Rohim Badsa @ Md. Rahim Basha v. The Union of India and 8 Ors

ORDER

19.07.2023 [A.M.Bujor Barua, J.]

Heard Mr. M. Khan, learned counsel for the petitioner. Also heard Mr. G. Sarma, learned counsel for the Home Department; Ms. L. Devi, learned counsel for the NRC; Mr. B. Sarma, learned counsel for the UoI; Ms. K. Phukan, learned counsel for the DC; and Mr. A.I. Ali, learned counsel for the ECI.

¶2The petitioner Rohim Badsa @ Md. Rahim Basha had been referred Page No.# 3/5 to the Foreigners' Tribunal, No. 2, Kamrup [M] at Guwahati for rendering an opinion as to whether she is a foreigner under the Foreigners' Act, 1946 resulting in registration of F.T. Case No. 404/2015, wherein an opinion dated

12.04.2021 had been 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 1960 of village Moynabandha Police Station South Salmara presently in the South Salmara Mankachar district, which contains the name of Arju Uddin Sk., son of Nur Box Sarkar at serial no. 155 and that of Khaton Bibi, wife of Arju Uddin at serial no. 156 and both are shown to be residing in the same house no.

¶46It is claimed that Arju Uddin Sk. is the grandfather and Khanton Bibi is the grandmother of the petitioner. The petitioner also relies upon the Voters' List of 1966 and 1970 of village Moynabandha, which contains the name of Arju Sk., son of Nur Box at serial no. 166 and 195 respectively. The petitioner also relies upon the Voters' List of 1977 of village Moynabandha, which contains the name of Arju Sk., son of Nur Box at serial no. 365 and that of Abu Bakkar, son of Arju at serial no. 367 and both are shown to be residing in the same house no. 78. It is claimed that Abu Bakkar, son of Arju is the father of the petitioner. The petitioner also relies upon the Voters' List of 1985 of village Moynabandha, which contains the name of Abu Bakkar, son of Arju Sk. at serial no. 345 and that of Jorina Khatun, wife of Abu Bakkar at serial no. 346 and both are shown to be residing in the same house no. 68. But the later Voters' List of the years 1989 and 1997 contains the name of Bakkar Ali, son of Arju Sk. and that of Jomiran Bibi, wife of Bakkar Ali. It is claimed that although the name of the father was Abu Bakkar as per the Voters' List up to the year 1985 but the later Voters' Lists has recorded his name as Bakkar Ali. Page No.# 4/5

¶4It is submitted that the wife of Abu Bakkar or Bakkar Ali as the case may be remains the same in all the Voters' Lists namely Jorina Khatun or Jomiran Bibi who are claimed to be the one and the same person. The petitioner also relies upon the Voters' List of 2005 of village Moynabandha, which contains the name of Jorina Bewa, wife of Bakkar Ali at serial no. 241 and that of Rohim Badsa, son of Bakkar Ali at serial no. 242 and both are shown to be residing in the same house no. 327. It is claimed that as the name of the petitioner Rohim Badsa appears along with Jorina Bewa wife of Bakkar Ali and that the name of Jorina Khatun or Jorina Bewa, wife of Bakkar Ali appeared along with Bakkar Ali or Abu Bakkar as the case may be in the earlier Voters' Lists therefore the petitioner had discharged the burden under Section 9 of the Foreigners' Act 1946 to prove that he is not a foreigner. To substantiate that Abu Bakkar and Bakkar Ali are one and the same person reference is also made to a Jamabandi in respect of a plot of land at village Moynabandha which contains the information that Bakkar Ali is the son of Arju and the land in the name of Arju had also been mutated in the name of Bakkar Ali in respect of the same village. Accordingly, the claim is made that Abu Bakkar and Bakkar Ali are one and the same person. If Abu Bakkar and Bakkar Ali are one and the same person the petitioner may had discharged the burden under Section 9 of the Foreigners' Act 1946.

¶5In the circumstance, the matter is remanded back to the Foreigners' Tribunal, No. 2, Kamrup [M] at Guwahati to examine the Voters' Lists of 1960, 1966, 1970, 1977, 1985, 1997 and 2005 of village Moynabandha and the Tribunal to also examine as to whether Abu Bakkar up to the Voters' List of 1985 and Bakkar Ali of the Voters' List subsequent to 1985 are one and the same person. The respondents in Home Department may also make their own Page No.# 5/5 verification and submit the report before the Tribunal. Upon doing the needful the Tribunal may pass a reasoned order.

¶6The petitioner to appear before the Tribunal on 14.08.2023.

¶7Till the reasoned order is passed, no coercive action be taken against the petitioner.

Writ petition stands disposed of in the above terms.

Send back the LCR immediately.

JUDGE JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010084622021 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/3424/2021o ROHIMoBADSAo@oMD.oRAHIMoBASHAo S/O-oLT.oBAKKARoALI,oR/O-oVILL-oMOYNABANDHA,oP.O.oFEKAMARI,oP.S.o SOUTHoSALMARA,oDIST.-oSOUTHoSALMARAoMANKACHAR,oASSAM VERSUSo THEoUNIONoOFoINDIAoANDo8oORS.o REP.oBYoITSoSECY.,oGOVT.oOFoINDIA,oMINISTRYoOFoHOMEoAFFAIRS,oNEWo DELHI-o110001 2:THEoSTATEoOFoASSAM oREP.oBYoTHEoCOMM.oANDoSECY.oTOoTHEoGOVT.oOFoASSAM oHOMEoDEPTT. oDISPUR oGHY-6 3:THEoDIRECTORoGENERALoOFoPOLICEo(ADMINISTRATION) oASSAM oULUBARI oGHY-07 4:THEoDISTRICToMAGISTRATEoCUMoDY.oCOMMISSIONER oKAMRUPo(M) oAToGUWAHATI oDIST.-oKAMRUPo(M) oASSAM oPIN-o781001 5:THEoDY.oCOMMISSIONERoOFoPOLICEo(B) oKAMRUPo(M) oAToGUWAHATI oDIST.-oKAMRUPo(M) Page No.# 2/5 ASSAM PIN- 781001 6:THE STATE COORDINATOR NATIONAL REGISTRAR OF CITIZENS (NRC) GUWAHATI ASSAM GHY-5 7:THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI- 110001 8:THE DY. COMMISSIONER SOUTH SALMARA MANKACHAR AT HATSINGIMARI ASSAM PIN- 783135 9:THE ELECTION OFFICER SOUTH SALMARA MANKACHAR AT HATSINGIMARI ASSAM PIN- 78313 Advocate for the Petitioner : MR. M KHAN Advocate for the Respondent : ASSTT.S.G.I. BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HONOURABLE MR. JUSTICE ROBIN PHUKAN