Gauhati High Court
Haidar Ali And 4 Ors vs The Union Of India And 5 Ors on 7 February, 2019
Bench: Achintya Malla Bujor Barua, Ajit Borthakur
Page No.# 1/6
GAHC010217702018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 6826/2018
1:HAIDAR ALI AND 4 ORS.
S/O LT. ISMAT ALI @ KISMAT ALI, VILL. SILBHANGA (NAKHULA GRANT),
P.S. JAGIROAD, DIST. MORIGAON, ASSAM, PIN- 782413
2: MUSSTT. KARIMON NESSA
D/O ABDUL MAZID
W/O. MD. HAIDAR ALI
VILL. RAMPUR SATRA
P.S. BATADRAVA
DIST. NAGAON
ASSAM
PIN- 782122
3: MD. KARIM ALI @ ABDUL KARIM
S/O MD. HAIDAR ALI
VILL. SILBHANGA (NAKHULA GRANT)
P.S. JAGIROAD
DIST. MORIGAON
ASSAM
PIN- 782413
4: IKRAMUL ALI @ EKRAMUL HUSSAIN
S/O MD. HAIDAR ALI
VILL. SILBHANGA (NAKHULA GRANT)
P.S. JAGIROAD
DIST. MORIGAON
ASSAM
PIN- 782413
5: HABIZA BEGUM
D/O MD. HAIDAR ALI
Page No.# 2/6
VILL. SILBHANGA (NAKHULA GRANT)
P.S. JAGIROAD
DIST. MORIGAON
ASSAM
PIN- 78241
VERSUS
1:THE UNION OF INDIA AND 5 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF INDIA,
HOME DEPTT., NEW DELHI-1, ASSAM.
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HOME DEPTT.
DISPUR
GUWAHATI-6.
3:THE STATE CO-ORDINATOR
NATIONAL REGISTER OF CITIZENS (NRC)
ASSAM
ACHYUT PLAZA
BHANGAGARH
GUWAHATI-5
ASSAM.
4:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE COMMISSIONER
NIRVACHAN SADAN
ASHOKA ROAD
DELHI. 110001.
5:THE DEPUTY COMMISSIONER
MORIGAON
DIST. MORIGAON
ASSAM.
6:THE SUPERINTENDENT OF POLICE (B)
MORIGAON
DIST. MORIGAON
ASSAM
Advocate for the Petitioner : MR E AHMED
Advocate for the Respondent : ASSTT.S.G.I.
Page No.# 3/6
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
Date : 07-02-2019
JUDGMENT & ORDER (ORAL)
(AM Bujor Barua, J) Heard Mr. Z Hammad, learned counsel for the petitioners. Also heard Mr. A Ali, learned counsel for the Election Commission of India, Mr. UK Nair, learned standing counsel for the State of Assam appearing for the Foreigners Tribunal and Border Areas, Ms. U. Das, learned standing counsel for the authorities under the NRC as well as Ms. G Sarma, learned counsel for the authorities under the Union of India.
2. On being referred by the Superintendent of Police (Border), Morigaon, IM(D)T Case No.914/2002 was registered against the petitioners. Upon the IM(D)T Act of 1983 being declared ultra-vires, the reference was transferred to the Foreigners Tribunal No.1, Morigaon and was renumbered as Case No.FT(C) 462/2010.
3. Before the Tribunal, the petitioner No.1 in the written statement had taken a stand that he is the son of late Kismat Ali and was born and brought up in the village Rampur Satra under the Batadrava police station in the Nagaon district. The petitioner No.1 takes a stand that in the police report, his father is shown as Ismat Ali instead of Kismat Ali, but Ismat and Kismat Ali is the same person, who in fact is the son of Abdul Sheikh. A further stand has been taken that the petitioner had shifted to his present place at Silbanga (Nakhulagrant) under Jagiroad police station in the district of Morigaon about 35 years back and since then he has been permanently residing there with his family and he had also casted his vote. The petitioner No.1 also referred to another case being FT(C) No.815/2006, wherein he was declared to be a citizen of India.
4. As regards the petitioner No.2, a stand was taken in the written statement that her father is Abdul Mazid of Batadrava police station and she got married to the petitioner No.1 on 01.01.1982.
5. The petitioner No.1 claimed his linkage with Kismat Ali son of A. Sheikh aged 40 years, House No.12, village Rampur Satra Mauza Batadrava as per the voters list of 1965. Voters list of 1970 of village Rampur Satra which also shows the name of Kismat Ali is also being relied upon. Thereafter Page No.# 4/6 the petitioner No.1 relies upon the voters list of 1997 in respect of village Kakor Jolah, Mauza Gobha police station Jagiroad, District- Morigaon, which shows the name of the petitioner Haidar Ali son of Kismat Ali. Similarly, voters list of 2004 in respect of village Nakhulagrant is also relied upon, which also bears the name of Haidar Ali son of Kismat Ali age 43 years, House No.140. The petitioner No.1 takes a stand that the village Kakor Jolah in respect of the voters list of 1997 and village Nakhulagrant in respect of voters list of 2004 are one and the same.
