Gauhati High Court
Page No.# 1/15 vs The Union Of India And 5 Ors on 13 March, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/15
GAHC010032692026
2026:GAU-AS:3672-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/917/2026
SABERA BEGUM
W/O LAE ABBAS ALI, R/O KATABARI, P.S. GORCHUK, DIST. KAMRUP (M),
ASSAM.
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF
HOME AFFAIRS, SHASTRI BHAWAN, NEW DELHI 1
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF
ASSAM
HOME DEPTT.
DISPUR
GUWAHATI 6
3:THE DIST. COMMISSIONER
KAMRUP (M)
P.O. HENGRABARI
DIST. KAMRUP (M)
ASSAM
GUWAHATI 36
4:THE DEPUTY COMMISSIONER OF POLICE (B)
KAMRUP (M)
GUWAHATI CITY
DIST. KAMRUP (M)
ASSAM.
5:THE ELECTION COMMISSIONER OF INDIA
Page No.# 2/15
NEW DELHI TO BE REPRESENTED BY CHIEF ELECTION COMMISSIONER
OF INDIA
NEW DELHI 1
6:THE STATE COORDINATOR OF NATIONAL REGISTRATION
ASSAM BHANGAGARH
LACHIT NAGAR
GUWAHATI
Advocate for the Petitioner : MR. P K R CHOUDHURY, MR M HUSSAIN,MR. A K AZAD,MR.
S R BARBHUIYA,MR. N HAQUE
Advocate for the Respondent : GA, ASSAM, DY.S.G.I.,SC, NRC,SC, ECI
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA
ORDER
Date : 13.03.2026
(K.R. Surana, J)
Heard Mr. P.K.R. Choudhury, learned counsel for the petitioner.
Also heard Ms. S. Baruah, learned CGC for respondent no.1; Mr. G. Sarma,
learned standing counsel for respondent nos. 2, 4 and 6; Mr. P. Sarmah, learned
Addl. Senior Govt. Advocate for respondent no.3; and Ms. S. Katakey, learned
standing counsel for respondent no.5.
2) The background facts of this case are as follows:-
a. The petitioner was served with a notice to appear before the
Foreigners Tribunal No.4th, Kamrup (M), Guwahati, in connection with
F.T. D.V.K. Case No. 7/2024 (arising out of F.T. Case No. 5600/98). The
petitioner, upon appearing in the said proceeding, had filed a petition
under Order XIV, Rule 2 of the CPC for framing a preliminary issue
Page No.# 3/15regarding the jurisdiction of the said learned Tribunal to proceed
against the petitioner on the ground that there was no enquiry by the
Local Verification Officer against the petitioner. The said petition was
rejected by the said learned Tribunal by order dated 10.06.2025.
b. Accordingly, the petitioner had assailed the said order dated
10.06.2025 by filing a writ petition. In the said writ petition, the
learned standing counsel for the petitioner had produced a copy of the
letter dated 23.07.2025, issued by the Deputy Commissioner of Police
(Border), Kamrup (M), Guwahati, to the effect that Sabera Begum, wife
of Late Abbas Ali of village- Katahbari, P.S. Gorchuk, Guwahati, Assam,
as mentioned in the Electoral Registration Officer’s Report vide
Annexure-21 is the same person. But, Sahera Begum, wife of Amir Ali
of Katahbari, P.S. Gorchuk, Guwahati, Assam, as mentioned in the LVO
Report vide Annexure-20 is not the petitioner. Accordingly, this Court,
by order dated 14.08.2025, passed in W.P.(C) 3506/2025, set aside the
learned Tribunal’s order dated 10.06.2025, and restored the petition
no. 46/2025, arising out of application no. 66/2025 to the file of the
said learned Tribunal. Consequently, the petitioner was directed to
produce a certified copy of the said order dated 14.08.2025, before the
said learned Tribunal and to await for further instructions/ orders from
the said learned Tribunal.
