Akbar Ali Vs the Union of India and 5 Ors.

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GAHC010224832025

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2025:GAU-AS:14839-DB

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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)/5939/2025

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AKBAR ALI

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S/O LATE JASI SHEIKH @ JASA AKANDA @ JOSMOT AKAND, RESIDENT OF VILLAGE- BHUKURADIA, P.O- TUPAMARI, P.S- NAGARBERA, DISTRICT- KAMRUP, ASSAM, PIN- 781127

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VERSUS

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THE UNION OF INDIA AND 5 ORS.

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REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI, PIN 110001

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2:ELECTION COMMISSION OF INDIA REPRESENTED BY THE CHIEF ELECTION COMMISSIONER NEW DELHI- 110001

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3:THE STATE OF ASSAM

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REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI- 781006

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4:THE DISTRICT COMMISSIONER KAMRUP ASSAM PIN 781301

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5:THE SUPERINTENDENT OF POLICE (B) KAMRUP ASSAM- 781301

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6:THE COORDINATOR

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NATIONAL REGISTER OF CITIZENS BHANGAGARH GUWAHATI- 78100

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Advocate for the Petitioner : MR A W AMAN, S T AMAN,MD A RAHMAN,MR SARFRAZ NAWAZ

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Advocate for the Respondent : DY.S.G.I., SC, F.T,SC, NRC,SC, ECI,GA, ASSAM

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BEFORE

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HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

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ORDER

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Date : 03.11.2025 (K.R. Surana, J)

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Heard Mr. A. Rahman, learned counsel for the petitioner. Also heard Mr. R.K.D. Choudhury, learned DSGI for respondent no.1; Mr. N. Kalita, learned counsel, appearing on behalf of Mr. A.I. Ali, learned standing counsel for respondent no2; Mr. G. Sarma, learned standing counsel for the FT, Border matters and NRC, representing respondent nos. 3, 5 6 and 6; and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate, representing respondent no.4.

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By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Akbar Ali, son of Late Jasi Sheikh @ Jasa Akanda @ Josmot Akand, resident of village- Bhukuradia, P.O. Tupamari, P.S. Nagarbera, Dist. Kamrup, has assailed the opinion dated 12.12.2017, passed by the learned Member, Foreigners Tribunal No.1, Kamrup (Rural) at Guwahati, in G.F.T.(R) Case No. 207/2017.

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On receipt of notice, the petitioner had appeared before the said learned Tribunal and had filed his written statement and submitted all the

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relevant documents to prove his citizenship and he had examined two witnesses, including himself and the Gaonburah. The learned counsel for the petitioner, by referring to the documents annexed to the writ petition had submitted that the learned Tribunal, on irrelevant considerations and without considering the facts presented in form of reliable evidence, erroneously declared the petitioner to be a foreigner of post 25.03.1971 stream.

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The gist of the pleaded case of the petitioner in paragraphs 17 and 18 of the writ petition is as follows:-

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a. That on 12.12.2017, he taken into custody pursuant to the impugned opinion. However, upon completion of more than two years of detention, he was released on 22.04.2020, pursuant to the directions contained in (i) order dated 10.05.2019, passed by the Supreme Court of India in W.P. (C) No. 1045/2018 – Supreme Court Legal Services Committee v. Union of India & Anr., and (ii) order dated 13.04.2020, passed by this Court in Suo Motu W.P.(C) 1/2020.

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b. Thereafter, the petitioner, Akbar Ali, by filing a writ petition under Article 226 of the Constitution, which was registered and numbered as W.P.(C) 301/2018, had assailed the said opinion, inter alia, on the ground that the proceedee in the reference case is a different person whose father has been described as Late Jara Akand, whereas the name of his father is Late Jasa Akand. Accordingly, this Court, by order dated 04.012.2018, dismissed the writ petition on that ground that only Akbar Ali, son of Late Jara Akand would

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have the locus standi to assail the said opinion.

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The learned counsel for the petitioner has submitted that the petitioner, i.e. the declared foreign national was complying by the conditions of bail by regularly appearing before Nagarbera P.S. However, on 25.05.2025, the petitioner was taken into custody and thereafter shifted to Transit Camp, Matia, Goalpara and thereafter to Holding Centre under 7^th Assam Police Battalion, Charaikhola, Dist. Kokrajhar. Therefore, the affidavit filed in support of this case has been sworn by the petitioner’s nephew, namely, Torap Ali, son of Jumur Uddin.

