Gauhati High Court
Page No.# 1/9 vs The Union Of India And 5 Ors on 8 January, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/9
GAHC010232452018
2025:GAU-AS:228
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7440/2018
AMZAD TALUKDAR @ AMZAD ALI
S/O SUBHAN ALI TALUKDAR @ SUBHAN TALUKDAR @ SUBHAN
R/O VILL- PURBALOWASHUR, MOUZA- BHAWANIPUR, P.S. AND DIST.
BARPETA, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, SHASTRI BHAWAN, NEW DELHI-1.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR GUWAHATI -06.
3:THE DEPUTY COMMISSIONER
BARPETA
PO.O. AND DIST. BARPETA
ASSAM
PIN - 781301.
4:THE SUPERINTENDENT OF POLICE (B)
P.O. AND DIST. BARPETA
ASSAM
PIN -781301.
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5:THE ELECTION COMMISSION OF INDIA
NEW DELHI
TO BE REP. BY CHIEF ELECTION COMMISSIONER OF INDIA
NEW DELHI-1.
6:THE STATE CO-ORDINATOR OF NATIONAL REGISTRATION
ASSAM
BHANGAGARH
LACHIT NAGAR
GUWAHATI-5
Advocate for the Petitioner : DR. B AHMED, MR. N HAQUE,MR. S R BARBHUIYA,MR M
HUSSAIN
Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,MR J PAYENG,SC, NRC,SC, ECI,MS. A
VERMA,MR. D BARUAH
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
HON'BLE MR. JUSTICE KARDAK ETE
For the petitioner : Mr. M. Hussain, Advocate.
For respondent No.1 : Ms. K. Deka, Advocate.
For respondent Nos.2 and 4 : Mr. J. Payeng, standing counsel.
For respondent No.3 : Mr. H.K. Hazarika, Govt. Advocate.
For respondent No.5 : Mr. H. Kuli, Advocate.
For respondent No.6 : Mr. G. Sarma, standing counsel.
Date of hearing : 06.11.2024.
Date of judgment : 08.01.2025.
JUDGMENT AND ORDER
(CAV)
(K.R. Surana, J)
Heard Mr. M. Hussain, learned counsel for the petitioner. Also
heard Ms. K. Deka, learned counsel, appearing on behalf of Ms. R. Devi, learned
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CGC; Mr. J. Payeng, learned standing counsel for FT matters, representing
respondent nos. 2 and 4; Mr. H.K. Hazarika, learned Govt. Advocate for
respondent no.3; Mr. H. Kuli, learned counsel, appearing on behalf of Mr. A.I.
Ali, learned standing counsel for the respondent no.5; and Mr. G. Sharma,
learned standing counsel for respondent no.6.
2) The opinion dated 23.07.2018, passed by the learned Member,
Foreigners' Tribunal No.1st, Barpeta, in F.T. Case No. 14/2017 [arising out of
IM(D)T Ref. Case No. 5233/98], thereby answering the reference by holding the
petitioner to be foreigner of post 25.03.1971 stream, has been assailed by filing
this writ petition under Article 226 of the Constitution of India.
3) On reference being made by the Superintendent of Police
(Border), Barpeta, alleging that the petitioner, Amzad Ali, son of Sobhan of
Village- Purbalowashur, P.S. Barpeta in the district of Barpeta is a foreigner,
proceedings was registered as F.T. Case No. 14/2017. On receipt of notice, the
petitioner had entered appearance and contested the proceeding by filing his
written statement denying the allegations and in support of his stand, he had
annexed 8 (eight) documents, viz., photocopy of voter list of 1965 of projected
grandfather; photocopy of certified copy of voter list of 1970 of projected father
and mother; photocopy of certified copy of voter list of 1989, 1997 and 2010 of
projected mother; photocopy of voter list of 1997 with 'D' mark; photocopy of
land document; Gaonbura's certificate. Later on, the petitioner had also filed an
additional written statement and in addition to previously filed document, had
annexed an affidavit for name correction.
