Iatan Nessa @ Iyatun Nessa v. The Union of India and 7 Ors

PageoNo.#o1/5 GAHC010096302022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/3514/2022o IATANoNESSAo@oIYATUNoNESSAo D/O-oTARAoMIYAo@oTATAoMIYA,oW/O-oLATEoHUSSAINoALI,oR/O-oVILL.-o CHAMPUPARA,oP.S.oCHHAYGAON,oDIST.oKAMRUP,oASSAM VERSUSo THEoUNIONoOFoINDIAoANDo7oORSo REPRESENTEDoBYoTHEoSECRETARY,oMINISTRYoOFoHOMEoAFFAIRS,o GOVERNMENToOFoINDIA,oSHASTRIoBHAWAN,oNEWoDELHI-110001. 2:THEoSTATEoOFoASSAM oREPRESENTEDoBYoTHEoSECRETARYoTOoTHEoGOVERNMENToOFoASSAM oHOMEoDEPARTMENT oDISPUR oGUWAHATI-781006. 3:THEoELECTIONoCOMMISSIONoOFoINDIA oREPRESENTEDoBYoTHEoCHIEFoELECTIONoCOMMISSION oNIRVACHANoSADAN oASHOKAoROAD oNEWoDELHI-110001. 4:THEoSTATEoCOORDINATOR oNATIONALoREGISTRATIONoOFoCITIZENS oASSAM o1SToFLOOR oACHYUToPLAZA oG.S.oROAD oBHANGAGARH oGUWAHATI oASSAM oPIN-o781005. Page No.# 2/5 5:THE FOREIGNERS TRIBUNAL KAMRUP (RURAL) NO. 1 ULUBARI GUWAHATI DIST.- KAMRUP(M) ASSAM PIN-781007. 6:THE DEPUTY COMMISSIONER KAMRUP AMINGAON P.O. AND P.S. AMINGAON DIST. KAMRUP ASSAM PIN-781031. 7:THE SUPERINTENDENT OF POLICE (BORDER) KAMRUP P.O. AND P.S. AMINGAIN DIST. KAMRUP ASSAM PIN-781031. 8:THE OFFICER-IN-CHARGE OF CHHAYGAON POLICE STATION P.O. CHHAYGAON DIST. KAMRUP ASSAM PIN-781124 Advocate for the Petitioner : MS. D GHOSH Advocate for the Respondent : ASSTT.S.G.I.

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

23.06.2023 (A.M. Bujor Barua, J)

Heard Ms. D Ghosh, learned counsel for the petitioner. Also heard Ms. L Page No.# 3/5 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. U Das, learned counsel for the Deputy Commissioner, Kamrup.

¶2The petitioner Iatan Nessa @ Iyatun Nessa had been referred to the Foreigners Tribunal No. 1, Kamrup(R) 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 GFR(R) Case No.863/2017, wherein an opinion dated 17.03.2022 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 1966 of village Laruajan, Mouza Pub Samaria, police station-Chaygaon in the Kamrup district, which contains the name of Riyaz Uddin son of Gusheer at serial No. 129, Tashiron Nessa wife of Riyaz at serial No. 232 and Tata Miya son of Riyaz at serial No. 232. It is claimed that Riyaz Uddin is the grandfather, Tashiron Nessa is the grandmother and Tata Miya is the father of the petitioner. It is also clarified that the namely actually is Tara Miya and not Tata Miya. A correction can be noticed in the voters list of 1977 of village Laruajan, wherein at serial No. 263 the name of Tara Miya son of Riyaz appears. Further reliance is placed on a Jamabandi of a plot of land of village Laruajan, wherein the information contained is that the land in the name of Tara Miya had also been mutated in favour of Iatan Nesa, daughter of Tara Miya through a gift deed and there is an order of circle officer dated 29.03.2019 in mutation case No. KAM/GAR/2018-19/701/FMUT, by which in respect of 10 Lecha of land of Dag No. 285, there is a mutation in favour of Iatan Nessa, daughter of Tara Miya in place of Tara Miya. Page No.# 4/5 Accordingly, it is claimed that the burden under section 9 of the Foreigners Act, 1946 had been discharged by the petitioner to show that she is a citizen of India inasmuch as, the land of Tara Miya had been mutated in her name, whereas the name of Tara Miya also appears in the voters list of 1966 and 1970 of village Laruajan.

¶4Tara Miya had also deposed before the Tribunal as DW-2, wherein he specifically stated that Iatan Nessa is his daughter. DW-2 had been cross-examined by the State authorities, but could not be confronted in any manner to rebut the evidence rendered that Iatan Nessa is his daughter.

¶5Mr. G Sarma, learned counsel for the respondents in the Home Department, Government of Assam states that the matter may be remanded back to the Tribunal and upon that submission, we have raised a query as to what further would be achieved by the Tribunal upon the matter being remanded back. No acceptable answer is available as to what further the Tribunal would do on the matter being remanded back.

¶6As the materials available on record are itself clear and explicit enough, where Tara Miya has established that he is a person, who cannot be said to be a foreigner and his oral evidence upon being cross examined also could not be rebutted in any manner and secondly, it being corroborated by further evidence through the contents of the Jamabandi, which also contains an extract of the order of the Circle Officer dated 29.03.2019, we are of the view that the petitioner cannot be declared to be a foreigner in the aforesaid facts and circumstance.

¶7Accordingly, the petitioner Iatan Nessa @ Iyatun Nessa is declared to be an Indian Citizen and the opinion of the Tribunal dated 17.03.2022 rendered in Page No.# 5/5 GFT(R) Case No. 863/2017 [Ref Police Case No. 833/1998] is set aside.

¶8In view of the above declaration, the petitioner would now be entitled to all the rights and privileges guaranteed under the Constitution of India.

¶9The writ petition is allowed as indicated above. Send back the LCR immediately.

JUDGE JUDGE Comparing Assistant