Gauhati High Court
Fulchan Ali vs The Union Of India And 5 Ors on 26 February, 2019
Author: A.M. Bujor Barua
Bench: Achintya Malla Bujor Barua, Ajit Borthakur
Page No.# 1/5
GAHC010033732018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 1046/2018
1:FULCHAN ALI
S/O. LT. MAMUD ALI, VILL. BHITARDUWAR, P.S. CHAYYGAON, DIST.
KAMRUP(R), ASSAM, PIN-781125
VERSUS
1:THE UNION OF INDIA AND 5 ORS.
REP. BY THE MINISTRY OF HOME AFFAIRS, NEW DELHI-110001
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GUWAHATI-781006
3:THE DEPUTY COMMISSIONER
DIST. KAMRUP (RURAL)
ASSAM
PIN-781031
4:THE SUPERINTENDENT OF POLICE (B)
KAMRUP (R)
ASSAM
PIN-781031
5:THE ELECTION COMMISSION OF INDIA
NEW DELHI-110001
6:THE STATE COORDINATOR
NATIONAL REGISTER OF CITIZENS (NRC)
Page No.# 2/5
BANGAGARH
GUWAHATI-78103
Advocate for the Petitioner : MR H R A CHOUDHURY
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 26-02-2019 (A.M. Bujor Barua, J) Heard Mr. A. Matin, 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, Ms. A. Verma, 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) Kamrup, IM(D)T Case No.1442/1998 was registered. Upon the IMDT Act, 1983 being declared ultra vires, the reference was transferred to the Foreigners Tribunal No.1 Kamrup (Rural) at Ulubari Guwahati and was re-numbered as G.F.T(R) Case No.1838/2017.
3. Before the Tribunal, the petitioner filed his written statement and took the stand that he was born at village-Bhitarduar, Police station-Chhaygaon district-Kamrup in the year 1974.
4. A stand was also taken that the grandfather of the petitioner namely Haji Sayed Ali son of Komal Sk was an Indian citizen whose name appeared in the voter list of 1966 of village-Manjuri Mouza-Pub Chamaria police station-Chhaygaon at Serial No.47 House No.16. A stand was also taken that the name of the father of the petitioner namely Mamud Ali also appeared in the voter list of 1966 of village Page No.# 3/5 Manjuri.
5. A stand was also taken that the name of the father appeared in the voter list of 1971 of village Bhitarduar, Mouza-Pub Chamaria at Serial No.224, House No.2. Thereafter, a stand was taken that the name of Haren Ali brother of the petitioner appeared in the voter list of 1989 of village-Bhitarduar and that in the voter list of 1997 of village-Bhitarduar a remark 'D' was made against his name and further the name of the petitioner along with his other brother appeared in the voter list of 2017 of village- Bhitarduar by containing the remark 'D' against his name.
6. The voter list of 1966 is exhibited which contains the name of Haji Sayed Ali son of Komal Sk aged 75 years at Serial No.47 House No.16 and Mamud Ali at serial No.54 House No.16. The voter list of 1971 of villager Bhitarduwar is exhibited containing the name of Mamud Ali aged 37 years and Jamiran Nessa wife of sayed aged 30 at Serial No.225. Further the voter list of 1975 of village- Bhitarduwar containing the name of Mamud Ali and Jamiron Nessa is also exhibited.
7. The voter list of 1977 of village-Bhitarduwar contains the name of Mamud son of Sayed and Nur Bhanu Vanu wife of Mamud.
8. The voter list of 1989 of village Bhitarduwar contains the name of Haren Ali Roiman Nessa.
9. Further reliance has also been placed in the voter list of 2017 of village Bhitarduwar which contains the name of Haren Ali son of Mamud Ali, Kamal Uddin son of Mamud Ali, Jamiron Nessa wife of Mamud Ali, Kamal Uddin son of Mamud Ali etc.
10. We have taken note of that Jamiron Nessa was 30 years in the voter list of 1975 and her name appeared along with Mamud Ali and in the voter list of 2017, Jamiron Nessa is shown as 50 years and the name of her husband is shown as Mamud Ali.
11. Apart from discrepancy in the age of Jamiron Nessa when the name of Jamiron Nessa appears in the same list of 2017 of village Bhitarduwar along with the petitioner as well as Haren Ali and the other Page No.# 4/5 brothers, a prima facie link can be established between the petitioner and that of Mamud Ali of the voter list of 1971 of village Bhitarduwar. Further the Jamabandi pertaining to village Manjuri which has been exhibited also shows Fulchan Ali to be the son of Mamud Ali and Haren Ali, Kamal Uddin also to be the sons of Mamud Ali.
12. The explanation is given that the village Manjuri and Bhitarduwar are more or less the same village which are separated by the public road running between the two villages and therefore, the petitioner being the resident of village Bhitarduwar also has a land in village Manjuri.
13. Mr. J. Payeng, learned counsel appearing for the Foreigners Tribunal and Border Affairs raises an objection that the voter list of 2017 containing the name of Jamiron Nessa and that of the petitioner are only of the year 2017 and there is no earlier voter list showing the name of both the persons.
14. Such objection can be construed that either the voter list of 2017 is actually non-existent or the entries thereof had been manipulated.
15. We have taken note of that in the order of the Tribunal dated 29.01.2018 the aforesaid aspect of the matter that through the voter list of 2017 of village-Bhitarduwar containing the name of Jamiron Nessa wife of Mamud Ali and that of Fulchan Ali son of Mamud Ali and the other brothers, a possible link can be established with Mamud Ali of the 1971 voter list thorugh the in between voter list of 1997 etc. had not been given a consideration.
16. Accordingly we are of the view that the order dated 29.01.2018 of the Foreigners Tribunal No.1 Kamrup (Rural) Ulubari in G.F.T.(R) Case No.1838/2017 is unsustainable and accordingly, the same is set aside.
17. The matter now stands remanded back to the Tribunal for a re-consideration by taking into consideration the possible link that may be indicated through the voter list of 2017 of village Bhitarduawr containing the name of Jamiran Nessa and Fulchan Ali son of Mamud Ali of village Page No.# 5/5 Bhitarduwar with Mamud Ali of the voter list of 1971 of villager Bhitarduawr.
18. In doing so, the intermediate voter lists between 1971 to 2017 of village Bhitarduwar be also taken into consideration. But however as the objection has been raised by Mr. J. Payeng as regards the authenticity of the voter list of 2017, the state respondents shall put the petitioner to cross-examination to arrive at a conclusion as regards the authenticity of the voter list of 2017 and if necessary may produce any further evidence to show that Fulchan Ali son of Mamud Ali of the voter list of 2017 and Mamud Ali of the voter list of 1971 may not be the one and the same person.
19. It is stated that the petitioner is in detention at Goalpara. As the order of the Tribunal dated 29.01.2018 is interfered, we direct that the petitioner be released from detention forthwith upon submission of two sureties bond from two permanent and prominent personalities from his village or from a Government official ensuring continuous presence of the petitioner as and when required by the authorities to the satisfaction of the Superintendent of Police (Border) Kamrup who shall verify and satisfy himself as to the authenticity and reliability of the two sureties that the petitioner may submit. For the purpose, the petitioner shall appear before the Tribunal on 25.03.2019.
20. Upon appearance, the Tribunal shall pass its reasoned order as to the requirement of the petitioner to continue in detention any further.
JUDGE JUDGE Comparing Assistant