Habibulla Sheikh v. The Union of India and 7 Ors

JUDGMENT & ORDER (ORAL) (AM Bujor Barua, J)

Heard Ms. D Ghosh, learned counsel for the petitioner. Also heard Ms. L Page No.# 3/6 Devi, learned CGC for the respondents in the Union of India as well as the authorities under the NRC, Mr. AI Ali, learned counsel for the authorities under the Election Commission of India, Mr. G Sharma, learned Special Standing Counsel, Foreigners Tribunal for the Home Department, Government of Assam, the Superintendent of Police (B) Dhubri as well as the Officer-in-Charge Dhubri Police Station and Ms. U Sharma, learned Government Advocate for the Deputy Commissioner, Dhubri.

¶2The petitioner, namely, Habibulla Sheikh was referred to the Foreigners' Tribunal No.1 Dhubri for an opinion as to whether he is a foreigner within the meaning of Foreigner Act, 1946 resulting in the registration of F.T.Case No.5334/D/2011 corresponding to Ref. Case No.197/08). The Tribunal rendered an opinion dated 22.08.2019 declaring the petitioner to be a foreigner.

¶3Being aggrieved this writ petition is instituted.

¶4In the writ proceeding, the petitioner relies upon the voters list of 1966 of village Sastarghat Pt II in the Dhubri district which contains the name of Saritulla Sheikh son of Milan Sheikh at Sl.No.95 showing his age to be 50 years and that of Habibullah Sheikh son of Saritulla at Sl.No.101 showing his age to be 21 years. It is claimed that Habibullah Sheikh son of Saritulla of the 1966 voters list of village Sastarghat Pt II is the petitioner himself and Saritulla Sheikh is his father. Both are noticed to be residing in the same House No.37. The petitioner further relies upon the voters list of 1970 of the same village Sastarghat Part II containing the name of Saritulla Sheikh, son of Milan at Sl.No.69 and that of Habibullah son of Saritulla at Sl.No.75 and accordingly Page No.# 4/6 claims that he had discharged the burden under Section 9 of the Foreigner Act 1946 to prove that he is a citizen of India.

¶5But, however, for giving an opportunity to the respondents as to whether Saritulla father of Habibullah Sheikh of the 1966 voters list of village Sastarghat Part II at Sl.No.101 and Saritulla Sheikh son of Milan Sheikh of Sl.No.95 are one and the same person, a report from the Superintendent of Police (B) Dhubri was called for by the order dated 09.05.2023. Pursuant thereto, the Superintendent of Police (B) Dhubri has submitted a report dated 23.05.2023 before the Court which clearly mentions that Saritulla father of Habibullah Sheikh at Sl.No.101 of the voters list of 1966 of village Sastarghat Part II and Saritulla Sheikh son of Milan Sheikh at Sl.No.95 of the 1966 voters list of village Sastarghat Part II are one and the same person. The report also states that Habibullah Sheikh, son of Saritulla of the 1966 voters list of village Sastarghat Part II and the Habibullah Sheikh, the writ petitioner-proceedee before the Court are also one and the same person. As the name of the writ petitioner-proceedee also appears in the voters list of 1966 and 1970 of village Sastarghat Part II, it can be concluded that he is not a foreigner within the meaning of Foreigners Act 1946 read conjointly with Section 6 A of the Citizenship Act 1955. Accordingly Habibullah Sheikh, the writ petitioner is declared to be a person who is deemed to be a citizen of India under Section 6 A(2) of the Citizenship Act of 1955.

¶6The exercise undertaken by the writ court in calling for the report of the Superintendent of Police (B) Dhubri as to whether Habibullah Sheikh the writ petitioner-proceedee and the Habibullah Sheikh of the 1966 voters list of village Sastarghat Part II are one and the same person, in our view also could have Page No.# 5/6 been taken by the Tribunal itself with due application of mind on the issue involved.

¶7Once a proceedee claims that his name appears in the voters list of 1966 or prior, it is for the Tribunal to undertake an exercise to identify as to whether the person referred in the voters list and the petitioner-proceedee before the Tribunal are one and the same person, rather than venturing into any other aspects of the matter. This order be circulated, amongst all the Tribunals to henceforth follow the procedure that if a given proceedee claims that his or her name appears in the voters list of 1966 or prior of any place, the endeavour to be made is to find out whether the person in the voters list as claimed and the proceedee before the Tribunal are one and the same person and only when the report may come that they are not one and same person, the matter may be proceeded on any other aspect.

¶8This order be circulated amongst the Tribunals for further compliance.

¶9In view of the aforesaid materials clinching the issue in favour of the petitioner, the petitioner deserves a declaration that he is deemed to be a citizen under Section 6 A(2) of the Citizenship Act of 1955 and it is declared accordingly.

¶10Consequently, all such legal rights that may accrue to the petitioner Habibullah Sheikh upon such declaration be made available to him.

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¶11Writ petition, accordingly, stands allowed.

¶12A copy of this order be furnished to Mr. G Sharma, learned counsel for the Home Department Government of Assam for doing the needful.

¶13A copy of the report of the Superintendent of Police (B) Dhubri be kept as part of the record.

¶14Send back the LCR.

JUDGE JUDGE Comparing Assistant

PageoNo.#o1/6 GAHC010308032019 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/13/2020o HABIBULLAoSHEIKHo S/O-oSARITULLAoSHEIKH,oR/O-oVILL.oSASTARGHAToPART-II,oP.S.oDHUBRI,o DIST.-oDHUBRI,oASSAM,oPIN-o783324. VERSUSo THEoUNIONoOFoINDIAoANDo7oORS.o REP.oBYoTHEoSECY.,oMINISTRYoOFoHOMEoAFFAIRS,oGOVT.oOFoINDIA,o SHASTRIoBHAWAN,oNEWoDELHI-o110001. 2:THEoSTATEoOFoASSAM oREP.oBYoTHEoCOMM.oANDoSECY.oTOoTHEoGOVT.oOFoASSAM oHOMEoDEPTT. oDISPUR oGHY.-06. 3:THEoELECTIONoCOMMISSIONoOFoINDIA oREP.oBYoTHEoCHIEFoELECTIONoCOMMISSION oNIRVACHANoSADAN oASHOKAoROAD oNEWoDELHI-o110001. 4:THEoSTATEoCOORDINATOR oNATIONALoREGISTRATIONoOFoCITIZENS oASSAM o1SToFLOOR oACHYUToPLAZA oG.S.oROAD oBHANGAGARH oGHY. oASSAM-o781005. Page No.# 2/6 5:THE DY. COMMISSIONER DHUBRI P.O. AND P.S. DHUBRI DIST.- NAGAON ASSAM PIN- 783301. 6:THE FOREIGNERS TRIBUNAL NO.1 DHUBRI ASSAM DIST- DHUBRI ASSAM PIN- 783301. 7:THE SUPDT. OF POLICE (B) DHUBRI P.O. AND P.S. DHUBRI DIST.- DHUBRI ASSAM PIN- 783301. 8:THE OFFICER-IN-CHARGE OF DHUBRI POLICE STATION P.O. AND DIST.- DHUBRI ASSAM PIN- 783301 Advocate for the Petitioner : MR. M AHMED Advocate for the Respondent : ASSTT.S.G.I. BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HONOURABLE MR. JUSTICE ROBIN PHUKAN Date : 19-06-2023