Gauhati High Court
Md. Rehat Ali vs The Union Of India And 3 Ors on 3 May, 2019
Author: Manish Choudhury
Bench: Manojit Bhuyan, Manish Choudhury
Page No.# 1/6
GAHC010091892016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 1142/2016
1:MD. REHAT ALI
S/O- LT. MANIRUDDIN, R/O VILL. and P.O.- KHOPNIKUCHI, P.S.- HAJO,
DIST.- KAMRUP R, ASSAM.
VERSUS
1:THE UNION OF INDIA and 3 ORS
TO BE REP. BY THE SECY., GOVT. OF INDIA, HOME DEPTT., NEW DELHI- 1.
2:THE STATE OF ASSAM
TO BE REP. BY THE SECY.
DEPTT. OF HOME
DISPUR
GHY- 6.
3:THE DY. COMMISSIONER
KAMRUP R
ASSAM
P.O. and DIST.- KAMRUP.
4:THE SUPERINTENDENT OF POLICE B
KAMRUP R
GUWAHATI
Advocate for the Petitioner : MRK UDDIN
Advocate for the Respondent : ASSTT.S.G.I.(R 1)
Page No.# 2/6
BEFORE
HON'BLE MR. JUSTICE MANOJIT BHUYAN
HON'BLE MR. JUSTICE MANISH CHOUDHURY
ORDER
03.05.2019 (Manish Choudhury,J) Heard Mr. Syed B. Rahman, learned counsel for the petitioner and Mr. J. Payeng, learned counsel for the respondent Nos. 2 to 4. None appears for respondent No. 1.
2. In the instant writ petition, the petitioner has assailed the order/opinion dated 29.12.2015 passed by the Foreigners Tribunal No. 4, Kamrup (R) at Hajo, in H.FT Case No. 29/2015, declaring the petitioner to be a foreigner with the finding that the petitioner had failed to discharge his burden of proof, as prescribed under Section 9 of the Foreigners Act, 1946.
3. In the year 2002, a reference was made by the Superintendent of Police (Border), Kamrup against the petitioner under the IMDT Act, vide IMDT Enquiry No. 257/2002 for opinion to the Tribunal. After declaration of the IMDT Act as unconstitutional by the Supreme Court in Sarbananda Sonowal vs. Union of India, (2005) 5 SCC 665, the reference was re-registered under the Foreigners Act, 1946 read with Foreigners (Tribunals) Order, 1964, as amended, as H.FT Case No. 29/2015. Accordingly, the Tribunal issued notice and on receipt thereof, the petitioner duly entered appearance and contested the proceeding by filing his written statement and adducing evidence including documentary evidence to substantiate his claim of citizenship. The Tribunal, however, had answered the reference in the affirmative and against the petitioner. The Tribunal had further directed to detain the petitioner in the detention camp in accordance with law and to delete his name from the voter lists.
4. Pursuant to the said order/opinion dated 29.12.2015, the petitioner was taken into custody and kept in Goalpara District Jail. When the writ petition against the said order/opinion dated 29.12.2015 was preferred before this Court, this Court by order dated 25.02.2016, directed that the petitioner shall not be deported. Thereafter on 11.07.2017, this Court finding no error or infirmity in the view taken by the Tribunal, dismissed the writ Page No.# 3/6 petition directing the authorities concerned to take necessary follow up steps.
