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2019 DIGILAW 191 (GAU)

BANESHA KHATUN @ BALSHA KHATUN v. UNION OF INDIA

2019-02-12

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

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JUDGMENT : 1. Heard Mr. M.U. Mahmud, learned counsel for the petitioner, 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, Ms. G. Sarma, learned counsel for the authorities under the Union of India. 2. On being referred by the Superintendent of Police, Border, the F.T. Case No. 712/2007 was registered against the petitioner. Subsequently, the reference being transferred to the Foreigners' Tribunal No. 1, Kamrup (Rural), Assam it was renumbered as the GFT(R) Case No. 173/2017. 3. In the written statement, the petitioner took a stand that she is the daughter of Ramjan Miya @ Ramjan Mondal and that the name of Ramjan Miya @ Ramjan Mondal appears in the voter list of 1966 of Village- Kholabandha, Mouza Baguribari, Sub-Division, Barpeta of Barpeta District, Assam. A stand was also taken that in the voter list of 1966 of Village Kholabandha wherein the name of the mother of the petitioner, Kamalajan Nessa also appears alongwith Ramjan Miya and that their names also appeared in the voter list of 1970 of village Kholabandha. 4. A further stand was taken by the petitioner that the Gaonbura of Kholabandha village had issued a certificate in favour of the petitioner on 21.01.2017 showing that she is the daughter of Ramjan Miya of Kholabandha village, amongst others. A stand was also taken that the marriage of the petitioner was solemnized in the office of the Muslim Marriages & Divorces Register & Kazi, Mahtoli (Sontoli), Kamrup, Assam vide registration Certificate No. A/L.02 of 2016. 5. During the course of the proceeding, the petitioner exhibited the voter list of 1966 of village Kholabondha, Mouza- Baguribari, Sub-Division- Barpeta of District Barpeta, Assam which contains the names of Ramjan Miya, son of Nalu, age -43 at Sl. No. 110 and Kamalajan Nessa, wife of Ramjan, age 36 at Sl. No. 111. Both the names also appear in the voter list of 1970 which was exhibited. In order to establish a link of Ramjan Miya of voter list of 1966 of village Kholabandha, the petitioner relies upon the certificate issued by the Government Gaonburah of village Kholabondha dated 16.02.2015 which certifies that the petitioner Banesha Khatun @ Balsha Khatun is the daughter of Ramjan Mondal of village Kholabondha. 6. In order to establish a link of Ramjan Miya of voter list of 1966 of village Kholabandha, the petitioner relies upon the certificate issued by the Government Gaonburah of village Kholabondha dated 16.02.2015 which certifies that the petitioner Banesha Khatun @ Balsha Khatun is the daughter of Ramjan Mondal of village Kholabondha. 6. The Gaonburah of village Kholabondha namely Abdul Hamid was also examined as DW 2 and in his deposition he stated that the petitioner Banesha Khatun @ Balsha Khatun was born in 1973 at village Kholabandha and that the names of her parents Ramjan Miya @ Ramjan Mandal and Kamalajan Nessa appeared in the voter list of 1966. 7. The petitioner also exhibited the marriage certificate dated 05.01.2016, issued by the office of the Muslim Marriages & Divorces Register & Kazi, Mahtoli (Sontoli), Kamrup, Assam. The said certificate provides that the name of the father of the petitioner is Ramjan Miya of village Kholabandha of Barpeta District. 8. Mr. J. Payeng, learned counsel for the State of Assam, appearing on behalf of the Foreigners' Tribunal and Border Affairs raises objection to the admissibility of the certificate of the Goanburah and his deposition as well as the certificate issued by the Muslim Marriages & Divorces Register & Kazi, Mahtoli (Sontoli), Kamrup, Assam on the ground that although the Gaonbura was examined but his age is stated to be 40 years on the date of the deposition which gives an indication that he may not be having personal knowledge that the father of the petitioner is Ramjan Miya of Kholabandha village. As regards the marriage certificate dated 05.01.2016, the objection raised is that the person certifying the said certificate was not examined. 9. As regards the objection that the Gaonburah so examined was 40 years of old and therefore, he may not be having his personal knowledge that Ramjan Miya of village Kholabandha is the father of the petitioner, we are of the view that the ends of justice would be met if the Gaonburah of kholabandha village is allowed to be re-examined and cross-examined so as to extract the information as to from what source he had the knowledge that the father of the petitioner is Ramjan Miya of village Kholabandha. 10. 10. As regards the objection raised on the marriage certificate, we are of the view that as the marriage certificate was issued on the basis of the records maintained by the office of the Muslim Marriages & Divorces Register & Kazi, Mahtoli (Sontoli), Kamrup, Assam, the records of Muslim Marriages & Divorces Register & Kazi, Mahtoli (Sontoli), Kamrup, Assam be called for, for the purpose of evidence to ascertain as to the contents of the public record regarding the marriage of the petitioner. 11. In the absence of such further materials, it would be difficult to arrive at a conclusion as to whether or not the petitioner is a foreigner as referred. 12. In view of the above, the order dated 09.10.2017 of the Foreigners Tribunal, No. 1, Kamrup (Rural), Assam in GFT(R) Case No. 173/2017 is set aside and the matter is remanded back to the Tribunal for examining the aforesaid two aspects as to based upon what source had the Gaon Burah given his deposition that the father of the petitioner is Ramjan Miya of Kholabandha village and as to the contents of the records maintained by the office of the Muslim Marriages & Divorces Register & Kazi, Mahtoli (Sontoli), Kamrup, Assam as regards the marriage of the petitioner. 13. It is clarified that the petitioner shall not be allowed to adduce any further evidence and the aforesaid requirement of calling records from the office of the Muslim Marriages & Divorces Register & Kazi, Mahtoli (Sontoli), Kamrup, Assam and the examination of the Gaonburah be undertaken by the state authorities. 14. The petitioner shall appear before the Tribunal on 18.03.2019 and upon her appearance by doing the needful as indicated above, the Tribunal shall give its own conclusion within a period of 30 days thereafter. 15. Send back the LCR immediately. 16. As the petitioner is in detention and in view of the fact that on the basis of the existing materials it cannot be conclusively determined as to whether she is foreigner or not, we deem it proper that the petitioner shall be released from the detention forthwith. 15. Send back the LCR immediately. 16. As the petitioner is in detention and in view of the fact that on the basis of the existing materials it cannot be conclusively determined as to whether she is foreigner or not, we deem it proper that the petitioner shall be released from the detention forthwith. The detention of the petitioner shall be subject to a surety bond to be submitted by the petitioner before the Superintendent of Police (Border), Kokrajhar from two permanent citizens or any Government official from her own village ensuring the continuous presence of the petitioner for appearing before the Tribunal all along as well as per the requirement of the State authorities as and when required. 17. The writ petition is allowed to the extent as indicated above.