Hamida Khatun v. The Union of India and 4 Ors

ORDER

11.04.2023 [A.M.Bujor Barua, J.]

Heard Mr. Z. Hammad, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel for the respondent no. 1; Mr. G. Sarma, learned counsel for the respondent no. 2; and Ms. M. Dutta, learned counsel for the respondent no. 3.

¶2The petitioner Hamida Khatun had been referred to the Foreigners' Tribunal 5th Morigaon, for rendering an opinion as to whether she is a person who entered the State of Assam from the specified territory on or after

25.03.1971 resulting in registration of F.T.(D) 403/2015 (New) corresponding to F.T.(D) 30/2011 (Old), wherein an opinion dated 30.11.2016 had been rendered declaring the petitioner to be a foreigner. Being aggrieved this writ petition is instituted.

¶3In the writ petition the petitioner relies on the Voters' List of 1960 of village Chenimari Mouza – Laharighat P.S. Laharighat in the Nagaon district, which contains the name of Abdul Hekim, son of Tareh Uddin at serial no. 911. Abdul Hekim son of Tareh Uddin @ Tahir Sheikh of village Dakhin Chenimari P.S. Laharighat presently in the Nagaon district had rendered evidence before the Page No.# 3/3 Tribunal as DW2 stating that the petitioner Hamida Khatun is his daughter who was born at village Dakhin Chenimari. DW2 also referred to the Voters' List of 1966 of village Dakhin Chenimari which contains the name of Tahir Sheikh at serial no. 367 and states that Tahir Sheikh is his father, which in other words would be the grandfather of the proceedee Hamida Khatun.

¶4We have noticed that DW2 had not been cross-examined by the State authorities. Although the Tribunal had put certain questions to DW2 but the evidence rendered that the petitioner Hamida Khatun is the daughter of DW2 had not been rebutted in any manner.

¶5Mr. G. Sarma, learned counsel for the Home Department submits that the Home Department also deserves an opportunity to cross-examine the DW2. If the evidence of DW2 remains un-rebutted it has to be accepted that the petitioner had discharged the burden to prove that she is a citizen of India.

¶6The matter is remanded back to the Foreigners' Tribunal 5th Morigaon to enable the Home Department to cross-examine the DW2, Abdul Hekim. The Home Department shall also verify as to whether the DW2, Abdul Hekim and Abdul Hekim of the Voters' List of 1971 of village Chenimari are one and the same person.

¶10The petitioners to appear before the Tribunal on 29.05.2023.

¶11Till the reasoned order is passed, no coercive action be taken against the petitioner.

Writ petition stands disposed of in the above terms.

JUDGE JUDGE Comparing Assistant

PageoNo.#o1/3 GAHC010193472017 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/1190/2017o HAMIDAoKHATUNo D/OoABDULoHEKIMoW/OoNURULoISLAMoVILL-oDURABANDHI,oP.S.o MOIRABARIoDIST.oMORIGAON,oASSAM. VERSUSo THEoUNIONoOFoINDIAoando4oORS.o REP.oBYoTHEoCOMMISSIONERoandoSECRETARYoTOoTHEoGOVT.oOFoINDIA,o HOMEoDEPARTMENT,oNEWoDELHI-1,oINDIA. 2:THEoSTATEoOFoASSAM oREP.oBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.oOFoASSAM oHOMEoDEPARTMENT oDISPUR oGUWAHATI-6. 3:THEoDEPUTYoCOMMISSIONER oMORIGAON oDIST.oMORIGAON oASSAM 4:THEoSUPERINTENDENToOFoPOLICEoB oMORIGAON oDIST.oMORIGAON oASSAM. 5:THEoOFFICER-IN-CHARGE oMOIRABARIoPOLICEoSTATION oP.S.oMOIRABARI Page No.# 2/3 DIST. MORIGAON ASSA Advocate for the Petitioner : MDE AHMED Advocate for the Respondent : GA, ASSAM BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HONOURABLE MR. JUSTICE ROBIN PHUKAN