ATIFA BEGUM BARBHUIYA @ ATIFA BEGUM, D/O LATE TUAKUL ALI @ WAKUL ALI v. UNION OF INDIA
2019-01-31
ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR
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JUDGMENT : A.M. Bujor Barua, J. 1. Heard Mr. I. Alam, learned counsel for the petitioner. Also heard Mr. A Ali, learned counsel for the Election Commission of India, Mr. A. Kalita, learned standing counsel for the State of Assam appearing for the Foreigners Tribunal and Border matters, Ms. U. Das, 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 (Border), Cachar resulting in the registration of Case No.F.T 4th /D/325/2015 before the Foreigners Tribunal No.4th, Cachar at Silchar for an opinion as to whether the petitioner Atifa Begum had entered the territory of India on or after 25.03.1971. 3. Before the Tribunal, the petitioner filed her written statement taking the stand that Tuakul Ali son of late Mafur Ali of the voters list of 1965 pertaining to village Bairabpur, EP No.73, Circle No.5, House No.74, Sl No.15 is her father and that the name of her mother Mairun Nessa also appears in the voters list of 1965 immediately after Tuakul Ali. The petitioner also states that she is the legacy data holder in the NRC for the year 1966 by claiming her lineage with the aforementioned Tuakul Ali. It is also the stand in the written statement that in the voters list of 1985 pertaining to village Bhairabpur Part-II, EP No.60, House No.52, Sl No.175, the name of the petitioner appears along with her father, whose name is Wakul Ali as enlisted in the voters list of 1985. 4. Although the petitioner relies on certain subsequent voters list of 1997 and 2002, but the same is not of any help to the petitioner to establish her lineage inasmuch as the voters list of 1997 and 2002 as well as the voters list of 2015 pertains to the petitioner in her marital home, which includes the name of her husband and it has nothing to do with her lineage with her father. 5. We have taken note of that the voters list of 1965 pertains to Toyakul Ali son of Mofur Ali aged 34 years in respect of Sl No.74, House No.15 of village Bhairabpur Part-II, Electoral Part-75, Circle No.5. The voters list also contains the name of Moirun Nessa, wife of Toyakul Ali at Sl No.75.
5. We have taken note of that the voters list of 1965 pertains to Toyakul Ali son of Mofur Ali aged 34 years in respect of Sl No.74, House No.15 of village Bhairabpur Part-II, Electoral Part-75, Circle No.5. The voters list also contains the name of Moirun Nessa, wife of Toyakul Ali at Sl No.75. On the other hand, the voters list of 1985, where the name of the petitioner appears, Sl No.173, House No.52 pertains to Wakul Ali, son of Mofur Ali, aged about 55 years. Sl No.174 of the voters list of 1985 pertains to Koirun Bibi, wife of Wakul Ali, aged about 40 years and Sl No.175 pertains to Atifa Bibi i.e. the petitioner showing her to be the daughter of Wakul Ali, aged 23 years. Although the voters list of 1985 relied upon and exhibited by the petitioner is also in respect of village Bhairabpur Part-II, but it pertains to Electoral Part No.60. 6. In order to establish her linkage with Toyakul Ali of the 1965 voters list, the petitioner is required to establish that Wakul Ali son of Mofur Ali of the 1985 voters list and Toyakul Ali of 1965 voters list are one and the same person. In order to establish the linkage, the petitioner relies upon a Kabin Nama, which was exhibited as Exhibit-6. But on a perusal of the same, it is taken note of that firstly, there is no indication that the said document is registered and secondly, the Kazi involved for the purpose of issuing the Kabi Nama had not been examined. Although the Kabin Nama indicates that the father of Atifa Bibi is Tuakul Ali, but in the absence of the Kazi being examined, we are unable to accept the admissibility of the unregistered Kabin Nama, which had been exhibited as Exhibit-6. We also find no reason as to why the petitioner had not examined the concerned Kazi as all that was required was to make an application to the Tribunal requiring the Kazi to be summoned as a witness for the petitioner. 7. We have also been informed that Mairun Nessa wife of Tuakul Ali of the 1965 voters list is still alive as answered by the petitioner.
7. We have also been informed that Mairun Nessa wife of Tuakul Ali of the 1965 voters list is still alive as answered by the petitioner. We also do not find any reason that if Mairun Nessa is still alive and she is established to be the wife of Tuakul Ali as to why the said person could not be examined by the petitioner, who could have easily deposed that the petitioner Atifa Begum is her daughter. 8. In the absence of the aforesaid vital evidence, which might have linked the petitioner with Tuakul Ali of the 1965 voters list we are unable to accept that the petitioner Atifa Begum is the daughter of Tuakul Ali, whose name appears in the voters list of 1965. The Tribunal in its order dated 02.08.2018 had also recorded that the State authorities had raised objection against Exhibits-1, 3, 5, 7 and 9, but in spite of the required opportunities being given, the petitioner had failed to take any steps for effecting a verification of the aforesaid documents. It is further taken note of that the Tribunal had also recorded that in spite of the opportunities being given, the petitioner had failed to produce the original documents relied upon by her. 9. In view of the above, we are of the view that the petitioner had failed to discharge the burden as required under Section 9 of the Foreigners Act of 1946 to prove that she is a citizen of India. 10. Consequently, we do not find any infirmity in the judgment and order dated 02.08.2018 of the Foreigners Tribunal No.4th, Cachar at Silchar in Case No.F.T 4th /D/325/2015. Accordingly, the writ petition is found to be devoid of any merit and the same stands dismissed. However, no order as to cost. 11. Return the LCR immediately.