Allowed

Jilal Haque v. the Union of India and 5 Ors.

Gauhati HC14 Jun 2022WP(C)/5898/2019

Case brief

AI extract

What is this about?

The Gauhati High Court allowed this writ petition, holding that age discrepancies in voter lists and differences in village locations are insufficient to discredit the petitioner's evidence. The court remanded the matter to the Foreigners Tribunal for a fresh opinion. The petitioner remains on bail.

What did the court decide?

Petition allowed; impugned opinion set aside; matter remanded to Foreigners Tribunal for fresh opinion; petitioner remains on bail.

Jilal Haque Vs the Union of India and… — Constitutional and Fundamental Rights | Gauhati HC (2022)

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GAHC010182142019

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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)/5898/2019

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JILAL HAQUE S/O- LATE HUSEN ALI, V ILL NO.1, KANDHBARI, P.S- MUKALMUA, DIST- NALBARI, ASSAM, PIN- 781126. ……Petitioner. VERSUS 1. THE UNION OF INDIA, TO BE REP. BY THE SECRETARY, GOVT OF INDIA, DEPTT OF HOME AFFAIRS, NEW DELHI, INDIA, NEW DELHI- 01 2:THE STATE OF ASSAM TO BE REP. BY THE SECRETARY TO THE GOVT OF ASSAM DEPTT OF HOME DISPUR GUWAHATI- 06 3:THE SUPERINTENDENT OF POLICE (B), NALBARI DIST- NALBARI, ASSAM PIN- 781335 4:THE DEPUTY COMMISSIONER, NALBARI DIST- NALBARI, ASSAM, PIN- 781335 5:THE ELECTION COMMISSIONER OF INDIA NEW DELHI- 01 6:THE NRC COORDINATOR NATIONAL REGISTER OF CITIZENS ( NRC) ASSAM, BHANGAGARH, GUWAHATI- 05. ……Respondents.

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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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For the Petitioner: Mr. A.R. Sikdar,

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……Advocate.

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For the Respondents : Mr. S.S. Roy, CGC.

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Ms. L. Devi, SC, NRC. Mr. J. Payeng, SC, FT. Mr. A. Bhuyan, SC, ECI. Ms. U. Das, Addl. Sr. GA, Assam.

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Mr. J. Payeng, SC, FT.

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……Advocates.

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Date of Hearing : 15.03.2022

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Date of Judgment : 14.06.20229.04.020

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JUDGMENT AND ORDER

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[ N. Kotiswar Singh, Chief Justice (Acting) ]

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Heard Mr. A.R. Sikdar, learned counsel for the petitioner. Also heard Mr. J. Payeng,

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learned Standing Counsel, Foreigners Tribunal appearing for respondent Nos.2 & 4; Mr. S.S. Roy, learned Central Government Counsel appearing for respondent No.1; Ms. L. Devi, the learned Standing Counsel, NRC for respondent No.6; Mr. A. Bhuyan, learned Standing Counsel, ECI appearing for respondent No.5 and Ms. U. Das, learned Additional Senior Government Advocate, Assam appearing for respondent No.4.

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2. The present petition has been filed by the petitioner challenging the impugned opinion dated 22.01.2019 passed by the learned Member, Foreigners Tribunal, No.2, Nalbari in F.T.(Nal-2) Case No.01/16 [F.T. Case No.45/08, Memo No.PNB/B/5(B)/2008/1365 dt.04.09.08] by which the petitioner was declared a foreigner of post 25.03.1971 stream.

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3. The petitioner after receiving summon appeared before the learned Tribunal and filed his written statement. In his written statement, he stated that he is a permanent resident of No.1 Kandhabri under Mukalmua P.S. of Nalbari District and the police did not properly investigate the matter before the reference was made. It was also stated that he was born about 25 years ago at village N.C. Pub-Kaziya under Mukalmua P.S. of Nalbari district and when he was about 15/16 years, his father Hassen Ali shifted his house to village No.1 Kandhabari under Mukalmua P.S. of Nalbari District due to erosion of river Brahmaputra and thereafter, the petitioner and his family members have been staying at Kandhabri permanently.

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4. The petitioner relied upon the NRC of 1951, voters lists of 1966,1993, 2014 and certain revenue receipts in respect of land stated to be in his father’s name.