3) Thereafter, the petitioner had produced a certified copy of the
order dated 14.08.2025, passed by this Court in W.P.(C) 3506/2025 before the
learned Tribunal along with petition no. 131/25. The said learned Tribunal, vide
order dated 19.08.2025, allowed the prayer made by the learned Govt. Pleader
Page No.# 4/15
to take necessary instructions from the referral authority and apprise the
Tribunal as regards to the contents of the application vide no. 46/25.
Accordingly, for the reasons reflected in the order dated 11.09.2025, directed
the referral authority to conduct an enquiry on the basis of documents produced
regarding availability of the prima facie grounds against the petitioner forming
the basis of a clear suspect, further directing the said report to be submitted
within four weeks.
4) As per order dated 23.12.2025, the learned Tribunal had
recorded that the enquiry report dated 11.12.2025 was received. As per the said
report, (a) IM(D)T Case No. 5600/98 was registered against Sabera Begum,
wife of Abbas Ali, and (b) IM(D)T Case No. 5597/98 was registered against
Sahera Begum, wife of Amir Ali. However, in course of the enquiry, it had
appeared that in IM(D)T Case No. 5597/98 at Foreigners Tribunal 5 th, Guwahati,
the LVO Report is in the name of Sabera Begum, wife of Late Abbas Ali of
village- Katahbari, P.S. Gorchuk, Guwahati, Assam, whereas in the IM(D)T Case
No. 5600/98, before the Foreigners Tribunal 4 th, Guwahati, LVO Report is in the
name of Sahera Begum, wife of Amir Ali of village- Katahbari, P.S. Gorchuk,
Guwahati. Thus, there was an exchange of LVO Reports. Accordingly, the case
was fixed on 20.01.2026, for further orders. The said order is extracted below:-
“23.12.2025 Miss A. Kumari, Learned Assistant Govt. Pleader represents
the referral authority. Proceedee is present. Enquiry report dated
11.012.2025 is already received. The contents of the Enquiry reports
submitted on 10.12.2025 by the Enquiry Officer is clearly perused to find
that the IM(D)T case No. 5600/98 was registered against Sabera Begum
W/O Abbas Ali and IM(D)T Case No. 5597/98 was registered against
Sahera Begum W/O Amir Ali. During the course of enquiry, the Enquiry
Officer checked the case record of IM(D)T Case No. 5597/98 at FT 5 th,
Guwahati and found that LVO record in the name of Sabera Begum W/O
Abbas Ali of village Katahbari, PS Garchuk, Guwahati, Assam. As per the
Page No.# 5/15Enquiry Officer both the LVO reports were mismatched during the
submission of reference to the respective Tribunals and Sahera and
Sabera are two different persons. Another letter dated 22.12.2025
addressed to the Learned Member, Foreigner Tribunal, Kamrup (M) No.
5th, copy of which has been furnished to this Tribunal, is received to find
that Learned Member, Foreigner Tribunal No. 5 th is being requested to
correct the case records making the exchange of LVO report of Sahera
Begum W/O Amir Ali in F.T. Case No. 3689/2019 (IM(D)T Case No.
5597/98) with the LVO report of Sabera Begum W/O Abbas Ali pending
in FT Case No. 7/2024 (IM(D)T Case No. 5600/98) which is pending
before this Tribunal. Office to ensure the exchange of the Enquiry Report
as and when the communication has been received from the Learned
Member Foreigner Tribunal No. 5th in terms of the letter dated
22:12.2025 vide No. DCP(B)/83/2025. In the light of the aforesaid
observations, it is absolutely clear that the quarries raised by the order
dated 11.09.2025 has been resolved and the petition vide No. 46/2025
and the quarries raise thereon has been answered by the report so
submitted and the letter as discussed. This reference is therefore fixed
for further orders till the exchange of the Enquiry Report so as to enable
the Tribunal for further proceedings. The letter dated 22.12.2025 is
therefore kept with the record.
Fixing- 20/01/26 for appropriate orders.”
