Gauhati High Court
Motior Rahman vs The Union Of India And 4 Ors on 26 November, 2019
Equivalent citations: AIRONLINE 2019 GAU 593, (2020) 206 ALLINDCAS 816
Author: Suman Shyam
Bench: Suman Shyam, Parthivjyoti Saikia
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GAHC010024402017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 3185/2017
1:MOTIOR RAHMAN
S/O LT. AHMED ALI VILL- AOLATOLI, P.S. LAKHIPUR, DIST. GOALPARA,
ASSAM.
VERSUS
1:THE UNION OF INDIA and 4 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NEW DELHI - 110001.
2:THE DEPUTY COMMISSIONER
GOALPARA
DIST. GOALPARA
ASSAM
3:THE SUPERINTENDENT OF POLICE B
GOALPARA
DIST. GOALPARA
ASSAM
4:THE OFFICER-IN-CHARGE
LAKHIPUR POLICE STATION
DIST. GOALPARA
ASSA
Advocate for the Petitioner : MR.J AHMED
Advocate for the Respondent : MR. J. PAYENG, SC, FT.
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
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JUDGMENT AND ORDER (ORAL)
Date : 26-11-2019 Suman Shyam, J
1. Heard Mr. J. Ahmed, learned counsel appearing for the petitioner. We have also heard Mr. J. Payeng, leaned Standing Counsel, Foreigners Tribunal, appearing for the respondent nos. 2, 3, 4 and 5. None has appeared for the respondent no.1.
2. In this writ petition, the order dated 29/03/2017 passed by the learned Member, Foreigners Tribunal (4th), Goalpara, Assam, in FT Case No. 427/2016, corresponding to ERO Case No. 627 88/ 38 declaring the petitioner as a foreigner, has been put under challenge.
3. The case projected by the petitioner in the written statement, reduced to its essence, is as follows :-
The petitioner is one of the sons of late Ahmed Ali and Musstt. Piarjan Bibi and was born in India in the village Kantapur, PS- Lakhipur in the district of Goalpara. According to the petitioner, his father Ahmed Ali had cast his vote along with his family members in the year 1966 from village Kantapur on the basis of entry of his name in the voters' list of 1966. After the death of Piarjan Bibi, the father of the petitioner had re-married Jorimon Nessa, who belonged to Aolatoli village but soon after their marriage, Ahmed Ali had also expired leaving behind the petitioner and his elder brothers. After the death of his father, the petitioner continued to reside at Aolatoli along with their step mother Jorimon Nessa. The petitioner has stated that Jorimon Nessa had cast her vote along with his elder brother Abdul Jalil in the year 1985 but the petitioner, for the first time, had cast his vote in the year 1989. On the basis of such plea, the petitioner had claimed to be a citizen of India.
4. In support of his aforesaid claim, the petitioner had examined two witnesses and had produced certified copies of the electoral roll of 1966, 1970 and 1989 as evidence to show that the name of his father was included in the voters' list of 1966 and 1970 and thereafter, the petitioner's name was also included in the electoral roll of 1989. That apart, the petitioner has produced Xerox copies of the electoral roll of 1985 as well as those of 1997, 2011 and 2014 in support of his claim that he has been continuously residing in India since birth and had also exercised his voting rights as per entry of his name in the voters' list. The petitioner had examined his brother Abdul Jalil as DW-2, who had deposed before the Tribunal that the petitioner is the younger son of late Ahmed Ali and Piarjan Bibi and that he was born in village Kantapur in the district of Goalpara.
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5. The learned Foreigner's Tribunal, upon consideration of the materials available on record, rejected the claim of the petitioner, inter-alia holding that the Xerox copies of the electoral rolls submitted by the petitioner pertaining to the year 1985, 1997, 2005, 2011 and 2014 were not admissible in the eye of law. The learned Tribunal has rejected the voter's list of 1966 on the ground that names of the father and mother of the petitioner had been marked with highlighter. That apart, the learned Tribunal has also held that there is no proof as regard the date and place of birth of the petitioner and that in the certified copies of the voters' list of 1989, the names of the petitioner's father and mother is not mentioned. The learned Tribunal has also observed that the name of step mother of the petitioner has not been mentioned in any other voters' list before or after 1985. The learned Tribunal had also taken note of the fact that there were discrepancies in the address claimed by the petitioner, inasmuch as the name of his step mother Jorimon Baidhawa was recorded in the voters' list of 1985 from village Aolatoli (Meserbhita) wherein the age of the step mother of the petitioner has been shown as 51 years but her name was not recorded in any other voters' list before the year 1985. The learned Tribunal has also held that the petitioner was included in the list of 'D' voters during the period from 2005 and therefore, the claim of the petitioner of being an Indian citizen could not be established on the basis of the evidence produced by him.
