1966 and prior to 25.3.1971. [11] Accordingly, the court is of the further considered opinion that the petitioner deserves to be given an opportunity of taking appropriate defence with regard to the question as to whether the petitioner is a foreigner as defined under Section 2(a) of the Foreigners Act, 1946. [12] Accordingly, without finding any fault with the impugned opinion dated 27.05.2019, passed by the learned Member, Foreigners Tribunal, Baksa, Tamulpur, Assam, in F.T. Case No. 2222/BAKSA/2016, arising out of S.P.(B) Baksa Reference: FT Case No. 406/2010, the said opinion is hereby set aside so as to enable the petitioner to take an appropriate defence in her written statement by filing an additional written statement before the learned Tribunal with liberty to adduce further evidence, if so advised. [13] Accordingly, the court is inclined to pass the following order:- a. That the impugned Opinion dated 27.05.2019, passed by the learned Member, Foreigners Tribunal, Baksa, Tamulpur, Assam in F.T. Case No. Page No.# 6/7 2222/BAKSA/2016, arising out of S.P.(B) Baksa Reference: FT Case No. 406/2010 is hereby set aside. b. The matter is remanded back to the learned Foreigners' Tribunal of Baksa, Tamulpur for giving an opportunity to the petitioner to submit her additional written statement and thereafter, to adduce further evidence, if so advised. c. The learned Tribunal shall make an endeavour to dispose of the matter within the time as permitted under Section 4 (14) of the Foreigners (Tribunals) Order, 1946. [14] The petitioner, who is being represented by learned counsel, is directed to appear before the said learned Tribunal on or before 30.04.2026 and by producing a certified copy of the order, shall also file her additional written statement and wait for further orders of the said learned Tribunal. [15] It is further clarified that if the petitioner fails to appear within the time allowed, it could be permissible for the learned Tribunal to treat the petitioner as absent on call. Court can pass such appropriate orders, as it may deem fit and proper. [16] In the mean time, the Registry to return back the Tribunal’s records expeditiously. [17] This writ petition is partly allowed to the extent as indicated above. [18] There shall be no order as to cost. Page No.# 7/7 JUDGE JUDGE Comparing Assistant