Allowed

Bakkar Ali v. the Union of India and 6 Ors.

Gauhati HC15 Jun 2022WP(C)/5105/2019

Case brief

AI extract

What is this about?

This writ petition challenged a Foreigners Tribunal order declaring the petitioner a foreigner. The Gauhati High Court held the Tribunal's opinion was vitiated for failure to consider a police report on identity and evidence. The matter was remanded for fresh consideration.

What did the court decide?

The impugned order of the Foreigners Tribunal dated 06.04.2019 was set aside and the matter remanded for fresh opinion.

Bakkar Ali Vs the Union of India and 6 Ors. — Gauhati HC (2022) — LawSathi Research

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GAHC010147642019

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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)/5105/2019

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BAKKAR ALI

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S/O- LATE JOSHU ALI @ JASER ALI, R/O- VILL- KUNTIKUCHI, P.OKUKRISHAL, P.S- MUKALMUA, DIST- NALBARI, ASSAM

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VERSUS

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THE UNION OF INDIA AND 6 ORS

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REP. BY THE SECRETARY OF THE MIN OF HOME AFFAIRS, GOVT OF INDIA, NEW DELHI- 01

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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

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DISPUR GUWAHATI- 06

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3:THE ELECTION COMMISSION OF INDIA NEW DELHI- 01

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4:THE STATE COORDINATOR NRC ASSAM DISPUR GHY- 06

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5:THE DEPUTY COMMISSIONER NALBARI DIST- NALBARI ASSAM PIN- 781335

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6:THE SUPERINTENDENT OF POLICE NALBARI DIST- NALBARI ASSAM PIN- 781335

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7:THE OFFICER IN CHARGE MUKALMUA POLICE STATION DIST- NALBARI ASSAM PIN- 78112

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Advocate for the Petitioner : MR H R A CHOUDHURY

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Advocate for the Respondent : ASSTT.S.G.I.

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

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:: O R D E R ::

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15.06.2022

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[N. Kotiswar Singh, CJ(Acting)]

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Heard Mr. M.I. Hussain, learned counsel for the petitioner. Also heard Mr. G. Sarma, learned Standing Counsel, Foreigners Tribunal; Mr. A. Bhuyan, learned Standing Counsel, ECI and Ms. U. Das, learned Additional Senior Government Advocate, Assam.

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In this petition, the petitioner has challenged the opinion dated 06.04.2019 passed by the learned Foreigners Tribunal No.2, Nalbari in F.T.(Nal-2) Case No.37/16 (FT Case No.84/2009] by which the petitioner was declared to be a foreigner of post 25.03.1971 stream.

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At the outset, it has been submitted by the learned counsel for the petitioner that the said opinion of the learned Tribunal is vitiated for the simple reason that the learned Tribunal had not ascertained the identity of the petitioner vis-à-vis the proceedee and as such, the entire opinion rendered by the learned Tribunal cannot be sustained in law.

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It is the case of the petitioner that a notice was issued in the name of Md. Bakkar Ali, son of Late Josher Ali.

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According to the petitioner, the real name of the petitioner is Md. Bakkar Ali, son of Late Joshu Ali @ Jaser Ali. In that regard, the petitioner made a specific plea before the learned Tribunal that the real name of the petitioner’s father may be ascertained before

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proceeding with the matter.

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In view of such plea taken, the learned Tribunal had been also pleased to direct the Superintendent of Police (Border), Nalbari to cause an enquiry to ascertain the real name of the petitioner and his father.

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Accordingly, an enquiry was conducted by SI(B), In-charge (Border), Mukalmua Police Station and after making a spot verification submitted the report dated 08.08.2016 to the learned Tribunal on 12.08.2016.

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Learned Tribunal took note of the said report, however, at the same time while rendering the opinion, the learned Tribunal did not make reference to the aforesaid report which clearly shows that the petitioner’s father’s actual name is Late Lt. Joshu Ali @ Lt. Jaber Ali @ Lt. Jacher Ali @ Lt. Jacher and Lt. Jaser Ali and these names refer to one and same person and the actual name of the petitioner’s father Lt. Jaser Ali is found correct.

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The learned counsel for the petitioner further submits that though the petitioner had relied on 12 Nos. of documents which were exhibited, the learned Tribunal only referred to Exts.1, 2 and 7.

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It has been further submitted that though the petitioner also examined himself and one neighbor, namely, Afsar Ali, who was examined as DW2 who had personally known the petitioner, such a vital evidence was not also considered.

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Under the circumstances, it has been submitted that in absence of non-consideration of the vital and relevant evidence on record, the opinion rendered by the learned Tribunal will be vitiated.

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We have examined the original records and also seen the original report submitted by SI(B), In-charge (Border) of Mukalmua Police Station dated 08.08.2016 which upon making necessary enquiry gave the report that after verification it is found that Lt. Joshu Ali @ Lt. Jaber Ali @ Lt. Jacher Ali @ Lt. Jacher and Lt. Jaser are one and same person and the actual name of the petitioner’s father is Lt. Jaser Ali. Unfortunately, the said vital piece of evidence i.e. original report submitted by the police in that regard as directed by the learned Tribunal itself vide order dated 08.07.2016 was not considered.

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We have also seen the records wherein one Afsar Ali was examined as DW2 and accordingly, we are of the view that if the aforesaid vital evidence had not been considered by the learned Tribunal, the opinion rendered by the learned Tribunal would be vitiated as an instance of non-application of mind to relevant materials.

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Accordingly, without making any further observation as regards the reasons and conclusions assigned by the learned Tribunal, we deem it appropriate to remand the matter to the learned Tribunal to make a fresh opinion by appreciating all the relevant evidences on record including the aforesaid report submitted by the SI(B), In-charge, Border, Mukalmua Police Station, Nalbari District dated 08.08.2016 and other evidences on record and after hearing the petitioner.

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Accordingly, for the reasons discussed above, the present petition is allowed by setting aside the impugned order dated 06.04.2019 passed by the learned Foreigners Tribunal No.2, Nalbari in F.T.(Nal-2) Case No.37/16 [F.T. Case No.84/2009].

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Petitioner will appear before the learned Foreigners Tribunal No.2, Nalbari on or before 21.07.2022 and the learned Tribunal after hearing the petitioner and appreciating the evidence as discussed above will render a fresh opinion.

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Learned counsel for the petitioner submits that there are some other additional documents in possession of the petitioner which will support the claim of the petitioner. Petitioner may make necessary application in this regard before the learned Tribunal and the learned Tribunal will consider the same in accordance with law.

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

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Petitioner will continue to remain on bail in terms of earlier order passed on 23.09.2019 which will continue to operate till culmination of the proceeding before the learned Tribunal.

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LCR be remitted to the concerned Tribunal forthwith.

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JUDGE CHIEF JUSTICE (ACTING)

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Comparing Assistant

Bakkar Ali v. the Union of India and 6 Ors.

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Bakkar Ali v. the Union of India and 6 Ors.

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