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5. It has been stated that the name of the petitioner’s father Hussen Ali was recorded in the NRC of 1951 in respect of village N.C. Pub-Kaziya under Nalbari P.S. Subsequently, his father’s name was recorded in the voters list of 1966 as Hussen Ali in respect of 54 No. Chenga LAC of Village Dakshin Gadoni under Tarabari P.S. of district Barpeta. But he could not get the certified copy of the same due to certain official problems.

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6. The Petitioner also stated that his father’s name was recorded in the voters list of 1993 as Hussain Ali in respect of 60 No. Barkhetri LAC under Mukalmua P.S of Nalbari District

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at village N.C. Pub-Kaziya. Petitioner has stated that he has been casting vote regularly in village of No.1 Kandhbari under Mukalmua P.S in Nalbari District and as such, his name has been recorded in the voters list since 2014.

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7. By way of affidavit in chief before the learned Tribunal taking similar plea, the petitioner also examined himself and in his testimony before the learned Tribunal, he narrated what was in the written statement and also mentioned that his maternal uncle’s home is at Dakshin Godhoni and he also mentioned about other relatives in his testimony. He also stated that his forefathers’ birth place is also in Assam and as per his knowledge his grandfather’s birth place is Dakhsin Godhoni and presently one of his uncles aged about 60/70 years is residing there and there are lands in the name of his grandfather in Dakhsin Godhoni and N.C. village and his grandfather was well known by the name Hussain Fakir and was reputed among the villagers.

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8. Learned Tribunal after considering the evidence on record, however, came to a different conclusion that the petitioner is a foreigner, not an Indian. For doing so, the reasons assigned by the learned Tribunal can be found in para 9 of the aforesaid opinion which read as follows,

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“9. The name of Hssain Ali (S/O Hayatali) is enlisted in the voter list of 1966(Ext.2) in villDakhin Godhoni, P.S.- Tarabari, Dist. Kamrup under 54 Chenga LAC. In the voter list of 1993 (Ext.3) the name of Hussain Ali (S/O Hayat) is recorded in vill-Nonke Pub-Kazia under Barkhetri LAC. The W.S only states that Hussain Ali was 15/16 years old due to erosion of river Brahmaputra but the name of Hssain Ali is not found to be recorded in any voter list in villNo.1 Kandhbari. There is no whisper in the W.S. as to how the name of Hussain Ali came to be recorded in vill-Dakhin Godhoni, P.S. Tarabari, Dist-Kamrup in the voter list of 1966 whereas

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as per pleadings of the O.P. his father Hussain Ali was a resident of vill-N.C. Pub-Kazia. Further, the age of Hussain Ali in the voter list of 1966 is recorded as 23 years and as such his age in the voter list of 1993 ought to have been around 50 years but in said voter list of 1993 (Ext.3) age of Hussain Ali is recorded as 81 years and this margin of age difference is huge which cannot be ignored. Hence there is doubt that the Hussain Ali whose name is stood recorded in the voter list of 1966 (Ext-2) is the same Hussain Ali whose name stood recorded in the voter list of 1993 (Ext-3). The deposition of the O.P. also silent as regards to the said discrepancies. The O.P. in his W.S. claimed that he is the son of Hussain Ali and in support of his claimed he exhibited his voter identity card (Ext.4), voter list of 2014 (Ext-5) and certificate issued by the village headman (Ext-7). The village headman who issued Ext-7 did not come forward to vouch the contents of Ext-7 in as such the same remained unproved and the Ext-4 and Ext-5 are also not sufficient to establish the linkage of the O.P. with Hussain Ali whose name stood recorded in the voter list of 1966 (Ext-2). The name of the O.P. is found only in the voter list of 2014 (Ext-5) which is grossly inadequate to hold that the O.P. is a citizen of India.”

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9. On perusal of the aforesaid para 9 of the impugned opinion, it appears that the learned Tribunal did not believe the petitioner’s claim primarily on the ground that though the name of the petitioner’s projected father Hussain Ali was enlisted in the voters list of 1966, it was in respect of village Dakhin Godhoni. In the subsequent voters list of 1993, the name of petitioner’s projected father Hussain Ali is recorded in respect of village Nonke Pub- Kazia under Barkhetri LAC. The petitioner in his written statement stated that the said Hussain Ali shifted from village N.C. Pub Kaziya to village No.1 Kandhabri under Mukalmua P.S. of Nalbari District due to erosion of River Brahmaputra when the petitioner was 15/16 years old. But the name of the said Hussain Ali is not found in any voters list in the village No.1 Kandhabri.

