Atikul Islam @ Assiqul Islam and 6 Ors v. The Union of India and 6 Ors

ORDER

23.05.2023 [Achintya Malla Bujor Barua, J.] Heard Ms. H. Ahmed, learned counsel for the petitioners. Also heard Mr. K.K. Para, learned CGC, appearing for respondent No.1 as well as appearing for respondent No.5; Mr. G. Sarma, learned special counsel, FT, appearing for respondent Nos.2, 6 and 7; Mr. A.I. Ali, learned standing counsel, ECI, appearing for respondent No.4 and Ms. U. Das, learned Addl. Senior Government Advocate, Assam, appearing for respondent No.3.

¶2The petitioner No.1 Atikul Islam had been referred to the Foreigners' Tribunal 2nd, Morigaon, for rendering an opinion as to whether he is a person who entered the State of Assam from the specified territory on or after 25.03.1971, which resulted in registration of Case No.F.T. 65/2013. The Tribunal rendered an opinion dated 07.07.2018 declaring the petitioner No.1 to be a foreigner. Being aggrieved this writ petition is instituted.

¶3In the writ proceeding before the Court, the petitioner No.1 relies upon the voters list of 1966 of village Jaribor Gaon, P.S.-Lahorighat in the Nagaon district, which contains the name of Mamud Ali, S/O Akin Ali at Sl.No.51. It is claimed that Mamud Ali of the 1966 voters list of village Jaribor Gaon is the father of the petitioner No.1. To establish that the petitioner No.1 Atikul Islam is the son of Mamud Ali of the 1966 voters list of village Jaribor Gaon, Page No.# 4/6 reliance is placed on the Jamabandi in respect of a plot of land in village Jaribor Gaon. The Jamabandi contains the information that as per the order of the Assistant Settlement Officer dated 28.01.1981 the names of Usman and Atikul Rahman, amongst others, both son of Mamud Ali, had been mutated in place of Mamud Ali. Although the order of the Assistant Settlement Officer shows the two names Usman and Atikul Rahman but again the Jamabandi shows Usman to be Usman Ali S/O Mamud Ali and Atikul Rahman to be Atikul S/O Mamud Ali. The petitioner No.1 before the Court is Atikul Islam of village Jaribor.

¶4Apart from the aforesaid variation in the depiction of the name as Atikul Islam and Atikul Rahman, it prima facie appears that the petitioner No.1 may have discharged the burden under Section 9 of the Foreigners Act, 1946 that he is a citizen of India.

¶5In respect of the petitioners Nos.2 to 7, it is noticed that the enquiry as well as reference made by the Superintendent of Police (Border), Morigaon was only against a person namely Assiqul Islam. But there is neither any enquiry nor any reference against other six writ petitioners. In view of the above, the conclusion arrived in the impugned order dated

07.07.2018 against the petitioners Nos.2 to 7 are also set aside. As there is neither any enquiry nor any reference against the said six writ petitioners, liberty remains with the Superintendent of Police (Border), Morigaon, if so advised, to make separate references against the six writ petitioners, but the Tribunal shall not proceed against the writ petitioner Nos.2 to 7 without any separate references being made against each of them.

¶6It is further noticed that the Superintendent of Police (Border), Morigaon by his memo dated 29.04.2013 had directed the Sub Inspector of Police (Border) Naba Kumar Bhuyan to start an enquiry under the Foreigners Tribunal (Amendment) Order, 1985 and submit a report with regard to Assiqul Islam, aged about 50 years, son of Mamad Ali of village Jaribargaon. The Sub Inspector of Police (Border), Bhuragaon police station Naba Kumar Bhuyan accordingly conducted an enquiry and submitted a report that during the enquiry, the suspect Md, Assiqul Islam could not produce any valid document. The Superintendent of Police (Border) accordingly by his order dated 29.04.2013 referred the matter to the Foreigners Tribunal for initiating a Proceeding under the Foreigners Tribunal Order, 1964 in respect of Md. Assiqul Islam son of Mamad Ali of village Jaribargaon in the Morigaon district. Page No.# 5/6

¶7Accordingly, F.T Case No. 65/2013 had been registered, where an opinion dated

07.07.2018 had been rendered declaring Md. Assiqul Islam to be a foreigner.

¶8The Tribunal issued notice to Md. Assiqul Islam and others of village Jaribargaon, police station Bhuragaon in the Morigaon district and the notice was served on Md. Atikul Islam. Accordingly, Md. Atikul Islam appeared before the Tribunal, sought to discharge the burden under section 9 of the Foreigners Act, 1946 to prove that he is an Indian citizen. But, as notice was issued to Md. Assiqul Islam and it is Md. Atikul Islam, who appeared before the Tribunal, it would be reasonable to expect that Md. Atikul Islam will fail to prove his citizenship by means of documents in the name of Md. Assiqul Islam, whereas on the other hand, it is noticed that the enquiry, reference and the notice all are against Md. Assiqul Islam of village Jariborgaon leading to an inconsistency.

