Gauhati High Court
Bacha Gally @ Ojufa Begum vs The Union Of India And 5 Ors on 6 March, 2020
Author: Nani Tagia
Bench: Manojit Bhuyan, Nani Tagia
Page No.# 1/5
GAHC010261312019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 7945/2019
1:BACHA GALLY @ OJUFA BEGUM
W/O- HAIDAR ALI @ ALI HAIDAR, VILL- NON K GARAPARI, P.O. DHULA,
P.S. DHULA, DIST- DARRANG, ASSAM, PIN- 784125
VERSUS
1:THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, SHASTRI BHAWAN, TILOK MARG, NEW DELHI-1
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
MINISTRY OF HOME DEPTT.
DISPUR
GHY-6
3:THE DY. COMMISSIONER
DARRANG
MANGALDAI
PIN- 784125
4:THE SUPERINTENDENT OF POLICE (B)
DARRANG
ASSAM
PIN- 784125
5:ELECTION COMMISSION OF INDIA
NEW DELHI-1
6:THE STATE CO-ORDINATOR
Page No.# 2/5
NRC
ASSAM
BHANGAGARH
GHY-
Advocate for the Petitioner : MR. A R SIKDAR
Advocate for the Respondent : ASSTT.S.G.I. (R1)
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE NANI TAGIA
O R D E R
06.03.2020 (Nani Tagia, J.) Heard A. R. Sikdar, learned counsel for the petitioner. Also heard Ms. G. Hazarika, learned CGC for the respondent No. 1; Mr. J. Payeng, learned Standing counsel, Foreigners' Tribunal for the respondent Nos. 2 to 4; Mr. B. Das, learned Standing counsel, Election Commission for the respondent No. 5; and Mr. U. Das, learned Standing counsel, NRC for the respondent No. 6.
The petitioner assails the opinion dated 30.01.2019 rendered by the learned Member, Foreigners' Tribunal (4th), Darrang, Mangaldai, in F.R. 4 th Case No. 1350/DHL/2015, F.T. Case No. 459/11 and Ref.IM(D)T Case No. 11838/98, whereby, the petitioner has been held to be a foreigner who had entered into India (Assam) on or after 25.03.1971 from the specified territory.
Originally, the reference against the petitioner was made by the Superintendent of Police(Border), Darrang under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) with the allegation that the writ petitioner/ opposite party, namely, Bacha Gally, w/o- Ali Haidar, village - Khantaniapara, P.S. - Dhula in the District of Darrang was an illegal migrant. Consequent upon the declaration of the IMDT Act as unconstitutional by the Page No.# 3/5 Supreme Court of India in Sarbananda Sonowal-vs- Union of India, (2005) 5 SCC 665 , the said reference came to be transferred to the Foreigners' Tribunal and accordingly, reference was re-registered under the Foreigners Act 1946 as F.T. Case No. 459/11 before the Foreigners' Tribunal 1st, Darang, Mangaldai. After creation of Additional Tribunals, the above reference was renumbered as F.T. 4 th Case No. 1350/DHL/2015 and accordingly, the impugned opinion dated 30.01.2019 was rendered.
On receipt of notice, the petitioner/opposite party had filed a written statement before the learned Tribunal, wherein, the petitioner/opposite party had stated that she was born in the year 1973 at village Non K Gorapari Chapari, Shayampur, Darrang; that she is known as Bacha Gallly @ Ajufa Begum; that she was married to Haidar Ali of village Khataniapara, P.S. Dhula in the year 1994; that her name along with her husband was entered in the voter list of 1977 to 2017; that her husband shifted to village Non K Gorapari in the year 1997 and she received Elector Photo ID card; that her father's name was Hussen son of Jaban of village Non K Gorapari, who cast his vote in the year 1971 and that her grandfather had purchased one plot of land in the year 1960 by way of Sale Deed.
The petitioner/ opposite party had produced as many as 16 documents as evidence before the learned Tribunal, which are as hereunder:
1) Annexure-1: Voter list of 1997.
2) Annexure-2: Voter list of 2005.
3) Annexure-3: Voter list of 2010.
4) Annexure-4: Voter list of 2013.
5) Ext-5: Elector Photo ID card of Ajufa Begum.
6) Annexure-6: Voter list of 2014.
7) Annexure-7: Voter list of 2015.
8) Annexure-8: Voter list of 2017.
9) Annexure-9: Voter list of 2011.
10) Ext-10: Legacy Data Code of 1971 in the name of
Hussen.
11) Ext-11: Certified copy of voter list 1971.
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12) Ext-12: Certified copy of voter list 1971.
13) Ext-13: Legacy Data Code 1971.
14) Ext-14: Register Sale Deed dated 12/01/1960.
15) Ext-15: NRC Acknowledgment Receipt.
16) Ext-16: Linkage certificate of Ajufa Begum.
In addition to the above documentary evidence, the petitioner had examined herself as D.W.1 and also, one Fazar Ali as D.W. 2.
According to the petitioner, she is the daughter of Hussen and her grandfather's name is Jaban Ali. The name of his father as well as grandfather is recorded in the voter list of 1971.
From the list of evidences tendered by the petitioner before the learned Tribunal, including the deposition made by the petitioner herself as well as Fazar Ali, D.W. 2, it is noticed that it is only through D.W. 2, Fazar Ali, who is stated to be her elder brother, that the petitioner seeks to establish linkage with her projected father Hussen. Apart from the deposition of the D.W.2, who had stated in his deposition that the petitioner is the daughter of Hussen, no other evidence referred to hereinabove, are relevant, for the purpose of establishing linkage between the petitioner and the projected father Hussen. In the absence of any other documentary evidence, which are admissible and would give proof of the writ petitioner being the daughter of her projected father, Hussen, the oral evidence given by the D.W. 2, Fazar Ali, alone would not be enough to come to a conclusion that the petitioner is the daughter of her projected father, Hussen, inasmuch as, it is trite that oral testimony alone in a proceeding under Foreigners' Act, 1946 would not be enough. The fact-in-issue would have to be proved by the proceedee by adducing documentary evidence which are admissible and relevant.
That apart, on perusal of the written statement filed by the petitioner, annexed as Annexure-1 to the writ petition as well as examination-in-chief of the petitioner (D.W. 1), annexed as Annexure-12 to the writ petition, neither in the written statement nor in the examination-in-chief of the petitioner (D.W. 1), Fazar Ali, the D. W. 2 has been mentioned as her elder brother. In paragraph No. 21 of the examination-in-chief of the petitioner (D.W. 1), Page No.# 5/5 the petitioner had only stated that her father has two brothers, namely, Hussen and Hasen Ali and that she has 4(four) sisters, namely, Hajiran Begum, Ojufa Begum, Fasirun Nessa and Kabila Khatun. Apart from the names that have been referred to hereinabove, the writ petitioner/D.W. 1 had nowhere stated before the Tribunal and he has an elder brother called Fazar Ali. On that account also, the deposition of Fazar Ali, the D.W. 2, cannot be relied upon.
In that view of the matter, we find no infirmity in the opinion dated 30.01.2019 rendered by the learned Member, Foreigners' Tribunal (4 th), Darrang, Mangaldai, in F.R. 4th Case No. 1350/DHL/2015, F.T. Case No. 459/11 and Ref.IM(D)T Case No. 11838/98.
The writ petitioner being devoid of merit, is accordingly, disposed of.
JUDGE JUDGE Comparing Assistant