Gauhati High Court
Page No.# 1/8 vs The Union Of India And 5 Ors on 24 January, 2025
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/8
GAHC010262452024
2025:GAU-AS:747-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6709/2024
HANUFA KHATUN
W/O- ACHIN ALI, RESIDENT OF VILLAGE- PUTHIMARI, P.S. SORBHOG,
DISTRICT- BARPETA, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY
OF HOME AFFAIRS, SHASTRI BHAWAN, NEW DELHI-1
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6
3:THE DISTRICT COMMISSIONER
BARPETA
P.O. AND DISTRICT- BARPETA
ASSAM
PIN- 781301
4:THE SUPERINTENDENT OF POLICE (B)
BARPETA
P.O. AND DISTRICT- BARPETA
ASSAM
PIN- 781301
5:THE ELECTION COMMISSION OF INDIA
NEW DELHI
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TO BE REPRESENTED BY CHIEF ELECTION COMMISSIONER OF INDIA
NEW DELHI-1
6:THE STATE COORDINATOR OF NATIONAL REGISTRATION
ASSAM
BHANGAGARH
LACHIT NAGAR
GUWAHATI-
Advocate for the Petitioner : MR. P K ROYCHOUDHURY, MR. N HAQUE,MR M
HUSSAIN,MR. A K AZAD,MR. S R BARBHUIYA
Advocate for the Respondent : DY.S.G.I.,
BEFORE
HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 24.01.2025
(S.P. Khaund, J)
Heard Mr. P.K. Roychouhury, learned counsel for the petitioner. Also heard
Mr. P.S. Bhattacharyya, learned CGC for the respondent No. 1, Mr. G. Sarma,
learned Standing Counsel representing the Home Department of Government of
Assam, respondent Nos. 2 and 4, Mr. R. Talukdar, learned Government
Advocate, Assam for the respondent No. 3 and Mr. H. Kuli, learned counsel
appearing on behalf of Mr. A.I. Ali, learned Standing Counsel for the Election
Commission of India, respondent No. 5.
2. The petitioner has filed this application under Article 226 of the
Constitution of India challenging the opinion dated 27.09.2018 passed by the
learned Foreigners' Tribunal No. 11th, Barpeta at Sorbhog in Case No. (Bpt/11 th)
F.T. 712/2016 whereby the petitioner was declared as a foreigner of post 1971
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stream.
3. It is submitted that the petitioner is a citizen of India and she is a voter at
village - Puthimari under 40 No. Sorbhog LAC in the district Barpeta and as
such, the Election Commission of India issued an Elector Photo Identity Card in
her favour. Aadhaar Card was also issued in her favour by the Government of
India. It is averred that the petitioner received a notice on 12.06.2018 in
connection with Case No. (Bpt/11th) F.T. 712/2016 and she appeared before the
learned Tribunal. It is contended that although the notice reveals that the
petitioner failed to produce any valid document during enquiry regarding her
citizenship but in reality no enquiry was held relating to the petitioner's
nationality, nor did the Enquiry Officer visit her house. The Electoral Registration
Officer (ERO in short) report reveals the verification of one HanufaKhatun, W/O
- Abddul Hakim, D/O - Abdul Jubbar Sonar of village - Khudnabari (Annexure-
14), which is not related to the petitioner.
4. When the police team of Sorbhog Police Station visited the petitioner's
house in her absence in the first week of November, 2024, the petitioner learnt
that an ex-parte order dated 27.09.2018 has been passed declaring her as a
foreigner of post 1971 stream in connection with the aforementioned case. The
petitioner then obtained a certified copy of the impugned ex-pare opinion on
08.11.2024.
5. It is submitted that the petitioner's name appears in the voters lists of
1997, 2005, 2010, 2017, 2019, 2021 and 2024 at village -Puthimari under No.
40 Sorbhog LAC in Barpeta district whereas, the name of her grandfather
Osman Mollah appears in the voters list of 1965 at village -Khudna Bari Pathar,
Mouza - Kharija Bijni under No. 47 Sorbhog LAC in Barpeta district. The
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petitioner could not produce the aforementioned documents in the proceedings
before the learned Tribunal and has prayed for an opportunity to prove her
citizenship before the learned Tribunal.
6. It is further submitted that the petitioner is not the daughter of Abdul
Jabbar Sonar nor she is the wife of Abdul Hakim of village - Khudnabari but
reference was made by the Superintendent of Police (Border), Barpeta [SP(B),
Barpeta in short] against the petitioner on the report of ERO of No. 40 Sorbhog
LAC based on the Local Verification Officer's report. The report shows that the
petitioner is a resident of village - Khudnabari and her father's name is shown
as Jubbar Sonar, but subsequently the name of Jubbar Sonar was struck off. Her
husband's name was written as Asin. The ERO's report reveals that the
petitioner's address is village - Puthimari. The referral officer accepted the
documents with respect to one Hanufa Khatun, W/O - Abdul Hakim, D/O -
Abdul Jubbar Sonar, a resident of village - Khudnabari under Dakhin
Gobardhana Gaon Panchayat but the petitioner is the wife of Yasin, daughter of
Hazrat Ali Mollah of village - Puthimari. It is submitted that the report of the
ERO was not in respect of the petitioner but reference against the petitioner
was made in a mechanical manner, without properly verifying the materials
collected by the LVO during investigation. In the instant case, the documents
submitted by the ERO were not in respect to the petitioner and as such, the
learned Tribunal by the impugned ex-parte opinion has erroneously declared the
petitioner to be a foreigner post 25.03.1971 stream.
