Partly allowed

Sibarun Nessa @ Sebaran Nessa v. the Union of India and 4 Ors.

Gauhati HC7 Jun 2022WP(C)/3911/2017

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a writ petition challenging a Foreigners Tribunal order declaring the petitioner a foreigner. The Court held the impugned order illegal for not considering favorable prior opinions regarding the petitioner's sister and sister-in-law, and remanded the case to the Tribunal. The petitioner was granted continuation of bail.

What did the court decide?

Impugned order of Foreigners Tribunal set aside; matter remanded for fresh opinion considering additional evidence; continuation of bail granted.

Sibarun Nessa @ Sebaran Nessa Vs the… — Constitutional and Fundamental Rights | Gauhati HC (2022)

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GAHC010198232017

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

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Case No. : WP(C)/3911/2017

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SIBARUN NESSA @ SEBARAN NESSA W/O- IMAN HUSSAIN, D/O MOYAN ALI, R/O- VILL- COLLEGE NAGAR, P.SMATIA, DIST- GOALPARA, ASSAM

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VERSUS

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THE UNION OF INDIA and 4 ORS REP. BY THE SECRETARY OF THE MIN OF HOME AFFAIRS, GOVT OF INDIA, NEW DELHI- 1

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2:THE STATE OF ASSAM

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM HOME DEPTT. DISPUR GUWAHATI-6

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3:THE DEPUTY COMMISSIONER GOALPARA DIST- GOALPARA ASSAM

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4:THE SUPERINTENDENT OF POLICE GOALPARA DIST- GOALPARA ASSAM 5:THE OFFICER-IN-CHARGE OF MATIA POLICE STATION DIST- GOALPARA ASSA

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Advocate for the Petitioner : MR.M U MAHMUD

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Advocate for the Respondent :

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BEFORE

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HON’BLE THE CHIEF JUSTICE (ACTING) MR. N. KOTISWAR SINGH HON’BLE MR. JUSTICE NANI TAGIA

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Order

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07-06-2022

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[N. Kotiswar Singh, CJ (Acting)]

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Heard Mr. M. Ali, learned counsel for the petitioner. Also heard Mr. K.K. Parasar, learned CGC appearing for respondent no.1; Mr. G. Sarma, learned Special Counsel, F.T. appearing for respondent no.4 & 5; Ms. A. Phukan, learned Government Advocate, Assam, appearing for respondent nos. 2 & 3.

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In this petition, the petitioner has challenged the impugned order dated 16.03.2017

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passed by the Foreigners Tribunal No.5^th , Goalpara, Assam in F.T. Case No.F.T./5/109/MA/16 arising out of F.T. Ref. Case No.191/08 declaring the petitioner a foreigner of post 1971 stream

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Learned counsel for the petitioner has raised a preliminary objection to the validity of the opinion dated 16.03.2017 by contending that though the petitioner had exhibited an important document i.e. an opinion dated 02.09.2010 rendered by the Foreigners Tribunal, Goalpara, in F.T. Case No.1942/G/08 arising out of ERO’s Case No.1084 148/37 as Exihibit-F, in which the Tribunal had declared the proceedee therein, namely, Saleha Begum @ Khatun, who was the daughter of late Moyan Ali (son of Late Ahed Ali) and late Jolemon Nessa wife of

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Late Moyan Ali and the residents of village Kadamtola, as a citizen of India by birth and not an illegal migrant of any stream, but the same was not considered by the Tribunal. It has been submitted that the said Saleha Begum @ Khatun in whose favour the opinion dated 02.09.2010 was rendered by the Foreigners Tribunal, Goalpara, is the elder sister of the present proceedee, namely, Musst Sibarun Nessa @ Sebaran Nessa but the Foreigners Tribunal No.5^th , Goalpara at the time of the rendering the opinion did not consider the said opinion though the said opinion was exhibited as Exhibit-F by the petitioner herein. Accordingly, it has been submitted that the opinion rendered by the Tribunal is illegal as the same is vitiated by non-consideration of a very relevant material.

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In view of the above submission made, we have opted to examine the said plea first, and have perused the LCR, so that in the event the said plea is found to be correct, the opinion dated 16.03.2017 passed by the Tribunal will be rendered as illegal and it may not be necessary to examine other grounds raised in this petition.

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While examining the opinion dated 16.03.2017 what we have noted is that the Tribunal did mention about the said Exhibit-F in Para-4 (VI) of the opinion dated 02.09.2010 rendered in F.T. Case No.1942/G/08 arising out of ERO’s Case No.1084 148/37 in the name of Saleha Begum @ Khatun, which reads as follow:

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“4 ....

