Gauhati High Court
Jabeda Khatun vs The Union Of India And 6 Ors on 15 March, 2019
Author: A.M. Bujor Barua
Bench: Achintya Malla Bujor Barua, Ajit Borthakur
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GAHC010264982018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 8682/2018
1:JABEDA KHATUN
W/O AYEB ALI
D/O LATE TUFAS UDDIN
VILL- CHAFA KAMAR
P.O. AND P.S. BARPETA
DIST. BARPETA, ASSAM
PIN - 781316
VERSUS
1:THE UNION OF INDIA AND 6 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, DEPARTMENT OF
HOME, NEW DELHI-1.
2:THE STATE OF ASSAM
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT OF HOME
DISPUR
GUWAHATI -6.
3:THE DEPUTY COMMISSIONER
BARPETA
PIN - 781301
4:THE SUPERINTENDENT OF POLICE (BORDER)
BARPETA
PIN - 781301
5:THE ELECTION COMMISSION
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GOVT. OF INDIA
NEW DELHI-1.
6:THE STATE CO-ORDINATOR OF NATIONAL REGISTRATION (NRC)
ASSAM
GUWAHATI -32.
7:THE FOREIGNERS TRIBUNAL NO. 2
BARPETA
REP. BY THE STANDING COUNSEL OF THE TRIBUNAL PIN - 781301
Advocate for the Petitioner : MR. A ROSHID
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 15-03-2019 (A.M. Bujor Barua, J) Heard Mr. A. Roshid, learned counsel for the petitioner. Also heard Mr. A.I. Ali, learned counsel for the Election Commission of India, Mr. J. Payeng, learned counsel for the State of Assam appearing for the Foreigners' Tribunal and Border Areas 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) Barpeta, IM(D)T Case No.1209/B/98 was registered against the petitioner. On the IMDT Act, 1983 being declared ultra vires, the reference was transferred to the Foreigners Tribunal No.2 nd, Barpeta and was re-numbered as F.T.(2 nd) Case No.834/16.
3. Before the Tribunal, the petitioner filed written statement and took the stand that Tufas Uddin son of Halim Uddin age 45 years of the voters list of 1965 is the father of the petitioner.
4. To substantiate the same, the voters list of 1965 of village-Barbhita was produced before the Tribunal which contains the name of Tufas Uddin son of Halim age 45 years.
The voters list of 1970 of village-Barbhita was also produced which also contains the name of Tufaz Uddin son of Halim.
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5. In order to establish a link with Tufas Uddin son of Halim Uddin age 45 years of the 1965 voters list, a certificate from the Gaon Burah of Barbhita village amongst others was also exhibited.
6. The certificate of the Gaon Burah dated 04.11.2017 certifies that Jabeda Khatun daughter of Tufaz Uddin of P.S. Pathacharkuchi Dist-Barpeta. On being asked as to whether the Gaon Burah of Barbhita village had been examined, the answer given is that the Gaon Burah was not examined.
7. In the absence of the examination of the Gaon Burah, the certificate dated 04.11.2017 would be inadmissible in evidence. The petitioner contends that she be given an opportunity to appear before the Tribunal to examine the Gaon Burah of Barbhita village, who had certified the certificate dated 04.11.2017.
8. As the petitioner had already exhibited the certificate of the Gaon Burah, we allow to examine the Gaon Baruha if so advised. In the absence of any existing material being available on record, we are unable to arrive at a conclusion that the order of the Tribunal requires an interference.
9. Accordingly, for the time being, we do not interfere with the order of the Tribunal dated 05.10.2018. But however as the petitioner desires to examine the Gaon Burah of Barbhita village, she is allowed to do so by remanding the matter back to the Tribunal without interfering with the order dated 05.10.2018.
The petitioner shall appear before the Tribunal on 20.03.2019 along with the Gaon Burah of Barbhita village for his examination.
10. If the Gaon Burah is examined, the State shall cross-examine him. Thereupon, the Tribunal shall pass a reasoned order by taking into consideration the evidence that the Gaon Burah may adduce.
11. In the event, the order to be passed by the Tribunal after considering the evidence of the Gaon Burah is in favour of the petitioner, the same shall supersede the earlier order dated 05.10.2018 and in the event it goes against the petitioner, the reason given shall be construed to be additional reason to justify the conclusion in the order dated 05.10.2018.
In terms of the above, the writ petition stands disposed of. Till 20.03.2019, the petitioner shall not be deported.
JUDGE JUDGE Comparing Assistant