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10. The learned Tribunal observed that there is no whisper in the written statement how the name of Hussain Ali came to be recorded in village Dakhin Godhoni in the voters list of 1966 whereas as per pleadings of the petitioner, his father Hussain Ali was a resident of village N.C. Pub Kazia. Further, the age of Hussain Ali in the voters list of 1966 is recorded as 23 years in which event, he ought to have been about 50 years when his name was listed in the year 1993, but it was shown as 81 years and as such, this huge difference in age cannot be ignored. Learned Tribunal also observed that the deposition of the petitioner was silent as regards the discrepancies.

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11. As regards the certificate issued by the village Headman (Ext.7), the learned Tribunal observed that since the village Headman was not examined, the said certificate remained unproved and as such, the contents of the said certificate could not be relied upon and accordingly, the learned Tribunal held that the petitioner had failed to establish his linkage with Hussain Ali. Though the petitioner in his written statement stated that Hussain Ali, the projected father shifted from N.C. Pub-Kaziya to village No.1 Kandhabri and there is no mention of his stay in Dakshin Godhoni, yet, the Court has also observed that it is not a case that the village Dakhsin Godhoni does not find place in the evidence of the petitioner. In fact, during the cross-examination, the petitioner had categorically stated that as per his knowledge his grandfather’s birth place was Dakhsin Godhoni and presently one of his uncles is residing in Dakhsin Godhoni. Thus, if the grandfather of the petitioner was born in Dakhsin Godhoni and if one of his uncles resides in Dakhsin Godhoni, it is quite possible that the father of the petitioner had stayed in Dakhsin Godhoni in which event, entering the name of the petitioner’s father in the voters list of 1966 in the village Dakhsin Godhoni cannot be said to be totally unbelievable.

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12. It is true that in the written statement, the petitioner did not mention of the shifting from Dakhsin Godhoni to No.1 Kandhbari but from N.C. Pub Kaziya. Unfortunately, the petitioner was never questioned as to how the name of the petitioner’s father Hussain Ali was recorded in the voters list of 1966.

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13. Under the circumstances, if no question was put to him, in our view, no adverse inference could have been drawn on that account as there is reference of Dakhsin Godhoni in his testimony where he states that his grandfather was born in Dakhsin Godhoni and one of his uncles still resides in Dakhsin Godhoni.

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14. Therefore, we are of the view that merely because the petitioner had not mentioned in his written statement about the shifting from Dakhsin Godhoni to either Nonke Pub Kaziya or Kandabari, it cannot be a ground to totally discard the other evidences adduced by the petitioner.

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15. Further, as regards the discrepancy in the age of the said Hussain Ali in the voters lists of 1966 and 1993, it is now acknowledged that the age in the voters list is not accurate and mistakes often occur due to wrong entry by the enumerators or because of incorrect information furnished at the time of enumeration and as such, mere discrepancy in the age cannot be a ground to disbelieve the genuineness of the plea of the proceedee unless it is proved that the voters list is not genuine or fabricated which is not the case in the present case.

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16. Accordingly, we are of the view that the present matter is required to be reconsidered by the learned Tribunal in the light of the observations made above by us.

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17. Accordingly, for the reasons discussed above, the present petition is allowed by

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setting aside the impugned opinion dated 22.01.2019 passed by the learned Foreigners Tribunal No.2, Nalbari in F.T. (Nal-2) Case No.01/16 (F.T. Case No.45/08).

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18. Learned Tribunal will require to render a fresh opinion as regards the citizenship status of the petitioner on the basis of the evidence on record as discussed above after hearing the petitioner.

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19. Petitioner will appear before the learned Tribunal within a period of 1(one) month from today.

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20. Petitioner will continue to remain on bail on similar terms and conditions as directed by this Court vide order dated 18.11.2019 till a fresh opinion is rendered by the learned Foreigners Tribunal as regards the citizenship status of the petitioner.

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21. The present petition is, accordingly, disposed of.

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22. LCR be remitted forthwith to the concerned Foreigners Tribunal.

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JUDGE CHIEF JUSTICE (ACTING)

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Comparing Assistant

Jilal Haque v. the Union of India and 5 Ors.

Case brief

What is this about?

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Jilal Haque v. the Union of India and 5 Ors.

Case brief

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