Nur Mahammad v. The Union of India and 6 Ors

ORDER Date : 09-08-2023 (A.M. Bujor Barua, J)

Heard Ms. D. Ghosh, learned counsel for the petitioner. Also heard Mr. K.K. Parasar, learned counsel for the respondent No.1 & 4 being the Union of India, Mr. G. Sarma, learned Page No.# 3/4 Counsel appearing for the Home Department, Government of Assam being the respondent No.2, 6 & 7, Mr. T. Pegu, learned counsel for the respondent No.3 being the Election Commission of India and Mr. R. Talukdar, learned Advocate for the respondent No.5 being the Deputy Commissioner, Goalpara.

¶2The petitioner Nur Mahammad was referred to the Foreigners' Tribunal No.4, Goalpara for rendering an opinion as to whether he is a foreigner under the Foreigners Act, 1946, resulting in registration of F.T. Case No.FT (G-4)911/19 (Ref F.T. Case No.116/09). The Tribunal rendered an opinion dated 06.03.2023, 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 Dhumbandha Police Station Lakhipur in the Goalpara District which contains the name of Isar Ali son of Khoyan Ali at Sl. No.127 and that of Jaheron Bibi wife of Isar Ali at Sl. No.128, where the age of Isar Ali is shown as 50 years and the age of Jaheron Bibi is shown as 27 years. The Voters List of 1970 of Village Dhumbandha also contains the name of Isar Ali son of Khoyan Ali and that of Jaheron Bibi wife of Isar Ali at Sl. No.121 and 122 respectively. The Voters List of 1979 of Village Dhumbandha contains the name of Isar Ali son of Moyan Ali at Sl. No.76 and that of Jaherun Bibi wife of Isar Ali at Sl. No.77. Further reliance is placed in the Voters List of 1985 of Village Dhumbandha which contains the name of Isar Ali son of Moinuddin at Sl. No.539, Jehatan Nesa wife of Isar Ali at Sl. No.550 and that of Nur Mohammad Sheikh son of Isar Ali at Sl. No.551, where Isar Ali and Jehatan Nesa are shown to be residing in the House No.82 and Nur Mohammad Sheikh in the House No.83.

¶4As the name of Nur Mohammad appears along with Isar Ali in the same Voters List of the year 1985 of Village Dhumbandha and in the Voters Lists of Village Dhumbandha of 1966 and 1970, the name of Isar Ali appears, the petitioner claims that the burden under Section 9 of the Foreigners Act, 1946 has been discharged.

¶5Further the petitioner also intends to examine one Rafiz Uddin Ahmed son of Late Nagor Ali Zotder whose name appears along with Isar Ali in the 1970 Voters List of Village Dhumbandha for the purpose that Rafiz Uddin Ahmed has the special means of knowledge to satisfy the requirement of Section 50 of the Evidence Act to establish the relationship Page No.# 4/4 between Isar Ali and Nur Mohammad.

¶6In view of the above, the matter is remanded back to the Tribunal to allow the petitioner to produce the complete Voters Lists of 1960, 1966, 1979 and 1985 of Village Dhumbandha as well as the evidence of Rafiz Uddin Ahmed before the Tribunal and to pass a reasoned order and the respondents in the Home Department may cross-examine Rafiz Uddin Ahmed, if any evidence is rendered, as well as to make their own verification and submit the report before the Tribunal, on doing the needful.

¶7The petitioner to appear before the Tribunal on 02.09.2023. In the event, the reasoned order is in favour of the petitioner, the same would prevail over the order dated 06.03.2023, passed in F.T. Case No.FT (G-4)911/19 (Ref F.T. Case No.116/09) and if it is against him, the consequence under the law may follow.

¶8Till the reasoned order is passed, no coercive action be taken against the petitioner.

¶9The petition stands allowed as indicated above. Send back the LCR.

JUDGE JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010108842023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/2944/2023o 1.oNURoMAHAMMADo SONoOFoLATEoISARoALIo@oESARoALI,o PERMANENToRESIDENToOFoVILLAGE-oDHUMBANDHA,o POLICEoSTATION-oBAGUAN,o DISTRICT-oGOALPARA,oASSAM. VERSUSo 1.oTHEoUNIONoOFoINDIAoANDo6oORSo REPRESENTEDoBYoTHEoSECRETARY,o MINISTRYoOFoHOMEoAFFAIRS,o GOVERNMENToOFoASSAM,o SHASTRIoBHAWAN,oNEWoDELHI-o110001. 2:THEoSTATEoOFoASSAM oREPRESENTEDoBYoTHEoSECRETARYoTOoTHEoGOVERNMENToOFoASSAM oHOMEoDEPARTMENT oDISPURo GUWAHATI-o781006. 3:THEoELECTIONoCOMMISSIONoOFoINDIA oREPRESENTEDoBYoTHEoCHIEFoELECTIONoCOMMISSIONo NIRVACHANoSADAN oASHOKAoROADo NEWoDELHI-110001. 4:THEoSTATEoCOORDINATOR oNATIONALoREGISTRATIONoOFoCITIZENS oASSAM o1SToFLOOR oACHYUToPLAZA o Page No.# 2/4 G.S. ROAD BHANGAGARH GUWAHATI ASSAM PIN- 781005. 5:THE DEPUTY COMMISSIONER GOALPARA POST OFFICE- GOALPARA POLICE STATION- GOALPARA DISTRICT- GOALPARA ASSAM PIN- 783101. 6:THE SUPERINTENDENT OF POLICE (BORDER) GOALPARA POST OFFICE- GOALPARA POLICE STATION- GOALPARA DISTRICT- GOALPARA ASSAM PIN- 783101. 7:THE OFFICER-IN-CHARGE OF BAGUAN POLICE STATION POST OFFICE- GOALPARA DISTRICT- GOALPARA ASSAM PIN- 783101 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