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2019 DIGILAW 181 (GAU)

MD FULBAR ALI v. UNION OF INDIA

2019-02-07

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

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JUDGMENT : A. M. BUJOR BARUA, J. 1. Heard Mr. A Matin, learned counsel for the petitioner. Also heard Mr. AI Ali, learned counsel for the Election Commission of India and Mr. J Payeng, learned counsel for the State of Assam appearing for the Foreigners Tribunal and Border Areas, 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. On being referred by the Superintendent of Police (Border), Bongaigaon, IMDT Case No. 411 of 2002 was registered against the present petitioner. On the IM(D)T Act of 1983 being declared ultra vires, the reference made was transferred to the Foreigners' Tribunal, Bongaigaon No.2 Abhayapuri and was re-numbered as BNGN/FT/Case No. 1319/2010. 3. The petitioner in the written statement in paragraph-5 takes the stand that the father of the petitioner was an Indian citizen and a permanent resident of Assam and that the name of his grandfather was enrolled in the voter list of 1966 in respect of village -410, Nararvita Part-I and that his name was Khadem Ali, son of Mofej Uddin. A further stand was taken that the name of the grandfather of the petitioner was also enrolled with the voter list of 1970 in respect of village Naravita Part-I. It is also the stand that the name of the father of the petitioner was enrolled in the voter list of 1985 in respect of village -174- Nararvita Part-I as Jabbar Ali, son of Khadem Ali. 4. In the proceeding before the Tribunal, the petitioner submits that the voter list of 1966 in respect of village-410, Nararvita Part-I, Circle-Srijangram, Sub-Division-Goalpara district which contained the name of Khadem Ali Sheikh, son of Mofej Uddin, aged 47 years at Serial No.83, House No.37. Similarly, the voter list of 1970 in respect of village-410- Naravita Part-I also contained the name Khadem Ali, son of Mofej Uddin, aged 51 years and the voter list of 1985 of No.174-Nararvita Part-I contained the name of Jabbar Ali, son of Khadem Ali, aged 37 years and Haowa Bibi, wife of Jabbar Ali, aged 27 years. 5. It is given to understand that the Jabbar Ali, son of Khadem Ali of voter list of 1985 is the father of the petitioner. 5. It is given to understand that the Jabbar Ali, son of Khadem Ali of voter list of 1985 is the father of the petitioner. If it is so, as per the voter list of 1985, his wife as Haowa Bibi was aged 37 years. 6. But when we look into the voter list of 1997 in respect of 174 Nararvita Part-I, it is taken note of that the name of Jabbar Ali, son of Khadem Ali appears at Serial No. 534 showing his age to be 60 years. But his wife Somiron Nessa at serial 535, is shown aged about 50 years. The voter list of 1997 also contained the name of the petitioner Fulbor Ali, son of Jabbar Ali at serial 536 showing his age to be 19 years. Further, the voter list of 2014 of 174 Nararvita Part-I also shows the name of Somiron Bibi at serial 704, wife of Jabbar Ali, aged 63 years and Fulbar Ali, son of Jabbar Ali, aged 38 years. 7. Accordingly, the petitioner seeks to show that Fulbar Ali being the son of Jabbar Ali as indicated in the voter list of 1997 and 2014 is linked with Khadem Ali Sheikh of the Voter list of 1966 and 1970. 8. In order to understand the voter lists being exhibited, we take note of that in the voter list of 1985, Jabbar Ali, son of Khadem Ali is shown to be aged 37 years and his wife Haowa Bibi as 27 years. But in the voter list of 1997, son of Khadem Ali is shown 60 years and his wife Somiron Nessa is aged about 50 years. 9. Firstly, if Jabbar Ali of voter list of 1985 is also Jabbar Ali of voter list of 1997, his age could not have been 60 years as it could have been only somewhere 49 years. It is stated that Haowa Bibi, wife of Jabbar Ali of 1985 voter list has died in the meantime and therefore her name does not appear in the voter list of 1997. 10. Be that as it may, if she would have been alive, Haowa Bibi would have been 39 years as on 1997. But when we examine the voter list of 1997, we find that wife of Jabbar Ali as per the said list is Somiran Nessa, who is aged 50 years. 10. Be that as it may, if she would have been alive, Haowa Bibi would have been 39 years as on 1997. But when we examine the voter list of 1997, we find that wife of Jabbar Ali as per the said list is Somiran Nessa, who is aged 50 years. If Jabbar Ali of the voter list of 1997 and Jabbar Ali of 1985 are the one and the same person, there is no reason why his wife Samiran Nessa, whose age would have been somewhere around 38 years was not included in the voter list 1985. 11. Apart from the discrepancy in the age of Jabbar Ali in the voter list of 1997, the other relevant factor would also be that his wife as per the 1997 voter list is Somiran Nessa, aged 50 years whose name does not appear in the voter list of 1985. The aforesaid aspect gives an indication that the Jabbar Ali, son of Khadem Ali of the 1985 voter list and the Jabbar Ali, son of Khadem Ali in the voter list of 1997 may not be one and the same person. It being so, Jabbar Ali of 1997 voter list could not establish a link with Khadem Ali of voter lists 1966 and 1970. As the petitioner Fulbar Ali is directly linked with Jabbar Ali through the voter list of 1997, in the circumstance indicated above, Fulbar Ali also could not establish his link with Khadem Ali of the voter lists of 1966 and 1970. 12. In the background of the aforesaid conclusion, we find that the Tribunal in its order dated 30.08.2016 had correctly concluded that the petitioner could not discharge his burden of proof that he is the citizen of India by linking himself with Khadem Ali Sheikh of voter lists of 1966 and 1970, although, the reason stated by the Tribunal may be at a variance with the conclusion that we have arrived herein above. 13. Mr. A Matin, learned counsel for the petitioner draws the attention to the evidence of DW-2, namely, Miral Hoque, Son of Khadem Ali. 14. 13. Mr. A Matin, learned counsel for the petitioner draws the attention to the evidence of DW-2, namely, Miral Hoque, Son of Khadem Ali. 14. We find no material on record that DW-2, Miral Hoque has any link with Khadem Ali of voter lists of 1966 and 1970 and in the absence of any such link, the evidence of DW-2 that the petitioner Fulbar Ali is linked with Khadem Ali Sheikh of 1966 and 1970 is short of being acceptable. 15. In view of above, we do not find any infirmity in the order of the Tribunal dated 30.08.2016. 16. Writ petition stands dismissed on being devoid of any merit.