Allowed

Jamat Ali v. the Union of India and 8 Ors.

Gauhati HC16 Jun 2022WP(C)/517/2019

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a writ petition declaring the petitioner an Indian citizen. The Court noted that the petitioner's step-brother was declared an Indian by the same Foreigners Tribunal on the same date based on identical documents. The Court held that the Tribunal could not arrive at divergent outcomes and declared the petitioner an Indian by relying on the favorable opinion in the ste

What did the court decide?

Petition allowed; Impugned order of September 9, 2018 in FT Case 588/2017 set aside; Petitioner declared an Indian citizen.

Jamat Ali Vs the Union of India and 8… — Constitutional and Fundamental Rights | Gauhati HC (2022)

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Page No.# 1/9

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GAHC010268312018

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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)/517/2019

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JAMAT ALI

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S/O- JOYNAL SEIKH @ JOYNAL ABEDIN, PERMANENT R/O- VILLSALMARA PART-IV, P.S- SOUTH SALMARA, DIST- DHUBRI, ASSAM, PIN783127

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VERSUS

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THE UNION OF INDIA AND 8 ORS REP. BY THE SECRETARY, MIN OF HOME AFFAIRS, GOVT OF INDIA, SHASTRI BHAWAN, NEW DELHI- 01

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2:THE STATE OF ASSAM REP. BY THE SECRETARY TO THE GOVT OF ASSAM HOME DEPTT DISPUR GUWAHATI- 781006 3:THE ELECTION COMMISSION OF INDIA REP. BY THE CHIEF ELECTION COMMISSION NIRVACHAN SADAN ASHOKA ROAD NEW DELHI- 01

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4:THE STATE COORDINATOR NRC ASSAM 1ST FLOOR ACHYUT PLAZA G S ROAD BHANGAGARH GUWAHATI ASSAM

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PIN- 781005 5:THE FOREIGNERS TRIBUNAL NO. 2 KAMRUP (M) GUWAHATI HEDAYATPUR GUWAHATI- 03 DIST- KAMRUP (M) ASSAM 6:THE DEPUTY COMMISSIONER DHUBRI DIST- DHUBRI ASSAM PIN- 783301 7:THE DEPUTY COMMISSIONER OF POLICE(B) CITY GUWAHATI KAMRUP (M) ASSAM PIN- 781001 8:THE SR SUPERINTENDENT OF POLICE(B) CITY GUWAHATI KAMRUP (M) ASSAM PIN- 781001 9:THE OFFICER IN CHARGE SOUTH SALMARA POLICE STATION P.O- SOUTH SALMARA DIST- DHUBRI ASSAM PIN- 78312

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Advocate for the Petitioner : MS. D GHOSH

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

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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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16-06-2022

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[N. Kotiswar Singh, CJ (Acting)]

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Heard Ms. D. Ghosh, learned counsel for the petitioner. Also heard Mr. K.K. Parasar, learned CGC appearing for respondent no.1; Mr. G. Sarma, learned Special Standing Counsel, F.T. appearing for respondent no.5, 7, 8 & 9; Ms. K. Phukan, learned Government Advocate, Assam, appearing for respondent nos.2 & 6, Mr. A. Bhuyan, learned Standing Counsel, ECI, appearing for respondent no.3 and Mr. K.K. Parasar, learned Standing Counsel, NRC, appearing for respondent no.4.

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In this petition the petitioner has challenged the impugned opinion dated

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09.11.2018 passed by the Foreigners Tribunal, Kamrup (Metro), 2^nd , Guwahati, Assam, in F.T. Case No.588/2017, by which the petitioner was declared a foreigner of post 25.03.1971 stream

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Learned counsel for the petitioner submits that before going into the merit of the case it may be noted that the petitioner Jamat Ali’s step brother Jahrul Islam was also proceeded

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before the Foreigners Tribunal, Kamrup (Metro), 2^nd , Guwahati, Assam, in F.T. Case No.589/2017, wherein the said Jahrul Islam the step brother of the present petitioner was