7. It is contended that the Tribunal failed to cross-check the identity of the
petitioner based on materials submitted by the Referral Authority. The
proceeding ought to have been initiated against Hanufa Khatun, W/O - Abdul
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Hakim, D/O - Abdul Jubbar Sonar of village - Khudnabari on the basis of the
report of the ERO, but the proceeding was initiated against the petitioner
without any materials against her. This vitiated the proceeding which is liable to
be interfered with. There is no semblance of any reference against the
petitioner as the spot verification was made by the LVO against a lady named
Hanufa Khatun, D/O - Abdul Jubbar Sonar of village Khudnabari but
erroneously, the SP(B), Barpeta made a reference against the petitioner without
any verification and without citing any grounds.
8. It is further submitted that the petitioner appeared before the learned
Tribunal after receiving notice but subsequently she learnt that the investigation
was not against her as the ERO furnished report in respect of Hanufa Khatun,
W/O - Abdul Hakim, D/O - Abdul Jubbar Sonar of village - Khudnabari. The
petitioner, therefore, did not attend the proceeding and meanwhile, the Tribunal
proceeded ex-parte and held the petitioner to be a foreigner of post 1971
stream.
9. The petitioner learnt about the impugned judgment in the first week of
November, 2024 when the police was searching for her on the strength of the
impugned ex-parte opinion. It is reiterated that the petitioner is a naive villager
and she did not appear before the Tribunal as she presumed that she was not
required to appear before the Tribunal. It is further submitted that the petitioner
has sufficient documents to prove her citizenship and for the interest of justice,
she may be accorded one last opportunity to prove her citizenship. The
petitioner has a prima facie case and the balance of convenience tilts in her
favour.
10. The respondents have raised serious objection against the submission of
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the petitioner. It is submitted that due to the negligence of the petitioner, the
learned Tribunal passed an ex-parte order/opinion declaring the petitioner to be
a foreigner who entered into Assam from a specified territory after 25.03.1971.
11. A scrutiny of the record of the Foreigners Tribunal that was called for by
order dated 16.12.2024, reveals that notice of the concerned F.T. Case was
issued to the petitioner as wife of Achin Ali and notice was received by the
petitioner's husband who affixed his thumb impression as Achin Ali of village -
Puthimari, Police Station - Sorbhog, District - Barpeta. Scrutinizing the format
for reference, the Local Verification Officer's report (Annexure 'A') and the ERO's
report (Annexure-B), it appears that justice will be met if the petitioner is
accorded an opportunity to contest the proceeding and substantiate her
pleadings with evidence which the petitioner has claimed that she has in her
possession. There appears to be a hint of negligence on the part of the
petitioner, which impelled the Tribunal to proceed ex-parte against the
petitioner, moreso, when the order/opinion was passed on 27.09.2018 and
where-after, this writ petition has been filed on 09.12.2024.
12. The submission of the learned counsel for the petitioner that the
petitioner learnt about the ex-parte order dated 27.09.2018 when the police
team of Sorbhog Police Station visited her place in her absence in the first week
of November, 2024, is considered.
13. In the wake of the foregoing discussions, we deem it appropriate to set
aside the impugned order/opinion dated 27.09.2018 in connection with Case No.
F.T. 712/2016 (Bpt/11th) with costs of Rs.10,000/- (Rupees Ten Thousand) to be
deposited before the Gauhati High Court Legal Services Committee on or before
07.02.2025 obtaining necessary acknowledgment from the said authority in
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that regard.
14. As the impugned order/opinion dated 27.09.2018 in F.T. Case No.
712/2016 (Bpt/11) of the learned Foreigners Tribunal No.11, Barpeta at Sorbhog
has been set aside and quashed, the petitioner shall appear before the said
tribunal on or before 21/02/2025 along with a certified copy of this order and
the receipt of payment of cost of Rs.10,000/- with the Gauhati High Court Legal
Services Committee, in original.
15. As the petitioner has submitted that she has all the relevant documents to
prove her nationality, she, on 21.02.2025, shall also submit her Written
Statement along with the relevant documents which she wants to place before
the said Tribunal in F.T. Case No. 712/2016.
16. However, on the said date, i.e., on 21.02.2025, the petitioner shall also
submit her Affidavit-in-Evidence in said F.T. Case No. 712/2016 before the
learned Foreigners Tribunal No.11th, Barpeta at Sorbhog.
17. The learned Foreigners Tribunal No.11 th, Barpeta at Sorbhog need not
issue any fresh notice to the petitioner for her appearance in the said case.
18. Registry shall return the records of said F.T. Case No. 712/2016 to the
learned Foreigners Tribunal No.11th, Barpeta at Sorbhog forthwith along with a
copy of this order.
19. Needless to say that the learned Foreigners Tribunal No. 11 th, Barpeta,
Sorbhog shall dispose of said F.T. Case No. 712/2016 in accordance with law
and as per the provisions of the Foreigners Act, 1946 and the Foreigners
(Tribunals) Order, 1964.
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20. However, it is made clear that if the petitioner fails to appear before the
learned Foreigners Tribunal No. 11th, Barpeta, Sorbhog on 21.02.2025 and also
fails to submit her Written Statement as well as Affidavit-in-Evidence as directed
above, the concerned Tribunal shall be at liberty to pass appropriate order for
such non-compliance by the petitioner.
21. In terms of the above observations, this writ petition stands disposed of.
JUDGE JUDGE
Comparing Assistant
