Gauhati High Court
Abdur Rahim @ Abdul Rahim vs The Union Of India And 5 Ors on 15 June, 2023
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GAHC010133602019
REPORTABLE
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4009/2019
ABDUR RAHIM @ ABDUL RAHIM
S/O- ABDUL ALI @ A ALI, VILL- BAGARIGURI, P.O AND P.S- JURIA, DIST-
NAGAON, ASSAM, PIN- 782124
VERSUS
THE UNION OF INDIA AND 5 ORS
REP. BY THE MIN OF HOME AFFAIRS, GOVT OF INDIA, NEW DELHI- 110001
2:THE ELECTION COMMISSION OF INDIA
REP. BY THE CHIEF ELECTION COMMISSIONER
INDIA
NEW DELHI- 110001
3:THE STATE COORDINATOR
ASSAM
NRC
BHANGAGARH
GHY- 5
4:THE STATE OF ASSAM
REP. BY THE GOVT OF ASSAM
HOME DEPTT
DISPUR
GHY- 6
5:THE SUPERINTENDENT OF POLICE (B)
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NAGAON
DIST- NAGAON
ASSAM
PIN- 782001
6:THE DEPUTY COMMISSIONER
NAGAON
DIST- NAGAON
ASSAM
PIN- 78200
Advocate for the Petitioner : MR A HUSSAIN
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HONOURABLE MR. JUSTICE NELSON SAILO
JUDGMENT
15.06.2023
(AM Bujor Barua, J)
Heard Mr. A S Choudhury, learned counsel for the petitioner. Also heard Mr. J
Payeng learned counsel for the respondents in the Home Department of
Government of Assam as well as the The Superintendant of Police (B), Nagaon,
Ms. L Devi, learned CGC appearing for the respondents in the Union of India,
Mr. N K Das learned counsel appearing for the Deputy Commissioner, Nagaon
and
heard Mr. G Sarma, learned counsel for the respondents in the Home
Department of Government of Assam as well as the The Superintendant of
Police (B) Barpeta, P.O & District Barpeta, Assam, Ms. L Devi, learned CGC
appearing for the respondents in the Union of India, Mr. AI Ali, learned counsel
for the respondents in the Election Commission of India.
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2. The petitioner Abdul Rahim had been referred to the Foreigners' Tribunal
No. 4th, Nagaon for rendering an opinion as to whether he is a foreigner within
a meaning of Foreigners' Act, 1946, resulting in the registration of FT Case No.
246/2016, wherein the Tribunal rendered an opinion dated 24.04.2019 declaring
the petitioner to be a foreigner. Being aggrieved this writ petition is instituted.
3. In the writ proceeding, the petitioner relies upon the voters list of 1970 of
village Bagariguri P.S Rupahihat in the district Nagaon, which contains the name
of Hussain son of Sabed at Sl. No. 53 as well as that of Kandar Ali son of Sabed
at Sl. No. 55 where both were shown to be residing in the same house no. 11.
The petitioner claims that Hussain son of Sabed of the 1970 voters' list of village
Bagariguri is his grandfather and Kandar Ali brother of Hussain is the younger
brother of his grandfather. The petitioner thereupon relies upon the voters' list
of 1997 of village Bagariguri which contains the name of Abdul Ali son of
Hussain Ali at Sl. No. 8 and claims that Abdul Ali is the father of the petitioner.
To establish that Abdul Ali is his father and Hussain of the 1970 voters' list is the
grandfather, the petitioner relies upon the evidence of Ranjit Bhuyan as OPW-4
who claims to be the Gaonburah of village Bagariguri. The petitioner also relies
upon the evidence rendered by Kandar Ali son of Late Sabed Ali of village
Bagariguri as OPW-3. By relying upon the evidences of OPW-3 and OPW-4, the
petitioner claims that he had discharged the burden that Hussain of the 1970
voters' list is the grandfather and Abdul Ali of the 1997 voters' list, both from
village Bagariguri, is the father.