5) Thereafter, by order dated 20.01.2026, the said learned Tribunal
had recorded that the said learned Tribunal had furnished the LVO Report of
Sahera Begum and received the LVO Report of Sabera Begum in terms of the
letter dated 22.12.2025, issued by the Deputy Commissioner of Police (B), in the
presence of the Border officials and accordingly, a letter dated 19.01.2026, has
been issued by the said learned Tribunal to the Office of the Deputy
Commissioner of Police (B), that the original LVO Report of Sabera Begum had
been entered in the record. The said order dated 20.01.2026, passed by the
said learned Tribunal, is extracted below:-
“20.01.2026 Present: Mr. Ajoy Kumar Phukan, Member
Miss A. Kumari, Learned Assistant Govt. Pleader represents
the referral authority. Today is the date fixed for appropriate orders. This
Page No.# 6/15Tribunal has already furnished the L.V.O report of Sahera Begum and
also received the L.V.O report of Sabera Begum in terms of the letter
dated 22/12/25 issued by the Deputy Commissioner of Police (b) in
presence of the Border officials and accordingly a letter dated 19/01/26
has been issued by this Tribunal to the office of the Deputy
Commissioner of Police (B). Original L.V.O report of Sabera Begum
thereby has been entered to the record. It is needless to say that the
reference was fixed for evidence since 13/05/25 and already sufficient
time is elapsed. The Learned Counsel appearing for the proceedee has
filed a petition vide no. 267/26 stating there in that the proceedee could
not appear before this Tribunal due to unavoidable circumstances and as
such her presence may be exempted. The petition as aforementioned is
disposed of with a direction to the proceedee shall appear before this
Tribunal and file the evidence in the next date fixed.
Fixing- 17/02/26 for evidence.”
6) Accordingly, the petitioner has approached this Court again and
by filing this instant writ petition under Article 226 of the Constitution of India,
has prayed for setting aside the orders dated 23.12.2025 and 20.01.2026,
passed by the learned Member, Foreigners Tribunal; for quashing the proceeding
pending against the petitioner before the said learned Tribunal and for other
and consequential reliefs.
7) The learned counsel for the petitioner had submitted that the
LVO Report shows that the enquiry against the petitioner was done in a causal
manner, with many columns of the Annexures A and B respectively, containing
the format for Verification Officer’s Report left blank. It was also submitted that
in the LVO Report, it has been recorded that the place of birth of the petitioner
was in West Bengal. Hence, it was submitted that the grounds for suspecting
the petitioner to be a foreigner has not been disclosed to the petitioner. Hence,
it was submitted that the proceeding ought not to have been registered against
the petitioner in the first place as the reference contained a LVO Report not
concerning the petitioner. Secondly, it was submitted that although the LVO
Page No.# 7/15
Report was substituted, the grounds of suspecting the petitioner to be a
foreigner were not supplied to the petitioner for which she could not take all
available defence. Hence, it was submitted that the proceeding against the
petitioner be quashed along with all the impugned order.
8) Per contra, the learned standing counsel for the FT, Border
matters and NRC has made his submissions in support of the continuance of the
proceeding.
9) Examined the materials available on record in this writ petition.
Also perused the instructions dated 02.03.2026, issued by the learned Member,
Foreigners Tribunal No. 4th, Kamrup (M), Guwahati, as produced by the learned
standing counsel for the FT, Border matters and NRC together with enclosures
thereto.
10) From the said instructions, there remains no doubt that while
Sabera Begum, wife of Abbas Ali, is the proceedee in F.T. Case No. 7/2024,
which arises out of IM(D)T Case No. 5600/98, Sahera Begum, wife of Amir Ali,
was the suspected foreigner in IM(D)T Case No. 5597/98. However, the
Verification Officer’s Reports of the two suspects, due to some error, got mixed
up. Thus, the Verification Officer’s Report in respect of IM(D)T Case No.
5597/98 was placed in the record of F.T. Case No. 7/2024, pending before the
Foreigners Tribunal No.5th, Kamrup (M), Guwahati, and the Verification Officer’s
Report in respect of IM(D)T Case No. 5600/98, before the Foreigners Tribunal
4th, Guwahati, is in the name of Sahera Begum, wife of Amir Ali of village-
Katahbari, P.S. Gorchuk, Guwahati.
11) The said error that had crept in the two cases, has since been
rectified by exchange of correct Verification Officer’s Reports in the concerned
Page No.# 8/15
and appropriate Tribunal’s record.
