Manikjan Nessa v. The Union of India and 7 Ors

ORDER Page No.# 3/5

28.06.2023 (AM Bujor Barua, J)

Heard Ms. D Ghosh, learned counsel for the petitioner. Also heard Ms. L Devi, learned CGC for the respondents in the Union of India as well as for the authorities under the NRC, Mr. AI Ali, learned counsel for the authorities under the Election Commission of India, Ms. A Verma, learned Special Standing Counsel, Foreigners Tribunal for the Home Department, Government of Assam, the Superintendent of Police (B) Goalpara as well as the Officer-in-Charge, Pancharatna Police Station and Ms. U Das, learned Government Advocate for the Deputy Commissioner, Goalpara.

¶2The petitioner, namely, Manikjan Nessa was referred to the Foreigners' Tribunal No.8th Goalpara for an opinion as to whether she is a foreigner within the meaning of Foreigner Act, 1946 resulting in the registration of F.T.(8) Case No.866/18 corresponding to IM(D)T Case No.117/2002) wherein the Tribunal had rendered an opinion dated 12.03.2021 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 Uzirer Char which contains the name of Mader Baksh son of Dhanu at Sl.No.566 and that of Sarbhan Nessa wife of Mader at Sl.No.567 along with Sarbesh Ali son of Mader at Sl.No.568. It is claimed that Mader Baksh is the grandfather of the petitioner and Sarbesh Ali is the father of the petitioner. Page No.# 4/5 Further reliance is placed on the voters list of 1997 of village Dubapara Luptachar which contains the name of Kamal Uddin son of Sarbesh Ali at Sl.No.1194, Sarbesh Ali son of Madar Baksh at Sl.No.1371, Hasina Khatun wife of Sarbesh Ali at Sl.No.1372 and that of Jamal Uddin son of Sarbesh Ali at Sl.No.1373. It is claimed that Jamal Uddin and Kamal Uddin are two sons of Sarbesh Ali, although Kamal Uddin is residing separately at House No.188 and Jamal Uddin is residing along with Sarbesh Ali at House No.220. Kamal Uddin has rendered evidence as DW-2 stating that the petitioner Manikjan Nessa is his sister and daughter of Sarbesh Ali of the 1966 voters list of village Uzirer Char. The voters list of 2005 of village Uzirer Char also contains the name of Sarbesh Ali, Hasena Khatun and Jamal Uddin at Sl.Nos. 899, 909, 901 respectively. As Kamal Uddin had established that he is the son of Sarbesh Ali, whereas, the name of Sarbesh Ali appears in the voters list of 1966 of village Uzirer Char, a claim is made that the burden under Section 9 of the Foreigners Act 1946 has been discharged by the petitioner.

¶5In view of the above, the matter stands remanded back to the Tribunal to examine the voters lists of 1966, 1970, 1977, 1985, 1997 and 2005 of village Uzirer Char as well as the evidence rendered by the DW-2 Kamal Uddin and pass a reasoned order thereon.

¶6The respondents in the Home Department may also make their own verification on the aforesaid aspect and submit a report before the Tribunal.

¶7Accordingly, the petitioner shall appear before the Tribunal on 07.08.2023. Page No.# 5/5

¶8The Tribunal upon doing the needful and after examining the materials shall pass a reasoned order. In the event, the reasoned order is in favour of the petitioner, the same shall prevail over the opinion dated 12.03.2021 of the Foreigners' Tribunal No.8th Goalpara in F.T.(8) Case No.866/18 (corresponding to IM(D)T Case No.117/2002) and if it is against the petitioner, consequential action under the law shall follow.

¶9Till the reasoned order is passed, no coercive action be taken against the petitioner.

¶10Writ petition stands disposed of in the above terms.

¶11The complete voters list produced before the Court is returned back to the learned counsel for the petitioner for production of the same before the Tribunal.

¶12Send back the LCR.

JUDGE JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010109512021 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/3930/2021o MANIKJANoNESSAo D/OoSHARBESHoALI,oW/OoHANIFoALI,oR/OoVILL.o126oNO.oUZIRARoCHAR,oP.S.o PANCHARATNA,oDIST.oGOALPARA,oASSAM. VERSUSo THEoUNIONoOFoINDIAoANDo7oORSo REPRESENTEDoBYoTHEoSECY.oMINISTRYoOFoHOMEoAFFAIRS,oGOVT.oOFo INDIA,oSHASTRIoBHAWAN,oNEWoDELHIo110001 2:THEoSTATEoOFoASSAM oREPRESENTEDoBYoTHEoSECY.oTOoTHEoGOVT.oOFoASSAM oHOMEoDEPTT. oDISPUR oGUWAHATIo781006 3:THEoELECTIONoCOMMISSIONoOFoINDIA oREPRESENTEDoBYoTHEoCHIEFoELECTIONoCOMMISSION oNIRVACHANoSADAN oASHOKAoROAD oNEWoDELHIo110001 4:THEoSTATEoCOORDINATOR oNATIONALoREGISTRATIONoOFoCITIZENS oASSAM o1SToFLOOR oACHYUToPLAZA oG.S.oROAD oBHANGAGARH Page No.# 2/5 GUWAHATI ASSAM PIN 781005 5:THE FOREIGNERS TRIBUNAL NO. 8 GOALPARA ASSAM DIST. GOALPARA PIN 783101 6:THE DEPUTY COMMISSIONER GOALPARA P.O. GOALPARA P.S. GOALPARA DIST. GOALPARA ASSAM PIN 783101 7:THE SUPERINTENDENT OF POLICE (BORDER) GOALPARA P.O. GOALPARA P.S. GOALPARA DIST. GOALPARA ASSAM PIN 783101 8:THE OFFICER IN CHARGE OF PANCHARATNA P.S. P.O. GOALPARA DIST. GOALPARA ASSAM PIN 78310 Advocate for the Petitioner : MS. D GHOSH Advocate for the Respondent : ASSTT.S.G.I. BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND