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2019 DIGILAW 210 (GAU)

Habiluddin (Md. ) v. Union of India

2019-02-14

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

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JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Ms. D. Ghosh, 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) Nalbari, FT Case No. (GH) 358/2015 was registered in the Foreigners Tribunal 4th Nalbari at Ghograpar. In the written statement before the Tribunal, the petitioner took the stand that the name of his father is Hayet Ali, son of Ahmed, whose name appears in the voters list of 1966 and 1970 of village Mahish Khuti Nanke, Mouza Baguribari in the erstwhile Barpeta Sub-Division. 3. To that extent, the petitioner has exhibited the voters list of 1966 of village Mahish Khuti Nanke as well as the voters list of 1970 also of village Mahish Khuti Nanke, wherein Sl. No. 159, House No. 37 of the 1966 voters list of village Mahish khuti Nanke contains the name of Hayet Ali, son of Ahmed, aged about 60 years and Sl. No. 160 is of Sarbhan Nessa wife of Hayet Ali aged about 35 years. Similarly the voters list of 1970 of village Mahish Khuti Nanke also contains the name of Hayet Ali and Sarbhan Nessa at Sl. No. 181 and 182 respectively. 4. The petitioner claims that Hayet Ali of 1966 voters list of village Mahish Khuti Nanke is his father and Sarbhan Nessa of the same list is his mother. 5. In order to establish the linkage with Hayet Ali of 1966 and 1970 voters list, the petitioner relies upon the admit card issued by the Board of Secondary Education Assam in favour of Habil Uddin, son of Hayet Ali. The petitioner seeks to rely upon the same to establish his linkage that he is the son of Hayet Ali. The contents of the admit card issued by the Board of Secondary Education would naturally be based on the records that the Board of Secondary Education Assam maintains. The petitioner seeks to rely upon the same to establish his linkage that he is the son of Hayet Ali. The contents of the admit card issued by the Board of Secondary Education would naturally be based on the records that the Board of Secondary Education Assam maintains. The records maintained by Board of Secondary Education Assam is again based on the information that is provided to the Board by the concerned school, where the candidate had read. In other words, the records maintained by the Board of Secondary Education, Assam would be based on school records maintained by the school concerned, where the candidate had read. 6. In an earlier Judgment and Order dated 3.1.2019 in WP(C) No. 3056/2018, Anima Das Vs. Union of India & Ors., it has been held that the school records and the entry in the school register may not be a public document and it must be proved in accordance with law. In other words, merely because the documents pertaining to school records have been exhibited and proved, it by itself does not mean that the contents of the documents were also proved and that an exhibition of the school records would not tantamount to a proof of all the contents of the documents which forms the record. 7. By following the aforesaid proposition as the contents of the Admit Card is based upon the school records of the concerned candidate, we are of the view that the name of the father of the concerned person as depicted in the Admit Card would also have to be proved by certain other evidence as regards its correctness. 8. The petitioner also relied upon the evidence on affidavit of the petitioner Habil Uddin as DW-1, wherein categorical statements have been made that the name of his father is Hayet Ali, son of Ahmed as appearing in the voters list of 1966 and 1970 of village Mahish Khuti Nanke of the erstwhile Kamrup district and that the name of his mother is Sarbhan Nessa, wife of Hayet Ali as appearing in the voters list of 1966 also of village Mahish Khuti Nanke of the erstwhile Kamrup district. 9. 9. A further statement was made in the evidence on affidavit that about 44 years ago the father of the petitioner along with other family members had shifted their residence from village Mahish Khuti Nanke to village, Hahdoli under Ghograpar Police Station located in the present district of Nalbari, Assam. 10. By relying on the said statement made in the affidavit on evidence, the petitioner makes a claim that the burden of proof had been discharged to establish that the father of the petitioner Hayet Ali whose name appears in the voters list of 1966 and 1970 of village Mahish khuti Nanke had shifted his residence to village Hahdoli under Ghograpar Police Station about 44 years back by raising a further contention that the respondent authorities in their cross examination had not controverted the said statement. 