Sabiya Khatun @ Shabiya Khatun @ Sobiyer Nessa v. The Union of India and 6 Ors

ORDER Date : 10.05.2023 (A.M. Bujor Barua, J)

Heard Mr. S. Islam, learned counsel for the petitioner and Ms. L. Devi, learned counsel for the respondents No. 1 and 6, being the Union of India and the State Coordinator of NRC, respectively. Also heard Ms. A. Verma, learned counsel for the respondents No. 2 and 4, being the authorities in the Home Department; Ms. U. Das, learned counsel for the respondent No. 3, being the Deputy Commissioner, Bongaigaon and Mr. A.I. Ali, learned counsel for the respondents No. 5 and 7, being the authorities in the Election Commission of India.

¶2The petitioner Sabiya Khatun @ Shabiya Khatun @ Sobiyer Nessa was referred to the Foreigners' Tribunal No. 2, Bongaigaon at Abhayapuri for rendering an opinion as to whether she is a person who had entered the State of Assam from the specified territory on or after 25.03.1971 and accordingly Page No.# 3/4 BNGN/FT-2/APR/CASE NO. 31/2016 was registered. The Tribunal rendered its opinion dated 11.01.2018 arriving at its conclusion that the petitioner is a foreigner who had entered the State of Assam on or after 25.03.1971. Being aggrieved this writ petition is instituted.

¶3In the writ proceeding, the petitioner relies upon the voters' list of 1966 of village Tupkarchar, Circle Srijangram in the present Bongaigaon district which contains the name of Nayeb Ali son of Johoruddin at Sl. No. 145 and that of Jomela Bibi wife of Nayeb Ali at Sl. No. 146 and both are shown to be residing in the same house No. 46. The petitioner also relies upon the affidavit of Jomela Khatun wife of Nayeb Ali of village Tupkarchar who is aged about 79 years and who had deposed as DW2 to establish that Sobiyer Nessa is the daughter of Nayeb Ali of the voters' list of 1966 of village Tupkarchar.

¶4It is noticed that in the voters' list of 1966, Jomela Bibi is the wife of Nayeb Ali whereas the DW2 Jomela Khatun is the wife of Nayeb Ali and therefore a question would arise as to whether the two persons are one and the same. Secondly, we have noticed that the DW2 had not been cross-examined by the authorities in the Home Department of the Government of Assam.

¶5In view of the above, we remand the matter back to the Foreigners' Tribunal No. 2, Bongaigaon at Abhayapuri to enable the Tribunal to cross-examine the DW2 on the veracity of the deposition rendered that Sobiyer Nessa is the daughter of Nayeb Ali of village Tupkarchar. The State respondents in the Home Department of the Government of Assam through the Superintendent of Police(B), Bongaigaon may also make their own physical verification in the house of DW2 Jomela Khatun to arrive at a satisfaction as to whether Jomela Khatun and Jomela Bibi of the voters' list of 1966 of village Tupkarchar are one and the same person and also as to whether the proceedee Sabiya Khatun @ Page No.# 4/4 Shabiya Khatun @ Sobiyer Nessa is the daughter of Jomela Bibi and thereupon submit the report before the Tribunal. The State respondents in the Home Department of the Government of Assam may also make any further verification and enquiry, as may be advised. Upon doing the needful, the Tribunal to pass a reasoned order. If the reasoned order to be passed is in favour of the petitioner, the same shall prevail over the earlier opinion dated 11.01.2018 in BNGN/FT-2/APR/CASE NO. 31/2016 and if it is against the petitioner, consequences under law shall follow. The petitioner to appear before the Tribunal on 22.06.2023. Till the reasoned order is passed, no coercive action be taken against the petitioner. Writ petition stands disposed of as indicated above. Send back the LCR forthwith. A copy of this order be provided to Ms. A. Verma, learned counsel for the respondents in the Home Department.

J U D G E J U D G E Comparing Assistant

PageoNo.#o1/4 GAHC010023962018 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/930/2018o SABIYAoKHATUNo@oSHABIYAoKHATUNo@oSOBIYERoNESSAo W/OoRUSTAMoALI,oR/OoVILL-oTOPGAONoPART-I,oPO-TOPGAON,oPSo MERERCHAR,oDIST.oBONGAIGAON,oASSAM VERSUSo THEoUNIONoOFoINDIAoANDo6oORS.o REP.oBYoTHEoSECRETARYoTOoTHEoMINISTRYoOFoHOMEoAFFAIRS,o GOVERNMENToOFoINDIA,oNEWoDELHI 2:THEoSTATEoOFoASSAM oREPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.o OFoASSAM oHOMEoDEPARTMENT oDISPUR oGUWAHATI-06 3:THEoDEPUTYoCOMMISSIONER oBONGAIGAON oPOoANDoDIST.oBONGAIGAON oASSAM 4:THEoSUPERINTENDENToOFoPOLICEo(B) oBONGAIGAON oPOoANDoDIST.oBONGAIGAON oASSAM 5:THEoELECTORALoREGISTRATIONoOFFICER o34oNO.oABHAYAPURIoNORTHoLEGISLATIVEoASSEMBLYoCONSTITUENCY oDIST.oBONGAIGAON oASSAM Page No.# 2/4 6:THE STATE CO-ORDINATOR OF NRC ASSAM PO AND PS- BHANGAGARH GUWAHATI-05 DIST. KAMRUP (M) ASSAM 7:THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI-0 Advocate for the Petitioner : MR. S ISLAM Advocate for the Respondent : GA, ASSAM BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HONOURABLE MR. JUSTICE ROBIN PHUKAN