Jariman Nessa @ Jarina Khatun v. The Union of India and 6 Ors

ORDER

18.07.2023 [Achintya Malla Bujor Barua, J.] Heard Ms. T. Begum, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel appearing for the respondent Nos.1 and 6; Ms. A. Verma, learned special counsel, FT, appearing for respondent Nos.2, 4 and 7; Mr. A.I. Ali, learned standing counsel, ECI, for respondent No.5 and Ms. U. Das, learned Additional Senior Government Advocate, Assam, appearing for respondent No.3.

¶2The petitioner Jamiran Nessa had been referred to the Foreigners' Tribunal

(10th), Barpeta, for rendering an opinion as to whether she is a foreigner under the Foreigners Act, 1946 resulting in registration of F.T. Case No.1848/2018. The Tribunal rendered an opinion dated 30.06.2022 declaring the petitioner to be a foreigner. Being Page No.# 3/4 aggrieved this writ petition is instituted.

¶3In the writ proceeding, the petitioner relies upon the voters list of 1965 of village Borghopa Bilor Pathar, P.S.-Sarbhog in the present Barpeta district, which contains the names of Esab Ali S/o Rafet Ulla at Sl.No.46 and that of Jabeda Khatun W/o Esab at Sl.No.47. It is claimed that Esab Ali is the father of the petitioner and Jabeda Khatun is the mother. We also take note that the voters list of 1965 also contains the name of Abdul Jalil S/o Rafet Ulla where Abdul Jalil and Esab Ali both are residing in the same house No.10. Reliance is placed on a Jamabandi of a plot of land at village Borghopa Bilor Pathar, which contains the information that in respect of the plot of land, in place of Abdul Jalil S/o Rafet Ulla and Idu Miya S/o Rafet Ulla, mutation had been made in favour of their legal heirs. The Jamabandi also refers to an order of the Circle Officer dated 06.08.2018 by which the name of Jamiran Nessa D/o Idu Miya had been mutated in place of Jabeda Khatun. It is noticed that Jabeda Khatun is the wife of Esab Ali as per the voters list of 1965 and as the name of Jamiran Nessa had been mutated in place of Jabeda Khatun by the order of the Circle Officer, it is claimed that the petitioner has discharged the burden under Section 9 of the Foreigners Act, 1946 to establish that she is not a foreigner under the said Act.

¶4The Jamabandi also refers to the name of Abdul Jalil S/o Rafet Ulla. In the circumstance, a question would remain as to whether Esab Ali of the 1965 voters list and Idu Miya of the Jamabandi in respect of the same village Borghopa Bilor Pathar are one and the same person. If a conclusion can be arrived that they are one and the same person, the petitioner may have discharged the burden under Section 9 to prove that she is not a foreigner and on the other hand, if Idu Miya of the Jamabandi and Esab Ali of the 1965 voters list are not one and the same person, such burden may not have been discharged.

¶5In view of above, the matter is remanded back to the Tribunal to consider the voters list of 1965 of village Borghopa Bilor Pathar as well as the Jamabandi and Page No.# 4/4 the contents thereof in respect of the plot of land of village Borghopa Bilor Pathar and pass a reasoned order and more particularly, a conclusion be arrived as to whether Esab Ali of the 1965 voters list and Idu Miya of the Jamabandi are one and the same person. The petitioner may produce any further material, if so advised to prove that they are one and the same person, whereas the respondents in the Home Department may also make their own verification and submit a report before the Tribunal on the aforesaid question as to whether Esab Ali and Idu Miya are one and the same person. On doing the needful, a reasoned order be passed. In the event, the reasoned order is passed in favour of the petitioner, the same shall prevail over the earlier opinion dated

30.06.2022 and if it is against the petitioner, consequential action shall follow.

¶6The petitioner shall accordingly appear before the Tribunal on 11.08.2023. Till the reasoned order is passed, no coercive action shall be taken against the petitioner.

¶7Send back the LCR immediately.

¶8Writ petition stands disposed of in the above terms.

Comparing Assistant Sd/- Robin Phukan JUDGE

Sd/- Achintya Malla Bujor Barua JUDGE

PageoNo.#o1/4 GAHC010167712022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/5500/2022o JARIMANoNESSAo@oJARINAoKHATUNo W/O.oLT.oABDULoSIDDIQUEo@oSIDDIQUEoALI,oD/O.oLT.oESABoALIo@oEDUo MIYA,oVILL.oATAGAON,oP.S.oGOBARDHANA,oP.O.oBILASIPARAoBAZAR,o DIST.oBAKSAo(BTAD),oPIN-781315. VERSUSo THEoUNIONoOFoINDIAoANDo6oORSo REP.oBYoTHEoSECRETARYoTOoTHEoGOVT.oOFoINDIA,oDEPTT.oOFoHOME,oNEW DELHI-01. 2:THEoSTATEoOFoASSAM oREP.oBYoSECRETARYoTOoTHEoGOVT.oOFoASSAM oDEPTT.oOFoHOME oDISPUR oGUWAHATI-06. 3:THEoDEPUTYoCOMMISSIONER oBAKSA oPIN-781343. 4:THEoSUPDT.oOFoPOLICEo(B) oBAKSA oPIN-781343. 5:THEoELECTIONoCOMMISSION oGOVT.oOFoINDIA oNEWoDELHI-01. Page No.# 2/4 6:THE STATE CO-ORDINATOR NF NATIONAL REGISTRATION (NRC) ASSAM GUWAHATI-781032. 7:FOREIGNERS TRIBUNAL NO.10 BARPETA REP. BY THE STANDING COUNSEL FOREIGNERS TRIBUNAL PIN-781301 Advocate for the Petitioner : MR. A ROSHID Advocate for the Respondent : ASSTT.S.G.I. BEFORE HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HON'BLE MR. JUSTICE ROBIN PHUKAN