Md. Magarul Hussain v. The Union of India and 7 Ors

ORDER Date : 22.05.2023 (AM Bujor Barua, J)

Heard Ms. H Betala, learned counsel for the petitioner. Also heard Ms. L Devi, learned counsel for the respondents no. 1 and 4 being the authorities under the Union of India and NRC respectively, Mr. G Sarma, learned counsel for the respondents no. 2, 7 and 8 being the authorities under the Home Department of the Government of Assam, Mr. AI Ali, learned counsel for the Page No.# 3/5 respondent no. 3 being the authorities under the Election Commission of India and Ms. U Das, learned counsel for the respondents no. 5 and 6 being the Deputy Commissioner, Kamrup(M) and Deputy Commissioner, South Salmara Mankachar.

¶2The petitioner Magarul Hussain had been referred to the Foreigners' Tribunal No. 4, Kamrup (M) for rendering an opinion as to whether he is a person who entered the State of Assam from the specified territory on or after

25.03.1971, resulting in registration of F.T. Case No. FT (K(M)-4) 1215/2017. The Tribunal rendered an opinion dated 28.02.2023 declaring the petitioner to be a foreigner.

¶3Being aggrieved, this writ petition is instituted.

¶4In the writ proceeding the petitioner relies upon the voters' list of 1966 of village Jhagrar Char Part I containing the name Dasimuddin Sheikh, S/O Kajemuddin at Sl. No. 286 and that of Asimon Bibi, W/O Dasimuddin at Sl. No. 287 where it is claimed that Dasimuddin Sheikh is the grandfather and Asimon Bibi is the grandmother of the petitioner. The petitioner thereupon relies on the voters' list of 1977 of village Jhagrar Char Part I which contains the names of Dasimuddin Sheikh, S/O Kajimuddin at Sl. No. 833 and that of Askar Ali, S/O Dasim Uddin at Sl. No. 835 and that of Monjila Khatun, W/O Ajkar Ali at Sl. No.

¶836It is claimed that Askar Ali is the father and Monjila Khatun is the grandmother of the petitioner. The petitioner thereupon relies on the voters' list of 1997 of village Kakripara Part II which contains the names of Askar Ali, S/O Dasim Uddin at Sl. No. 1273 and that of Monjila Begum, W/O Askar at Sl. No. 1274. Reliance is also placed on the voters' list of 2005 of village Kakripara Part II which contains the name of Askar Ali, S/O Dasam Uddin at Sl. No. 745, Monjilla Khatun, W/O Askar Ali at Sl. No. 746 and that of Magarul Hussain, S/O Page No.# 4/5 Askar Ali at Sl. No. 748. Accordingly, it is claimed that the petitioner has discharged the burden under Section 9 of the Foreigners Act, 1946 to prove that he is a citizen of India.

¶5But it is noticed that the voters' lists of 1966 and 1977 are in respect of Jhagrar Char Part I where in the voters' list of 1977 the name of Dasimuddin Sheikh and Askar Ali appear together but the voters' list of 2005 containing the name of Askar Ali and Magarul Husain together is of village Kakripara Part II.

¶6It is stated that after 1977 Askar Ali had shifted from village Jhagrar Char Part I to village Kakripara Part II. To establish that Askar Ali had shifted, reliance is placed on the evidence of DW6 namely Bhulu Miah, S/O Dachamuddin Sk of village Jhagararchar Part III who had deposed that Askar Ali had later on after 1977 had shifted to village Kakripara Part II and therefore, his name along with his wife Monjila Khatun appear in the voters' lists of 1997 and 2005 of village Kakripara Part II along with the petitioner Magarul Hussain who is the son of Askar Ali.

¶7In view of the above the matter stands remanded back to the Tribunal to examine the voters' lists of 1966, 1977 of village Jhagrar Char Part I and voters' lists of 1997 and 2005 of village Kakripara Part II as well as the evidence of DW6 who gives deposition regarding the shifting from Jhagrar Char Part I to village Kakripara Part II. The respondents in the Home Department may make their own verification as to whether Askar Ali, S/O Dasim Uddin of the voters' list of 1977 of village Jhagrar Char Part I and Askar Ali, S/O Dasam Uddin of the voters' list of 2005 of village Kakripara Part II are one and the same person.

¶8The petitioner to appear before the Tribunal on 05.07.2023.

¶9If the reasoned order is in favour of the petitioner, the same shall prevail Page No.# 5/5 over the opinion dated 28.02.2023 passed in FT (K(M)-4) 1215/2017 and if against, consequence under the law is applicable to the petitioner.

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

Send back the LCR. Writ petition stands disposed of in the above terms.

JUDGE JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010071032023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/1882/2023o MD.oMAGARULoHUSSAINo W/O-oASKARoALI,o R/O-oVILLAGEoDAKERGAON,o P.S-oMANKACHARo,o DIST-oSOUTHoSALMARAoMANKACHARo,oASSAM,o PRESENTLYoRESIDINGoAToAZARA,oP.S-oAZARA,oDIST-oKAMRUPo(M),oASSAM VERSUSo THEoUNIONoOFoINDIAoANDo7oORSo REP.oBYoTHEoSECRETARYoTOoTHEoMINISTRYoOFoHOMEoAFFAIRS,oGOVT.oOF INDIA,oSASTRIoBHAWAN,oNEWoDELHI-o110001. 2:THEoSTATEoOFoASSAM oREP.oBYoTHEoSECRETARYoTOoTHEoGOVT.oOFoASSAM oHOMEoDEPARTMENT oDISPUR oGUWAHATI-6 3:THEoELECTIONoCOMMISSIONoOFoINDIA oREP.oBYoTHEoCHIEFoELECTIONoCOMMISSIONoOFoINDIA oNIRVACHANoSADAN oASHOKAoROAD NEWoDELHI-110001 4:THEoSTATEoCOORDINATOR oNATIONALoREGISTERoOFoCITIZENS oASSAM o1SToFLOOR oACHYUToPLAZA oG.SoROAD. oBHANGAGARH Page No.# 2/5 GUWAHATI-05 DIST- KAMRUP (M) 5:THE DEPUTY COMMISSIONER KAMRUP METRO PIN-781001 6:THE DEPUTY COMMISSIONER SOUTH SALMARA MANKACHAR ASSAM PIN-783135 7:THE DEPUTY COMMISSIONER (B) GUWAHATI KAMRUP METRO ASSAM PIN-781001 8:THE OFFICER IN CHARGE AZARA POLICE STATION KAMRUP METRO ASSAM PIN-78101 Advocate for the Petitioner : MS. D GHOSH Advocate for the Respondent : DY.S.G.I. BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HONOURABLE MR. JUSTICE ROBIN PHUKAN