Petitioner challenged Foreigners Tribunal order declaring him illegal migrant. Court held voter list discrepancies explained by name/nickname variation at same house. Directed retrial.
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GAHC010142952017
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6044/2017
Joinul Hoque Laskar@ Joinul Hoque,
Son of Late Ramiz Ali @ Late Ramiz Ali Laskar @ Late Samu Mia, Village- Dhanerhari-II, P.O- Sildubi, P.S.- Sonai, Dist.- Cachar, Assam.
……Petitioner
-Versus-
…… Respondents
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BEFORE
HON’BLE THE CHIEF JUSTICE (ACTING) MR. N. KOTISWAR SINGH HON’BLE MR. JUSTICE NANI TAGIA
For the Petitioner : Mr. M.J. Quadir, Advocate. For the Respondents : Mr. B. Sharma, CGC. : Mr. G. Sarma, SC, FT, : Mr. A.I. Ali, SC, FT, : Ms. K. Phukan, Govt. Advocate, Assam …… Advocates Dates of Hearing : 17.03.2022 Date of Judgment : 15.06.2022
JUDGMENT AND ORDER (CAV)
[ N. Kotiswar Singh, Chief Justice (Acting) ]
Heard Mr. M.J. Quadir, learned counsel for the petitioner. Also heard Mr. B. Sharma, learned Central Government Counsel; Mr. G. Sarma, learned Standing Counsel, Foreigners Tribunal; Mr. A.I. Ali, learned Standing Counsel, ECI; Ms. L. Devi; learned Standing Counsel, NRC and Ms. K. Phukan, learned Government Advocate, Assam.
2. Perused the records.
3. In this petition, the petitioner has challenged the order dated 28.03.2017 passed by the learned Foreigners Tribunal-6th , Silchar in FT.6th Case No.684/16 by which the learned Tribunal held that the O.P./petitioner has failed to prove that he is an Indian citizen and accordingly, declared him to be an illegal migrant of post 25.03.1971 stream.
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4. In order to appreciate the rival contentions, it may be apposite to reproduce the reasons and conclusions of the learned Foreigners Tribunal which is also quite short and brief, which reads as follows:
“I have gone through the written statement and documents relied upon by the opposite party. I have also gone through the evidence in the case record. The O.P. himself examined as witness of DW-I. O.P. has submitted his Examination-In-chief through an affidavit vide Ext-A. In cross examination O.P. stated that O.P. was born and brought up at Village Dhonebari Pt-II, P.S.Sonai, Dist.- Cachar, Assam. O.P. stated that O.P.’s father name Romiz Uddin, S/o Late Arbesh appeared in the voter list of 1965 vide serial no.195, house no.291, electro part no.45 at village Dhonebari Part-II under L.A.12 Sonai constituency, marked as Ext-1 is the certified copy of the voter list. O.P.’s father Romiz Ali, S/o Arbesh Ali appeared in the voter list of 1970 vide serial no.221, house no.63, electro part no.45 at village Dhonebari Part-II under L.A. 12 Sonai constituency, marked as Ext-II is the certified copy of the voter list.
O.P’s name Jainul Hoque, S/o Somu Mia appeared in the voter list of 1997 vide serial no.624, house no.564, electro part no.67 at village Dhonebari Part-II, under L.A.10 Sonai constituency, marked as Ext-III is the certified copy of the voter list. O.P’s name Jainul Hoque, S/o Somu Mia appeared in the voter list of 2015 vide serial no.839, house no.564, electro part no. 81 at village Dhonebari Part-II under L.A. 10 Sonai constituency, marked as Ext-IV is the certified copy of the voter list. O.P.’s name Jainul Hoque Laskar, S/o Somu Mia appeared in the voter list of 2014 vide serial no.938, house no.564, electro part no.11 at village Dhonebari PartII under L.A. 10 Sonai Constituency, marked as Ext.-V is the certified copy of the voter list. O.P. stated during cross examination that Romiz Uddin Laskar and Somu Mia is same and one person, but could not produce any document in his support to prove that Romiz Uddin Laskar and Somu Mia is same and one person.
On careful perusal of above evidence of DW-1 it appears that in exhibit I and exhibit II O.P.’s father name is Romiz Ali, S/o Arbesh Ali, and in exhibit III, IV and V O.P.’s father appears as Somu Mia. Therefore a genuine and serious doubt arise to believe that Romiz Ali and Somu Mia is same and one person. So it is difficult to accept that Romiz Ali is the father of the O.P.