12) In respect of the point that has been urged by the learned
counsel for the petitioner, it may be mentioned that it appears from the
Reference that the Election Commission of India had ordered revision of the
draft electoral roll which was published on 24.07.1997, with reference to
qualifying date of 01.01.1997. Accordingly, house-to-house enumeration was
conducted between 16.01.1997 to 15.04.1997. As doubt was expressed about
the citizenship of the petitioner, whose name was enumerated in the draft roll
published on 24.07.1997, the Electoral Registration Officer had entrusted the
Local Verification Officer to do the enquiry. The said Verification Officer had
submitted his report in Annexure-B format to the Electoral Registration Officer of
No. 54 West Gauhati Constituency. The said authority, thereafter, vide Annexure-
A format, expressed his doubt about the citizenship of the petitioner.
Accordingly, the Electoral Registration Officer had referred the matter to the
Superintendent of Police (Border), City, Guwahati, vide reference dated
15.10.1997, who is the competent authority under the Illegal Migrants
(Determination by Tribunals) Act, 1993/ Foreigners Act, 1946 and Rules made
thereunder. The Superintendent of Police (Border), City, Guwahati, thereafter,
made a reference before the then Chairman, IM(D)T, Guwahati, where IM(D)T
Case No. 5597/98 was registered.
13) It may also be stated that by virtue of the judgment and order
passed by the Supreme Court of India in the case of Sarbananda Sonowal v.
Union of India & Ors., (2005) 5 SCC 665 , all the proceedings that were then
pending before the Illegal Migrants (Determination) Tribunals [IM(D)T for
short], were transferred to the Foreigners Tribunal having jurisdiction. The
transferred reference was received by the learned Member, Foreigners Tribunal
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5th, Kamrup (M), Guwahati, which was registered as F.T. Case No. 7/2024.
Therefore, as evident from the decision of the Supreme Court of India, in the
case of Sarbananda Sonowal (supra), the matter was transferred by the
Supreme Court of India. Therefore, no further determination can be made by
this Court regarding making of and/or registration of the reference.
14) Be that as it may, the issue of the blank Verification Officer’s
Report has been considered and decided by this Court in the case of Shukurjan
Nessa @ Sukurjan v Union of India & Ors., W.P.(C) 245/2019, decided on
28.02.2025. In the said case, the issue relating to reference made at the
instance of the Electoral Registration Officer (ERO for short) has been clarified.
15) It may be stated that as per the Verification Officer’s Report
dated 28.09.1997, the said officer was an Assistant Engineer (Irrigation) by
profession. It must be understood that the said officer was not trained in law
before being entrusted with house-to-house enumeration duty. Therefore, a few
of the column nos. of the format bear his remark as “NIL”.
16) Hence, it is apparent that in this case in hand, the enquiry by
the Verification Officer was not made under the provisions of the Foreigners Act,
1946 or the Rules framed thereunder. In an enquiry conducted under the
Foreigners Act, 1946, the investigation is done by the Border Branch of Police
under the authority of the Superintendent of Police (Border) and/or the Deputy
Commissioner of Police (Border), as the case may be, of the concerned district.
The jurisdictional Superintendent of Police (Border) is the prescribed authority to
make reference before the Illegal Migrants (Determination) Tribunal constituted
under the erstwhile Illegal Migrants (Determination by Tribunals) Act, 1983 and
the Rules framed thereunder.
Page No.# 10/15
17) There is an important facet, which is contained in the judgment
and order of this Court in the case of Sayam Uddin v. Union of India & Ors.,
2019 (4) GLT 456, as affirmed by the Division Bench in the case of Sayam Uddin
v. Union of India & Ors., W.A. 170/2019, decided on 29.07.2019 , is deemed
appropriate to be referred to. As this Bench is in respectful agreement with the
said judgment therefore, paragraphs 11 to 22 thereof are quoted below:-
11. In the year 1997, Election Commission of India had undertaken an intensive
revision of electoral rolls in the State of Assam as apprehensions were expressed
from various quarters that the electoral rolls were infested with the names of
foreigners/illegal migrants. In the course of this exercise citizenship status of as
many as 3,13,046 persons whose names were in the draft voters lists were found
to be doubtful and accordingly they were marked as doubtful “D” voters in the
electoral rolls after local verification.
