Kalpana Rajbongshi vs State Of Assam And 5 Ors

None appears for the petitioner on call. However, Mr. J. Payeng, learned Special Counsel, FT is present.

The matter pertains to an opinion rendered in 2016.

The petitioner has challenged the order dated 04.07.2016 passed by the Foreigners Tribunal, Chirang in Case No. BNGN/FT(CHR)930/08.

We have perused the original records requisitioned from the Tribunal, which are before us.

Mr. Payeng, at the outset, submits that since the counsel for the petitioner is absent today, the matter may be adjourned to another date. However,

we are of the view that it may not serve any purpose except for delaying the matter as the matter pertains to 2016 and there are sufficient materials

before this Court warranting remand of the matter to the Tribunal for reconsideration.

Perusal of the impugned order dated 04.07.2016 indicates that the petitioner had filed her written statement along with certain documents.

Thereafter, the matter was disposed of by the Tribunal in the following terms:-

“The reference against the OP Kalpana Khatriya and her husband Lalu Khatriya was received at FT Dhubri under IM(D)T Act (since

struck down) in the year 1988 and was later converted into a reference under Foreigners Act, 1946.

The reference was subsequently received at FT Bongaigaon on 03.09.08 on transfer from FT, Dhubri.

The reference for the first time came up before me on 19.08.15 at FT Chirang on further transfer from FT Bongaigaon for ws an documents

as was fixed for by the transferring FT.

I have perused the C/R.

Notice issued on several dates from FT Bongaigaon were returned after service. Notice was also issued on 19.08.15 under my hand and

seal and was returned on 10.09.15 after service.

The OP Kalpana Khatriya and her husband Lalu Khatriya have been suspected to be illegal Bangladeshi nationals of pre 1971 stream as

they could not produce documents in support of their Indian nationality at the time of enquiry and hence is the common reference for

FT’s opinion.

However, at this point, be it stated that during the pendency of the reference, Lalu Khatriya had died on 23.11.15 and the proceeding

against him dropped as abated on death vide my order dated 07.04.16.

Kalpana Khatriya (hereafter called the OP) represented by her counsel ld. Adv. Tapan Kr. Das came up and contested the reference on

07.04.16 by filing ws/documents.

In her ws, the OP inter alia has stated “that, the OP is an Indian citizen as per voter list 2016 as per voter list duly issued by Election

Commissioner, Bijni Bidhan Sobha Samasti, Bijni dated 25.02.2016, Reg No.3/2015-16/344 of Center No.33, Khanda No.33, Center Name

33-239 No.Barshijhora LP School (Room-1), Khanda Elaka KA Borpathar No.2 (KGHA), Lunthaijhar, Village Name Barshijhora, Dist-

Chirang, Sub-Division-Bijni, Circle-Bijni, vide Sl No.369, House No.109.

Be that as it may, to answer the reference with an appropriate opinion, I have examined the documents exhibited by the OP which are

discussed as under:-

Ext.1 : It is a certified copy of voters list of 1965 pertaining to village Bagegaon Pathar under No.47 Sorbhog LAC wherein the name of one

Basudev Das s/o Gopal (72 years) and of his wife Susila Bala Dasya (58 years) stand recorded as voters.

Ext. 2: lt is also a certified copy of Voters’ list of 1997 pertaining to Village (1) Barpathar No. 2 (2) Chowrang No. 3 (3) Lunthai (4)

Barpathar No.3 under No. 33 Bijni LAC, wherein the name of the OP Kalpana Rajbongshi w/o Nalu (31 Yrs.) stand recorded as lone Voter

under H/No. 109.

Ext.3. It is yet another certified copy of Voters’ list of 2016 pertaining to village Barshijhora under No. 33 Bijni LAC, wherein also the

name of the OP, Kalpana Rajbongshi as w/o Nalu Rajbongshi (50 Yrs.) Stand recorded as lone Voter under H/No.109.