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In light of the decision of this Court dated 04.12.2018, passed in W.P.(C) 301/2018 – Akbar Ali v. The Union of India & Ors., the learned standing counsel for the FT, Border matters and NRC has opposed the issuance of notice in this writ petition.

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Considered the materials available on record as well as the submissions made at the Bar.

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It would be relevant and appropriate to refer to the order dated 04.12.2018, passed by the Coordinate Bench of this Court in W.P.(C) 301/2018, which is quoted below:-

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“Heard Mr. M.A. Sheikh, learned counsel for the petitioner as well as Ms. G. Sarmah, learned counsel for respondent no. 1 and Mr. U.K. Nair, learned senior counsel for the respondent nos. 2, 3 and 4.

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Petitioner assails order/opinion dated 12.12.2017 passed by the Foreigners’ Tribunal No.1, Kamrup (Rural), Ulubari, Assam in respect of G.F.T.(R) Case No.207/2017, declaring the petitioner to be a foreigner/illegal migrant of post 25.03.1971 stream.

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While making challenge to the order/opinion dated 12.12.2017 in one hand, the writ petitioner also submits on the other that the proceedee in the reference case is a

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different person whose father has been described as Late Jara Akand. It is argued that although the petitioner bears the same name as the proceedee, however, he is not the

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son of Late Jara Akand but of Late Jasa Akand, as would be clear from the notice dated 05.07.2017 issued by the Tribunal. Petitioner submits that despite being a different entity, he was taken into custody and is presently lodged at the Goalpara detention camp and is apprehending that he may be deported out of the territory of India.

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If the clear pleaded stand of the writ petitioner is that he is not the proceedee in the G.F.T.(R) case No.207/2017, we fail to understand as to why challenge to the opinion rendered in the said case has been made. It is only Md. Akbar Ali, son of Late Jara Akand who would have locus standi to challenge the impugned opinion dated 12.12.2017. If the petitioner has been arrested and detained by the state authority by way of mistaken identity, that would constitute a different cause of action for which it would be open to the writ petitioner to file appropriate case before the appropriate forum challenging such State action. Under no circumstances he can have

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locus standi to file petition under Article 226 of the Constitution of India challenging the order/opinion dated 12.12.2017 passed by the Foreigners Tribunal No.1, Kamrup (Rural), Ulubari, Assam, in G.F.T(R) Case No.207/2017 which has no bearing or relevance to him. In our considered opinion, the present writ petition is misconceived and cannot be entertained in the present form.

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In view of the above we find no merit in the writ petition to cause interference to the order/opinion of the Tribunal. The writ petition stands accordingly dismissed,

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however, without any order as to cost.

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Registry to send the case records to the Tribunal forthwith.”

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Thus, in the previous writ petition, the petitioner has taken a specific plea that he is not the son of Late Jara Akand, but Late Jasa Akand. As mentioned hereinbefore, in the cause title of this writ petition, the petitioner has stated that the name of his father is Late Jasi Sheikh @ Jasa Akanda @ Josmot Akand. In Annexure-2 and Annexure-3, which is the voters list of 1966 and 1970, the name of the voter is Jasi Sheikh. The voter in Annexure-4, i.e. voters

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list of 1977, the name of the voter is Josha Akad. In Annexure-5, i.e. voters list of 1993, the name of father of Akbar Ali is written as Jona Akand. In Annexure6, the voter list of 1997, the name of father of Akbar Ali is written as Josmot Akand. In Annexure-7, the voter list of 2009, the name of father of Akbar Ali is written as Md. Josha Akand. In Annexure-8 and Annexure-9, i.e. the voter list of 2013 and 2016, the name of father of Akbar Ali is written as Jash Akand. Therefore, in none of the voters list on which the petitioner relies, the name of the father of the petitioner is Jasa Akand, which is the specific plea of the petitioner in W.P.(C) 301/2018, which is recorded by this Court in paragraph 3 of the order dated 04.12.2018. Thus, the documents annexed to this writ petition reveals that the father of the petitioner has more than three names and/or alias disclosed in the cause title of this writ petition.

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It is not the pleaded case of the petitioner that when he contested the proceedings of G.F.T.(R) Case No. 207/2017, the petitioner had disputed his identity as the person in respect of whom a reference of being a foreigner was made.

