Gauhati High Court
Udhay Bhanu @ Udhay Khatun vs The Union Of India on 14 March, 2019
Equivalent citations: AIRONLINE 2019 GAU 259
Author: A.M. Bujor Barua
Bench: Achintya Malla Bujor Barua, Ajit Borthakur
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GAHC010011182018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 389/2018
1:UDHAY BHANU @ UDHAY KHATUN
W/O- MEHER ALI, R/O- VILL- TEKELIPHUTA, P.S. CHHAYGAON, DIST-
KAMRUP (R), ASSAM
VERSUS
1:THE UNION OF INDIA
REPRESENTED BY THE MINISTRY OF HOME AFFAIRS, NEW DELHI-110001
2:THE ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI-110001
3:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HOME DEPTT.
DISPUR
GHY-6
4:THE STATE COORDINATOR
NATIONAL REGISTER OF CITIZENS (NRC)
ASSAM
BHANGAGARH
5:THE DEPUTY COMMISSIONER
KAMRUP(R)
DIST- KAMRUP(R)
ASSAM
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6:THE SUPERINTENDENT OF POLICE (B)
KAMRUP (R)
ASSA
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
JUDGMENT
Date : 14-03-2019 (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. A. Kalita, 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) Kamrup (Rural), IM(D)T Case No.802/2001 was registered. On the IMDT Act, 1983 being declared ultral vires, the reference was transferred to the Foreigners Tribunal No.1, Kamrup (Rural) and was re- numbered as GFT(R) Case No.93/2017.
3. Before the Tribunal, the petitioner took the stand that her father Eley Sheikh was a citizen of India and his name appeared in the voters list of 1966 of village Kolatoli Police Station-Chaygaon District-Kamrup.
4. A further stand was taken that after her marriage with Meher Ali her name appeared in Page No.# 3/5 the voters list of 1985 of village Achalpara also under Police Station Chaygaon District Kamrup and also subsequently in the voter lists of 1993, 1997 and 2005 of village-Thekelifuta under Police Station-Chaygaon District Kamrup.
5. Before the Tribunal, the petitioner exhibited the voters list of 1966 of village Kolatoli containing the name of Eley Sheikh son of Asinuddin age 52 years who is claimed to be the father of the petitioner. The voters list of 1970 of village Kolatoli was also exhibited containing the name of Eley Sheikh son of Asinuddin age 56 years.
6. The petitioner further relies upon a certificate issued by the Gaon Burah of Kalatoli village to establish a link that her father is Eley Sheikh of village-Kalatoli. For the purpose, the Gaon Burah who issued the certificate was also examined. In his deposition, the Gaon Burah states that he declares that the petitioner was born at her parental place at Kalatoli and he further declares that she is a citizen of India by birth and the allegation made upon her that she is an inhabitant of a foreign country is false.
7. When the Gaon Bura was brought forward for his deposition, he is required to state in his deposition as to what he knows from knowledge and as well as from records. He was not brought to the Tribunal for the purpose of making any declaration.
8. As the Gaon Burah was brought before the Tribunal for his cross-examination, but had incorrectly took it upon himself to declare the petitioner not to be a foreigner, we cannot accept his evidence in the present form. But at the same time as he was brought forward for rendering evidence, we are of the view that the petitioner deserves another opportunity to examine the Gaon Burah in the proper perspective as required under the law.
9. Upon the Gaon Burah being produced before the Tribunal, the State respondents shall Page No.# 4/5 also cross-examine him in respect of the fresh deposition to be made as well as the earlier deposition which had already been made.
We have also taken note of that the Gaon Burah who was brought before the Tribunal for his deposition is also the Gaon Burah of Kalatoli village.
10. Upon the re-examination of the Gaon Burah, the Tribunal shall pass a reasoned order by taking his further deposition as well as the evidence already on record. As we are remanding the matter back to the Foreigners Tribunal No.1, Kamrup (Rural) for further evidence of the Gaon Burah, in a situation where on the basis of the existing materials on record, we cannot for the time being arrive at a conclusion that the petitioner is not a foreigner, we do not interfere with the order of the Tribunal dated 13.10.2017. Any reasoned order to be passed by the Tribunal after allowing the Gaon Burah to render his further evidence and also allowing the cross-examination of the State authorities shall prevail over the earlier order dated 13.10.2017, in the event, the reasoned order of the Tribunal goes in favour of the petitioner and in the event, it goes against the petitioner the earlier order dated 13.10.2017 shall remain and the order to be passed by the Tribunal shall be construed to be further reasons to justify the order dated 13.10.2017.
11. Accordingly, the petitioner shall appear before the Tribunal along with the Gaon Burah on 10.04.2019 and the Tribunal shall give its reasoned order within a period of 30 days thereafter.
12. As we cannot arrive at a conclusion as to whether the petitioner is a foreigner or not, we are of the view that the petitioner who is kept in detention camp at Kokrajhar, be released forthwith from detention upon submission of two sureties bond from two permanent and Page No.# 5/5 prominent personalities from her 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.
13. Send back the LCR.
JUDGE JUDGE Comparing Assistant