12. Legality of this exercise was challenged before this Court in HRA Choudhury
Vs Election Commission of India, reported in 2002 (1) GLT 1. The challenge made
was rejected by a Division Bench of this Court. In HRA Choudhury (supra) this
Court examined the guidelines dated 17.07.1997 of the Election Commission of
India laying down the procedure to carry out the exercise.
12.1. As per paragraph 3.8 of the guidelines the Electoral Registration
Officer was required to consider the verification report received from the
Local Verification Officer. If he was satisfied on such report and such other
material/information as may be available about the eligibility of a person, he
should allow his name to continue on the electoral roll. Where, however, he
was not so satisfied and had reasonable doubt about the citizenship of any
person, he was required to refer such doubtful cases to the competent
authority under the then Illegal Migrants (Determination by Tribunals) Act,
1983 or the Foreigners Act, 1946 as the case may be. For convenience of the
Electoral Registration Officers, Election Commission devised proformas.
12.2. As per paragraph 3.9, after the case of a person was referred by
the Electoral Registration Officer to the competent authority, he should wait
for the decision of the relevant Tribunal in relation to that person and act
according to such decision.
12.3. As per paragraph 3.10, where the relevant Tribunal decided that
any such person was not a citizen of India, Electoral Registration Officer
should proceed under Rule 21 A of the Registration of Electors Rolls, 1960 to
have the name of such person deleted from the electoral roll before it was
Page No.# 11/15finally published.
12.4. This Court in HRA Choudhury (supra) held that such guidelines
and decision of the Election Commission were in accordance with Article 324
of the Constitution of India besides conforming to the principles of natural
justice. It was held that such guidelines cannot be held to be arbitrary or
vitiated by mala fide or partiality.
13. At this stage, it may be mentioned that the Illegal Migrants (Determination by
Tribunals) Act, 1983 is no longer in existence, the same having been declared
unconstitutional by the Supreme Court in Sarbananda Sonowal Vs Union of India
reported in (2005) 5 SCC 665. Therefore, in so far paragraph 3.8 of the guidelines
dated 17.07.1997 is concerned, the reference would be under the Foreigners Act,
1946.
14. The above exercise was repeated in the year 2005 with the Election
Commission of India again going for intensive revision of electoral rolls in the State
of Assam taking 01.01.2005 as the qualifying date. In this connection, guidelines
dated 17.06.2004 were issued by the Election Commission of India. Paragraph 2.2
of the guidelines dealt with “D” voters. It was mentioned that the guidelines issued
in 1997 would be followed while dealing with such category of persons. Paragraph
8 dealt with verification by Electoral Registration Officers. It laid down the
procedure while carrying out such verification including verification by Local
Verification Officer. As per paragraph 8.6, Local Verification Officer would conduct
the verification by making an on the spot visit and the person concerned could
adduce any one or more of the documents mentioned therein in support of his
claim as a citizen of India. After due verification, the Local Verification Officer was
required to submit his report in the prescribed format. Under paragraph 8.8,
Electoral Registration Officer on receipt of the verification report from the Local
Verification Officer should consider the same. Where he was satisfied about the
eligibility of a person, he should allow the name of such person to continue on the
electoral roll but where he was not so satisfied and had reasonable doubt about
the citizenship of any person he should refer such doubtful cases to the competent
authority under the then Illegal Migrants (Determination by Tribunals) Act, 1983 or
the Foreigners Act, 1946 in a prepared format (Annexure-B to the guidelines dated
17.06.2004) to the competent authority for making reference to the Tribunal and
await the decision of such Tribunal.
15. As pointed out by Mr. Barua, in Mameja Khatun (supra) a Single Bench of this
Court directed that “D” voters should not be allowed to cast their votes with the
clarification that “D” voters would include persons whose names were included in
the electoral rolls but their citizenship was doubted or disputed and also those
whose cases were pending before the Foreigners Tribunals. This decision of the
learned Single Bench was confirmed by the Division Bench in Writ Appeal No.