6. Referring to the burden of proof cast upon the procedee under Section 9 of the Foreigners Act, 1946, the learned Tribunal has held that the petitioner, has failed to discharge his burden of proof under the law and, therefore, was liable to be declared as a foreigner. Accordingly, the learned Tribunal had rendered its opinion in the affirmative and against the petitioner.
7. By carrying out an amendment in the Citizenship Act, 1955, Section 6(A) was inserted with effect from 07/12/1985 as a special provision as to citizenship of persons as per the Assam accord. As per Section 6(A), all persons of Indian origin who came before 1 st day of January, 1966 to Assam from the specified territory including those whose names were included in the electoral rolls used for the purpose of general election to the House of People held in the year 1967 and who have been ordinarily resident in Assam since the date of their entry into Assam, shall be deemed to be a citizen of India as from 01/01/1966. A plain reading of subsection 2 of Section 6(A) makes it clear that persons entering Assam from the specified territory before 01/01/1966 and ordinarily residing therein since the date of their entry, shall be deemed to be Indian citizens.
8. In this case, the petitioner has produced the voters' list of 1966 of No. 44 West Goalpara LAC wherein the names of his father Ahmed Ali and mother Piarjan Bibi was included. Certified copy of Page No.# 4/5 the electoral roll of 1966 is available on record as Ext-A. The respondents have not disputed the correctness of Ext- 'A'. The petitioner has also produced certified copy of the electoral rolls of 1989 wherein the name of the petitioner has been entered as son of Ahmed Ali. There is nothing on record to dispute the claim that the petitioner is the son of Ahmed Ali and Piarjan Bibi who were living in India since prior to 1966. Mr. Payeng has also submitted in his usual fairness that the respondents are not questioning the genuineness of the certified copy of the voters list for the years 1966 or 1989 produced by the petitioner, but the only dispute in this case is as to whether the name of Ahmed Ali shown in the electoral roll of 1989 is the same person who is the father of the petitioner. The name of the petitioner's grandfather Manik Sheikh is also mentioned in the voter's lists of 1966 and 1970.
9. As mentioned above, the DW-2, who is the brother of the petitioner, had categorically deposed that the petitioner is the son of Ahmed Ali and Piarjan Bibi. Ahmed Ali who had cast his vote on the basis of entries made in the voters' list of 1966.The aforesaid testimony has not been assailed during the cross -examination of the witness. The respondents have also failed to lead any evidence in rebuttal. Moreover, in the reference sent to the Foreigners Tribunal, the father's name of the writ petitioner has been shown as Ahmed Ali. We are, therefore, unable to accept the contention of Mr. Payeng that Ahmed Ali mentioned in Ext-"A" is a different person.
10. In so far as the change in the village the petitioner, he has mentioned the circumstances under which he had to live to Aolatoli and later on return back.In paragraph 5 of the written statement, the petitioner has mentioned that after the demise of his father, Jorimon Nessa had to come to Aoatoli so as to reside with the petitioner and his brother. The veracity of the said statements has also not been questioned by the respondents at any point of time. If that be so, we are of the view that there is sufficient explanation as to why village Aolatoli was shown as the native place of Jorimon Nessa @ and therefore, the reason for inclusion of her name in the electoral roll of 1985. Mr. Ahmed has submitted that the step mother Jorimon Nessa @ Jamiron Baidhawa had also expired sometime in the year 1985 and that is the reason why her name does not find place in the subsequent electoral rolls. From the materials available on record, we do not find any justifiable ground to reject the said plea of Mr. Ahmed.
11. We also find from the record that the learned Tribunal has declared the petitioner as a foreigner based on some minor discrepancies in recording of age and also for non-mentioning of the date of second marriage of the father of the petitioner. However, such discrepancies, in our opinion, are minor in nature and hence, even if found correct, would not have any material bearing in the outcome of this Page No.# 5/5 writ petition. Moreover, in the decision of the Hon'ble Supreme Court rendered in the case of Sirajul Hoque Vs. The State of Assam and others in connection with Criminal Appeal No. 267/2019 arising out of SLP(Crl) No. 4500/2018 it has been held that minor discrepancies in recording of names, age and address of the family members of the proceedee cannot be ground to doubt his case.
12. Having regard to the peculiar facts and circumstances of this case, we are of the considered opinion that the petitioner has succeeded in establishing linkage with his father i.e. late Ahmed Ali, who was evidently living in India prior to the year 1966 and there are also sufficient materials to show that the petitioner had continued to reside in India since he was born.
13. For the reasons stated above, we are of the view that the impugned order dated 29/03/2017 is not sustainable in the eye of law and the same is accordingly set aside.
We hold that the petitioner has succeeded in establishing his claim of Indian citizenship by leading cogent evidence.
This writ petition therefore, succeeds and is accordingly allowed.
Send back the LCR.
JUDGE JUDGE Sukhamay Comparing Assistant