Petitioner challenged Foreigner Tribunal order declaring him a post-1971 foreigner. Court noted father's prior foreigner status and unresolved discrepancies in electoral roll evidence, finding no merit in the writ petition.
The writ petition filed by the petitioner is dismissed; no relief granted.
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GAHC010023672017
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 3037/2017
1:JAHANUDDIN S/O. NUR MAHAMMAD SK, VILL. CHAR BHASSANI BRAHMAPUTRA RIVER N.C., P.O. A. M. CO ROAD, P.S. and DIST. DHUBRI, ASSAM.
VERSUS
1:THE UNION OF INDIA and 3 ORS
REP. BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI-01.
2:THE STATE OF ASSAM REP. BY THE SECRETARY TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY.-06.
3:THE SUPDT. OF POLICE B DHUBRI P.O. and P.S. DHUBRI DIST. DHUBRI ASSAM.
4:THE DY. COMMISSIONER DHUBRI P.O. and DIST. DHUBRI ASSAM
Advocate for the Petitioner : MD.M Z SHAH
Advocate for the Respondent : GA, ASSAM
BEFORE
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HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
ORDER
Date : 03-12-2019
Suman Shyam, J
Heard Mr. R. Ali, learned counsel for the petitioner. We have also heard Mr. A. Kalita, learned Standing Counsel, Foreigner’s Tribunal appearing for the respondent nos. 2, 3 and 4 and Ms. G. Hazarika, learned CGC, appearing for the respondent no.1.
By filing this writ petition, the order dated 30/11/2016 passed by the learned Member, Foreigner’s Tribunal No.1, Dhubri, Assam in connection with FT Case No. 3803/D/11 (Reference ‘D’ voter case No. 1746/D/07) has been put under challenge.
By the impugned order dated 30/11/2016, the learned tribunal has answered the reference against the petitioner and declared him as a foreigner of the post 1971 stream. The learned Tribunal has held that the petitioner has failed to adduce evidence to prove his citizenship. By the judgement and order dated 29/11/2016 passed by the Foreigner’s Tribunal in case No. 3802/D/2011, corresponding to “D” voter case No. 1745, the father of the petitioner, viz. Nur Mohammad Sk. has already been declared a foreigner. Taking note of the facts and circumstances of the case, the learned Tribunal has rendered its opinion against the proceedee.
By assailing the impugned order dated 30/11/2016, Mr. Ali, learned counsel for the petitioner submits that his client has not only produced copy of the electoral roll of the year 1966 bearing the name of his grand-father but the name of the petitioner and his father also appears in the electoral roll of the year 2010. That apart, Mr. Ali submits that the name of the petitioner’s father is also incorporated in the electoral roll of 1993.
By placing reliance on Annexure-7, which is an extract of the Registry of Tenants Ledger, Mr. Ali submits that the grand-father of the petitioner was owner of a plot of land measuring 3 bigha-1 katha-19 lessa, situated in Mouza- Bhassani of Dhubri district and, therefore, sufficient evidence have been adduced on record by the petitioner to prove his claim of citizenship. As such, the impugned order dated 30/11/2016 is vitiated by perversity and non-application of mind and therefore, deserves to be set aside by this Court.
The learned Standing Counsel, Foreigner’s Tribunal Mr. Kalita has refuted the contentions advanced by the petitioner’s counsel to argue that the petitioner has failed to adduce evidence in support of his claim of citizenship and, therefore, the learned Tribunal has rightly declared him as a foreigner.
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We have considered the submissions advanced by the learned counsel for the parties and have also gone through the LCR.
In this case, there is no dispute about the fact that the father of the petitioner, viz. Nur Mohammad Sk. was earlier identified as a “D” category voter and by the order dated 29/11/2016 passed by the learned Foreigner’s Tribunal in case No. 3802/D/11, he has been declared to be a foreigner. The judgement and order dated 29/11/2016 passed by the learned Tribunal was assailed by Nur Mohammad Sk. by filing WP(C) No. 3015/2017 before this Court. By the order dated 02/05/2019, a Division Bench of this Court has dismissed the writ petition filed by the petitioner’s father by affirming the opinion of the learned Tribunal.
Although Mr. Ali has submitted that the father of the petitioner has preferred an SLP before the Hon’ble Supreme Court of India against the order of this High Court, no evidence has been produced before this Court in support of the said submission.
Be that as it may, in this case we are called upon to examine the legality and validity of the order dated 30/11/2016 passed by the learned Foreigner’s Tribunal No.1, Dhubri, on the basis of the materials available on record.
From the scrutiny of the records, we find that the petitioner could not produce any copy of the voters’ list containing the name of his father prior to the year 1993. Likewise, there is no evidence to show that the petitioner was born in India. Although Mr. Ali has placed heavy reliance on the voters’ list of 1966, marked as Ext.-II, from a perusal of the same, we find that the name of one Rustam Ali, Son of Sheikh Ali finds place therein. The age of the voter has been shown to be 48 years. Again in the voters’ list of 1970, the age of Rustam Ali has been indicated as 52 years. The last document relied upon by the petitioner contains the name of one Rustam Sheikh S/o. Sher Ali Munshi but in the electoral roll of 1966 and 1970, name of father of Rustam Ali has been shown as Sheikh Ali. There is also no explanation as to why two different villages have been indicated in the voters’ list of 1966 and 1970 as the place of residence of Rustam Ali. As such, it is clear that the petitioner has neither been able to establish his linkage with the projected grandfather Rustam Ali nor could he properly establish the identity of the person named Rustam Ali appearing in the electoral roll of 1966. Taking note of such discrepancies, the learned Tribunal has rendered its opinion against the petitioner. Having regard to the facts and circumstances of the case and the materials available on record, we do not find any justifiable ground to interfere with the opinion recorded in the impugned order dated 30/11/2016.
It is also to be noted herein that the petitioner has admittedly claimed his lineage and citizenship through his father Nur Mohammad Sheikh, who has already been declared as a foreigner of post 1971 stream. As noted above, the opinion of the learned Tribunal has also been affirmed by this Court. Therefore, we are of the view that unless the aforesaid opinion is set aside and the father of the petitioner
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is declared as an Indian citizen, the petitioner, on the basis of the materials brought on record, cannot successfully canvass his claim of citizenship merely based on the electoral roll of 2010.
For the reasons stated above, we hold that there is no merit in the writ petition. The same is accordingly dismissed.
Send back the LCR.
JUDGE JUDGE
Sukhamay
Comparing Assistant
2 issues framed by the court
Whether the High Court can interfere with the Foreigner's Tribunal order declaring the petitioner a foreigner of the post 1971 stream based on discrepancies in electoral rolls and the father's prior d
Whether the petitioner can establish Indian citizenship through electoral roll entries when his father has been declared a foreigner?
Colour shows how this judgement treated each authority
State Rep. by the Secretary, Ministry of Home Affairs v. Nur Mohammad SkAffirmed¶28
WP(C) No. 3015/2017
Division Bench Order in WP(C) No. 3015/2017Affirmed¶28
order dated 02/05/2019
1 provisions across 1 enactments
Jahanuddin S/O. Nur Mohammad Sk
The Union of India
The State of Assam
The Supdt. of Police B Dhubri
The Dy. Commissioner Dhubri
Suman Shyam
ParthivJyoti Saikia
As recorded by the court registry
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