Allowed

Akmad Ali v. the Union of India and 5 Ors.

Gauhati HC9 Jun 2022WP(C)/6180/2017

Case brief

AI extract

What is this about?

The Gauhati High Court allowed the writ petition challenging a Foreigners Tribunal order declaring the petitioner a post-1971 foreigner. The Court set aside the impugned order, finding that the petitioner established his father's residence in India since 1966 through consistent electoral rolls despite minor name variations.

What did the court decide?

Set aside the Foreigners Tribunal order dated 24.08.2017 and declared the petitioner to be a citizen of India.

Akmad Ali Vs the Union of India and 5… — Constitutional and Fundamental Rights | Gauhati HC (2022)

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Page No.# 1/6

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GAHC010202332017

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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)/6180/2017

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AKMAD ALI

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S/O- LATE SAHI KALAMIA @ KALA MIA @ ABDUL JALIL, PRESENT R/OHATIKHALI FISH FARM, NATUN BAZAR, P.O- HATIKHALI BAZAR, P.SLANGTING, DIST- DIMA HASAO, ASSAM, PERMANENT R/O- SAIJA NAGAR, P.O- CHAMELA BAZAR, P.S- RAMKRISHNA NAGAR, DIST- KARIMGANJ, ASSAM

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VERSUS

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THE UNION OF INDIA and 5 ORS

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REP. BY THE SECRETARY TO THE GOVT OF INDIA, IN THE MIN OF HOME AFFAIRS, NEW DELHI

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Advocate for the Petitioner : MR.A R TALUKDAR

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Advocate for the Respondent : GA, ASSAM

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B E F O R E

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HON’BLE MR. JUSTICE N. KOTISWAR SINGH HON’BLE MR. JUSTICE NANI TAGIA

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Date of hearing :: 09.06.2022

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Date of judgment :: 09.06.2022

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JUDGEMENT & ORDER

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(O R A L)

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[N. Kotiswar Singh, (C.J. (Acting)]

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Heard Mr. L.R. Mazumdar, learned counsel for the petitioner. Also heard Mr. K.K. Parashar, learned Central Government Counsel; Mr. N. Pathak, learned Special Counsel, FT

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and Ms. U. Das, learned Government Advocate, Assam.

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2 . In this petition, the petitioner has challenged the order dated 24.08.2017 passed by the Foreigners Tribunal, Dima Hasao, Haflong in FT Case No.25/2017 by which the petitioner was declared to be a foreigner of post 1971 stream.

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3 . The petitioner has assailed the opinion on the ground that the Tribunal has not properly appreciated the evidence on record and was primarily swayed by the fact that the petitioner’s father’s name which was earlier appearing as Kala Mia was changed to Abdul Jalil in the voters lists subsequent to 1985, i.e., 1989 to 2005 whereas his father’s name was consistently shown as Kala Mia since 1966 till 1985.

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4. The Tribunal also found discrepancy in the school transfer certificate, which was exhibited as Ext.9. The Tribunal, accordingly, held that as the petitioner failed to produce any other document to establish that Kala Mia and Abdul Jalil are names of the same person, declined to believe that they are same person and accordingly, held that the petitioner is a foreigner of post 1971 stream.

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5. It has been submitted that the petitioner exhibited as many as 12 documents. In Exhibits I, II, III, IV and V, i.e., the electoral rolls of 1966, 1985, 1989, 1970 and 1977, the name of the petitioner’s father is shown as Kala Mia, son of Hason Ali. It has been submitted that in all these electoral rolls, his father’s name is shown as inhabitant of Saijanagar under Ratabari Police Station in the district of Karimganj in respect of 4 Ratabari LAC. However, because of the advice of the sons and daughters, the name of Kala Mia was changed to Abdul Jalil and, accordingly, the name of the petitioner’s father is recorded as Abdul Jalil in the subsequent voters lists of 1989 onwards. Though the name was changed, the village, Police Station, district and LAC remained the same.

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6. Learned counsel for the petitioner submits that the petitioner also filed an affidavit before the Tribunal about the change of name of his father from Kala Mia to Abdul Jalil. It has been also submitted that in the cross-examination, no question was asked by the State or by the Tribunal as regards the claim of the petitioner that his father’s name was changed from Kala Mia to Abdul Jalil.

