Gauhati High Court
Jamil Ahmed @ Jamil Miya vs The Union Of India And 5 Ors on 1 November, 2019
Author: Ajit Borthakur
Bench: Manojit Bhuyan, Ajit Borthakur
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GAHC010181672019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 5574/2019
1:JAMIL AHMED @ JAMIL MIYA
S/O- ESARAIL AHMED @ ESARAIL MIYA, VILL- JALHA, P.S-
SANGRAMPUR, DIST- PURVI CHAMPARAN, STATE BIHAR, PRESENT R/O-
VILL- NAMONIGAON, P.O AND P.S- RANGAPARA, DIST- SONITPUR, ASSAM
VERSUS
1:THE UNION OF INDIA AND 5 ORS
REP. BY THE SECRETARY, MIN OF HOME AFFAIRS, NEW DELHI 110001
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY
HOME DEPTT
DISPUR
GUWAHATI- 06
3:THE SUPERINTENDENT OF POLICE (B)
SONITPUR
P.O AND P.S-SONITPUR
PIN-
4:THE ELECTION COMMISSION OF INDIA
NEW DELHI- 110001
5:THE COORDINATOR
NRC
ASSAM
GUWAHATI- 781005
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6:THE DEPUTY COMMISSIONER
SONITPUR
P.O AND P.S- SONITPUR
PIN
Advocate for the Petitioner : MR. R SARMA
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
01.11.2019 (Ajit Borthakur, J) Heard Mr. Rajib Sharma, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent No. 1. Mr. J. Payeng, learned counsel represents respondent Nos. 2, 3 &
6. Ms. B. Das, learned counsel represents respondent No. 4 whereas Ms. A. Verma, learned counsel for the respondent No. 5.
By this petition under Article 226 of the Constitution of India, the petitioner assails the order/opinion, dated 30.01.2019, rendered by the Foreigners' Tribunal No. 7 th, Tezpur, Chariduar at Balipara in FTDC Case No. 507/16 arising out of police reference TZ(B)/99/1003 declaring the petitioner as a foreigner of post 1971 stream.
Be it mentioned that based on a reference made by the Superintendent of Police (Border), Sonitpur, vide Reference No. TZ(B)/99/1003 for opinion ascertaining the petitioner's nationality, being satisfied with the forwarding of the Election Registration Officer of 74 Rangapara LAC, the above FTDC Case No. 507/16 was registered under the Foreigners Act, 1946.
On receipt of notice, the petitioner contested the proceeding by filing a written statement and claimed to be an Indian Citizen by birth. The petitioner took the stand that he was born on 01.01.1961 at Vill- Jalha, P.O.- Mangalpur, P.S.- Sangrampur, Dist- Purvi Champaran, Motihari, Bihar. The petitioner stated that his name is Jamil Ahmed and he is also known as Jamil Miyan. His father's name is Esrail Miyan, who was also known as Esarail Ahmed and he was a permanent resident of vill.-Jalha, P.S-Sangrampur, Dist- Purvi Champaran, Motihari, Bihar. His name appeared in the electoral rolls of 1975 of No. 20 Gobindgunj LAC and 1966 of No. 21 Gobindgunj LAC of Bihar. He died when the petitioner was teenage. His father Page No.# 3/5 purchased a plot of land in Bihar in the year 1956. The petitioner's name was enrolled in the electoral rolls of 1993 of No-20 Gobindgunj LAC in Bihar and 2017 of No-15 Kesaria LAC. In the voter list of 1993, the petitioner's name was, however, wrongly recorded as "Jamin Miya" instead of "Jamil Miya". He possesses elector photo-Identity Card in his name. His mother's name is "Tarifan", whose name appeared in the voter list of 1975 of No-20 Gobindgunj LAC, voter list of 1966 of No-21 Gobindgunj LAC and voter list of 1993 of No-20 Gobindgunj LAC. But, in the voter list 1993 her name was wrongly recorded as "Tafran" instead of "Tarifan". She died about 10 years ago. The petitioner has four brothers including he, namely, Jalil Miyan, Jamil Miya @ Jamil Ahmed (The petitioner), Isahaq Ahmed @ Isahaq Miya, Saukat Ahmed @ Saukat Miya @ Saukat Ali. The elder brother of the petitioner Jalil Miyan expired in the year 2018 and the remaining brothers are still residing at Vill-Namonigaon of Sonitpur district. The brothers of the petitioner's names appeared in the voter list of 1993 of No-20 Gobindgunj LAC as well as in the voter list of 2017 of No-15 Kesaria LAC. The elder brother of the petitioner Jalil Miya shifted to vill-Namonigaon in the year 1980. After 5 years, thereafter, i.e. in 1985 the petitioner along with his other brother Isahaq Ali moved to the present place, namely, Namonigaon to run a barbour shop. His younger brother Saukat Ali also shifted to village Namonigaon in the year 1994. The petitioner got married to Samina Begum of Bihar in the year 1982. At present, he has been residing at Namonigaon with his wife and children.