Page No.# 12/15114/2011 (State Vs Mameja Khatun). By the judgment and order dated
13.10.2015, the Division Bench directed Election Commission of India and other
authorities to implement the directions of the Single Bench in letter and spirit.
16. At this stage, it may also be mentioned that in WP(C) No. 274/2009 filed by
Assam Public Works which is pending before the Supreme Court of India wherein
NRC updation exercise in the State of Assam is being monitored by the Supreme
Court of India, on 25.10.2013, Supreme Court clarified that as far as persons in
the “D” list are concerned, undoubtedly they were doubtful voters and therefore
their names could not be included unless the NRC is updated and unless the
Foreigners Tribunals declared them to be Indian citizens.
17. The Foreigners Act, 1946 is an act to confer upon the Central Government
certain powers in respect of foreigners. This Act provides for the exercise of
certain powers by the Central Government in respect of the entry of foreigners into
India; their presence in India and their departure therefrom. Section 2 (a) defines
a “foreigner” to mean a person who is not a citizen of India. Section 3 confers
power to the Central Government to make orders making provision either generally
or with respect to all foreigners or with respect to any particular foreigner or any
prescribed class or description of foreigners, for prohibiting, regulating or
restricting the entry of foreigners into India or their departure therefrom or their
presence or their continued presence therein.
17.1. In exercise of the powers conferred by Section 3 of the Foreigners
Act, 1946, Central Government made the Foreigners (Tribunals) Order, 1964.
As per order 2 (1), the Central Government may by order refer the question
as to whether a person is or is not a foreigner within the meaning of the
Foreigners Act, 1946 to a Tribunal to be constituted for the purpose for its
opinion.
18. Ministry of Home Affairs, Govt. of India had issued notification dated
19.04.1958 in exercise of powers conferred by Clause-(1) of Article 258 of the
Constitution of India whereby the President with the consent of the State
Government concerned entrusted to the Governments of each of the States
mentioned therein including the State of Assam the functions of the Central
Government in making orders of the nature specified in Section 3 of the Foreigners
Act, 1946. Another notification dated 17.02.1976 was issued by the Government of
India, Ministry of Home Affairs in the exercise of the powers conferred by Article
258 (1) of the Constitution entrusting the Superintendents of Police and Deputy
Commissioners (In-charge of Police) under the Government of Assam the functions
of the Central Government in making orders of the nature specified in Section 3 of
the Foreigners Act, 1946 within their respective jurisdictions subject to the
conditions mentioned therein which included the condition that exercise of such
functions would be in respect of nationals of Bangladesh and that while exercising
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such functions, Superintendents of Police and Deputy Commissioners (In-charge of
Police) shall comply with such general or special directions as the Government of
Assam or the Central Government may issue from time to time.
19. Article 258 of the Constitution deals with power of the Union to confer powers
etc on States in certain cases. Clause (1) of Article 258 starts with a non-obstante
clause. It says that notwithstanding anything in the Constitution, President may
with the consent of the Government of a State entrust either conditionally or
unconditionally to that Government or to its officers, functions in relation to any
matter to which the executive power of the Union extends. Clause (3) provides for
making of payment by the Government of India to the State concerned such sum
as may be agreed upon or in default of agreement through arbitration in respect of
any extra-cost of administration incurred by the State in connection with the
exercise of powers and duties of the Government of India conferred or imposed
upon a State Government.
20. Thus, under the Central Government notifications dated 19.04.1958 and
17.02.1976, Government of Assam, Superintendents of Police and Deputy
Commissioners (In-charge of Police) have been delegated the power to make
reference to the Foreigners Tribunal under order 2 (1) of the Foreigners (Tribunals)
Order, 1964 to seek opinion as to whether the proceedee is a foreigner or not
within the meaning of the Foreigners Act, 1946.
21. Thus from the above, what transpires is that there are two categories of “D”
voters:- (i). those who were marked as “D” voters in the electoral roll by the
Electoral Registration Officer following enquiry by Local Verification Officer; and
(ii). those whose references are pending before the Foreigners Tribunals.