EX. 4: It is an identity card purportedly issued under Govt. of Assam by Gaonburah Nepal Ch. Das charge No. 18, village Katajhar Pothar,

Mouza and PS Gobardron vide No. 965 dtd. 29-06-2015 whereby the OP Kalpana Rajbongshi (48 Yrs) D/O Basudev Rajbongshi (F) and

Susil Rajbongshi (M) has been certified to have been married to Nalu Rajbongshi of village No. 2 Barpathar on 15-02-1985.

Ex. 5: It is a certificate certifying Kalpana Rajbonyshi w/o Lt. Nalu Rajbonghshi as resident of village No. 2 Barpathar issued by the

Chairman Barpathar VCDC vide No. 13/VCDC/1563/2016 dtd. 27-02-16.

Ext. 6: It is an EPIC held by one Sushila Rajbongshi w/o Basudev (63 Yrs) of village Pathar, PS Gobordhans, Sub Division Salbari District

Baksa (Assam) vide No GM 1055647 did. 01-10-13.

Ext. 7: It is a family details of OP as declared before me on 13.05.16.

SUMMARY

The OP is the daughter of Basudev Khatriya vide SL No.13 of the interrogation report.

The OP is the daughter of Basudev Das (F) and Sulila Bala Das (M) vide Ext.1.

The OP is the daughter of Basudev Rajbongshi (F) and Sushila Rajbongshi (M) vide Ext.4.

The OP is the daughter of Sushila Rajbongshi vide Ext.6.

(5) The OP is the daughter of Basudev Mondal (F) and Sushila Mondal (M) as per family details recorded before me vide Ex 7,

(6) ln all probabilities the OP is the daughter of Basudev Mondal (F) and Sushifa Mondal (M) as per family details recorded before me vide

Ext. 7.

(7) Besides her mother Sushila Mondal @ Sushila Rajbongshi the OP has 3 surviving brothers named (1) Harkumar Mondal, village

Bhetagaon, PS Bijni (2) Sudhir Mondal village Bajegaon, PS Sorbhog and (3) Ranjit Mondal, village Bajegaon Pathar, PS Sorbhog.

(8) The earliest recorded presence of the OP in Assam as Voter as Kalpana Rajbongshi w/o Nalu Rajbongshi is 1997 at her 31 years of age

vide EXt. 2 which is a post 1971 document.

(9) There is nothing on record to support that the OP is an illegal migrant of pre 1971 stream.â€​

Perusal of the aforesaid order clearly indicates that no reason had been assigned for giving the opinion that the petitioner had failed to discharge her

burden of proving her Indian citizenship under Section 9 of the Foreigners Act, 1946 apart from narrating certain facts, and the OP (petitioner) was

declared as an illegal Bangladeshi migrant of post 1971 stream liable to detention/deportation as per law.

Apart from that, what we have noted from the records is that when the enquiry was held before the reference was made, the enquiring authority

made an observation that the petitioner and her husband were foreigners of 1966-1971 stream. The relevant portion of the enquiry report reads as

follows:-

“It seems that Shri Lalu Khatriya (husband of the petitioner) and his wife Smt. Kalpana Khatriya are foreigners of 1966-1971 stream.â€​

If the finding in the enquiry report was that the petitioner and her husband were suspected to be foreigners of 1966-1971 stream, we fail to

understand under what circumstances any reference could have been made that they were foreigners of post 1971 stream. In fact, perusal of the

records do not indicate any reason as to how the reference was made to the Foreigners Tribunal to the effect that the petitioner is an immigrant of

post 1971 stream. The reference cannot be different from the finding in the enquiry.