In order to establish his claim of Indian citizenship by birth, the petitioner examined himself as D.W.-1 and exhibited 6 Number of documents.
We have given due consideration to the arguments advanced by the learned counsel of both sides and perused the documents.
Now, let us discuss the documents exhibited in the proceeding.
Ext. 'A', the birth certificate, dated 03.03.2017, issued by the authorised Officer of the Government of Bihar certifies that the petitioner was born on 01.01.1961 at Village- Jalha, under Sangrampur P.S., Dist.- Purvi Champaran, Bihar. This document also certifies that the name of the petitioner's father is Isarail and mother is Tarifan. This document is by statute of Registration of Births and Deaths Act, 1969 a prima facie positive evidence showing birth of the petitioner. However, the said entry of date of birth in the register, made after lapse of about 56 years, that too without any evidence showing that the said entry was made pursuant to the direction of a Magistrate under Section 13(3) of the Registration of Births and Deaths Act, 1969, the same cannot be accepted to be a conclusive piece of evidence as to the contents thereof and as such, the information contained therein are being doubtful, the same cannot be relied on to link up to the other exhibited documents.
Ext.'B', the certified copy of the Electoral Roll of 1966 shows entry of names of Isarail Miya, 34, son of Khudadin Miya and Tarifan, 31, the projected father and mother of the petitioner along with others against serial Nos. 977 and 981 respectively of Village- Shyampur, Mouza- Areraj under Gobindganj P.S. in 21 Gobindganj Khetrar LAC, Bihar. This exhibited document being a certified document of the Voter list, is Page No.# 4/5 a public document, the same is relied on, without further calling for the original and examination of the issuing authority.
Ext. 'C' is the certified copy of Voter list of 1975 of Village- Jalhan, under Gobindganj P.S., Mauza- Areraj, District-Purvi Champaran of 20 Gobinganj Khetrar LAC, Bihar containing the names of Isarail Miya, son of Khudadin Miya and Tarifan, 41, the projected father and mother of the petitioner respectively against house No. 132 in serial numbers 592 and 595. The age variation of the said two persons is by 1 (one) year, if compared to their age noted in the Voter list of 1966. Be that as it may, in view of the reasons recorded against Ext. B, this Ext. C is relied on.
Ext. 'D' is the photocopy of a registered sale-deed, dated 28.12.1956, showing purchase of land by the petitioner's father Isarail Miya, son of Khudadin Miya Motafa and other two of his brothers of the same address, mentioned in the Voter lists of 1966 and 1975. Such a document is not a public document, but a private document and the same is not proved by exhibiting a certified copy thereof and then calling for the original records as well as examining the registering authority. Hence, this photocopy of the document is inadmissible in evidence.
Ext. 'E' is the certified copy of the Voter list of 1993 pertaining to Village-Jalhan, Mouza- Areraj, under Gobindganj P.S., House No. 130 of 20 Gobindganj LAC, Bihar containing the names of the petitioner's projected mother Tarifan, wife of Isarail Miya, age 35 years. On the other hand, Ext. F is the Voter list of 2017, in respect of Village-Jalha under Sangrampur P.S. of 15 Kesaria LAC, Distirct- Purvi Champaran, Bihar containing the name of the petitioner, age 56 years and his wife, namely Motifan, age
51. On scrutiny of the aforementioned two Voter lists, it appears that both the Voter lists are pertaining to different Legislative Constituencies, Police Stations, Mouza, House Nos and further, in the Voter list of 1993, the age of the petitioner's mother and the petitioner appear to be same (35 years) as well as in the Voter list of 2017, the age of the petitioner is shown to be 56 years instead of 59 years, if calculated from the age recorded in the Voter list of 1993, where his name for the first time appeared. It is also noticed that the petitioner in his evidence as D.W.-1 stated that he came to Assam in the year 1985, but as rightly observed in the impugned opinion, he exhibited the Voter lists of 1993 and 2017 pertaining to two different Legislative Constituencies of Bihar State. In this context, there is no explanation on record. Therefore, we find both the aforementioned two exhibited Voter lists are highly doubtful and resultantly, the said two documents do not establish any linkage of the petitioner to his said projected father and mother.
Resultantly, we find the instant writ petition is devoid of any merit and accordingly, stands dismissed, without, however, any order as to cost.
The writ petition stands disposed of.
JUDGE JUDGE
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Comparing Assistant