22. In so far Electoral Registration Officer is concerned the exercise undertaken
by him while marking a person as a “D” voter in the electoral roll is a quasi judicial
exercise. If he holds the view after examining the enquiry report of the Local
Verification Officer that the concerned person is not a citizen of India he is
required to forward the case of that person to the competent authority i.e., the
Superintendent of Police. If it is so forwarded by the Electoral Registration Officer,
the jurisdictional Superintendent of Police has to make a reference to the
competent Foreigners Tribunals under order 2(1) of the Foreigners (Tribunals)
Order, 1964 based on the report received from the Electoral Registration Officer.
Question of making further enquiry by the Superintendent of Police in such a case
would not arise because enquiry has already been made by the Electoral
Registration Officer by exercising quasi judicial powers and the Superintendent of
Police cannot sit over such decision of the Electoral Registration Officer. He has to
forward the same by making the reference to the competent Foreigners Tribunal
for its opinion.
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18) The said judgment of the learned Single Judge in the case of
Sayam Uddin (supra), has stood affirmed by the virtue of the judgment and
order dated 29.07.2019, passed by the Division Bench of this Court in the writ
appeal of Sayam Uddin (supra).
19) It would be appropriate to refer to another decision of this Court
in the case of Amina Khatun v. Union of India & Ors., 2022 (4) GLT 102 (supra) ,
which was decided on 28.04.2022. In the said case, the reference was made by
the Superintendent of Police (Border), based on the Local Verification Officer’s
Report, as forwarded by the Elector Registration Officer. But it appears that the
previous decision of the learned Single Judge of this Court in the case of Sayam
Uddin v. The Union of India & Ors., 2019 (4) GLT 456 , as affirmed by the
Division Bench of this Court in the case of Sayam Uddin v. Union of India & Ors.,
W.A. 170/2019, decided on 29.07.2019, was not brought to the notice of this
Court. Therefore, under such circumstances, the Court is of the considered
opinion that under the well-settled principles of stare decisis, the decision in the
case of Amina Khatun (supra) would be per incurium. Accordingly, the decision
rendered in the case of Amina Khatun (supra), though not cited, will also not be
of any help to the petitioner.
20) It may be stated that after the IM(D)T has been disbanded,
reference is presently being made in accordance with the Government
Notification No. PLB.101/2005/Pt/194 dated 02.02.2006. If one needs to verify
as to whether proceeding before the IM(D)T was transferred in this case, the
said notification may be referred to. Hence, this Court would exercise restraint in
making any comment on (i) the form of reference; (ii) report of the Verification
Officer; (iii) reference by Electoral Registration Officer (ERO for short); and (iv)
reference by the Deputy Commissioner of Police (Border), Kamrup (M),
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Guwahati. Moreover, as the proceedings were transferred by virtue of orders
passed by the Supreme Court of India, the learned Foreigners Tribunals would
also have no power or jurisdiction to remand the reference back to the
Superintendent of Police (Border) for a fresh enquiry by the Local Verification
Officer and/or the Electoral Registration Officer.
21) Thus, as the enquiry report dated 02.03.2026 is clear that the
correct LVO Report in respect of the petitioner is now attached in the record of
F.T. Case No. 7/2024, the Reference has to be proceeded with so as to reach to
its logical conclusion. There is no way that the said proceedings can be quashed
and/or dropped or rejected and no case for the same has been made out.
22) Therefore, this writ petition fails and the same is dismissed.
23) The petitioner shall now appear before the said learned Tribunal
on the next date fixed and to participate in the proceedings of F.T. Case No.
7/2024, and by producing a certified copy of this order await for further orders
that may be passed by the said learned Tribunal on the next date fixed. In other
words, the Reference that has been registered against the petitioner has to be
proceeded with so as to bring it to its logical conclusion.
24) The parties are left to bear their own cost. 25) The learned standing counsel for the petitioner shall transmit a
downloaded copy of this order to the Home and Political (B) Department.
JUDGE JUDGE Comparing Assistant