WP(C) 5276/2008 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER 1. This writ petition is directed against the order dated 5.5.2008 passed by the learned Member, Foreigners Tribunal, Nagaon in FT Case No. 46/2006 (State Vs. Smt. Bindu Rani Das) declaring her along with her husband and childr en as foreigners who came to Assam after the cut of date i.e. 25.3.1971. The ord er is ex-parte. 2. I have heard Mr. N. Islam, learned counsel for the petitioner. I have also heard Mr. A. Hussain, learned CGC. None has appeared for the State re spondent. I have also perused the records received from the Tribunal. 3. The two grounds on which the learned counsel for the petitioner advanced his arguments are that although the reference was only in respect of th e petitioner, but the Tribunal has passed the impugned order declaring all her f amily members including her husband as foreigners and while doing so, no opportu nity of being heard was provided to them. The second ground, on which the impugn ed order has been assailed is that the petitioner although had appeared before t he Tribunal on receipt of the notice and engaged a counsel to defend her, but la ter on the said counsel did not take any steps, because of the confusion in resp ect of the proceeding as to whether the same is only against the petitioner or a lso against other members of the family. 4. Learned counsel for the petitioner submitted that in the said ci rcumstances, the petitioner and her family members may be provided with an oppor tunity to defend the reference. Mr. A. Hussain, learned CGC could not make any s ubmission as he was not posted with any instruction in the matter. Learned couns el for the State respondents also did not advance any argument remaining absent during hearing. Be it stated here that although the writ petition is pending for the last about 5 years, but neither the Central Government nor the State Govern ment has shown any response to this proceeding. 5. On perusal of the records received from the Tribunal, it is foun d that the reference was only in respect of the petitioner and not her other fam ily members. However, the reference has been answered in respect of her husband and children who are namely Sri Apurba Das (40 years); Aditya Ch. Das (5 years); Sujit Das (5 months); Ms. Anjali Das (9 years) and Purnima Das (7 years). Thus here is a case in which, although the reference was only in respect of the prese nt petitioner, but as per the impugned order, her other family members have also been declared to be foreigners without providing them any opportunity of being heard. 6. As noted above, although the reference was only in respect of th e present petitioner, but in the notice issued by the Tribunal, the names of the other family members were also indicated. However, the notice was served only o n the petitioner with the endorsement that she was the only noticee. There being no specific reference against the other family members, the Tribunal could not have proceeded against other family members while deciding the reference and dec laring all the family members as foreigners who allegedly entered into Assam aft er 25.3.1971. On this score alone the impugned order is liable to be set aside a nd quashed. In this connection, the decision of the Full Bench dated 3.1.2013 in Rev. Pet. No. 22/2010 may be referred to, in which under similar circumstances a similar order has been set aside. For a ready reference, the operative and rel evant part of the said judgment and order is quoted below: 123.1.As discussed earlier, the initial reference made under Section 8(1) of 1 983 Act was against the appellant No.1 only. The IM(D) Tribunal also issued noti ce to the appellant No.1 only. In the reference there was no allegation that the appellant Nos.2, 3 and 4 are either illegal migrants or foreigners within the m eaning of 1983 Act or 1946 Act, respectively. That being the position, though th e appellant Nos.2, 3 and 4 are the children of the appellant No.1, in the procee ding registered on the basis of the aforesaid reference, no opinion could be rec orded against the appellant Nos.2, 3 and 4 i.e. holding that they are foreigners . The said aspect of the matter has been overlooked by the Tribunal as well as b y the learned Single Judge. The Tribunal’s order as well as the judgment passed by the learned Single Judge in WP(C)5393/2002 as regards the appellant Nos.2, 3 and 4, therefore, cannot be sustained in law and hence set aside. 7. For all the aforesaid reasons, I am of the considered opinion th at the impugned order is not sustainable in law and accordingly, the same is set aside and quashed. The petitioner, who is stated to be in custody shall be rele ased forthwith. 8. The matter shall now go back to the Foreigners Tribunal to answe r the reference afresh, for which, the petitioner shall appear before the learne d Foreigners Tribunal on __ ________. The SP(B), Nagaon shall ensure presence of the petitioner all throughout the proceeding so that in the event of opinion be ing rendered by the Tribunal that she is a foreigner, who entered into Assam aft er 25.3.1971, she can be taken into custody for deportation to her country of or igin. The SP(B) Nagaon is also directed to make an enquiry as to whether the oth er family members of the petitioner are suspected foreigners. Depending upon the outcome of such enquiry, he will be entitled to make reference to the Foreigner s Tribunal for rendering opinion. Needless to say that the reference, against th e petitioner afresh, adjudicating of the reference and the reference which might be initiated against the other family members of the petitioner, shall be as on the date of making the first reference vide IM(D)T Case No. 346/1991. 9. The writ petition is allowed to the extent indicated above. Send down the LCR with a copy of this judgment and order.