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Under the circumstances, the situation of the petitioner has not changed. In the proceedings of W.P.(C) 301/2018, the petitioner had taken a plea that the name of his father is Late Jasa Akand. However, as per cause title of the said writ petition, which is available in Annexure-10 of this writ petition, the name of the father of the petitioner is Late Jasha Sheikh @ Jasa Akanda @ Jasi Sheikh @ Jasa Akanda @ Jana Akand @ Abbas @ Jasamat Akand, i.e. having 6 (six) alias. But in this writ petition, the cause title reveals that the names of the father of the petitioner are Late Jasi Seikh @ Jasa Akanda @ Josmot Akand i.e. 3 (three) alias. However, as referred hereinbefore, the annexures to this writ petition discloses that the name of the father of the

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petitioner is Jasi Sheikh, Josha Akad, Jona Akand, Josmot Akand, Md. Josha Akand, Jash Akand, i.e. 6 (six) alias. However, all these six alias do not match with the names of the father mentioned in the cause title of this writ petition.

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Under the circumstances, it would be safe and appropriate for the Court to follow the decision of this Court vide order dated 04.12.2018, passed in W.P.(C) 301/2018, that when the proceedee in G.F.T.(R) Case No. 207/2017 is Md. Akbar Ali, son of Late Jara Akand, only he would have the locus standi to challenge the impugned opinion dated 12.12.2017, passed by the learned Member, Foreigners Tribunal No.1, Kamrup (Rural) at Guwahati, in G.F.T. (R) Case No. 207/2017.

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Under the circumstances, the Court has no hesitation to reiterate its observations made by this Court in the order dated 04.12.2018, passed in W.P.(C) 301/2018 to the effect that “… In our considered opinion, the present writ petition is misconceived and cannot be entertained in the present form.”

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The disturbing element in this case are as follows:-

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a. As per the order dated 04.12.2018, passed in W.P.(C) 301/2018, the petitioner had taken a plea that the name of his father is Late Jasa Akand. However, as per cause title of the said writ petition, which is available in Annexure-10 of this writ petition, the name of the father of the petitioner is Late Jasha Sheikh @ Jasa Akanda @ Jasi Sheikh @ Jasa Akanda @ Jana Akand @ Abbas @ Jasamat Akand.

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b. In paragraph 6 of the opinion dated 12.12.2017 (Annexure-1), the learned Tribunal has recorded that “… In the case record opp. party’s father’s name is Jara Akand @ Jasa Akand, but

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opp. party has stated in his evidence and WS that that his father’s name is Jasha Sheikh.”

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c. In this writ petition, the cause title reveals that the names of the father of the petitioner are Late Jasi Seikh @ Jasa Akanda @ Josmot Akand i.e. 3 (three) alias. However, as referred herein before, the annexures to this writ petition discloses that the name of the father of the petitioner is Jasi Sheikh, Josha Akad, Jona Akand, Josmot Akand, Md. Josha Akand, Jash Akand, i.e. 6 (six) alias. However, all these six alias do not match with the name of the father given in the cause title of this writ petition.

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d. However, the petitioner has not disclosed any material and/or annexed any document to show that before the learned Foreigners Tribunal, the petitioner had taken a plea that he was not the intended proceedee in the reference made by the Superintendent of Police (Border), Kamrup (Rural), so as to require any response from the said authority at the relevant point of time.

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e. Moreover, for the reasons best known to the petitioner, his written statement and evidence before the learned Foreigners Tribunal has been withheld in this case for the reasons best known to the petitioner.

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Moreover, as the grievance of the petitioner, as expressed in paragraph 18 of this writ petition is that in the earlier writ petition, the merit of the evidence was not discussed, then in the considered opinion of the Court, the

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remedy available to the petitioner was either by preferring a review petition or to assail the order dated 04.12.2018, passed in W.P.(C) 301/2018 in such manner as the petitioner may be so advised. But on the plea of disputing his identity, based on the alias of his father, the same opinion dated 12.12.2017, passed by the learned Member, Foreigners Tribunal No.1, Kamrup (Rural) at Guwahati, in G.F.T.(R) Case No. 207/2017, cannot be assailed for the second time.

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Therefore, in light of discussions made hereinabove, the present writ petition is misconceived and therefore, dismissed at the “motion” stage, without issuing notice on the respondents.

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There shall be no order as to cost.

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The learned standing counsel for the FT, Border matters and NRC, shall transmit a downloaded copy of this order to the Home and Political (B) Department, so as to transmit the same to the concerned Foreigners Tribunal to make it a part of record of G.F.T.(R) Case No. 207/2017 for future reference.

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JUDGE JUDGE

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Comparing Assistant

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

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