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7. Under the circumstances, the specific stand taken by the petitioner that he is the son of Kala Mia whose name was changed to Abdul Jalil and recorded in the electoral rolls may be accepted as correct in which event, he will be able to establish that he is the son of Kala Mia @ Abdul Jalil since 1966 and, as such, being the son of an Indian citizen, the petitioner is also a citizen of India.

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8. It has been also submitted that as regards the observations made by the Tribunal that the deposition of the petitioner contradicts the contents of the school transfer certificate is also not correct. It has been submitted that the school transfer certificate was issued on 31.07.1983 wherein it has been clearly mentioned that he left the school on 31.12.1973 while studying in class-V, which does not contradict his statement that he came to Dima Hasao in 1982 in search of employment and was working in the Fishery Department, Government of Assam since 1982. Accordingly, it has been submitted that the opinion rendered by the Tribunal is perverse and contrary to the record and, as such, liable to be set aside and on the basis of the evidences laid by the petitioner, the petitioner may be declared to be an Indian.

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9. In response, Mr. Pathak, learned Special Counsel, FT has submitted that it is an admitted position by the petitioner himself that his father’s name was Kala Mia and it was subsequently changed to Abdul Jalil. However, except for the electoral rolls, which have been relied upon and the affidavit filed by the petitioner, there is no other documentary evidence to show that the said Kala Mia and Abdul Jalil are one and the same person. In that view of the matter, it cannot be said that the petitioner has been able to establish that he is the son of Kala Mia, who has been residing in this country since 1966.

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10. Learned Special Counsel has also submitted that the observation of the Tribunal that there is contradiction between the statement of the petitioner and that of the transfer certificate also cannot be said to be incorrect as the transfer certificate was issued in 1983 though the petitioner claimed to have been working in Dima Hasao in 1982.

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12. We have heard learned counsel for the parties. We have also gone through the impugned order, dated 24.08.2017.

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13. As can be seen from the impugned opinion, as many as 12 documents were relied upon and exhibited by the petitioner.

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14. In Ext.I, which is a voters list of 1966 in respect of 4 Ratabari LAC, the name of one Kala Mia appears as the son of Hason Ali, resident of Saija Nagar under Ratabari Police Station in Karimganj Sub-Division under the Karimganj district, which was under the erstwhile undivided Cachar district. In the subsequent voters list of 1970, we find that the said Kala Mia was included as the son of Hason Ali in respect of the same village, Police Station and Assembly Constituency. In the voters list of 1966, the house number is shown to be 55 and in the subsequent voters list of 1970, the house number is shown to be 55ka. In the voters list of 1977 in respect of No.1 Ratabari (SC) LAC, the name Kala Mia again appears as son of Hason Ali under the same village Saija Nagar, same Police Station and under same Karimganj Sub-Division. In the voters list of 1997, in respect of 1 Ratabari (SC) LAC, we find the name of Abdul Jalil as the son of Hason Ali. In the said voters list, the name of the petitioner has been shown as Aklim Ali, though his real name is Akmad Ali. Similarly, in the voters list of 2005 in respect of 1 Ratabari (SC) LAC, the petitioner, Akmad Ali, is shown as son of Abdul Jalil in respect of the same village under Ramkrishna Nagar Police Station.

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15. We have also noted that the petitioner has filed an affidavit to the effect that his father’s correct name is Kala Mia and his nick name is Abdul Jalil and in some records, his father’s name is shown as Kala Mia and in some records, it has been recorded as Abdul Jalil.

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16. Thus, what we have noted is that there is a consistency as far as the name of the village, Police Station and Assembly Constituency is concerned. Unless the said Kala Mia and Abdul Jalil are one and the same person, it is most unlikely that names should be recorded in the voters lists with same village, Police Station and Assembly Constituency with the same father, Hason Ali.

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17. We have also noted that in the cross-examination, the petitioner has clearly mentioned the name of his father, grandfather and all the relatives and also about the name of the village. No question was asked in the cross-examination to the effect that said Kala Mia and Abdul Jalil are not the same person. Thus, the evidence of the petitioner that Kala Mia and Abdul Jalil are the same person, has remained uncontested and unchallenged by the State.

