Sahajamal Seikh v. The Union of India and 9 Ors

PageoNo.#o1/6 GAHC010242692018 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/7590/2018o SAHAJAMALoSEIKHo S/OoLATEoMOYNALoHAQUEo R/OoVILL-oNO.o285oKHOPATI,oP.S.oSUKCHAR,oDIST.oSOUTHoSLMARAo MANKACHAR,oASSAM,oPNo-o783135. VERSUSo THEoUNIONoOFoINDIAoANDo9oORS.o REP.oBYoTHEoSECRETARY,o MINISTRYoOFoHOMEoAFFAIRS,oGOVT.oOFoINDIA,o SHASTRIoBHAWAN,o oNEWoDELHI-o110001. 2:THEoSTATEoOFoASSAM oREP.oBYoTHEoSECRETARYoTOoTHEoGOVT.oOFoASSAM oHOMEoDEPARTMENT oDISPUR oGUWAHATIo-o781006. 3:THEoELECTIONoCOMMISSIONoOFoINDIA oREP.oBYoTHEoCHIEFoELECTIONoCOMMISSION oNIRVACHANoSADAN oASHOKAoROAD oNEWoDELHI-o110001. 4:THEoSTATEoCO-ORDINATOR oNATIONALoREGISTRATIONoOFoCITIZENS oASSAM o1SToFLOORoACHYUToPLAZA oG.S.oROADoBHANGAGARH oGUWAHATIoASSAM oPINo-o781005. Page No.# 2/6 5:THE FOREIGNERS TRIBUNAL KAMRUP (METRO) NO. 2 AT GUWAHATI HEDAYATPUR GUWAHATI -03 DIST. KAMRUP (METRO) ASSAM. 6:THE DEPUTY COMMISSIONER SOUTH SALMARA MANKACHAR P.O. HATSINGIMARI P.S. SOUTH SALMARA DIST. SOUTH SALMARA MANKACHAR ASSAM PIN - 783135 7:THE DEPUTY COMMISSIONER OF POLICE (B) CITY GUWAHATI KAMRUP (MERO) ASSAM PIN - 781001. 8:THE SUPERINTENDENT OF POLICE (BORDER) DHUBRI P.O. AND P.S. DHUBRI DIST. DHUBRI ASSAM PIN - 783301. 9:THE OFFICER-IN-CHARGE OF SUKCHAR POLICE STATION POST OFFICE-SUKCHAR DIST. SOUTH SALMARA MANKACHAR ASSAM PIN - 783135. 10:THE OFFICER-IN-CHARGE OF BHANGAGARH P.S. P.O. BHANGAGARH DIST. KAMRUP (MERO) ASSAM PIN - 78100 Advocate for the Petitioner : MR. M AHMED Advocate for the Respondent : ASSTT.S.G.I.

Page No.# 3/6 BEFORE HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HON'BLE MR. JUSTICE ROBIN PHUKAN

02.05.2023 (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 the authorities under the NRC, Mr. A.I. Ali, learned counsel for the authorities under the Election Commission of India, Mr. G. Sarma, learned Special Standing Counsel, Foreigners Tribunal for the Home Department, Government of Assam, the Deputy Commissioner of Police (B), City Guwahati, Superintendent of Police

(B), Dhubri, Officer in charge of Sukchar Police Station and Bhangagarh Police Station and Mr. N.K. Das, learned Government Advocate for the Deputy Commissioner, South Salmara Mankachar.

¶2The petitioner, Sahajamal Seikh had been referred to the Foreigners Tribunal, Kamrup (M) 2nd, Guwahati for rending an opinion as to whether he is a person who had entered the State of Assam from the Specified Territory on or after 25.03.1971 resulting in registration of F.T. Case No.71/2017. The learned Tribunal rendered an opinion dated 09.10.2018 declaring the petitioner to be a foreigner.

¶3Being aggrieved, this writ petition is instituted.

¶4In the writ proceeding, the petitioner relies on the voters list of 1966 of village Borkolia Surjyamoni in the present South Salmara Mankachar District which contains the name of Moynal Haque, son of Kasimuddin and claims that Page No.# 4/6 Moynal Haque is his father. Thereupon the petitioner relies on the voters list of 1970 of village Khopati Part-III also in the present South Salmara Mankachar District which contains the name of Moynal Haque, son of Kasmath Ali at Serial No.212. It is stated that Moynal Haque of village Borkolia Suryamoni referred in the voters list of 1966 had subsequently shifted to village Khopati Part III. Be that as it may, voters list of 1970 of village Khopati Part III shows that Moynal Haque was in existence prior to 1970 at village Khopati Part III. The petitioner thereupon relies on the voters list of 2015 also of village Khopati Part III which contains the name of Moynal Haque, son of Kasmath Ali at Serial No.37 and that of Sofiya Khatun, wife of Moynal Haque at Serial No.38 and Shahajamal Seikh, son of Moynal Haque at Serial No.39 and all of them have been shown residing in House No.350.

¶5Accordingly, the petitioner claims that the burden under Section 9 of the Foreigners Act, 1946 had been discharged. As the voters list of 1970 of village Khopati Part III shows that Moynal Haque, son of Kasmath Ali is a citizen of India and the name of Shahjamal Seikh, son of Moynal Haque appears along with Moynal Haque, son of Kasmath Ali in the same voters list of 2015 also of village Khopati Part-III, prima facie, it appears that the petitioner may have discharged his burden.

¶6For proper adjudication, the matter is remanded to the Tribunal to examine the voters list of 1970 of village Khopati Part III and the voters lists of 2015 of village Khopati Part III and thereupon, pass a reasoned order as to whether the petitioner could discharge his burden under Section 9 of the Foreigners Act, 1946.

¶7We have noticed that the Tribunal in its order dated 09.10.2018 had provided that through the exhibits it is not possible to ascertain that person Page No.# 5/6 named as Moynal Haque, son of Kasmat in the voters lists of 1966, 1970, 1977, 1985, 1989, 1994 and 1997 and the person Moynal Haque, father of Sahajamal Sheikh in the voters list of 2017 are one and the same person. If the Tribunal could not determine/ascertain whether the two persons are same, it is the duty of the Tribunal to call for further materials for ascertaining and pass a reasoned order rather than leaving the question open and declaring the petitioner to be a foreigner without deciding the issue.

¶8For proper adjudication, petitioner to produce/rely on the complete voters lists between the period 1970 and 2015 of village Khopati Part III for examination by the Tribunal.

¶9The respondents in the Home Department may also make their own verification and more particularly, as to whether Shahjamal Seikh, son of Moynal Haque at Serial No.39 referred in the voters list of 2015 of village Khopati Part III and the petitioner/proceedee, Sahajamal Seikh are one and the same person.

¶10Upon doing the needful, a reasoned order be passed by the Tribunal.

¶11If the reasoned order is in favour of the petitioner, the same shall prevail over the earlier opinion dated 09.10.2018 rendered in F.T. Case No.71/2017and if it goes against the petitioner, consequence as per law shall follow.

¶12The petitioner shall appear before the Foreigners Tribunal, Kamrup (M), 2nd, Guwahati on 07.06.2023.

¶13Till the reasoned order is passed, no coercive action be taken against the petitioner.

¶14The writ petition is disposed of as indicated above. Page No.# 6/6

¶15Send back the LCR immediately.

JUDGE JUDGE Comparing Assistant