Jayed Ali @ Md. Zaider Ali @ Md. Jahed Ali v. The Union of India and 6 Ors

ORDER Date : 14.08.2023 (AM Bujor Barua, J)

Heard Ms. A Hussain, learned counsel for the petitioner. Also heard Ms. L Devi, learned counsel for the respondents no. 1 and 4 being the authorities under the Union of India and NRC respectively, Mr. AI Ali, learned counsel for the respondents no. 2 being the authorities under the Election Commission of India, Mr. G Sarma, learned counsel for the respondents no. 3, 6 and 7 being Page No.# 3/5 the authorities under the Home Department of Government of Assam and Mr. P Sarma, learned Additional Senior Government Advocate for the respondent no. 5 being the Deputy Commissioner, Barpeta.

¶2The petitioner Jahed Ali had been referred to the Foreigners' Tribunal No. 4, Barpeta for rendering an opinion as to whether he is a foreigner under the Foreigners' Act, 1946 resulting in registration of F.T. Case No. 928/2016. It is noticed that the Tribunal had rendered a common opinion dated 04.12.2020 in respect of another F.T. Case No. 503/2016 which was against Md. Zaider Ali. Md. Zaider Ali is shown to be the son of Kayed Ali of village Dakhin Sitali whereas Jahed Ali is also shown to be the son of Kayed Ali of village Dakhin Sitali. Although there may be a possibility that both the proceedees are sons of the same father, but when separate references are being made and for the purpose of proceeding in the Foreigners' Tribunal, it is always more prudent to pass separate opinion rather than going for a common opinion in respect of two references.

¶3It is claimed that Md. Zaider Ali and Md. Jahed Ali are in fact one and the same person but by showing them to be named as different persons, two separate references have made. The Tribunal in paragraph 2 of its opinion dated

04.12.2020 had merely recorded that notices were issued to the proceedees namely Md. Zaider Ali and Md. Jahed Ali but in F.T. case No. 503/2016 Md. Zaider Ali appeared before the Tribunal and filed written statement as Jayed Ali denying the allegations. In F.T. Case No. 928/2016 Md. Jahed Ali appeared as Jahed Ali and filed a petition for amalgamation of the two case records. Accordingly, the Tribunal passed an order of amalgamation in F.T. Case No. 928/2016.

¶4We clarify that if two reference cases have been instituted against the Page No.# 4/5 same person although under two different names and the person concerned appears before the Tribunal and brings it to the notice that one of the reference is against the same person although in a different name. It would have been more prudent for the Tribunal to have closed one of the reference cases and proceeded against one which is actually issued in the name of the proceedee rather than seeking to amalgamate. Amalgamation would have the legal implication that the reference which was wrongly instituted in the name of a wrong person is also carried forward.

¶5Accordingly the opinion dated 04.12.2020 rendered in respect of F.T. Case No. 503/2016 against the proceedee Zaider Ali is set aside.

¶6As regards the opinion in respect of Md. Jahed Ali in F.T. Case No. 928/2016, reliance is placed on a voters' list of 1966 of village Dakhin Sitali Police Station Baghbar in the present Barpeta district which contains the names of Gendi Nessa W/O Baju and that of Koyed Ali S/O Baju at Sl. No. 101 and 103 respectively. It is claimed that Gendi Nessa is the grandfather and Koyed Ali is the father of the petitioner. The petitioner further relies on the voters' list of 1970 of village Dakhin Sitali which contains the names of Gendi Nessa W/O Baju and that of Koyed Ali S/O Baju at Sl. No. 122 and 124 respectively. Reliance is also placed on the voters' list of 1997 of village Dakhin Sitali which contains the names of Koyed Ali S/O Baju and that of Baharjaan S/O Koyed at Sl. No. 178 and 179 respectively. The voters' list of 1985 of village Dakhin Sitali which contains the name of Kayed Ali S/O Baju, Baharjan Nesa W/O Kayed along with Bakkar Ali and Omar Ali both sons of Kayed. Further reliance is placed on the voters' list of 2005 of village Dakhin Sitali which contains the name of Koyed Ali S/O Baju Bepari at Sl. No. 209, Bharjaan W/O Koyed at Sl. No. 210, Haider Ali S/O Koyed at Sl. No. 211 and that of Zayed Ali S/O Koyed at Sl. No. 212 where Page No.# 5/5 all are residing in the same house no. 64. Zayed Ali is shown to be 18 years whereas Haider Ali is shown to be 21 years and Koyed Ali is shown to be 78 years. It is claimed that Zayed Ali of voters' list of 2005 of village Dakhin Sital is the petitioner himself.

¶7In view of the above, the matter stands remanded to the Tribunal to examine the voters' lists of 1966, 1970, 1985, 1997 and 2005 of village Dakhin Sitali and the petitioner to produce the complete and continuous voters' lists of all the aforesaid years before the Tribunal for its examination. The Tribunal upon its examination shall examine the consistency of the contents of the voters' lists and moreso, whether the names of all other sons of Koyed Ali also continuously appear in the voters' lists. The respondents in the Home Department to make their enquiry as to whether Zayed Ali of the 2005 voters' list of village Dakhin Sitali and the writ petitioner Jahed Ali are one and same person and thereafter, file a report. Upon doing the needful the Tribunal to pass a reasoned order.

¶8The petitioner to appear before the Tribunal on 18.09.2023.

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

Send back the LCR.

Writ petition stands disposed of in the above terms.

JUDGE JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010250892022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/8079/2022o JAYEDoALIo@oMD.oZAIDERoALIo@oMD.oJAHEDoALIo S/O-oLT.oKAYEDoALI,o RESIDENToOFoVILLAGE-oDAKHINoSITALI,o P.S.-oBAGHBOR,oDISTRICT-oBARPETA,o ASSAM. VERSUSo THEoUNIONoOFoINDIAoANDo6oORSo REPRESENTEDoBYoTHEoSECRETARYoTOoTHEoGOVT.oOFoINDIA,o MINISTRYoOFoHOMEoAFFAIRS,oNEWoDELHI-1. 2:THEoELECTIONoCOMMISSIONoOFoINDIA oREPRESENTEDoBYoTHEoCHIEFoELECTIONoCOMMISSION oINDIA o NEWoDELHI-o01. 3:THEoSTATEoOFoASSAM oREPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEo GOVERNMENToOFoASSAM o HOMEoDEPARTMENT oDISPUR o GUWAHATI-781006. 4:THEoSTATEoCO-ORDINATOR oNRC oASSAM oBHANGAGARH oGUWAHATI-5 Page No.# 2/5 PIN- 781005. 5:THE DEPUTY COMMISSIONER OF BARPETA DISTRICT DISTRICT- BARPETA ASSAM PIN- 781 6:THE SUPERINTENDENT OF POLICE (B) BARPETA DISTRICT- BARPETA ASSAM PIN- 781308. 7:THE OFFICER-IN-CHARGE BAGHBAR POLICE STATION DISTRICT- BARPETA ASSAM PIN- 781308 Advocate for the Petitioner : MR. J AHMED Advocate for the Respondent : DY.S.G.I. BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HONOURABLE MRS. JUSTICE MITALI THAKURIA