Abul Kalam @ Abdul Kalam v. The Union of India and 5 Ors

PageoNo.#o1/4 GAHC010061862023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/1707/2023o ABULoKALAMo@oABDULoKALAMo S/O-oLATEoJAHARoALIo@oJAHURoALIo@JOHARoALIo o PERMANENToR/O-oVILLAGEoISWARJARIoPARTo-I,P.S-oJOGIGHOPA,oDIST-o BONGAIGAON,oASSAM,oPIN-783382 VERSUSo THEoUNIONoOFoINDIAoANDo5oORSo REP.oBYoTHEoSECRETARYoTOoTHEoGOVT.oOFoINDIA,oMINISTRYoOFoHOMEo AFFAIRS,o oNEWoDELHI-o110001. 2:THEoELECTIONoCOMMISSIONoOFoINDIA oREP.oBYoTHEoCHIEFoELECTIONoCOMMISSIONERoOFoINDIA oNEWoDELHI-110001 3:THEoSTATEoOFoASSAM oREP.oBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.oOFoASSAM oHOMEoDEPARTMENT oDISPUR oGUWAHATI-6 4:THEoDEPUTYoCOMMISSIONER oBONGAIGAON oPIN-783380 5:THEoSUPERINTENDENToOFoPOLICEo(B) oBONGAIGAON oPIN-783380 oASSAM Page No.# 2/4 6:THE COORDINATOR NATIONAL REGISTER OF CITIZENS ASSAM BHANGAGARH GUWAHATI-05 DIST-KAMRUP (M Advocate for the Petitioner : MR A W AMAN Advocate for the Respondent : DY.S.G.I.

BEFORE HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HON'BLE MR. JUSTICE ROBIN PHUKAN O R D E R

21.07.2023 (A.M. Bujor Barua, J)

Heard Ms. D Ghosh, learned counsel for the petitioner. Also heard Ms. L Devi, learned CGC appearing on behalf of respondents in the Union of India as well as for the authorities in the NRC, Mr. G Sarma, learned counsel for the State respondents in the Home Department of Government of Assam, Mr. T Pegu, learned counsel for the Election Commission of India and Ms. K Phukan, learned counsel for the Deputy Commissioner, Bongaigaon.

¶2The petitioner Abul Kalam @ Abdul Kalam had been referred to the Foreigners Tribunal No. 2, Bongaigaon at Abhyapuri for rendering an opinion as to whether he is a foreigner within the meaning of foreigner under the Foreigners Act, 1946, resulting in registration of BNGN/FT/Case No. 1457/2007, wherein an opinion dated 29.03.2017 was rendered declaring the petitioner to be a foreigner. Being aggrieved, this writ petition is instituted.

¶3In the writ proceeding, the petitioner relies upon the voters list of 1965 of Page No.# 3/4 village Bhandara Part-I, which contains the name of Johar Ali son of Ahat Sheikh at serial No. 10. It is claimed that Johar Ali is the father of the petitioner. Subsequently, the petitioner had shifted to village Iswarjhari Part-I resulting in his name appearing in the voters list of village Iswarjhari. Before the Tribunal, the petitioner took the stand that he is the son of Johar Ali of the 1965 voters list of Bhandara Part-I. To substantiate that Abdul Kalam is the son of Johar Ali of the voters list of 1965 of village Bhandara Part-I, who had shifted to village Iswarjhari, reliance is placed on the evidence rendered by Abjal Hussain aged about 80 years of village Bhandara Part-I, who is also the father in law of the writ petitioner proceedee Abdul Kalam. Abjal Hussain had stated in the affidavit that the writ petitioner Abdul Kalam is his son in law and he has personal knowledge as well as special means of having the knowledge that the petitioner is the son of Johar Ali of the 1965 voters list of Bhandara Part-I.

¶4If the statements made by Abjal Hussain in the affidavit filed before the Court is to be accepted as evidence, the petitioner may have discharged the burden under section 9 of the Foreigners Act, 1946 that he is not a foreigner.

¶5In view of the above, we remand the matter back to the Tribunal to enable the petitioner to adduce the evidence of Abjal Hussain, son of Hajrat Ali aged about 80 years, resident of village Bhandara Part-I to establish that the petitioner Abdul Kalam is the son of Johar Ali of the 1965 voters list of village Bhandara Part-I. In doing so, the respondents in the Home Department may appropriately cross examine Abjal Hussain as may be advised and may also make their own verification and submit a report before the Tribunal. After doing the needful, the Tribunal shall pass a reasoned order thereon.

¶6If the reasoned order is in favour of the petitioner, the same shall prevail over the earlier opinion dated 29.03.2017 and if it goes against the petitioner, Page No.# 4/4 consequence as per law shall follow.

¶7The petitioners shall appear before the concerned Foreigners Tribunal on

16.08.2023. Till the reasoned order is passed, no coercive action be taken against the petitioner.

¶8The writ petition is allowed as indicated above.

¶9Send back the LCR immediately.

JUDGE JUDGE Comparing Assistant