4) The petitioner had filed his evidence-on-affidavit as DW-1 and
had exhibited following 8 (eight) documents, viz., (i) photocopy of certified copy
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of the voter list of 1965 containing name of Koshim Uddin Ali and Majiran Nessa,
projected grandfather and grandmother (Ext.A); (ii) photocopy of certified copy
of voter list of 1970 of projected uncle, father, mother and aunt, Azman Ali
Talukdar, Suban Ali Talukdar, Suratan Nessa and Amiran Nessa (Ext.B); (iii) to
(v) photocopy of certified copy of voter list of 1989, 1997 and 2010 of Amiran
Nessa, projected mother (Ext.C, D and E); (vi) photocopy of jamabandi of land
(Ext.F); (vii) Gaonbura's certificate of village Purbalowashur (Ext.G); (viii)
affidavit sworn on 31.10.2017, on discrepancy regarding his name, his father's
name and his grandfather's name. Moreover, a photocopy of voter list of 1997
with 'D' mark was also filed as Annexure-1.
5) The petitioner had also examined one Azman Talukdar, the
projected uncle of the petitioner as DW-2 and he had exhibited photocopy of his
Elector Photo Identity Card (Ext.J). He had also annexed a copy of NRC of 1951
as Annexure-2. The petitioner had also examined one Maynul Haque, the
Gaonbura's of village Purbalowashur as DW-3. He had exhibited his certificate
(Ext.G) and his signature [Ext.G(1)] and he had also exhibited a photocopy of
his identity card (Ext.K).
6) It may be stated that in the impugned opinion, the learned
Member has recorded in para-8 thereof that the documents exhibited as Ext.A
to Ext.J were compared with the original.
7) The learned Tribunal, upon examining the exhibited documents,
discarded the exhibits on the ground that mere projecting a person named in
the voter list as grandfather, grandmother, father and mother is not enough and
the proceedee has to prove the same by reliable evidence and therefore, it was
held that the documents submitted by the petitioner cannot be relied upon.
Accordingly, it was held that the petitioner is a foreigner of post 1971 stream.
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8) The learned counsel for the petitioner has submitted that the
documents exhibited by the petitioner remained un-impeached and therefore,
the evidence of the DWs could not have been rejected in a casual manner. In
support of his submission, the learned counsel for the petitioner has relied on
the following decisions, viz., (a) Md. Rahim Ali @ Abdur Rahim v. The State of
Assam & Ors., (2024) 0 Supreme(SC) 575 , (b) Anjana Biswas v. Union of India
& Ors., 2023 (2) GLT 1102, (c) Motior Rahman v. Union of India & Ors., 2020
(1) GLT 330, (d) Abdul Khalique (Md.) v. Union of India & Ors., 2013 (1) GLT
941.
9) The learned standing counsel for the FT matters has made his
submissions in support of the impugned opinion by stating that the learned
Tribunal had correctly appreciated the exhibited documents and its conclusion
and finding is liable to be affirmed. It was stated that the evidence was
unreliable because the voter list of 1970, annexed to the writ petition (at pp.
26) reflected only the name of Sobhan Ali Talukdar, but in his cross-examination,
DW-1 i.e. the petitioner has stated that his father's name is Sobhan Akand,
which name does not appear in the copy of jamabandi (Ext.G) exhibited by the
petitioner.
10) Perused the records called for from the learned Tribunal. Also
considered the submissions of the appearing learned counsel and also
considered the cases cited by the learned counsel for the petitioner.
11) On the examination of the Tribunal's record, it is seen that in the
written statement, additional written statement, evidence-on-affidavit of DW-1
and DW-2 and documents exhibited by them, nowhere the name of the
projected father of the petitioner is referred as Sobhan Akand, which was stated
by the petitioner in his cross-examination on 31.10.2017. The petitioner only
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projects that his father's name is Sobhan Ali Talukdar @ Sobhan . Therefore,
except for the stray recording of name of father of the petitioner as Sobhan
Akand in his cross-examination, the name of his father is consistently recorded
as Sobhan Ali Talukdar and Sobhan. Moreover, it is seen that the learned
Tribunal has not discarded the evidence of the DW-1, DW-2 and DW-3 or any of
the exhibited documents on the ground that in his cross-examination, the DW-1
had stated his father's name to be Sobhan Akand.
12) As stated hereinbefore, the learned Tribunal has discarded the
evidence of DW-1 on the ground that mere projecting a person named in the
voter list as grandfather, grandmother, father and mother is not enough and the
proceedee has to prove the same by reliable evidence.
13) The evidence of DW-2 was discarded on the ground that he had
submitted voter list of 1970 and his EPIC i.e. Elector Voter Identity Card and no
other voter list were submitted by him.
14) The evidence of DW-3 was discarded on the ground that the
Gaonbura's evidence is only residential proof of the proceedee.
