Gauhati High Court
Jiban Ali vs The Union Of India And 3 Ors on 19 February, 2019
Author: A.M. Bujor Barua
Bench: Achintya Malla Bujor Barua, Ajit Borthakur
Page No.# 1/4
GAHC010201232017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 5545/2017
1:JIBAN ALI
S/O- JALAL UDDIN, PERMANENT R/O- VILL- MAURIPAM, P.O AND MOUZA-
MANDIA, P.S- BAGHBAR, DIST- BARPETA, ASSAM
VERSUS
1:THE UNION OF INDIA and 3 ORS.
REP. BY THE SECRETARY TO THE GOVT OF INDIA, MIN OF HOME
AFFAIRS, NEW DELHI-01
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
HOME DEPARTMENT
DISPUR
GHY- 6
3:THE DEPUTY COMMISSIONER
BARPETA
784301
4:THE SUPERINTENDENT OF POLICEB
BARPETA
ASSAM
PIN- 78430
Advocate for the Petitioner : MR.S B RAHMAN
Advocate for the Respondent : GA, ASSAM
Page No.# 2/4
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 19-02-2019 (A.M. Bujor Barua, J) Heard Mr. S.B. Rahman, 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) Barpeta, a reference was registered against the petitioner under the IMDT Act, 1983. Upon the IMDT Act being declared ultra virus, the reference was transferred to the Foreigners Tribunal-IV Barpeta and re-numbered as Case No.F.T.(IV)- 76/2015.
3. In the written statement before the Tribunal, the petitioner took the stand that the father of the petitioner namely Jalal Uddin was born and brought up at Village Peradhara of Nalbari district.
4. A further stand was taken that sometime prior to the year 1970, he married Tasiran Nessa, Daughter of Durjan Ali of Village- Mouripam and thereafter, continued to reside in the house of his father-in-law. Consequent thereto, the name of the father of the petitioner was enrolled in the voter list of 1970 of village-Mouripam, Mouza- Mandia P.S. Baghbor of the erstwhile district Kamrup. The petitioner also took the stand that the name of his mother Tosiron Nessa appeared in the voter list of 1966 of village-Mouripam.
5. In the proceeding before the Tribunal, the petitioner exhibited the voter list of 1966 of village Mouripam which contains the name of Tosiran Nessa wife of Jalal at Serial No.240 showing age to be 30 years. The voter list of 1970 of Village- Mouripam was also exhibited, which contains the name of Jalaluddin son of Goli.
6. It is taken note of that the other persons shown in the voter list of 1966 of village- Mouripam and in the voter list of 1970 also of village Mouripam are more or less one and the same. Thereupon, the Page No.# 3/4 petitioner relies the voter list of 1997 of village-Mouripam, wherein, his name Jiban Ali appears at Serial No.512.
7. The petitioner further relies upon the deposition of Md. Abdul Kuddus son of Late Khayer Uddin, aged about 97 years, Resident of village Maurigram, who had deposed as DW-2 by stating that he knows the petitioner Jiban Ali son of Jalal Uddin of village Mauripam personally since his birth and to that extent he had issued the certificate as the Gaon Burah.
8. By relying upon the voter list of 1997 showing the petitioner to be the son of Jalal of village Mouripam and the deposition of the Gaonburah of Village Maurigram who is aged 97 years old, the petitioner seeks to establish his linkage with Jalaluddin whose name appears in the year 1970 voter list of village Mouripam.
9. The petitioner also files additional affidavit bringing on record the voter list of 1985 of village Mouripam which contains the name of both Jalal Uddin and Tosiran Nessa, and that the said list of 1985 more or less also contains the name of all the other persons whose name appears in the voter list of 1975, 1985 and 1989. By relying upon the newly included voter list of 1975, 1985 and 1989, the petitioner seeks to further claim his linkage with Jalal Uddin of 1970 voter list.
10. Mr. J. Payeng, learned counsel for the State respondents raises an objection that as the petitioner has not exhibited the voter list of 1975, 1985 and 1989, there is a possibility that such voter lists may not actually exist.
11. We are of the view that a mere possibility of non-existence of the concerned voter list can neither be a reason to accept the said voter list nor at the same time it can be a reason to reject the voter list. The existence or non-existence of the voter lists would be within the realm of a factual determination and a mere possibility of the non-existent of such voter lists cannot be a reason on its own either to accept or not to accept such voter lists. But at the same time, we also cannot oblivious of the fact that the voter lists of 1975, 1985 and 1989 now produced by the petitioner would have to be a part of the public record. If it is a part of the public record, it would be a matter of factual determination as to whether the lists so produced by the petitioner do actually finds place in the public record.
12. From the aforesaid, we are of the view that interest of justice will be met if the petitioner is allowed to exhibit the voter lists of 1975, 1985 and 1989, it being purportedly a public document and upon such production, it will be for the State respondent authorities to examine the veracity and existence of such voter list and thereupon in the event, it is found that they are non-existent, appropriate Page No.# 4/4 objection to be raised before the Tribunal.
13. Further we also take note of that DW-2 Gaonburah had deposed that the petitioner is the son of Jalal Uddin of village- Mauripam, whose name appears in the voter list of 1970 of the said village. The respondent authorities shall be also at liberty to further cross-examine the DW-2 Md. Abdul Kuddus to extract the veracity and correctness of his statement that the father of the petitioner is Jalal Uddin whose name appears in the voter list of 1970.
14. For the purpose as indicated above, the petitioner shall appear before the Foreigners Tribunal-IV, Barpeta on 25.03.2019 along with DW-2 for his cross-examination as well as the documents indicated above i.e the voter lists of 1975, 1985 and 1989 for it being exhibited before the Tribunal. Upon such production, the Tribunal shall proceed further as indicated above and within a period of 30 days there from give its reasoned final opinion on the reference made against the petitioner. Any such order to be passed by the Tribunal shall prevail over the earlier order dated 28.06.2017. It is stated that the petitioner is in detention pursuant to the order dated 28.06.2017. As we have remanded the matter back to the Tribunal for further consideration as indicated above, the Superintendent of Police, (Border) Barpeta shall produce the petitioner before the Tribunal on 25.02.2019 and upon his production on 25.02.2019, the Tribunal shall pass a reasoned order as to whether the petitioner is further required to continue in detention or he be released from detention.
15. Writ petition is allowed to the extent as indicated above.
JUDGE JUDGE Comparing Assistant