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declared as an Indian. The petitioner’s father Joynal Sheikh @ Joynal Abedin got married to both Kanchanmala and Jamela Khatun. Jamela Khatun is the mother of the present petitioner, whereas Kanchanmala is his step mother and the mother of Jahrul Islam. Accordingly, learned counsel for the petitioner submits that if the said Jahrul Islam, who is the step brother of the petitioner, has not been declared a foreigner, there is no reason as to why the petitioner, who is the step brother of the said Jahrul Islam, can be declared a foreigner. It has been submitted that in both the proceedings initiated against the present petitioner and his step brother Jahrul Islam, both the proceedees had referred to same set of documents and it has been stated by the proceedees in both the proceedings that they are step brothers. Under the circumstances, 2 (two) different opinions arrived at by the Tribunal in respect of the two proceedees who are step brothers born to the same father from two different mothers cannot be sustained in law and fact.

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In order to examine the said plea of the petitioner, we had requisitioned the records of both the proceedings. The fact that these two proceedees, Jamat Ali and Jahrul Islam, are step brothers can also be ascertained from the orders passed by the Tribunal in FT Case No.588/2017 (relating to the present petitioner ) and FT Case No.589/2017 (relating Jahrul Islam, the step brother of the petitioner). We have also noticed that the orders were issued on the same date i.e. on 09.11.2018.

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We have noted that in the present case arising out of FT. Case No.588/2017, the present petitioner relied on the following documents as recorded in the opinion itself:

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“Exhibit-A : Working Khatian of village Salmara Pt.-3, Pargana Chapar in the name of

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Pochu Sheikh S/o Ish Sheikh.

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Exhibit-B: Certified Voter List of 1966 of 32 Dakhin Salmara LAC Sl. No.328, 329 contains

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name of Pochu Sheikh S/o Ishu Sheikh 48 years, Dalimon Bibi W/o Pochu Sheikh 32 years.

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Exhibit-C: Certified Voter list of 1970 of 32 Dakhin Salmara LAC, H/No.104 Sl. No.389, 390 contains name of Pochu Sheikh, S/o Ishu Sheikh, 52 years Dalimon Bibi W/o Pochu 36 years.

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Exhibit-D: Certified Voter list of 1977 of 22 Dakhin Salmara LAC, H/No.53, Sl. No.186 contains name of Dalimon Bewa W/o Pochu 42 years.

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Exhibit-E: Certified Voter list of 1989 of 22 Dakhin Salmara LAC, H/No.7, Sl. No.482, 483, 484 contains name of Jaynal Sheikh S/o pochu Sheikh 49 years, Kanchan Bibi W/o Jaynal Sheikh 39 years Dalimon Bewa W/o Pochu 65 years.

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Exhibit-F: Certified Voter list of 2005 of 22 Dakhin Salmara LAC H/No.191, Sl No.1096 contains name of Jamat Ali S/o Joynal Sheikh 35 years.

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Exhibit-G: Certified Voter list of 2011 of 22 Dakhin Salmara LAC, Part No.16, H/No.191 Sl. No.680 contains name of Jamat Ali S/o Joynal Sheikh 42 years.

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Exhibit-H: Certified Voter list of 2017 of 22 Dakhin Salmara LAC, Part No.16, H/No.191 Sl. No.772 contains name of Jamat Ali S/o Joynal Sheikh 46 years.

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Exhibit-I: Voter ID card No. (GCL1641356) of Jamat Ali aged 43 years S/o Joynal Sheikh, dated 01.10.2013.

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Exhhibit-J : PAN Card No. (BKTPA0797G), issued by Income Tax Department, Govt. of India to Jamat Ali S/o Joynal Sheikh.”

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Similarly, in F.T. Case No.589/2017 relating to Jahrul Islam, the step brother of the present petitioner, the following documents were exhibited:

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“Exhibit-A : Working Khatian of village Salmara Pt.-3, Pargana Chapar in the name of Pochu Sheikh S/o Ish Sheikh.

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Exhibit-B: Certified Voter List of 1966 of 32 Dakhin Salmara LAC Sl. No.328, 329 contains name of Pochu Sheikh S/o Ishu Sheikh 48 years, Dalimon Bibi W/o Pochu Sheikh 32 years.

