Mustt. Asia Begum vs The State Of Assam And 3 Ors
2021 Latest Caselaw 2872 Gua

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GAHC010129112017




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/2855/2017

            MUSTT. ASIA BEGUM
            W/O. LT. ABDUL MUNNAF, R/O. VILL. GOALPARA TOWN WARD NO. 4, P.S.
            GOALPARA, DIST. GOALPARA ASSAM.


            VERSUS

            THE STATE OF ASSAM and 3 ORS.
            REPRESENTED BY THE COMMISSIONER and SECRETARY, GOVT. OF
            ASSAM, HOME DEPTT., DISPUR, GUWAHATI-6.

            2:THE DY. COMMISSIONER
             GOALPARA
             P.O. and P.S. GOALPARA
            ASSAM.

            3:THE SUPERINTENDENT OF POLICE BORDER
             GOALPARA DISTRICT
             GOALPARA
            ASSAM.

            4:THE UNION OF INDIA
             REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA
             MINISTRY OF HOME AFFAIRS
             NEW DELHI

Advocate for the Petitioner   : MR.U DAS

Advocate for the Respondent : GA, ASSAM
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                                          BEFORE
                          HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
                           HONOURABLE MRS. JUSTICE MALASRI NANDI

                                             ORDER

Date : 15-11-2021

(N. Kotiswar Singh, J.)

Heard Mr. D.K. Bagchi, learned counsel for the petitioner. Also heard Mr. A. Kalita, learned Special Counsel, FT.

2. In this writ petition, the petitioner has challenged the impugned order dated 10.04.2017 passed by the Foreigners Tribunal No.1, Goalpara in Case No. 7097/G/2016 on the ground that the Tribunal has not properly appreciated the minor discrepancy in the name of her father, which has been reflected as Aroujullah, son of Ahmed Munshi, and shown as Aroj Ullya somewhere else.

3. The Tribunal did not accept the plea of the petitioner that Aroujullah and Aroj Ullya relate to the same person, i.e., the father of the petitioner.

4. We have also noted, as submitted by learned counsel for the petitioner, that her sister Moriyom Bibi was declared an Indian by the same Tribunal in FT Case No.3750/G/2011 vide opinion dated 05.08.2013 and, accordingly, it has been submitted that since the petitioner's sister has been declared an Indian, there is no reason why the petitioner should not be declared as an Indian also when they are born to the same parents.

5. As submitted by Mr. Kalita, learned Special Counsel, FT, we have noted that the said opinion dated 05.08.2013 passed by the Foreigners Tribunal, Goalpara was not brought to the notice of the Tribunal when it considered the case of the petitioner and there is also no reference of the same in the written statement filed by the petitioner.

6. While appreciating the aforesaid submission of the learned Special Counsel, FT to be correct, what we have noted is that in the earlier reference against Moriyom Bibi, which was disposed of on 05.08.2013, the said Moriyom Bibi had claimed that her parents were late Arojullah Sk, son of late Ahammad Munchi and late Hamiron Nessa, who were residents of village Kabaitary Pt IV under Abhayapuri PS and their names were enrolled in the voters list Page No.# 3/5

of 1966 under 43 No. Bongaigaon LAC.

7. When we compared the said statement of Moriyom Bibi with Ext.A which is the voters list of 1966 relied on by the petitioner, we find that the said Ext.A bears the same names which the petitioner claims to be her parents as well as the same village and also the same LAC. In other words, the aforesaid Moriyom Bibi had relied upon the same document, that is, the voters list of 1966 to claim her parentage which evidence has also been relied upon by the present petitioner in the present proceeding. Further, we have also noted that as mentioned in the order dated 05.08.2013 passed in FT Case No.3750/G/2011, that there is a recording by the Tribunal to the effect that the said Moriyom Bibi had another sister called Ashiya Begum. The relevant portion of the opinion reads as follows:-

"In the cross examination whatever the DW1 stated as appears to me is that she did not cast vote before marriage and she was given marriage with Abdul Hussain S/O late Kitabuddin Sk of village Bujruk Manikpur under the then Goalpara PS in year 1876 before 7/8 months of attaining puberty and within one year of marriage she casted her first vote. She did not see her grandparent late Ahmad Munchi and late Nosiron Bibi and their house was at Kabaitary Pt II under Abhayapuri PS where her father and she herself were also born. Grandfather left 2 sons and one daughter - late Arajulla Sk her father, late Idrish Ali and late Roheda Bibi. Late Hamiron Nesa was her mother and house of her maternal grandfather was at Pasaniya Gaon. Her father left 3 sons and 4 daughters- Asiron Bibi, Abdul Rahman, respondent herself, Ashiya Begum, Nazira Begum, Nur Rahman, AR Rahman. After marriage for 15/16 years she was at Bujruk Manikpur and thereafter due to separation and shortage of land property her husband shifted to Paikan Pt II(Charali). Thereafter, her name was proposed for enrolment but they both her husband and wife were made to be D voter. She has furnished a copy of judgment of her husband.

