Musstt Akhiya Khatun @ Akhiran Nessa v. The Union of India and 6 Ors

PageoNo.#o1/4 GAHC010070602023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/1926/2023o MUSSTToAKHIYAoKHATUNo@oAKHIRANoNESSAo W/O-oABULoKASEMo@oABDULoKASHEM,oD/O-oAJIJARoRAHMANo@oAJIJARo RAHMANoMOLLAH,oR/O-oBALADMARIo(PUBoMORIOMoNAGAR),oP.S.oANDo DIST.-oGOALPARA,oASSAM,oPIN-o783121 VERSUSo THEoUNIONoOFoINDIAoANDo6oORSo REP.oBYoTHEoSECRETARYoTOoTHEoGOVT.oOFoINDIA,oMINISTRYoOFoHOMEo AFFAIRS,oNEWoDELHI-1 2:THEoELECTIONoCOMMISISONoOFoINDIA oNEWoDELHI-1 3:THEoSTATEoOFoASSAM oREP.oBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.oOFoASSAM oHOMEoDEPTT. oDISPUR oGHY-6 4:THEoSTATEoCO-ORDINATORoOFoNRC oBHANGAGARH oASSAM oGUWAHATI-05 5:THEoDEPUTYoCOMMISSIONER oGOALPARA oASSAM oPIN-o783121 6:THEoSUPERINTENDENToOFoPOLICEo(B) oGOALPARA Page No.# 2/4 ASSAM PIN-783101 7:THE OFFICER-IN-CHARGE GOALPARA POLICE STATION DIST.- GOALPARA ASSAM PIN-78310 Advocate for the Petitioner : MR. M U MAHMUD 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 Mr. MU Mahmud, 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, Goalpara.

¶2The petitioner Musstt. Akhiya Khatun @ Akhiran Nessa had been referred to the Foreigners Tribunal No. 1, Goalpara for rendering an opinion as to whether she is a foreigner within the meaning of foreigner under the Foreigners Act, 1946, resulting in registration of FT Case No. 8610/G/2016, wherein an opinion dated 24.02.2023 was rendered declaring the petitioner to be a foreigner. Being aggrieved, this writ petition is instituted. Page No.# 3/4

¶3In the writ proceeding, the petitioner relies upon the voters list of 1966 of village Rowmari, police station-Lakhipur in the Goalpara district, which contains the name of Ajijar Rahman son of Ahammad Ali at serial No. 399 and that of Hanjela Khatun wife of Ajijar Rahman at serial No. 400 and it is claimed that Ajijar Rahman is the father and Hanjela Khatun is the mother of the petitioner. Reliance is also placed on the voters list of 1989 of village Rowmari, which contains the name of Ajijar Rahman son of Ahammad Ali at serial No. 832, Hamida Khatun wife of Ajijar Rahman at serial No. 533 and that of Jelala Hussain son of Ajijar Rahman at serial No. 534. It is claimed that Jelala Hussain is the brother of the petitioner. Jelala Hussain had rendered evidence before the Tribunal as DW-2 stating that the petitioner Akhiya Khatun is his sister who is also the daughter of Ajijar Rahman of the voters list of 1966 of village Rowmari.

¶4If the evidence rendered by DW-2 is to be accepted reading conjointly with the voters list of 1989 as well as the 1966 voters list of village Rowmari, the petitioner may have discharged the burden under section 9 of the Foreigners Act, 1946 that she is not a foreigner.

¶5In view of the above, we remand the matter back to the Tribunal to examine the voters list of 1966 as well as 1999 of village Rowmari and the evidence rendered by DW-2. In doing so, the respondents in the Home Department may appropriately cross examine the DW-2 as may be advised and may also make their own verification and submit a report before the Tribunal. The petitioner shall produce the complete voters list of village Rowmari from the years 1966 onwards before the Tribunal for its examination. 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 24.02.2023 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