Gauhati High Court
Jamir Ali vs The Union Of India And 6 Ors on 17 January, 2023
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GAHC010163362018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5048/2018
JAMIR ALI
S/O LATE ABBAS ALI @ ABBAS ALI SARKAR
VILL AND P.O. SHILLONGONI
P.S. SADAR, NAGAON
DIST. NAGAON, ASSAM
PIN - 782002.
VERSUS
THE UNION OF INDIA AND 6 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA,
MINISTRY OF HOME AFFAIRS, NEW DELHI-110001.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6.
3:THE DEPUTY COMMISSIONER
NAGAON
PIN - 782002.
4:THE ELECTION COMMISSION OF INDIA
NEW DELHI-110001.
5:THE STATE COORDINATOR
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NATIONAL REGISTER OF CITIZENS
ASSAM
GUWAHATI - 781005.
6:THE SUPERINTENDENT OF POLICE (B)
NAGAON
DIST. NAGAON
PIN - 782002.
7:THE OFFICER-IN-CHARGE
SADAR NAGAON POLICE STATION
DIST. NAGAON
PIN 782002
Advocate for the Petitioner : MR H R A CHOUDHURY
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
JUDGMENT & ORDER (ORAL)
Date : 17-01-2023
(A.M. Bujor Barua, J)
Heard Mr. F U Barbhuiya, learned counsel for the petitioner. Also heard Mr. G Sarma,
learned counsel for the Home and Political Department of the Government of Assam, Mr. A
Ali, learned counsel for the Election Commission of India, Ms. K Phukan, learned counsel for
the Deputy Commissioner, Nagaon and Ms. L Devi, learned counsel for the authorities under
the NRC and the Union of India.
2. The petitioner Md. Jamir Ali was referred to the Foreigners Tribunal 1 st at Nagaon for a
determination as to whether the petitioner is a person who had entered India subsequent to
24.03.1971, which resulted in registration of FT Case No. 252/2009. In the reference, the
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petitioner examined his mother Haliman Nessa who was about 80 years at the time of
rendering the evidence.
3. Haliman Nessa in her deposition stated as extracted:
"On Oath
O.P. Jamer Ali is my son. At present he resides at Shilongoni. My parents-in-law died
prior to my marriage with Abbas Ali Sarkar. My husband was permanent resident of
village Goroimari P.S. Kaliabor Dist. Nagaon and he died in this village much earlier
when my son Jamir was in my womb. My husband had no land at Godaimari but his
name and my own appeared in voter list at Godaimari. I have 3 sons namely Rustom
Ali, Jamir Ali, Seher Ali and one daughter Fulbanu. After death of my husband I along
with my 3 children shifted to my father's village Shillongoni and reside there. Jamir
was born at Shillongoni but my other 3 children were born at Gadaimari. My 2 sons
Jamir Ali and Sahar Ali are still resides at Shillongoni but my one son Rustom Ali
resides at Sialmari with whom I am residing. My name appears as voter at Shillongoni
and I had cast my vote at Shillongoni and at Gadaimari. I was born at Shillongoni.
My entire family including my children are all Indians.
No any Foreigners case against any of my family member except this case
against my son Jamir is pending in any Court.
Cross Examination by A.G.P.
Jamir Ali is aged about 40 years. He is carpenter. He also cast his vote at
Shillongoni. He had purchased his own land at Shillongoni.
It is not a fact that I have deposited false to help my son."
4. The petitioner also exhibited the voters' list of 1965 in respect of Goroimari village
wherein at Sl. No. 98 the name of Haliman Nessaz appeared showing her husband to be
Abbas Ali. The petitioner also exhibited the voters' list of village Shillongoni of the year 1993
which shows his name at Sl. No. 87 by indicating his father to be Abbas Ali. The petitioner
also exhibited 1993 voters' list of village Shillongoni which contains the name of Rustom Ali at
Sl. No. 86 showing his father to be Abbas Ali. The voters' list of 1993 of village Shillongoni at
Sl. No. 85 also contains the name of Haleman Nessa wife of Late Abbas Ali.
5. The petitioner assails the order/opinion dated 29.06.2018 of the Foreigners Tribunal 1 st
at Nagaon in FT Case No. 252/2009 by which he was declared to be a foreigner who had
entered the State of Assam subsequent to 24.03.1971.
6. In the writ petition the petitioner takes a stand that his mother Haleman Nessa in her
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evidence had clearly stated that her husband was Abbas Ali Sarkar who was a resident of
village Goroimari and that her husband died while the petitioner was still in her womb and in
the circumstance the mother of the petitioner Haleman Nessa shifted to her parental home at
village Shillongoni. She also stated that the petitioner Jamir Ali was born at village
Shillongoni. The mother of the petitioner in her deposition further stated that she had shifted
to village Shillongoni along with her three children namely Rustom Ali, Jamir Ali and Sahar Ali.
The petitioner also brought in the deposition of Gaon Burah of village Shillongoni and the
Gaon Burah in his deposition had stated that he knew the petitioner Jamir Ali who was born
at village Shillongoni although the Gaon Burah may have denied the knowledge about the
father of the petitioner.
7. Having taken note of the aforesaid materials on record, a link is established to the
extent that the mother of the petitioner in her deposition stated that she had shifted to
village Shillongoni after the death of her husband along with her three children namely
Rustom Ali, Jamir Ali and Sahar Ali. The voters' list of 1993 of village Shillongoni shows the
name of the mother of the petitioner Haleman Nessa, showing her husband to be Abbas Ali
as well as that of his elder brother Rustom Ali showing his father to be Abbas Ali and that of
the petitioner again showing his father's name to be Abbas Ali.
8. The voters' list of 1965 of Goroimari village shows the name of Haleman Nessa showing
her husband to be Abbas Ali and also that of Abbas Ali. The aforesaid materials clearly
establishe the link of the petitioner with that of Abbas Ali of Goroimari whose name appeared
in the 1965 voters' list of the same village.
9. The evidence of the mother of the petitioner Haleman Nessa had not been controverted
by the state authorities in cross examination before the Tribunal so as to dispute her claim
that the petitioner is her son whose father died while he was still in the womb and that after
the death of the father of the petitioner, the mother of the petitioner along with the petitioner
had shifted to Shillongoni.
10. Upon perusal of the order/opinion of the learned Tribunal it is noticed that the aforesaid
materials on record have not been taken note of while declaring that the petitioner is a
foreigner who had entered the State of Assam subsequent to 24.03.1971.
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11. In exercise of certiorari jurisdiction the Court under Article 226 of the Constitution of
India is also required to look into as to whether all the relevant materials on record were
taken note of by the Tribunal below while arriving at its decision. As we have arrived at the
clear conclusion that the petitioner has established his link with Abbas Ali whose name
appeared in the voters' list of 1965 of Goroimari village and the materials through which the
link was established have not been taken note by the learned Tribunal, we accordingly, set
aside the order/opinion dated 29.06.2018 in FT Case No. 252/2009 of the Foreigners Tribunal
1st at Nagaon, Assam and declare that it cannot be held that the petitioner is a foreigner who
had entered the State of Assam subsequent to 24.03.1971.
12. The consequence of the aforesaid declaration be made applicable to the petitioner as
may be required under the law.
13. The LCR is returned back.
Writ petition stands allowed in the above terms.
JUDGE JUDGE
Comparing Assistant