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(VI) Ext.-F is the certified copy of the opinion or judgments F.T. Case No.1942/G/08 in the name of Saleha Begum D/O Mayan Ali. Besides these the Opp. Party also submitted some voter list of different election 1985, 2008 & 2016, where her name is seen recordd along with her husband, the Opp. Party also submitted one revenue receipt (copy) in the name of the Moyanal S/O Lt. Ahed Ali paid by Abu Sama S/O Lt. Moynal.”

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On perusal of the impugned order dated 16.03.2017, we have also noted that apart

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from mentioning the Exhibit-F, the Tribunal has not discussed the admissibility and relevancy of the said document in his opinion dated 16.03.2017. We have also perused the Exhibit-F in the Original Records before the Tribunal. From the perusal of the Exhibit-F from the original file, it has been seen that the said Saleha Begum @ Khatun has been described as the daughter of Moyan Ali, who was the son of Ahed Ali and late Jolemon Nessa, who is in turn the wife of Late Moyan Ali. In the said opinion it has also been mentioned that they were permanent residents of village Kadamtola having domicile and having their names enrolled under in 1966 electoral roll under then 52 Bhagbor LAC part No.45 against House no.93 of village Kadamtola at serial no.350 and 351 respectively and their names continued to appear in the subsequent electoral rolls at the same place. We have also examined the Exhibit-A, exhibited in F.T. Case No.F.T./5/109/MA/16 arising out of F.T. Ref. Case No.191/08, which is a certified copy of the voter list of 1966 where the name petitioner’s father, Moyan Ali and petitioner’s mother, Jeleman Neesa appeared at Serial no. 350 and 351 in respect of VillageKadamtola Nonke under P.S.-Baghbar, District-Kamrup, 52 No. Baghbor Legislative Assembly Constituency. Similarly, in the certified copy of the voter lists of 1970, which is exhibited as Exhibit-B before the Tribunal, the name of Moyan Ali, son of Ahed Ali and Jeleman Nessa, wife of Moyan, again appeared at serial no.409 and 410 under the same village i.e. VillageKadamtola Nonke under P.S.-Baghbar, District-Kamrup, 52 No. Baghbor Legislative Assembly Constituency. Thus, from the above, it is clearly evident that the person whom the petitioner claims to be her parents, whose names appeared in the voters lists of 1966 and 1970 in respect of Village-Kadamtola Nonke under P.S.-Baghbar, District-Kamrup, 52 No. Baghbor Legislative Assembly Constituency, appeared to be the same persons, who were also shown to be the parents of the proceedee, namely, Saleha Begum @ Khatun in F.T. Case

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No.1942/G/08 which were before the Foreigners Tribunal, Goalapara in which the opinion dated 02.09.2010 was rendered and copy of which was exhibited as Exhibit-F as stated above.

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Thus, we are quite satisfied that in all probability the present petitioner, namely, Musst. Sibarun Nessa @ Sebaran Nessa is the daughter of the same persons who are also the parents of the aforesaid Saleha Begum @ Khatun. Thus, the claim of Musst Sibarun Nessa @ Sebaran Nessa that she is the sister of Saleha Begum @ Khatun bears credence in view of the similarity to the evidence on record. However, said crucial documents i.e. Exhibit-F, the opinion dated 02.09.2010 rendered by the Foreigners Tribunal Goalapara in F.T. Case No.1942/G/08 arising out of ERO’s Case No.1084 148/37, was not at all considered by the Tribunal while rendering the impugned opinion dated 16.03.2017. Since, the present petitioner Musst Sibarun Nessa @ Sebaran Nessa appears to be the sister of Saleha Begum @ Khatun and since the earlier opinion rendered in favour of Saleha Begum @ Khatun on 02.09.2010 has attained finality and not being challenged by the State, we are of the view that Musst Sibarun Nessa @ Sebaran Nessa can establish her claim that she is an Indian and not a foreigner.

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Accordingly, without going into the other grounds raised in this petition, we remand the matter to the Foreigners Tribunal No.5^th , Goalapara to re-examine the plea of the petitioner that she is an Indian and not a foreigner and she being the sister of Saleha Begum @ Khatun, who was declared an Indian by the same Tribunal, the petitioner can claim to be an Indian. If it is established by the petitioner that said Saleha Begum @ Khatun is indeed her sister being born to the same parents, the inescapable conclusion would be that the

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present petitioner is also an Indian and not a foreigner.