6. Although no such material is produced, but for the purpose of the present adjudication, we do not for the time being go into the question whether village Kakor Jolah and village Nakhulagrant are one and the same. What is relevant is that the petitioner No.1 claims to be son of Kismat Ali of the voters list of 1966 and that Kismat Ali, whose name appears in Sl No.43, House No.12 of the voters list of 1965 pertaining to village Rampur Satra, Mauza Batadrava is the same person as that of Kismat Ali of voters list of 1992. In order to establish the linkage with Kismat Ali of the 1965 voters list, the petitioner No.1 refers to the earlier order dated 30.05.2012 of the Foreigners Tribunal No.1, Morigaon in FT(C) No.815/2006, wherein one Exhibit "Kha" being a certificate dated 28.07.2011 from the Gaon Bura of Rampur Satra was relied upon, which certifies that Haidar Ali is the son of late Kismat Ali of Rampur Satra village. On a question whether the person certifying the said certificate was examined, Mr. Hammad, learned counsel for the petitioner relies upon the conclusion arrived in paragraph-3 of the order dated 30.05.2012 in FT(C) No.815/2006, wherein it is provided as under:-
"In support of the O.P's case, Md. Haidor Ali (the OP) aged 48 years on 27.02.2012, got himself examined as O.P.W-1. According to him, he was born and brought up at village-Rampur Satra under Batadraba P/S. He came to Nakhola Grant under Jagiroad P/S in search of his livelihood about 30-31 years back for which Deosal Panchayat issued certificate vide Ext."Ka". He also proved the certificate issued by the Government Gaonburah of Rampur Satra showing him as the son of Kismat Ali as Ext."Kha"."
7. According to Mr. Hammad, learned counsel for the petitioners, the person certifying the Exhibit "Kha' certificate of the Gaon Bura had duly proved the same inasmuch as, the order of the Tribunal records that "he also proved the certificate issued by the Gaon Bura of Rampur Satra". A question for examination would naturally arise as to what is the meaning of the expression "he" as appearing in the said order. To arrive at a conclusion, when we look at a few sentences above the sentence, which provides "he also proved the certificate", we notice that it was provided that Haidar Ali, the opposite party therein had got himself examined as opposite Party No.1 and that according to him, he was born and brought up at village Rampur Satra and further that he came to Nakhulagrant under Page No.# 5/6 Jagiroad police station about 30-31 years back and that he also proved the certificate issued by the Government Gaon Bura of Rampur Satra.
8. In view of the use of the expression "he" as mentioned above, the sentence that he also proved the certificate issued by the Gaon Bura would definitely have to mean that it is the petitioner No.1 himself who had proved the certificate and it cannot be construed that the expression "he" indicates that the person certifying the certificate namely the Gaon Bura of Rampur Satra had proved the certificate concerned.
9. Accordingly, we arrive at a conclusion that the Exhibit "Ka" certificate of the Gaon Bura showing the petitioner No.1 to be son of Kismat Ali of Rampur Satra village is unacceptable in evidence as the person certifying the certificate had not been examined. We also take note of that there is an Exhibit "M" school leaving certificate, which shows that the petitioner No.1 is the son of Kismat Ali of Rampur Satra village. But it has also to be taken note of that the person certifying the so called transfer certificate issued by the Headmaster of Rampur Solapathar Moktab School was also not examined in order to make the said transfer certificate acceptable in evidence. It is also taken note of that while on one hand the concerned Exhibit-M is said to be a transfer certificate, but in vernacular, it is written Praman Pattra and it also contains the national Emblem which would otherwise be impermissible under the law.
10. As the two certificates relied upon by the petitioner No.1 namely the certificate the certificate of the Gaon Bura dated 28.07.2011 and the transfer certificate of the Headmaster of Rampur Solapathar Moktab School dated 28.05.2000 were not duly proved to be made acceptable in evidence, we are unable to accept the same to form a basis in arriving at a linkage with Kismat Ali of the 1965 voters list to be the father of the present petitioner No.1.
11. The Tribunal in its order dated 08.03.2018 in FT(C) No.462/2010 had arrived at a conclusion that as there is a discrepancy in the age of the petitioner as revealed through the evidence produced, the voters list of 1965 and 1970 cannot be accepted, more so, as the same does not contain the name of his mother Kandabanu. It was also concluded tht although the petitioner No.1 exhibited a school certificate which reflects his date of birth to be 1962, in such event, he should have casted his vote with his father prior to 2004 and that the discrepancy found by comparing his statement and that of the school certificate raises a doubt on the genuinity of the person concerned. Although the Tribunal has stated many such reasons, but we are constrained to observe that none of the reason can be construed to be a good reason for declaring the petitioners not to be citizens of India. But what is of further concern is that the Tribunal had failed to go into the core question that is required to be Page No.# 6/6 decided i.e. as to whether the petitioner No.1 could establish the linkage with Kismat Ali, whose name appears in the voters list of 1965. Unfortunately the order of the Tribunal does not even go into the said question let alone giving an answer to it.
12. In respect of the petitioner No.2, reliance has been placed on the voters list of 1965 also pertaining to village Rampur Satra, Mauza- Batadrava that she is the daughter of Abdul Mazid, whose name appears at Sl No.249, House No.70 age 42 years. We have gone through the evidence on record, but do not find any material which would indicate a linkage of the petitioner No.2 with that of Abdul Mazid of 1965 voters list pertaining to village Rampur Satra.
13. In view of the aforesaid conclusion that neither the petitioner No.1 could establish his linkage with Kismat Ali of 1965 voters list of village Rampur Satra nor the petitioner No.2 could establish her linkage with Abdul Mazid of 1965 voters list of Rampur Satra, we are of the view that although for reasons which may be at a variance from the reasons given by the Tribunal, the order of the Tribunal arriving at a conclusion that the petitioners could not discharge the burden of proof that they are citizens of India, calls for no interference.
14. Accordingly, this writ petition is found to be devoid of any merit and the same stands dismissed. However, no order as to cost.
15. Send back the LCR immediately.
JUDGE JUDGE Comparing Assistant