¶9If the enquiry, reference and notice is against Md. Assiqul Islam, but in fact it was served on Md. Atikul Islam and it is Md. Atikul Islam who appeared before the Tribunal, we are of the view that there is also a requirement to return back the reference to the Superintendent of Police (Border) for resubmitting a correct reference as to whether the intention is to proceed against Md. Assiqul Islam of village Jaribargaon or the intention is to proceed against Md. Atiqul Islam of village Jaribargaon. If the intention is to proceed against Md. Atiqul Islam, appropriate corrections be made and the notice be issued to Md. Atiqul Islam so that he can discharge the burden under Section 9 of the Foreigners Act, 1946 and if the intention is to proceed against Md. Assiqul Islam of village Jaribargaon, in such event, Md. Atikul Islam should be discharged from the proceeding and he be not disturbed any further and appropriate proceedings and notices be served to Md. Assiqul Islam of village Jaribargaon. As the matter has been remanded back, the aforesaid aspect be also taken note by the Tribunal and do the needful accordingly. If any corrected reference is made against Md. Atikul Islam and notice is also served upon Md. Atikul Islam, Md. Atikul Islam may also continue and take the proceeding further from the stage as indicated above when the matter has been remanded back.

¶10For the purpose, the matter is remanded back to the Foreigners' Tribunal No.2, Morigaon to examine the voters list of 1966 of village Jaribor as well as the Jamabandi containing the information that the name of Atikul, S/O Mamud Ali had been mutated in place Page No.# 6/6 of Mahmud Ali in respect of a plot of land at village Jaribor. The petitioner No.1 may also produce the complete order of the Assistant Settlement Officer dated 28.01.1981 by which the mutation orders were passed. The respondents in the Home Department may make their own verification, as may be advised and thereafter submit report thereof. Upon doing the needful, a reasoned order be passed in favour of the petitioner No.1, the same shall prevail over the earlier opinion dated 07.07.2018 and if it is against the petitioner No.1, consequential action shall follow.

¶11The petitioner No.1 shall accordingly appear before the Tribunal on 06.07.2023. Till the reasoned order is passed, no coercive action shall be taken against the petitioner.

¶12Send back the LCR immediately.

¶13Writ petition stands disposed of in the above terms.

Comparing Assistant Sd/- Robin Phukan JUDGE

Sd/- Achintya Malla Bujor Barua JUDGE

PageoNo.#o1/6 GAHC010274672018 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/8575/2018o ATIKULoISLAMo@oASSIQULoISLAMoANDo6oORS.o S/OoLATEoMAMUDoALIo@oMAMADoALIoSK.,oR/O.oVILLAGE-oJORIBOR,oP.O.o FALIHAMARI,oP.S.oBURAGAON,oDIST-oMORIGAON,oPIN-o782121 2:oMD.oAIZULoHOQUE oS/O-oATIKULoISLAM oR/O.oVILLAGE-oJORIBOR oP.O.oFALIHAMARI oP.S.oBURAGAON oDIST-oMORIGAON oPIN-o782121 3:oMD.oIZAZULoHOQUE oS/O-oATIKULoISLAM oR/O.oVILLAGE-oJORIBOR oP.O.oFALIHAMARI oP.S.oBURAGAON oDIST-oMORIGAON oPIN-o782121 4:oMUSTT.oSHIRINAoBEGUMo@oSAIBINA oD/O-oATIKULoISLAM oR/O.oVILLAGE-oJORIBOR oP.O.oFALIHAMARI oP.S.oBURAGAON oDIST-oMORIGAON oPIN-o782121 5:oMUSTT.oSABIKUNoNEHARo@oSABION oD/O-oATIKULoISLAM oR/O.oVILLAGE-oJORIBOR oP.O.oFALIHAMARI oP.S.oBURAGAON oDIST-oMORIGAON PageoNo.#o2/6 oPIN-o782121 6:oMASUMAoBEGUM oD/O-oATIKULoISLAM oR/O.oVILLAGE-oJORIBOR oP.O.oFALIHAMARI oP.S.oBURAGAON oDIST-oMORIGAON oPIN-o782121 7:oYEHIAoISLAMo@oYAHIAoHANIF oR/O.oVILLAGE-oJORIBOR oP.O.oFALIHAMARI oP.S.oBURAGAON oDIST-oMORIGAON oPIN-o78212o VERSUSo THEoUNIONoOFoINDIAoANDo6oORS.o REP.oBYoTHEoMINISTRYoOFoHOMEoAFFAIRS,oNEWoDELHI,oPIN-o110001. 2:THEoSTATEoOFoASSAM oREP.oBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.oOFoASSAM oHOMEoDEPTT. oDISPUR oGUWAHATI-o781006. 3:THEoDEPUTYoCOMMISSIONER oMORIGAON oDIST.oMORIGAON oASSAM oPIN-o782121 4:THEoELECTIONoCOMMISSIONoOFoINDIA oNEWoDELHI-o110001 5:THEoSTATEoCO-ORDINATOR oNATIONALoREGISTERoOFoCITIZENS oASSAM oGUWAHATI-o781005. 6:THEoSUPERINTENDENToOFoPOLICEo(B) oMORIGAON oASSAM. Page No.# 3/6 7:THE OFFICER-IN-CHARGE BHURAGAON POLICE STATION DIST.- MORIGAON PIN- 782121 Advocate for the Petitioner : MR H R A CHOUDHURY Advocate for the Respondent : ASSTT.S.G.I. BEFORE HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HON'BLE MR. JUSTICE ROBIN PHUKAN