15) On the analysis of the opinion rendered by the learned Tribunal, it
is observed that the learned Tribunal had failed to take note of the fact that the
evidence of DW-1 could not otherwise be dislodged during his cross-
examination. The petitioner has specifically pleaded in paragraph 11 of his
written statement that the name of his father is Suban Ali Talukdar and he is
also known as Suban, which is written in the voter list of 1989, 1997 and 2010.
Assuming that in a given case, the name of the first voter is 'X Y Z', and the
second voter is 'A B C', then if 'A B C' is the wife of 'X Y Z', then against the
name of 'A B C', there is every likelihood that her husband's name may be
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written in the voter list as 'X' by omitting 'Y and Z'. The name of village in voter
lists of 1965, 1970, 1989, 1997 and 2010 is Purbalowashur, under P.S. Barpeta
in Barpeta District. Moreover, there was no cross-examination of DW-1 on the
evidence of DW-1 that his grandfather's, his father's and his own name appears
in the copy of sadar jamabandi of land for the surveyed year 1958-65.
Nonetheless, the sadar jamabandi (Ext.G) was discarded merely because of
discrepancy in the name of his father and grandfather and mismatch of age of
two brothers of the petitioner. In this regard, we may refer to the decision of the
Supreme Court of India in the case of Sirajul Hoque v. The State of Assam &
Ors., (2019) 0 Supreme(SC) 334, wherein it has been held to the effect that
when identity of all members of the family is established including appellant's,
he cannot be declared a foreigner just because there is discrepancy in name of
his grandfather in some of the documents. The said ratio was followed by this
Court in the case of Motior Rahman (supra). The aforesaid aspects of the matter
were not at all considered by the learned Tribunal.
16) As regards the discarding of the evidence of DW-2, it is observed
that the learned Tribunal failed to consider that DW-2 was not the proceedee.
The learned standing counsel for the FT matters has not brought to the notice
of the Court regarding existence of any substantive law in the Citizenship Act,
1955; Foreigners Act, 1946; or in the Foreigners (Tribunals) Order, 1964 or in
any binding judicial precedent by which it can be understood that even the
supporting witnesses will also have to exhibit all his voter lists even when he is
not the subject matter of enquiry. The evidence of DW- 2 that he is the paternal
uncle of the petitioner could not be dislodged in his cross-examination.
17) As regards the appreciation of the evidence of DW-3 is concerned,
the law is well settled that the Gaonbura's evidence can only be as regards the
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residence of the petitioner and his certificate is not a proof of parentage or
sonship in the absence of any contemporaneous records being exhibited by the
Gaonbura.
18) In light of the discussions above, insofar as the evidence of DW-1
and DW-2 is concerned, the Court is of the considered opinion that the rejection
of the evidence of DW-1 in respect of the jamabandi (Ext.G) and voter lists (Ext.
Nos. A to E) due to discrepancy in the names of father and grandfather of the
petitioner and mismatch of age of two brothers of the petitioner is not
sustainable in light of the two judicial precedents of Sirajul Hoque (supra) and
Motior Rahman (supra) referred hereinbefore, moreso when there was no cross-
examination of the DW-1 and DW-2 on the said two points. Therefore, the
impugned opinion dated 23.07.2018, passed by the learned Member, Foreigners
Tribunal No.1st, Barpeta, in F.T. Case No. 14/2017 [arising out of IM(D)T Ref.
Case No. 5233/98] is liable to be set aside, which we hereby do. Ordered
accordingly.
19) The proceedings of F.T. Case No. 14/2017 [arising out of IM(D)T
Ref. Case No. 5233/98] is remanded to the learned Member, Foreigners Tribunal
No.1st, Barpeta for a fresh decision in accordance with law.
20) The petitioner, namely, Amzad Talukdar @ Amzad Ali is directed to
appear before the said learned Tribunal on or before 08.02.2025, without any
necessity on part of the learned Tribunal to issue any fresh notice for
appearance. The petitioner shall produce a certified copy of this order and await
for appropriate directions from the said learned Tribunal.
21) It is further provided that on failure on part of the petitioner to
appear within the time allowed, it would be permissible for the learned Tribunal
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to treat the petitioner as absent on call and proceed ex parte against the
petitioner and pass a fresh opinion in accordance with law.
22) Let the records of the Tribunal be expeditiously returned back.
23) The writ petition stands partly allowed to the extent as indicated
above, leaving the parties to bear their own cost.
JUDGE JUDGE
Comparing Assistant