5. The said judgment and order dated 11.07.2017 passed in the writ petition and the order/opinion dated 29.12.2015 passed by the Foreigners Tribunal in H.FT Case No. 29/2015, was assailed by the petitioner in Civil Appeal No. 9214 of 2018 (Arising out of SLP (C) No. 4019/2018) before the Supreme Court. The Supreme Court by order dated 10.09.2018 set aside the impugned judgment and order of the High Court and disposed of the aforementioned Civil Appeal with the observations as under:-
"2. There is subsequent development in the case. It has been submitted that after the order had been passed by the Foreigners Tribunal under the Foreigners Act, 1946 in the case of the sister of the appellant, the order had been passed on 14.12.2016 in the case H.F.F. /13/2015, it was averred that the sister of the appellant, namely, Mannbahar Bibi had been found to be Indian national. It was pointed out by the learned senior counsel appearing for the appellant that an additional affidavit of Lokman Ali, son of the appellant was filed in the High Court and that had not been taken into consideration regarding the aforesaid aspect. However, learned counsel was unable to point out that there was material on record indicating that Maanbahar Bibi is the sister of the appellant. As such, this fact requires investigation and it is to be ascertained as to what is the impact of the order passed by the Foreigners Tribunal in the case of the sister of the appellant and also whether the order was based on acceptable material.
3. In the circumstances, we remit the case to the High Court and impugned judgment and order is set aside. In the circumstances, as agreed to, let the Foreigners Tribunal examine the aspect as to the fact that whether Maanbahar Bibi is the sister of the appellant and whether the appellant can be held to be Indian national on the basis of the additional documents which may be produced by the appellant before the Tribunal. Let investigation be completed within three months from date of appearance of the parties. Let the parties appear before the Foreigners Tribunal on 03.10.2018. Let investigation be completed within three months and report be submitted to the High Court. The High Court to consider and decide the case afresh as early as possible. The impugned order passed by the High Court is set aside.
4. The appellant is incarcerated at present, he be produced during the inquiry before the Page No.# 4/6 Tribunal. The appeal as well as all pending applications accordingly stand disposed of.
6. Pursuant to and in terms of the said order dated 10.09.2018 of the Supreme Court, this Court by order dated 13.03.2019 directed the Tribunal to examine the aspect as to whether the petitioner could be held to be Indian national on the basis of the additional documents which was produced by the petitioner before the Tribunal. It was further observed that the Tribunal was required to arrive at its conclusion and thereafter, had to submit the report in the manner, as directed by the Supreme Court.
7. Pursuant to and in terms of the order dated 10.09.2018 and the order dated 13.03.2019, the Tribunal completed its enquiry by examining 13 (thirteen) witnesses including the petitioner, Rehat Ali and Musstt. Munbahar Bibi (proceedee in H.FT Case No. 13/2015). It transpires that during the enquiry, 17 (seventeen) Nos. of additional documents were exhibited on behalf of the petitioner. After the enquiry, the Tribunal has forwarded its report in a sealed cover to this Court. The sealed cover has been requested to be opened by the Court Master in presence of the parties and it is found therein, that the Tribunal has forwarded its Report of Enquiry dated 17.04.2019. On perusal of the said report, it is observed that the Tribunal on appreciation of the oral and documentary evidence adduced during the enquiry, has found that the petitioner, Rehat Ali has been able to establish the link with his projected father and projected grand father, who are Indian nationals. For ready reference, the relevant part of the report of enquiry dated 17.04.2019 of the Tribunal are reproduced hereunder:-