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Exhibit-C: Certified Voter list of 1970 of 32 Dakhin Salmara LAC, H/No.104 Sl. No.389, 390 contains name of Pochu Sheikh, S/o Ishu Sheikh, 52 years Dalimon Bibi W/o Pochu 36 years.

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Exhibit-D: Certified Voter list of 1977 of 22 Dakhin Salmara LAC, H/No.53, Sl. No.186 contains name of Dalimon Bewa W/o Pochu 42 years.

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Exhibit-E: Certified Voter list of 1989 of 22 Dakhin Salmara LAC, H/No.7, Sl. No.482, 483, 484 contains name of Jaynal Sheikh S/o Pochu Sheikh 49 years, Kanchan Bibi W/o Jaynal Sheikh 39 years Dalimon Bewa W/o Pochu 65 years.

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Exhibit-F: Certified Voter list of 2008 of 22 Dakhin Salmara LAC, H/No.145, Sl.No.435, 436, 437 contains name of Jaynal Abedin S/o Pochu Sheikh 63 years, Kanchanmala W/o Jaynal Abedin 50 years, Jahrul islam S/o Jaynal Abedin 21 years.

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Exhibit-G: Certified Voter list of 2011 of 22 Dakhin Salmara LAC, H/No.145, Sl.o.508, 509, 510, 511, 512 contains name of Joynal Abedin S/o Pochu Sheikh 67 years, Kanchanmala W/o Jaynal Abedin 54 years, Jahrul Islam S/o Jaynal Abedin 25 years, Moriam Begum W/o Jahirul Islam 21 years, Lalbhanu W/o Jahirul Islam, 22 yeras.

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Exhibit-H: Voter ID card No. (GCL1539657) of Jahrul islam aged 26 years S/o Joynal Abedin, dated 01.10.2013.

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Exhibit-I: PAN Card No. (AFMPI940E), issued by Income Tax Department, Govt. of India to Jahrul Islam S/o Joynal Abedin.”

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All the documents i.e. Exhibit-A to G appear to be same. In other words, the proceedees had referred to identical set of documents. That apart, when we examine the deposition of the present proceedee i.e. Jamat Ali, which is reproduced in the opinion dated 09.11.2018 passed in F.T. Case No.588/2017, he had stated as follows:

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On being examined on 11.07.2018 the Opposite party said “My name is Jamat Ali. I am 45 years old. I am a handcart puller. My father’s name is Joynal Sheikh @ Joynal Abedin. My own mother’s name is Jamela Khatun and step mother is Kanchanmala. My paternal grandfather’s name is Lt. Pochu Sheikh. My paternal grandmother’s name is Lt. Dalimon.

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I am married. My wife’s name is Tarabanu. I have 4 children, 3 daughters and 1 son. Tahaj Uddin, Samina Khatun, Amina Khatun and Nazima Khatun.

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We are 6 siblings from both the mothers. 3 brothers and 3 sisters. They are Jamat Ali, Joynab Khatun, Jaharul Islam, Sale Khatun, Rofiqul and Johra Khatun.

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My father had 3 siblings, 2 brothers and 1 sister. They are Joynal Sheikh @ Joynal Abedin, Kalsun, Bakkar Ali.

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My paternal grandfather was only child.

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I was born at Bondihana Pt.-III. Due to river erosion we have shifted to Salmara Part-IV. I cannot remember when we shifted to Salmara Pt.-IV. I cast voter in Salmara Pt.-III. I first casted vote in 1995.

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Except me a case has been registered against my step brother Jahrul Islam in this Foreigners Tribunal being F.T. case No.589/2017.

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I have exhibited 10 documents in support of my claim as Indian citizen.”

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Similarly, in the statement of the step brother of the present petitioner, Jahrul Islam, recorded in F.T. Case No.589/2018, he had narrated similar history, as reproduced herein below:

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On being examined on 11.07.2018 the Opposite party said “My name is Jahurul Islam. I am 31years old. I am a handcart puller. My father’s name is Joynal Abedin. My own mother’s name is Lt. Kanchanmala and step mother is Jamela Khatun. My paternal grandfather’s name is Lt. Pochu Sheikh. My paternal grandmother’s name is Lt. Dalimon Bewa.