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18. As far as the genuineness of the electoral rolls are concerned, that has also not been questioned by the authorities. In fact, the petitioner examined one Prakash Sakachep, who

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had testified about the voters lists and entries made therein. As such, it cannot be said that there is any doubt regarding the genuineness of the aforesaid voters lists.

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19. Coming to the observation of the Tribunal that there is a contradiction between the statement of the petitioner and that of the school transfer certificate, we are unable to agree with the said observation. Perusal of the transfer certificate itself clearly indicates that Akmad Ali, son of Kala Mia, resident of Hatikhuli had left the school on 31.12.1987 and he was reading in class-V. What the school transfer certificate tries to indicate is that though the said certificate was issued on 31.07.1983, it was referring to the fact of Akmad Ali being son of Kala Mia, a student of the school, who left the school on 31.12.1973.

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20. Thus, the statement made by the petitioner that he came to Dima Hasao and got appointment in the Fishery Department cannot be said to be contradictory.

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21. In this regard, we would like to mention that though the burden of proof is upon the petitioner to show that he is an Indian, the standard of proof required is preponderance of probability and not proof beyond all reasonable doubt.

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22. Before us, there are a number of documents, whose genuineness have not been questioned, which do indicate that the petitioner is the son of Kala Mia, who was a resident of this country since 1966 and if that is so, it can be said that being son of a resident of this country before 1966, he cannot be deemed to be a foreigner.

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23. We have taken note of the submission of learned Special Counsel, FT that the petitioner has not been able to prove that there is no documentary evidence to show that said Kala Mia and Abdul Jalil are one and the same person. Though there is no separate document to show that Kala Mia and Abdul Jalil refer to one and the same person, the fact remains that the petitioner had stated before the Tribunal that both the names refer to one and the same person, i.e., his father. However, change of name from Kala Mia to Abdul Jalil did not result in change of the village, LAC, Police Station, etc. Even in the subsequent voters lists, where the name of the petitioner’s father has been shown to be Abdul Jalil, in the same voters lists, the name of the petitioner is also found. Thus, it cannot be a mere coincidence that the name of the petitioner is shown along with said Abdul Jalil in the earlier voters lists as well as in the subsequent voters lists in respect of the same village. In the voters list of

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1985 in respect of Saija Nagar, the petitioner is shown to be the son of Kala Mia. In the subsequent voters list of 1989, the petitioner is again shown to be the son of Ang Jalil. We are of the view that though the name of the petitioner is shown as Ahmed Ali in the voters list of 1989, that does not drastically differ from Akmad Ali as it refers to the same village and though the petitioner’s name is again shown as Aklim Ali in the voters list of 1997, he is also shown to be the son of Abdul Jalil in respect of the same village Saijja Nagar. In our view, the discrepancy in the name of Aklim Ali, Ahmed Ali and Akmad Ali is not substantial but a minor discrepancy as the other particulars remain the same and in the subsequent voters list of 2005, the name of the petitioner is correctly shown as Akmad Ali, son of Abdul Jalil.

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24. Thus, in our view, in spite of the minor discrepancies, which have crept in the name of the petitioner as well as his father, we are of the view that the petitioner has been able to establish that he is an Indian citizen being the son of one Kala Mia who was already in India since 1966. Furthermore, even if for the sake of argument, it is accepted that the petitioner has failed to establish that Kala Mia and Abdul Jalil are not the same person, the fact remains that he has been able to establish that he is the son of Kala Mia, who has been a resident of this country since 1966 to 1985.

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25. For the reasons discussed above, we set aside the impugned order dated 24.08.2017 passed by the Foreigners Tribunal, Dima Hasao, Haflong in FT Case No.25/2017 and declare the petitioner to be a citizen of India and not a foreigner.

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26. The writ petition is, accordingly, allowed.

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27. LCR be remitted forthwith to the concerned Tribunal.

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JUDGE CHIEF JUSTICE (ACTING)

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Akmad Ali v. the Union of India and 5 Ors.

Case brief

What is this about?

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Akmad Ali v. the Union of India and 5 Ors.

Case brief

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