Considering the entire material on record and the discussion above that the O.P. has miserably failed to discharged his burden to prove that O.P. is not a Foreigner. It appears that
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O.P. entered into India without any valid documents and O.P. is termed to be Foreigner/illegal migrant of post 25/02/1971 stream.
Order
It appears that the O.P. has failed to prove that he is an India citizen. So reference is answered in the affirmative and declaring against the O.P. is an illegal migrant of post 25/03/1971 Stream. So, O.P. has no right to live within the territory of India and send back from India within an early date, Superintendent of Police (B), Cachar, Silcahr restrain free from movement of the O.P. and take necessary step in accordance with law. E.R.O. under L.A. 10 Sonai constituency is directed to delete the name of the O.P. from voters list of village Dhonebari Pt.-II
Thus the case disposed off.
Inform SP(B), Cachar accordingly.”
Similarly, in the voters list of 1970, the name of the petitioner’s father was again reflected as Ramiz Ali, Son of Arbaj Ali in respect of the same village, Dhanehari Part-II and the same Constituency. In the subsequent voters list of 1975, the name of the petitioner’s
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father has been again shown as Ramiz Ali, Son of Arbesh Ali under Village Dhanehari Part-II, District: Cachar, Sub-Division: Silchar under 10. No. Election Constituency, Sonai.
Similarly, in the voters list of 1979, the name of the petitioner’s father also has been shown as Ramiz Ali, Son of Arbesh Ali, Village: Dhanehari Part-II under the same 10 No. Sonai Election Constituency,
Similar is the case in the voters list of 1985 where the petitioner’s father has been shown as Ramiz Ali, Son of Arbesh Ali in the same village Dhanhari Part-II under the same 10 No. Sonai Election Constituency. However, in the subsequent voters list of 1993, the name of the petitioner’s father was recorded in his nick name Samu Mia as son of Abtesh Ali, VillageDhanehari Part-II under the 10 No. Sonai Legislative Assembly Constituency.
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sworn the affidavit in chief, filed before the learned Tribunal to show that Samu Mia and Ramij Ali Laskar, Ramij Ali, Romuj Ali and Ramij Uddin Laskar are one and the same person.
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Samu Mia in the voters lists of 1997, 2005, 2011, 2013, 2014 and only in the voters list of 2015, the name of the projected father Samu Mia has been changed to Ramiz Ali Laskar. However, the petitioner has not been able to show any document to show the said Samu Mia and Ramiz Ali are one and the same person as also held by the learned Tribunal.
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Thus, as far as the identity of the aforesaid Ramiz Ali, son of Arbej Ali, as a citizen of this country whose name appeared in the voters lists of 1965, 1970, 1975, 1979, 1985 is concerned, it cannot be doubted. Only the issue is whether the said Ramiz Ali and Samu Mia are one and the same person or not. Though the names appear to be quite different, it is the contention of the petitioner that Samu Mia is the nick name of Ramiz Ali and Ramiz Ali is the real name.
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1997, 2005, 2011, 2013, 2014, 2015 and 2016 where the said Samu Mia and Ramiz Ali Laskar appeared as the father of the same person Joinul Hoque occupying the same house no. 564 in the same village of Dhanehari Part II.
In our view, the names Arbez Ali and Abtez Ali do not appear to be of such a wide variation as to disbelieve and come to conclusion that they belong to different persons, more so, when they belong to same village in the same constituency as discussed above.
In other words, if the proceedee is able to show on the basis of evidence so adduced that in all probability he is an, is Indian and not a foreigner, in absence of any evidence, to the contrary, which would discredit the evidence on record the proceedee can be said to have established his case.
We are of the view that in the present case, there are credible evidences to show that the petitioner is son of Ramiz Ali @ Ramiz Ali Laskar @ Samu Mia, who is the resident of village Dhanehari Part II under No.10 Sonai Legislative Assembly.
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No.684/16.
this Court vide order dated 22.09.2017 till a fresh opinion is rendered by the learned Foreigners Tribunal as regards the citizenship status of the petitioner.
JUDGE CHIEF JUSTICE (ACTING)
Comparing Assistant
3 issues framed by the court
Whether the petitioner established that Samu Mia and Ramiz Ali refer to the same person to prove citizenship.
Whether the Foreigners Tribunal erred in not accepting the petitioner's explanation regarding the name variation.
Whether the bur eden of proof in Foreigners Tribunal cases is standard of preponderance of probability.
Joinul Hoque Laskar
Union of India
State of Assam
N. Kotiswar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
