Aymona Khatun v. The Union of India and 5 Ors

PageoNo.#o1/3 GAHC010207592019 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/6538/2019o AYMONAoKHATUNo D/O-oHASENoKHA,oW/O-oMAYEZoUDDIN,oR/O-oBALABHITA,oP.S.oBARPETAo ROAD,oDIST-oBARPETA,oASSAM VERSUSo THEoUNIONoOFoINDIAoANDo5oORS.o THROUGHoTHEoSECY.,oTOoTHEoGOVT.oOFoINDIA,oMINISTRYoOFoHOMEo AFFAIRS,oGRIHAoMANTRALAYA,oNEWoDELHI 2:THEoSTATEoOFoASSAM oTHROUGHoTHEoSECY. oTOoTHEoGOVT.oOFoASSAM oHOMEoDEPTT. oDISPUR oGHY-6 3:THEoELECTIONoCOMMISSIONoOFoINDIA oREP.oBYoTHEoCHIEFoELECTIONoCOMMISSIONERoOFoINDIA oNIRVACHANoSADANoASHOKAoROAD oNEWoDELHI-o110001 4:THEoSTATEoCO-ORDINATOR oNATIONALoREGISTRATIONoOFoCITIZEN oASSAM oBHANGAGARH oGHY-5 5:THEoDY.oCOMMISSIONER oBARPETA oP.O.oANDoDIST-oBARPETA oASSAM oPIN-o781301 Page No.# 2/3 6:THE SUPERINTENDENT OF POLICE (B) BARPETA P.O. AND DIST-BARPETA ASSAM PIN-78130 Advocate for the Petitioner : MR. S C BISWAS 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

24.07.2023 (A.M. Bujor Barua, J)

Heard Mr. FA Hasan, learned counsel for the petitioner. Also heard Ms. L 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. AI Ali, learned counsel for the Election Commission of India and Ms. K Phukan, learned counsel for the Deputy Commissioner, Barpeta.

¶2The petitioner Aymona Khatun had been referred to the Foreigners Tribunal No. 8, Barpeta 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 FT Case No. 190/2017, wherein an opinion dated 29.09.2018 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 1965 of village Sukhmanah, police station-Barpeta in the present Barpeta district, which contains the name of Hasen Kha son of Halim at serial No. 491. It is claimed that Hasen Kha is the father of the petitioner. Hasen Kha son of Halim aged Page No.# 3/3 about 90 years rendered evidence before the Tribunal as DW-2, wherein it was stated that the writ petitioner is his daughter, who was born at his residence at village Sukhmanah.

¶4If the evidence rendered by DW-2 is to be accepted, the petitioner may have discharged the burden under section 9 of the Foreigners Act, 1946 that she is not a foreigner.

¶5In view of the above, we remand the matter back to the Tribunal for appreciation of the evidence of DW-2. The Tribunal may require the re-appearance of the DW-2 before the Tribunal for further cross examination by the State through the Home Department. The Tribunal shall also verify and satisfy itself whether the person appearing before the Tribunal as DW-2 is actually Hasen Kha son of Halim of the voters list of 1965 of village Sukhmanah. After doing the needful, the Tribunal shall pass a reasoned order thereon.

¶6If the reasoned order is in favour of the petitioner, the same shall prevail over the earlier opinion dated 29.09.2018 and if it goes against the petitioner, consequence as per law shall follow.

¶7The petitioners shall appear before the concerned Foreigners Tribunal on

17.08.2023. Till the reasoned order is passed, no coercive action be taken against the petitioner.

¶8The writ petition is allowed as indicated above.

¶9Send back the LCR immediately.

JUDGE JUDGE Comparing Assistant