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Learned counsel for the petitioner further submits that after rendering the impugned opinion dated 16.03.2017 against the petitioner, another opinion was rendered by the same Foreigners Tribunal in FT Case No.F.T./5/111/MA/2016 on 22.03.2018 by which one Rahima Khatun, wife of Md. Abdul Mazid, resident of Santipur Nigam was declared an Indian and not a foreigner. It has been submitted that the said Rahima Khatun is the younger sister of the present petitioner Musst Sibarun Nessa @ Sebaran Nessa. However, the said opinion in favour of the Rahima Khatun could not be relied upon by the petitioner before the Tribunal for the reason that the said opinion was rendered subsequently and as such, the said favourable opinion was not in possession of the present petitioner at the time of considering the plea of the petitioner.

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We have perused the copy of the order dated 22.03.2018 passed in FT Case No.F.T./5/111/MA/2016 by the said Tribunal in which the proceedee Rahima Khatun also had taken a plea that she was born and brought up in Village-Kadamtola Nonke under P.S.Baghbar, District-Kamrup approximately in the year 1973 and that one Moyan Ali, son of Late Ahed Ali and one Jeleman Nessa, wife of Mayan Ali are her parents whose names were enrolled in the electoral roll of 1966 at Village Kadamtoal Nonke under P.S. Baghbar in the District-Kamrup and their names were also enrolled in the electoral roll of 1970 under the same village. Thus, if it is proved that the said Rahima Khatun is the daughter of Moyan Ali and Jeleman Nessa, who were residents of Village Kadamtoal Nonke under P.S. Baghbar in the District-Kamrup, the present petitioner, being the sister of one Rahima Khatun, who was

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declared an Indian by the Foreigners Tribunal No.5^th , Goalapra vide order dated 22.03.2018

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passed in FT Case No.F.T./5/111/MA/2016 and one Saleha Begum @ Khatun, who was also declared an Indian vide opinion dated 02.09.2010 rendered in F.T. Case No.1942/G/08 arising out of ERO’s Case No.1084 148/37, can make a legitimate claim that she is also an Indian and not a foreigner. Since the said opinion rendered on 22.03.2018 was not available to the petitioner when the impugned opinion was rendered on 16.03.2007, we allow the present petitioner to file and prove the said opinion before the Tribunal. The Tribunal shall take into consideration the subsequent opinion dated 22.03.2018 while considering the claim of the petitioner.

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Mr. G. Sarma, learned Special Standing Counsel, F.T., submits that pendency of this F.T. Case No. FT Case No.F.T./5/111/MA/2016 in respect of Rahima Khatun was never brought to the notice of the Tribunal at the time of consideration of the case of the petitioner and as such, it cannot be considered.

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We are of the view that since the opinion rendered by the same Tribunal in respect of Rahima Khatun, who was stated to be the daughter of Moyan Ali and Jeleman Nessa, and there is striking similarity with the identity of the parents of the present petitioner as well as with her address, we are of the view that no prejudice shall be caused to the State if the present petitioner is allowed to file and prove the said document to prove her claim that she is Indian and not a foreigner.

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For the reasons discussed above, we remand the matter to the Foreigners Tribunal

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No.5^th , Goalpara, for a fresh reconsideration. The Tribunal shall consider the aforesaid Exhibit-F i.e. the opinion rendered by the Foreigners Tribunal, Goalpara dated 02.09.2010 as well the opinion dated 22.03.2018 passed in FT Case No.F.T./5/111/MA/2016, and thereafter,

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pass a fresh opinion in the light of the observations made by us as above. All other evidences on record are required to be re-assessed in conjunction with these two opinions before the Tribunal gives its opinion on the status of the petitioner.

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Accordingly, impugned order dated 16.03.2017 passed by the Foreigners Tribunal

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No.5^th , Goalpara in F.T. Case No.F.T./5/109/MA/16 is set aside. The petitioner will appear before the Tribunal on 21.07.2022.

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Since the petitioner has already been granted bail by this Court on 23.06.2017, she would continue to remain on bail on similar terms and conditions till the culmination of the proceeding in F.T. Case No.F.T./5/109/MA/16.

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Copy of this order be furnished to the Superintendent of Police (Border), Goalpara for doing the needful.

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With the above observations and directions, the present writ petition stands disposed of.

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Let the LCR of the Foreigners Tribunal (5^th ), Goalpara, be remitted forthwith.

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JUDGE CHIEF JUSTICE (ACTING)

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Comparing Assistant

Sibarun Nessa @ Sebaran Nessa v. the Union of India and 4 Ors.

Case brief

What is this about?

What did the court decide?

Sibarun Nessa @ Sebaran Nessa v. the Union of India and 4 Ors.

Case brief

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