Nur Mohammad @ Noor Mahamad Ali v. The Union of India and 6 Ors

ORDER

15.05.2023 (AM Bujor Barua, J)

Heard Mr. J Ahmed, 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. AI Ali, learned counsel for the authorities under the Election Commission of India, Mr. G Sharma, learned Special Standing Counsel, Foreigners Tribunal for the Home Department, Government of Assam, the Commissioner of Police (B) Kamrup (Metro) as well as the Officer-in-Charge of Basistha Police Station and Ms. U Das, learned Government Advocate for the Deputy Commissioner, Kamrup(M).

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¶2The petitioner, namely, Nur Mohammad @ Noor Mahamad Ali was referred to the Foreigners Tribunal Kamrup(M) 2nd Guwahati for rendering an opinion as to whether he is a person who had entered the State of Assam on or after

25.03.1971 resulting in the registration of F.T. Case No.509/2017 wherein an opinion dated 29.10.2018 was rendered declaring the petitioner to be a person who had entered the State of Assam from the specified territory on or after

25.03.1971.

¶3Being aggrieved this writ petition is instituted.

¶4The petitioner relies upon the voters list 1958 of village Berbhangi Mouza Golakganj which contains the name of Futu Sk, son of Somir at Sl.No.139 and also the voters list of 1966 of village Berbhangi Pt.III which contains the name of Futu Sk son of Somir at Sl.No.06 and that of Moyjan Bibi wife of Futu at Sl.No.07. The petitioner thereafter relies upon the voters list of 1977 of village Kedar Pt.II containing the name of Futu Sk, son of Somir Sk at Sl.No.222 and that of Mayjan Bibi wife of Futu at Sl.No.223 along with Jamir Ali son of Futu at Sl. No.226. It is claimed that Jamir Ali of 1977 voters list is the father of the petitioner. As the voter list of 1958 and 1966 pertains to village Berbhangi Pt. III, whereas the voters list of 1977 is in respect of village Kedar Pt. II, a question had arisen as to whether the family of Futu Sk of 1958 and 1966 voters list of village Berhangi has subsequently shifted to village Kedar Pt.II.

¶5In order to ascertain the claim of shifting, we required the Election Commission of India to produce the downward and upward voters list of village Page No.# 4/6 Berbhangi Part III and village Kedar Part II so as to examine as to whether the names of the family of Futu Sk were discontinued in the voters list of Berbhangi after shifting and also as to whether the names of the family members of Futu Sk did appear in the voters list prior to 1977 in respect of village Kedar Pt.II.

¶6A perusal of the complete voters list of the aforesaid two villages make it discernible that although the names of the family members appeared in the voters list of Berbhangi upto the year 1966, but thereafter it discontinued. Whereas, on the other hand, it was included in the voters list of village Kedar Pt.II after 1977 and onwards and further that the names of the family members did not appear in the voters list of Kedar Pt.II prior to 1977.

¶7The aforesaid information prima facie is an indication of the claim of the petitioner that the family members of Futu Sk had shifted from village Berbhangi Pt III to village Kedar Pt.II.

¶8Reference is also made to the voters list of Kedar Pt.II of the year 1985 of village Kedar Pt. II which contains the names of Jamir Ali son of Futu Sk at Sl.No.552 and that of Nurjahan Bibi wife of Jamir Ali at Sl.No.553 as well as the voters list of 2005 of village Kedar Pt. II which contains the name of Jamir Ali son of Futu Sk at Sl.No.327 and that of Nur Jahan Bibi wife of Jamir Ali at Sl.No.328 along with Nur Mahammad, son of Jamir Ali at Sl.No.329. As the name of Nur Mahammad appears along with Jamir Ali in the voters list of 2005 of village Kedar Pt.II along with that of Nur Jahan Bibi wife of Jamir Ali and further that all the three are shown to be residing in the same House No.93, it Page No.# 5/6 also may be a prima facie indication that Nur Mahammad being the son of Jamir Ali and Jamir Ali being the son of Futu Sk, had discharged the burden under Section 9 of the Foreigners Act 1946 to prove that the petitioner is a citizen of India.

¶9In view of the above, the matter stands remanded back to the Tribunal to examine the voters list of 1958 to 1966 of village Berbhangi Pt III as well as that of the voters list of 1977, 1985 and 2005 in respect of village Kedar Pt. II by taking note of the claim of shifting as indicated hereinabove.

¶10It is stated that Jamir Ali son of Futu Sk had also rendered his evidence as DW-2 to prove that Nur Mahammad is his son. On being remanded back, the Tribunal to also examine the aforesaid fact.

¶11Accordingly, the petitioner shall appear before the Tribunal on 28.06.2023.

¶12The respondents in the Home Department may also make their own verification and submit a report before the Tribunal, if so advised.

¶13It is pointed out that the exhibit Nos. of voters list in respect of 1977 and 1997 had been wrongly recorded. The Tribunal may take note of the same.

¶14The Tribunal upon doing the needful and after examining the evidences and materials shall pass a reasoned order. In the event, the reasoned order is in Page No.# 6/6 favour of the petitioner, the same shall prevail over the opinion dated

29.10.2018 of the Foreigners Tribunal Kamrup(M) 2nd Guwahati in F.T. Case No.509/2017 and if it is against the petitioner, consequential action under the law shall follow.

¶15Till the reasoned order is passed, no coercive action be taken against the petitioner.

¶16The copies of the complete voters list produced by Mr. A Ali, learned counsel for the Election Commission of India be kept as part of the record and the petitioner upon appearance before the Tribunal may produce the complete voters list as indicated above.

¶17Writ petition stands disposed of in the above terms.

¶18Send back the LCR.

JUDGE JUDGE Comparing Assistant

PageoNo.#o1/6 GAHC010051272019 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/1763/2019o NURoMOHAMMADo@oNOORoMAHAMADoALIo S/O-oJAMIRoALI,oVILLAGE-oKEDARoPART-II,oP.O.oDIMAKURI,oP.S.o GOLAKGANJ,oSUB-DIVISION-DHUBRI,oDIST.-oDHUBRI,oASSAM,oPIN-783334. VERSUSo THEoUNIONoOFoINDIAoANDo6oORS.o REP.oBYoTHEoSECRETARYoTOoTHEoGOVT.oOFoINDIA,oMINISTRYoOFoHOMEo AFFAIRS,oNEWoDELHI,o110001. 2:THEoELECTIONoCOMMISSIONER oASSAM oDISPUR oGUWAHATI-6. 3:THEoSTATEoOFoASSAM oREP.oBYoTHEoSECRETARYoTOoTHEoGOVT.oOFoASSAM oHOMEoDEPTT. oDISPUR oGUWAHATI-6. 4:THEoNODALoOFFICER oNRC oASSAM oPIN-o781005. 5:THEoDEPUTYoCOMMISSIONER oKAMRUP(M) oDIST.-oKAMRUP(M) oASSAM oPIN-o781001. Page No.# 2/6 6:THE COMMISSIONER OF POLICE (B) KAMRUP(M) GUWAHATI ASSAM PIN- 781001. 7:THE OFFICER-IN-CHARGE BASISTHA POLICE STATION GUWAHATI DIST.- KAMRUP(M) ASSAM. PIN-781038 Advocate for the Petitioner : MR. J AHMED Advocate for the Respondent : ASSTT.S.G.I. BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HONOURABLE MR. JUSTICE ROBIN PHUKAN