Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 11 (GAU)

Marium Nessa @ Morium Khatoon v. Union of India

2019-01-07

ACHINTYA MALLA BUJOR BARUA, PRASANTA KUMAR DEKA

body2019
JUDGMENT : A.M. BUJOR BARUA, J. 1. Heard Mr. M.U. Mahmud, learned counsel for the petitioner. Also heard Mr. A Ali, learned counsel for the Election Commission of India, Mr. UK Nair, learned standing counsel for the State of Assam appearing for the Foreigners Tribunal and Border matters, Ms. A Verma, learned standing counsel for the authorities under the NRC as well as Ms. G Sarma, learned counsel for the authorities under the Union of India. 2. The petitioner was referred by the Superintendent of Police to the Foreigners Tribunal, Bongaigaon for an opinion as to her citizenship and accordingly BNGN/FT-2/APR/Case No.204/2016 was registered before the Foreigners Tribunal Bongaigaon No.2, Abhayapuri. 3. Before the Foreigners Tribunal, the petitioner relied upon the voters list of 1965 and 1970, which shows the name of Haydar Ali son of Momrej Ali at Sl No.256 of the list of 1965 and Sl No.78 of the list of 1970. The vernacular version of the voters list of 1970 annexed as Annexure-3 page 19 of the writ petition shows the name of Hader Ali son of Momrej at Sl No.269, Abiron Nessa, wife of Hayder at Sl No.270 and Hazarat Ali, son of Hayder at Sl No.271. The petitioner also brings in evidence the deposition of one Hasmat Ali as DW-2, wherein it is stated that the petitioner is his younger sister and she was born in the year 1965 in the village Kujarpith of the undivided Kamrup district presently the district of Barpeta. It was also deposed that the name of the father of the petitioner is Hayder Ali Khan and the name of her grandfather is Momrej Ali and further the name of her mother is Abiron Nessa. The petitioner also relies upon the Kabin Nama dated 29.05.1984, which shows her to be the bride and the name of her father was recorded as Hayder Ali Khan and a Jamabandi of the year 1935- 36, which shows the name of the Pattadar to be Hayder Ali Khan, son of Momrej Ali and further the notice issued by the Tribunal, which addressed the petitioner to be the daughter of Hayder Ali. 4. Accordingly, it is the contention of the petitioner that the Kabin Nama dated 29.05.1984, the Jamabandi of the year 1935-36 and the notice of the Tribunal are documents, which indicate the linkage of the petitioner with Hayder Ali Khan to be her father. 4. Accordingly, it is the contention of the petitioner that the Kabin Nama dated 29.05.1984, the Jamabandi of the year 1935-36 and the notice of the Tribunal are documents, which indicate the linkage of the petitioner with Hayder Ali Khan to be her father. The petitioner also relies upon the evidence of the DW-2 Hasmat Ali to establish that the name of her father is Hayder Ali Khan. 5. The Foreigners Tribunal by its order dated 21.07.2018 was of the view that the Exhibit-3 Kabin Nama of the year 1984 was not proved. The further reliance of the petitioner on the Exhibit-6 certificate issued by the Secretary of the Golia Gaon Panchayat was also found to be unacceptable as the author of the certificate did not testify before the Tribunal to prove the certificate. The Tribunal was also of the view that the subsequent voters list of the year 1997, 2006, 2010 and 2016 relied upon by the petitioner also does not establish her linkage with Hayder Ali Khan to be her father. 6. As regards the Jamabandi, the Tribunal was of the view that the same merely records the name of Hayder Ali Khan without indicating anything as to how the petitioner is related with Hayder Ali Khan. 7. Upon perusal of the voters list of 1965 and 1970, it is noticed that the voters list of 1970 contains the name of Hayder Ali son of Momrej at Sl No.269, Abiron Nessa, wife of Hayder at Sl No.270 and Hazarat Ali, son of Hayder at Sl No.271. The said list does not mention anything about the DW-2 Hasmat Ali Khan. As the evidence had been led by Hasmat Ali Khan as DW-2 to establish that the petitioner is his younger sister and that Hayder Ali Khan is her father, in the absence of any indication on record that Hasmat Ali Khan is the son of Hayder Ali Khan, we are unable to accept the linkage that the petitioner seeks to make with Hayder Ali Khan of the voters list of 1966 and 1970 to be her father. In fact, it is taken note of that the DW-2 Hasmat Ali Khan himself has failed to establish any linkage of his with Hayder Ali Khan, whose name appears in the voters list of 1965 and 1970. 8. In fact, it is taken note of that the DW-2 Hasmat Ali Khan himself has failed to establish any linkage of his with Hayder Ali Khan, whose name appears in the voters list of 1965 and 1970. 8. As regards the Kabin Nama, it is firstly taken note of that the said document is not proved and secondly, it by itself does not indicate that the father of the petitioner is Hayder Ali Khan, son of Momrej, whose name appears in the voters list of 1965 and 1970, except to the extent that the name of the father of the petitioner is also Hayder Ali Khan, although the linkage that the petitioner seeks to achieve is that she is the daughter of Hayder Ali son of Momrej Ali as recorded in the voters list of 1970. The notice of the Tribunal on its own is not a piece of evidence to conclusively establish the name of the father of the noticee to whom such notice is issued. 9. In view of the inability of the petitioner to establish her linkage with Hayder Ali Khan, son of Momrej Ali, whose name appears in the voters list of 1965 and 1970, we are of the view that no infirmity can be found in the order of the Tribunal dated 21.07.2018 in BNGN/FT-2/APR/Case No.204/2016 of the Foreigners Tribunal Bongaigaon No.2, Abhayapuri. 10. Accordingly the writ petition is found to be devoid of any merit and the same stands dismissed. However, no order as to cost. Return the LCR.