Allowed

Abdul Khalek v. the Union of India and 3 Ors.

Gauhati HC5 Dec 2019WP(C)/4629/2017

Case brief

AI extract

What is this about?

This Court, in a writ petition under Article 226, set aside the order of the Foreigners Tribunal declaring the petitioner a foreigner of the post-1971 stream. The Court held that merely relying on a spelling discrepancy in the wife's name to question identity, after finding the petitioner's father was an Indian citizen residing in Assam before 1945, amounted to manifest illegality and perversity.

What did the court decide?

Impugned order dated 13.06.2017 set aside; matter remanded to Foreigners Tribunal for fresh decision after proper appreciation of materials.

Abdul Khalek Vs the Union of India and… — Constitutional and Fundamental Rights | Gauhati HC (2019)

¶1

Page No.# 1/5

¶2

GAHC010258612017

¶3

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

¶4

Case No. : WP(C) 4629/2017

¶5

1:ABDUL KHALEK S/O. LT. TURAB ALI, R/O. VILL. HATIPARA, P.S. RUPAHI HAT, DIST. NAGAON, ASSAM.

¶6

VERSUS

¶7

1:THE UNION OF INDIA and 3 ORS.

¶8

REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, NEW DELHI.

¶9

2:THE STATE OF ASSAM REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-6.

¶10

3:THE DY. COMMISSIONER SIVASAGAR P.O. and DIST. SIVASAGAR ASSAM.

¶11

4:THE SUPERINTENDENT OF POLICE B SIVASAGAR P.O. and DIST. SIVASAGAR ASSAM

¶12

Advocate for the Petitioner : MR.N HAQUE

¶13

Advocate for the Respondent : ADDL. AG, ASSAM

¶14

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM

¶15

Page No.# 2/5

¶16

HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

¶17

ORDER

¶18

05.12.2019

¶19

Suman Shyam, J.

¶20

Heard Mr. N. Haque, learned counsel appearing for the writ petitioner. We have also heard Mr. A. Kalita, learned Standing Counsel, FT, Ms. U. Verma, learned Standing Counsel, NRC Coordinator, Ms. G. Hazarika, learned CGC and Ms. N. Upadhyay, learned Standing Counsel, ECI, appearing for the official respondents.

¶21

This writ petition is directed against the judgment and order dated 13.06.2017 passed by the learned Member, Foreigners’ Tribunal, Jorhat, Assam in Case No.FT/SVR/324/09 corresponding to Police Enquiry No.508/2009 whereby, the petitioner has been declared to be a foreigner who had illegally entered into India from the specified territory after 25.03.1971.

¶22

Mr. Haque has assailed the impugned order primarily by contending that the learned Tribunal has recorded mutually contradictory findings drawing a conclusion which is dehors the evidence available on record. The learned counsel submits that the impugned order is vitiated by perversity and is liable to be set aside by this Court.

¶23

From a careful reading of the impugned order dated 13.06.2017 we find that the petitioner had projected his father to be Md. Torab Ali, son of Jinnat and has produced documentary evidence viz. copy of jamabondi issued by the Revenue department pertaining to the year 1930-31 to show that the name of Torab Ali was recorded in the jamabondi issued in the year 1931. The

¶24

Page No.# 3/5

¶25

petitioner had also claimed that he was born in India and his father is Torab Ali, son of Jinnat. As such, according to the petitioner/proceedee, he is an Indian citizen.

¶26

After examining the materials on record, we find that the learned Tribunal has recorded a categorical finding of fact in paragraph 11 of the impugned order to the effect that the proceedee i.e. the writ petitioner has succeeded in proving that Torab Ali, son of Jinnat, who is the projected father of the proceedee, was a citizen of India who had been residing in Assam since before 01.07.1945. In paragraph 13 of the impugned order, the learned Tribunal has further recorded that the documents on record prove the fact that A A Khalek is the son of Torab Ali. Having held as above, the learned Tribunal had raised an altogether different question i.e. whether, A A Khalek, S/o Torab Ali is the same person as the proceedee? The learned Tribunal has thereafter, gone on to answer the said question against the petitioner/proceedee primarily on the ground that in the Reference forwarded by the Superintendent of Police (Boarder), Sivasgar the name of the proceedee’s wife has been shown as Rahima Khatun whereas as per Exts-3 and 4, the name of his wife was Rahia Khatun. Taking note of such discrepancy in the name of the wife of the proceedee, the learned Tribunal had come to the conclusion that the proceedee was not the same person as A A Khalek. Accordingly, he was declared to be a foreigner of the post 1971 stream.

¶27

From a meticulous examination of the materials on record as well as the impugned order dated 13.06.2017 we find that the learned Tribunal had committed manifest illegality in rendering the opinion in the present form.

¶28

Page No.# 4/5

¶29

Merely on the ground that the spelling of the name of the proceedee’s wife had been recorded differently a doubt has been created on the identity of the proceedee, thereby raising question mark on the integrity of the reference itself. This issue can be viewed from two different angles. If there is some error in the spelling of the name of the proceedee’s wife, the same cannot be the sole ground to suspect his identity, if cogent materials are otherwise available on record to explain the discrepancy. On the other hand, if the proceedee is different than the person who has appeared and contested the matter, then also the learned Tribunal could not have declared him to be a foreigner.

¶30

In this case, the learned Tribunal had recorded a categorical finding of fact on the existence of the father of the proceedee, Torab Ali, in India prior to 1945 as well as the fact that A A Khalek was the son of Torab Ali. Having held as above, the learned Tribunal could not have declared the petitioner to be a foreigner merely on suspicion of his true identity and without recording any valid reason as to why the proceedee must be held to be a different person.

¶31

For the reasons stated herein above, we set aside the impugned order dated 13.06.2017 and remand the matter back to the learned Tribunal for a fresh decision of the Reference case after proper appreciation of the materials available on record.

¶32

Facilitating the above, the petitioner to appear before the learned Tribunal on or before 20.01.2020 and produce a certified copy of this order. On such appearance, the learned Tribunal may proceed with the matter and dispose of the Reference case after granting proper opportunity of being heard to the petitioner.

¶33

Page No.# 5/5

¶34

It is, however, made clear that if the petitioner fails to appear before the learned Tribunal on or before 20.01.2020 for any reason whatsoever, this order shall stand discharged without any further reference to this Court.

¶35

Writ petition stands disposed of.

¶36

Registry to send back the LCR immediately.

¶37

JUDGE JUDGE

¶38

Comparing Assistant

Abdul Khalek v. the Union of India and 3 Ors.

Case brief

What is this about?

What did the court decide?

Abdul Khalek v. the Union of India and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Jahura Khatun Vs the Union of India and 5 Ors.

Ashutosh Saha Vs the Union of India and 5 Ors.

Goleja Bibi Vs Union of India and 5 Ors.

Mustt. Sahera Khatun Vs the Union of India and 4 Ors.

Abdul Hoque and Anr. Vs Uco Bank and Anr.

M/S Bajrang Ispat Pvt. Ltd. Vs Commissioner of Central Excise and Anr.