Muntaj Ali v. The Union of India and 4 Ors

PageoNo.#o1/4 GAHC010037862019 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/1482/2019o MUNTAJoALIo S/O.o(LATE)oMABEDoALI,oR/OoVILLAGEoATHAKATA,oP.S.oDHULA,oDIST.o DARRANG,oASSAM,oPIN-o784146. VERSUSo THEoUNIONoOFoINDIAoANDo4oORS.o REP.oBYoTHEoSECRETARYoTOoTHEoGOVT.oOFoINDIA,oMINISTRYoOFoHOMEo AFFAIRS,oNORTHoBLOCK,oNEWoDELHI.oPIN-110001. 2:THEoSTATEoOFoASSAM oREP.oBYoTHEoPRINCIPALoSECRETARYoTOoTHEoGOVT.oOFoASSAM oHOMEoANDoPOLITICALoDEPARTMENT oGOVT.oOFoASSAM oASSAMoSECRETARIAT oDISPURoGUWAHATI oASSAM.oPIN-o781006. 3:THEoSUPERINTENDENToOFoPOLICEo(BORDER),DARRANG oMANGALDOI oDIST.oDARRANG oASSAM.oPIN-784125. 4:THEoSTATEoCOORDINATORoOFoNRC oOFFICEoOFoTHEoSTATEoCOORDINATOR oNRC oASSAM o1SToFLOOR oACHYUToPLAZA oGSoROAD oBHANGAGARH oGUWAHATIASSAM.oPIN-o781005. Page No.# 2/4 5:THE MEMBER FOREIGNERS TRIBUNAL NO. 2 KAMRUP(M) HEDAYATPUR,GUWAHATI PIN-781001 Advocate for the Petitioner : MS. D GHOSH Advocate for the Respondent : ASSTT.S.G.I.

BEFORE HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HON'BLE MR. JUSTICE ROBIN PHUKAN

04.05.2023 (AM Bujor Barua, J) Heard Mr. S. Dey, learned counsel for the petitioner. Also heard Ms. L. Devi, learned CGC for the respondents in the Union of India as well as the authorities under the NRC, Mr. A.I. Ali, learned counsel for the authorities under the Election Commission of India and Mr. G. Sarma, learned Special Standing Counsel, Foreigners Tribunal for the Home Department, Government of Assam as well as Superintendent of Police (Border), Darrang, Mangaldai.

¶2The petitioner, Muntaj Ali had been referred to the Foreigners Tribunal, Kamrup (M) 2nd, Guwahati for rending an opinion as to whether he is a person who had entered the State of Assamon or after 24.03.1971 resulting in registration of Case No. F.T. Case No.562/2017.The learned Tribunal rendered an opinion dated 25.01.2019 declaring the petitioner to be a foreigner.

¶3Being aggrieved, this writ petition is instituted.

¶4In the writ proceeding, the petitioner relies on the voters list of 1970 of village Athakata, Mouza Shyamabari of Darrang District which contains the Page No.# 3/4 name of Mabed Ali, son of Aaudin at Serial No.39 and that of Jabed Ali, son of Mabed at Serial No.41 where both of them are shown to be residing in House No.14. It is claimed that Mabed Ali is the father of the petitioner whereas Jabed Ali is the brother. Jabed Ali had deposed before the Tribunal as DW2 wherein in his evidence on affidavit stated that his grandfather is Maijuddin who was granted Annual Khiraj Patta under the Colonisation Scheme at village Athakata and that Mabed Ali is his father who married to Maimal Nessa. Out of their wedlock, 8 (eight) children were born and out of which Jabed Ali is one of the sons and Muntaj Ali is another son. Accordingly, DW2 states that Muntaj Ali is the son of Mabed Ali whose names appear in the voters list of 1970 and therefore, the burden under Section 9 of the Foreigners Act, 1946 had been discharged.

¶5We have noticed that DW2 Jabed Ali had not been cross-examined by the respondents through the Home Department, Government of Assam although some questions were put by the Tribunal as court questions and if the evidence rendered by Jabed Ali is acceptable, perhaps, the burden to prove that Muntaj Ali is a citizen had been discharged.

¶6Under the circumstances, the matter is remanded back to the Tribunal to enable the State through the Home Department, Government of Assam to cross-examine DW2 Jabed Ali. The State may also make their own verification as to whether Muntaj Ali referred by Jabed Ali and Muntaj Ali, the petitioner-proceedee is one and the same person. Upon doing the needful, a reasoned order be passed by the Tribunal.

¶7Petitioner is at liberty to provide any further material. It is stated that as per subsequent voters lists, the names of Jabed Ali and Muntaj Ali are available in the same voters list. The Tribunal may also look into such aspect while Page No.# 4/4 considering the matter.

¶8If the reasoned order is in favour of the petitioner, the same shall prevail over the earlier opinion dated 25.01.2019 rendered in F.T. Case No.562/2017and if it goes against the petitioner, consequence as per law shall follow.

¶9The petitioner shall appear before the Foreigners Tribunal, Kamrup(M) 2nd, Guwahati on 17.06.2023.

¶10Till the reasoned order is passed, no coercive action be taken against the petitioner.

¶11The writ petition is disposed of as indicated above.

¶12Send back the LCR immediately.

JUDGE JUDGE Comparing Assistant