11. We are of the view that a further evidence being led by the petitioner in this respect would have been more clinching to arrive at a conclusion that the father of the petitioner whose name originally appeared in the voters list of 1966 and 1970 had shifted to village Hahdoli under Ghograpar Police Station along with his family members rather than wholly relying on an uncontroverted statement made by the petitioner in his evidence on affidavit before the Tribunal. 12. The most reasonable and acceptable evidence would have been if either the petitioner or the respondent authorities have produced the complete down line voters list of village Mahish Khuti Nanke of the subsequent years of 1977, 1985, 1993, 1997 etc., which may indicate the existence or nonexistence of the name of Hayet Ali in such voters list. If the name of Hayet Ali continues to appear in the subsequent voters list of village Mahish Khuti Nanke, a definite implication thereof would be that Hayet Ali of the 1966 voters list of village Mahish Khuti Nanke continued to remain in that village and he had not undertaken the shifting to another village. If the name of Hayet Ali continues to appear in the subsequent voters list of village Mahish Khuti Nanke, a definite implication thereof would be that Hayet Ali of the 1966 voters list of village Mahish Khuti Nanke continued to remain in that village and he had not undertaken the shifting to another village. On the other hand, if the name of Hayet Ali and his wife ceased to exist in the voters list of village Mahish Khuti Nanke since about 44 years prior and from that period onwards it continues to exist in the voters list pertaining to village Hahdoli under Ghograpar Police Station, the same may be an indication that he had shifted from village Mahish Khuti Nanke 44 years prior and had settled down in village Hahdoli thereafter. On the other hand, interest of justice would also be better served, if the respondent authorities do undertake the exercise of cross examining the DW-1 Habil Uddin as regards his claim that the name of his father Hayet Ali appears in the voters list of 1966 and 1970 of village Mahish khuti Nanke and that about 44 years prior he had shifted from that village and had settled down in village Hahdoli under Ghograpar Police Station. 13. A relevant consideration to establish the fact of shifting would also be the relevant revenue records and the records pertaining to payment of land revenue or the relevant materials submitted for deletion of the name in the voters list of the earlier village and consequential inclusion in the voters list of the village to which the shifting had taken place. If a stand is taken that the shifting had taken place due to erosion, the relevant revenue records containing the fact that erosion had taken place can also be relied upon. 14. The cross-examination may be effected to make a more exhaustive enquiry on the said submission of the petitioner. We have taken note of that the aforesaid aspect of the matter had not been given a due consideration by the Tribunal which in our opinion renders that order dated 08.08.2017 to be unsustainable. Accordingly the order dated 08.08.2017 of the Foreigners Tribunal 4th Nalbari at Ghograpar is set aside and the matter is remanded back for a consideration to be made as indicated above. 15. Accordingly the order dated 08.08.2017 of the Foreigners Tribunal 4th Nalbari at Ghograpar is set aside and the matter is remanded back for a consideration to be made as indicated above. 15. In order to establish the stand that the father of the petitioner had shifted from village Mahish Khuti Nanke to village Hahdoli about 44 years back, the parties can also lead any further evidence relating to land revenue records of the existence of Hayet Ali in village Mahish Khuti Nanke upto a period prior to about 44 years from today and thereafter his existence in village Hahdoli thereafter. 16. We also notice that there are discrepancies in the name of Hayet Ali in the voters list of village Mahish Khuti Nanke and village Hahdoli. The State respondents shall also raise the said issue before the Tribunal with the appropriate material. 17. Accordingly the petitioner shall appear before the Tribunal on 24.04.2019 and thereupon within a period of 45 days thereafter, the Tribunal shall give its final adjudication. 18. Writ petition is allowed to the extent indicated hereinabove. 19. Send down the LCR.