At this stage, it may be appropriate to recollect the observation made by the Full Bench of this Court in State of Assam Vs. Moslem Mondal, 2013

(3) GLR 402, wherein it has been held that the reference by the referral authority cannot be mechanical. The referral authority has to apply his mind

on the materials collected by the investigating officer during investigation and accordingly make the reference only after being satisfied of the grounds

for making such reference. Paragraph-98 of the aforesaid decision reads as follows:-

“98. The reference by the referral authority also cannot be mechanical. The referral authority has to apply his mind on the materials

collected by the investigating officer during investigation and make the reference on being satisfied that there are grounds for making such

reference. The referral authority, however, need not pass a detailed order recording his satisfaction. An order agreeing with the

investigation would suffice. The referral authority also, while making the reference, shall produce all the materials collected during

investigation before the Tribunal, as the Tribunal is required prima facie to satisfy itself about the existence of the main grounds before

issuing the notice to the proceedee.â€​

From the above, what can be understood is that the referral authority has to make the reference only after being satisfied with the materials collected

by the investigating authority. Thus, if certain specific findings have been given by the investigating authority as in the present case where it has been

clearly mentioned in the investigation report that it seems that Shri Lalu Khatriya and his wife Smt. Kalpana Khatriya are foreigners of 1966-1971

stream, no reference could have been made to the effect that the petitioner is an illegal immigrant of post 1971 stream. Such a reference would be

contrary to the enquiry report. Consequently, any such opinion rendered by the Tribunal would also be vitiated.

At best, the referral authority could have made a reference that the petitioner was an entrant during the period of 01.01.1966 and 24.03.1971 and

accordingly, the Tribunal could have given the opinion that the petitioner was an illegal immigrant during the aforesaid period 01.01.1966 to 24.03.1971

and not a post-1971 immigrant. In this context, it is important to note that the difference in the period of entry from Bangladesh is very crucial for

determining the status of such illegal immigrant. It has been provided under Section 6A of the Citizenship Act that those persons of Indian origin who

came to Assam on or after 01.01.1966 but before 25.03.1971 from Bangladesh and since then has been ordinarily a resident of Assam though

detected to be a foreigner can register themselves with the registering authority and shall get the benefit of citizenship after 10 years of such

registration and cannot be deported, which benefit, however, is not given to such entrants who come to Assam after 25.03.1971. For the aforesaid

reason, the period of entry in India (Assam) assumes great importance since a person entering Assam before 25.03.1971 will get certain benefits

which cannot be given to a person coming after 25.03.1971.

In the present case, in the enquiry report, it has been mentioned that the petitioner and her husband were suspected to be foreigners of 1966-1971

stream and they had been continuously staying in India since 1967. Thus, the reference has to be made with reference to the said period and the only

issue to be decided by the Foreigners Tribunal would be as to whether the petitioner was a foreigner of 1966-1971 stream or not.

We have also noted that though the learned counsel for the petitioner had appeared before this Court on 14.09.2016 and 25.09.2018, thereafter,

there is nothing on record indicating the presence of the learned counsel for the petitioner. Thus, in our opinion, the presence/absence of the counsel

would hardly matter in the present case inasmuch as the records clearly indicate that in the enquiry conducted before the reference was made, the

finding of the inquiry report was that the petitioner and husband were suspected to be illegal migrants and foreigners of post 1966-1971 stream. The

impugned order dated 04.07.2016 also indicates that the reference was made against the petitioner and her husband that they were illegal Bangladeshi

nationals of pre 1971 stream as mentioned in paragraph 6 of the impugned order. Under the circumstances, apart from the lack of any reason assigned

by the Tribunal for coming to its opinion in the impugned order, such reference made was not in accordance with the procedures for making any

reference to the Foreigners Tribunal.

For the aforesaid reason, we hold that the impugned opinion dated 04.07.2016 cannot be sustained in law and accordingly, is set aside. However,

the authorities would be at liberty to make a fresh reference in terms of the enquiry report submitted by the enquiring authority to the referral authority

and only when a proper reference is made in accordance with law, the Tribunal will proceed against the petitioner by issuing fresh notice to the

petitioner as and when the reference is made to the Tribunal.

The writ petition is accordingly disposed of.

Let the LCR be sent back forthwith.