The statement of DW2 was not pressed as we have got entire story from statement of DW1."

8. In the said cross-examination, she had clearly mentioned that her father had left three sons and four daughters, namely, Asiron Bibi, Abdul Rahman, Ashiya Begum, Nazira Begum, Page No.# 4/5

Nur Rahman and A.R. Rahman. The name of Ashiya Begum (the present petitioner), thus, finds place in the said cross-examination of Moriyom Bibi as her sister.

9. Thus, from the above, what is clearly evident is that the said Moriyom Bibi, who was declared to be an Indian by the Foreigners Tribunal, Goalpara, in FT Case No.3750/G/2011 referred to certain documents which have also been relied upon by the present petitioner where names of their parents have been shown to be same. Further, the said Moriyom Bibi has also claimed the present petitioner to be her sister.

10. Under the circumstances, we are of the view that there are sufficient materials on record to support the claim of the present petitioner Asia Begum that she is the daughter of late Arojullah Sk, son of late Ahammad Munchi and late Hamiron Nessa, residents of village Kabaitary Pt IV under Abhayapuri PS whose names were enrolled in the voters list of 1966 under No.43 Bongaigaon LAC and the present petitioner has a sister called Moriyom Bibi, who has been declared to be an Indian.

11. Thus, if the petitioner is able to prove the aforesaid facts, she can legitimately claim that she is an Indian and not a foreigner. However, as claimed by Mr. Kalita, learned Special Counsel, FT, the aforesaid opinion relating to the petitioner's sister was never produced before the Tribunal. Under the circumstances, we cannot find fault with the Tribunal in not referring to its opinion dated 10.04.2017 the earlier opinion dated 05.08.2013 made in favour of Moriyom Bibi as the same was never relied upon.

12. However, citizenship being an important right and if there are some credible and relevant evidences which the petitioner is in possession of, which may make a material difference in the opinion rendered by the Tribunal, we are of the view that the petitioner may be afforded an opportunity to prove her citizenship based on such relevant documents.

Further, the alleged discrepancy in the name of the father, that is, Arojullah Sk and Aroj Ulliya in our opinion, does not appear to be too significant to make any material difference. This discrepancy being minor and not substantial can be ignored.

13. Accordingly, without making any further observation on the merit of the case, we remand the matter to the Tribunal to reconsider the claim of the petitioner that she is an Indian and not a foreigner for which she may be allowed to rely on the aforesaid opinion Page No.# 5/5

rendered in FT Case No.3750/G/2011 by the Foreigners Tribunal, Goalpara on 05.08.2013 wherein the proceedee therein Moriyom Bibi was declared to be an Indian for which the petitioner may be permitted to lead evidence. The Tribunal will also ignore the said minor discrepancy in the name of the father as observed above.

14. The Tribunal, accordingly, after hearing the parties and considering the said opinion as well as the evidences on record, will pass a fresh opinion for which the petitioner will appear before the Foreigners Tribunal No.1, Goalpara on or before 15.12.2021.

15. It is made clear that the learned Tribunal will not be required to consider any other document except the opinion rendered in favour of Moriyom Bibi passed in FT Case No.3750/G/2011.

16. However, since the citizenship of the petitioner is under cloud, till the aforesaid proceeding is concluded, the petitioner will be allowed to remain on bail for which the petitioner will appear before the Superintendent of Police (Border), Goalpara and furnish a bail bond of Rs.5,000/- with one local surety of the like amount to the satisfaction of the Superintendent of Police (Border), Goalpara. The concerned Superintendent of Police (Border) shall also take steps for capturing the fingerprints and biometrics of the iris of the petitioner, if so advised.

The petitioner shall not leave the jurisdiction of Goalpara district without giving details of the place of destination and her place of stay to the Superintendent of Police (Border), Goalpara.

17. Let the LCR be sent back immediately.

                       JUDGE                            JUDGE



Comparing Assistant