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I am married. My wife’s name is Moriam Begum. I have 2 daughters. Amirun begum and Jesmina Begum.

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We are 6 siblings from both the mothers. 3 brothers and 3 sisters. They are Jamat Ali, Joynab Begum, Jaharul Islam, Sale Begum, Rofiqul Islam and Johora Begum.

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My father had 3 siblings, 2 brothers and 1 sister. They are Joynal Abedin, Kalsun, Abu Bakkar Ali. My paternal grandfather was only child.

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I was born at Majeralga Pt.-III. Now we stay at Khatulipara and cast vote in Kathulipara Part-III. I first casted vote in 2005.

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Except me a case has been registered against my step brother Jamat Ali in this Foreigners Tribunal being F.T. case No.588/2017.

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I have exhibited 9 documents in support of my claim as Indian citizen.”

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Perusal of the two depositions as extracted above would indicate that both the proceedees were born to the same father, namely, Joynal Abedin @ Joynal Sheikh, who had married twice, namely, Lt. Kanchanmala and Jamela Khatun. The proceedee in F.T. Case

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No.588/2017 is the son of Jamela Khatun and the proceedee in 589/2017 is the son of Lt. Kanchanmala. Thus, we are also of the view that both Jamat Ali and Jahrul Islam are step brothers. It is also be noted that the opinion rendered in respect of Jahrul Islam on 09.11.2018 by the Foreigners Tribunal, Kamrup(M), 2^nd , Guwahati in F.T. Case No.589/2017 has not been challenged and as such, has attained finality. On the other hand, the opinion dated 09.11.2018 passed against the proceedee(petitioner herein) in FT case No.588/2017 has been put to challenge before this Court.

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We have gone through the original records in respect of both the proceedings before the Tribunal.

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It is also seen from the records that the same set of documents were relied upon by the proceedees in both the proceedings and from the records it appears that they are sons of same father, namely, Joynal Abedin @ Joynal Sheikh though born to two different mothers late Kanchanmala and Jamela Khatun as mentioned above. Under the circumstances, normally, the Tribunal ought to have arrived at the same opinion but the Tribunal has given two divergent opinions, one in favour of Jahrul Islam in F.T. Case No.589/2017 declaring him an Indian and one in F.T. Case No.588/2017 declaring the present petitioner Jamat Ali as a foreigner. Since the other opinion dated 09.11.2018 passed in favour of Jahrul Islam

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in F.T. case 589/2017 by the Foreigners Tribunal, Kamrup(M), 2^nd , Guwahati has not been challenged by the State authorities, the citizenship of the said Jahrul Islam as Indian stands confirmed. On the other hand, the opinion dated 09.11.2018 in respect of Jamat Ali the present petitioner passed in F.T. Case No.588/2017 by the same Tribunal has been put to challenge by the petitioner.

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Since, we are satisfied on the basis of the records and as discussed above that the present petitioner is the step brother of Jahrul Islam and both Jamat Ali and Jahrul Islam are the sons of one Joynal Abedin @ Joynal Sheikh, we have no hesitation to hold that the present petitioner Jamat Ali is also an Indian by virtue of an opinion rendered in F.T Case No.

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589/2017 by the Foreigners Tribunal, Kamrup(M), 2^nd , Guwahati in favour of Jahrul Islam on 09.11.2018.

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Accordingly, without going into other aspects of the matter, we allow this petition by setting aside the impugned order dated 09.11.2018 passed in F.T Case No. 588/2017 by the Foreigners Tribunal, Kamrup(M), 2^nd , Guwahati in respect of the present petitioner Jamat Ali and also declare him to be an Indian in terms of the order dated 09.11.2018 passed in F.T

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Case No. 589/2017 by the Foreigners Tribunal, Kamrup(M), 2^nd , Guwahati in favour of Jahrul Islam.

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With the above observations, the present petition is allowed.

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Let both the LCRs of the concerned Tribunal be remitted immediately.

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JUDGE CHIEF JUSTICE (ACTING)

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Comparing Assistant

Jamat Ali v. the Union of India and 8 Ors.

Case brief

What is this about?

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Jamat Ali v. the Union of India and 8 Ors.

Case brief

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