" That, during enquiry, Rehat Ali has submitted as many as seventeen (17) numbers of additional documents and examined 13 (thirteen) witnesses, including appellant Rehat Ali and Must Munbahar Bibi, (proceedee in HFT Case No. 13/2015). On perusal of the documents and the evidence, it was found that Munbahar, who was declared as Indian citizen, in HFT Case No.13/2015, is the sister of the appellant Rehat Ali. Evidence further reveals that Rehat Ali is the son of Muniruddin and Taripjan and grandson of Goni. It also appears that Goni, owned and possessed land at village Bangnaputa, under Dag No. 780, Annual Patta No. 40, in 1947-48, allotted by the Govt. and the document is marked as "Mark 14". Rehat Ali stated that name of his parent, Moniruddin and Taripjan, grandparent Goni and Moyfol, uncle Mahammad Ali and his wife Nabiton and elder brother Sultan Ali, were enrolled Page No.# 5/6 in the voters list, 1966, of Bangnaputa gaon under Chenga LAC. This piece of evidence is found corroborated with the contents of voters list, 1966, exhibit as Ext. A in HFT Case No. 29/2015, State Vs Rehat Ali. Additional document, certified copy of voters list, 1966, village No. 1 Bangnaputa, under 54, Chenga LAC (Mark 17) shows that Muniruddin is the son of Goni, enrolled at Sl. No. 580, House No. 193. Ext. A of HFT Case No. 29/2015 shows enrolment of the names of Goni Sk, son of Banu, Moyfol Nessa, wife of Goni, Moniruddin Sk, son of Goni, Mahammad Ali, son of Goni, Taripjan Nessa, wife of Minor, Nabiton Bibi, wife of Mahammad and Sultan Ali, son of Monir, at Sl. No. 578 to 584, House No. 193, where name of Moniruddin Sk is at Sl. No. 580. All the said persons were shown as inhabitant of House No. 193, so, it can be held that Moniruddin is the son of Goni Sk. Again, additional documents, such as Gaonbura certificate (Mark 2), issue register and counterfoil of Gaonbura certificate (Mark 3 and 4), certified copies of voters list, 1977, 1989, 1994, 2005, 2010, village Khopanikuchi, under 55, Hajo LAC, (Mark 5 to 9), cetified copy of sale deed (Mark
15), certified Jamabandi copy of patta No. 298, village Khopanikuchi (Mark 19 and 20) shows that Rehat Ali is the son of Monuruddin @ Monu. From the above additional documents and the evidence adduced, it is found that the link has been established between Rehat Ali and Goni Sk as grandson and grandfather and Goni Sk resided in India since prior to 1947-48 by possessing land in his name under Annual Khiraj Patta No. 40, village Bangnaputa. Learned Asst. G.P. though cross examined the witnesses, but failed to demolish the linkage, disclosed in evidence as well as additional documents stated above, between Rehat Ali and Monuruddin @ Monu as father and son and Rehat Ali and Goni as grandfather and grandson, and the documentary evidence, Mark 14 (Original Annual Khiraj Patta No. 40, village Bangnaputa) and Ext. A of HFT Case No. 29/2015 (certified copy of voters list, 1966, village No. Bangnaputa), reveals that parent, grandparent, uncle, aunt and elder brother of Rehat Ali resided in India since prior to 1966 and enjoyed constitutional rights by casting vote in general election, 1966, as citizen India and Goni Sk possessed land allotted by Govt.
So, from the un-rebutted evidence as adduced, it can safely be held that Rehat Ali, being the son of Monuruddin and grandson of Goni Sk, who resided at village No. 1 Bangnaputa, P.S the then Nalbari, Dist. The then Kamrup (Assam) as citizen of India, since prior to 1947-48, is as citizen of India and not a foreigner or illegal migrant."
8. On perusal of the report of the Tribunal, it is seen that the Tribunal has rendered its Page No.# 6/6 finding on due appreciation of the entire facts, evidence and documents brought on record during the enquiry and has rightly reached the opinion that the petitioner, Rehat Ali being the son of Monuruddin and grandson of Goni Sk, who resided at village No. 1 Bangnaputa, P.S the then Nalbari, Dist. the then Kamrup (Assam) as citizen of India, since prior to 1947-48, is a citizen of India and not a foreigner or illegal migrant . On due consideration of the same, we also agree with the view taken by the Tribunal and accordingly, the writ petition stands allowed.
9. It is submitted by the learned counsel for the petitioner that the petitioner is presently under detention and is lodged at Goalpara District Jail/Detention Camp at Goalpara. On writ petition being allowed, the petitioner is to be released from the Jail/Detention Camp forthwith. Consequently, the Superintendent of Police, (Border) Kamrup shall take necessary follow up steps to release the petitioner forthwith.
The copy of the report of the enquiry dated 17.04.2019 of the Foreigners Tribunal No. 4, Kamrup, Hajo is to be kept with the record.
Registry to send down the case records forthwith and inform the concerned Foreigners Tribunal, Deputy Commissioner and Superintendent of Police (Border).
JUDGE JUDGE Comparing Assistant