Miya Hussain v. The Union of India and 7 Ors

ORDER Date : 07-08-2023 (A.M. Bujor Barua, J)

Heard Ms. D. Ghosh, learned counsel for the petitioner. Also heard Mr. K.K. Parasar, learned counsel for the respondent No.1 & 4 being the Union of India, Mr. G. Sarma, learned Page No.# 3/4 Counsel appearing for the Home Department, Government of Assam being the respondent No.2, 6, 7 & 8, Mr. T. Pegu, learned counsel for the respondent No.3 being the Election Commission of India and Mr. P. Sarma, learned Advocate for the respondent No.5 being the Deputy Commissioner, Morigaon.

¶2The wife of the petitioner Fatema Khatun was referred to the Foreigners' Tribunal-III, Barpeta for rendering an opinion as to whether she is a foreigner under the Foreigners Act, 1946, resulting in registration of F.T. Case No.2115(III) of 2016. The Tribunal rendered an opinion dated 15.11.2018, declaring the Fatema Khatun to be a foreigner.

¶3But before the opinion dated 15.11.2018 could be assailed by Fatema Khatun, she died on 02.03.2019. After her death, her husband Miya Hussain had instituted the present WP(C) No.1525/2020, assailing the opinion dated 15.11.2018.

¶4In the writ proceeding, reliance is placed in the Voters List of 1966 of Village Gandharipara in the Barpeta District which contains the name of Jabed Ali son of Jahur at Sl. No.305. It is claimed that Jabed Ali is the father of Fatema Khatun. Jabed Ali as DW.2 rendered evidence before the Tribunal wherein he identified himself as Jabed Ali aged about 80 years son of Late Jahur Uddin of village Gandharipara and deposed that Fatema Khatun is his daughter and both he and his daughter were born and brought up in village Gandharipara.

¶5At page 33 of the Writ Petition, the proceeding in respect of the DW.2 that had taken place on 26.06.2018 is available, which upon enquiry as to whether it is the cross-examination by the State authorities or it is in response to the questions by the Tribunal, it is stated that it is the deposition of DW.2 in cross-examination. But on either circumstance, it is not discernible that the evidence of DW.2 to the extent that Fatema Khatun is his daughter of Jabed Ali, had not been rebutted in any manner.

¶6A Will dated 16.12.2017 is also available at page 50 of the Writ Petition which is a Will of Jabed Ali aged 75 years son of Late Jahur Uddin of village Gandharipara in the Barpeta District, whereby certain property had been bequeathed in the name of his daughter Fatema Khatun wife of Mia Hussain of village Khusrabari.

¶7From the evidence of the DW.2 as well as the Will available at page 50 of the Writ Page No.# 4/4 Petition it can also be concluded that Fatema Khatun was the daughter of Jabed Ali of the 1966 Voters List of village Gandharipara. As the citizenship of Jabed Ali can be established from the Voters List of 1966 of village Gandharipara and as it can also be established that Fatema Khatun was the daughter of Jabed Ali of the 1966 Voters List of village Gandharipara and further taking note of the aspect that Fatema Khatun is no more having died on

02.03.2019 and further that no person can take benefit out of a declaration of the citizenship of Fatema Khatun including her children and siblings etc., we accordingly tentatively declare Fatema Khatun to be a citizen.

¶8But however it is clarified that the declaration of Fatema Khatun to be a citizen shall not accrue any benefit or right of any kind to any other person, including the legal heirs of Fatema Khatun, and if such rights are claimed, such other persons would have to prove the citizenship of Fatema Khatun independently of the tentative declaration in this Writ Petition. It is so provided as otherwise it could have been a matter to be remanded back to the Tribunal for further evidence and deliberation, but not done so in as much as Fatema Khatun is no more and neither her legal heirs are parties before the Court to carry forward the claim. The writ petition by the husband of Fatema Khatun namely Miya Hussain, it is noticed that Miya Hussain is not a legal heir of deceased Fatema Khatun towards the determination of her citizenship.

¶9The Writ Petition is accordingly allowed.

¶10Send back the LCR forthwith.

JUDGE JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010046222020 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/1525/2020o 1.oMIYAoHUSSAINo S/O-oNAJIMUDDIN,oREPRESENTINGoFATEMAoKHATUN,oDIEDoONo02.03.2019, D/O-oJABEDoALI,oR/O-oVILL.oKHUSRABARI,oP.S.oGOBARDHANA,oDIST.-o BAKSA,oASSAM,oPIN-o781315. VERSUSo 1.oTHEoUNIONoOFoINDIAoANDo7oORS.o REP.oBYoTHEoSECY.,oMINISTRYoOFoHOMEoAFFAIRS,oGOVT.oOFoINDIA,o SHASTRIoBHAWAN,oNEWoDELHI-o110001. 2:THEoSTATEoOFoASSAM oREP.oBYoTHEoSECY.oTOoTHEoGOVT.oOFoASSAM oHOMEoDEPTT. oDISPUR oGHY.-06. 3:THEoELECTIONoCOMMISSIONoOFoINDIA oREP.oBYoTHEoCHIEFoELECTIONoCOMMISSION oNIRVACHANoSADAN oASHOKAoROAD oNEWoDELHI-o110001. 4:THEoSTATEoCOORDINATOR oNATIONALoREGISTRATIONoOFoCITIZENS oASSAM o1SToFLOOR oACHYUToPLAZA oG.S.oROAD oBHANGAGARH oGUWAHATI oASSAM Page No.# 2/4 PIN- 781005. 5:THE DY. COMMISSIONER BARPETA P.O. AND P.S. BARPETA DIST. BARPETA ASSAM PIN- 781301. 6:THE FOREIGNERS TRIBUNAL NO. III BARPETA ASSAM DIST.- BARPETA ASSAM PIN- 781301. 7:THE SUPDT. OF POLICE (B) BARPETA P.O. AND P.S. BARPETA DIST. BARPETA ASSAM PIN- 781301. 8:THE OFFICER-IN-CHARGE OF GOBARDHANA POLICE STATION P.O. GOBARDHANA DIST.- BAKSA ASSAM PIN- 781315 Advocate for the Petitioner : MS. D GHOSH Advocate for the Respondent : ASSTT.S.G.I. BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HONOURABLE MR. JUSTICE ROBIN PHUKAN