4. It is taken note of that the petitioner seeks to establish a relevant fact
through the existence of a relationship i.e., Hussain of the 1970 voters' list is the
grandfather and Abdul Ali of the 1997 voters' list is the father. The procedure to
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be followed in establishing the relationship of one person to another is provided
under Section 50 of the Evidence Act, 1872 which is extracted as below:-
"50. Opinion on relationship, when relevant.--When the Court has to form
an opinion as to the relationship of one person to another, the opinion,
expressed by conduct, as to the existence of such relationship, or any
person who, as a member of the family or otherwise, has special means of
knowledge on the subject, is a relevant fact: Provided that such opinion
shall not be sufficient to prove a marriage in proceedings under the Indian
Divorce Act, 1869 (4 of 1869) or in prosecutions under section 494, 495,
497 or 498 of the Indian Penal Code (45 of 1860). Illustrations
(a) The question is, whether A and B were married. The fact that they were
usually received and treated by their friends as husband and wife, is
relevant.
(b) The question is, whether A was the legitimate son of B. The fact that A
was always treated as such by members of the family, is relevant.
Comments Contradiction in evidence of relationship of witness of triffle
nature, not material in a partition suit; Gowhari Das v. Santilata Singh, AIR
1999 Ori 61."
5. A reading of Section 50 of the Evidence Act, 1872 makes it discernible that
where the Court has to form an opinion to the relationship of one person to
another, the opinion expressed by any person as to the existence of such
relationship, as a member of the family or otherwise, to have special means of
knowledge of the subject, is the relevant fact.
6. In other words, we have to examine as to whether OPW-4 Ranjit Bhuyan
had any special means of knowledge on the subject that Hussain of the 1970
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voters' list is the grandfather and Abdul Ali of the voters' list of 1997 is the
father of the petitioner. A reading of the evidence rendered by OPW-4 Ranjit
Bhuyan does not make it discernible that the witness had any special means of
knowledge on the subject. From such point of view, the evidence rendered by
OPW-4 to establish the relationship would have to be rejected.
7. On a reading of the evidence of OPW-3 Kadar Ali, it is noticed that a claim
is made that Kadar Ali is in fact Kandar Ali of the 1970 voters' list who by virtue
of being the son of Sabed is the younger brother of Hussain of the 1970 voters'
list. If it is to be accepted that Kadar Ali is the younger brother of Hussain, the
requirement of having a special means of knowledge of the subject, prima facie,
appears to have been satisfied by OPW-3.
8. From such point of view matter remanded back to the Tribunal to examine
the evidence rendered by OPW-3 Kadar Ali son of Late Sabed of village
Bagariguri. For the purpose of the Home Department may cross-examine the
OPW-3 in any manner as per the advised, so as to extract the veracity as to
whether OPW-3 Kadar Ali son of Late Sabed is in fact Kadar Ali son of Sabed of
the 1970 voters' list of village Bagariguri and secondly whether the evidence
rendered by him is factually correct. The respondent Home Department may
also make verification and submit a report before the Tribunal. Upon doing the
needful, the Tribunal may pass a reasoned order thereon.
9. It is stated that Kadar Ali had in the meantime died. If it is so as the State
will not be able to cross-examine the said witnesses, the Home Department may
make their own verification or inquiry in any manner as may be advised and
submit a report before the Tribunal and such report if submitted will be
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considered to be in the nature of cross-examination.
10. For the purpose as submitted by Mr. J Payeng, the petitioner to produce
the subsequent voters' list containing the name of Kadar Ali, as well as the
Death Certificate of Kadar Ali, so as to verify whether he had existed up to the
year 2017 so as to render the evidence. Upon doing the needful, the Tribunal
may pass a reasoned order thereon.
11. If the reasoned order is in favour of the petitioner, the same shall prevail
over the earlier opinion dated 27.12.2018 and if it goes against the petitioner,
consequence as per law shall follow.
12. The petitioner shall appear before the concerned Foreigners Tribunal on
20.07.2023. Till the reasoned order is passed, no coercive action be taken
against the petitioner.
13. The writ petition is allowed as indicated above.
14. Send back the LCR immediately.
JUDGE JUDGE
Comparing Assistant
