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2019 DIGILAW 217 (GAU)

HAZARA KHATUN v. UNION OF INDIA

2019-02-18

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

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JUDGMENT : A. M. BUJOR BARUA, J. 1. Heard Mr. M. Khan, learned counsel for the petitioner. Also heard Mr. A.I. Ali, learned counsel for the Election Commission of India, 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 Dhubri, F.T. Case No.972/BLP/11 was registered against the petitioner. The reference being transferred to the Foreigners Tribunal 7th Dhubri, it was re-numbered as F.T.7th Dhubri Case No.158/BLP/17. 3. In the written statement before the Tribunal, the petitioner took the stand that the name of the grandfather of the petitioner is Nalchan Sk @ Lalchan Ali son of Bahadur Sk, whose name appears in the voter list of 1960 of village Ambari, Bhatiapara, Police station South Salmara showing his age to be 36 years and that of his brother Aychand Sk also son of Bahadur Sk by showing his age 30 years. A further stand was taken that the grandfather of the petitioner were of three brothers namely Nalchan Sk @ Lalchan Ali, Aychand Sk and Abdul Jalil and all sons of Bahadur SK. 4. During his lifetime, the grandfather of the petitioner Nalchan Sk purchased a plot of land at village Kath Danga by executing a registered sale deed dated 10.12.1962. After purchase of the aforesaid plot of land, the grand father of the petitioner along with his other family members shifted to village Kath Danga. 5. It is stated that both Nalchan Sk @ Lalchan Ali and Aychand Sk had died in the meantime and therefore, in the year 1966, only the name of Abdul Jalil appears in the voter list. The voter list of 1960 was exhibited which shows the name of Nalchan Sk, Son of Bahadur Sk. Aychand SK aged 30 of village Ambari, Bhatiapara, Police Station- South Salmara. 6. The petitioner also exhibits the registered sale deed dated 10.12.1962 by which Nalchan Sk son of Bahadur Sk of village Ambari, Police Station South Salmara had purchased a plot of land at village Kath Danga. Aychand SK aged 30 of village Ambari, Bhatiapara, Police Station- South Salmara. 6. The petitioner also exhibits the registered sale deed dated 10.12.1962 by which Nalchan Sk son of Bahadur Sk of village Ambari, Police Station South Salmara had purchased a plot of land at village Kath Danga. The said sale deed gives an indication that the grandfather of the petitioner had shifted his place of residence from Ambari Police Station-South Salmara to Village Kath Danga Satdubi Part-I. 7. The petitioner also exhibits a Kecha Patta also of village Kath Danga, Satdubi Part-I which contains the name of Lalchan, Aychan and Abdul Jalil all sons of Bahadur Sk. The kecha patta gives an indication that Abdul Jalil is one of the brothers of Lalchan who is claimed to be the grandfather of the petitioner whose name appears in the voter list of 1960 of village Kath Danga, Satdubi. 8. In his deposition on affidavit, Abdul Jalil presently aged about 77 years Son of Bahadur Sk of village Kath Danga deposes that the petitioner Hazera Khatun is the daughter of Sattar Ali and Rokeya Bibi and that Sotter Ali is the son of Nalchan Sk of village Ambari but later shifted to village Kath Danga. The said statement of Abdul Jalil being a specific deposition that the petitioner is the daughter of Abdul Jalil, who in turn is the son of Nalchan Sk whose name appears in the voter list of 1960, if acceptable and correct, establishes a link between the petitioner with Nalchan Sk of 1960 voter list of village Ambari, Bhatiapara. 9. We have perused the order of the Tribunal and take note that the aforesaid aspect of the matter was not given a consideration. 10. In view of the above, we are of the view that the order dated 26.06.2018 of the Foreigners Tribunal 7th, Dhubri at Bilasipara in F.T.7th Dhubri Case No.158/BLP/17 is unsustainable and accordingly, the same is set aside. The matter now stands remanded back to the Tribunal for a consideration as to whether the aforementioned material brought by the petitioner in evidence establishes a link of the petitioner with that of Nalchan Sk of the voter list of village Ambari, Bhatiapara. We also have taken note that the entire link of the petitioner is established only through the evidence rendered by DW-2. 11. We also have taken note that the entire link of the petitioner is established only through the evidence rendered by DW-2. 11. Accordingly, on the matter being remanded back, the DW-2 shall also be subjected to cross-examination by the State authorities to establish the veracity of the deposition being rendered by him and also as to whether the DW-2 is related with Nalchan Sk of the voter list of 1960. Upon doing the needful as indicated above, the Tribunal shall pass its reasoned order. The petitioner shall appear before the Foreigners Tribunal 7th, Dhubri at Bilasipara on 25.03.2019 and upon her appearance, the Tribunal shall do the needful as indicated above within a period of 30 days there from. Send back the LCR immediately 12. Apart from the above, the cross-examination of Abdul Jalil, no further evidence from the petitioner is admissible. The Tribunal shall also look into the matter as to whether on the evidence on record, the petitioner could establish a link with Abdus Sattar. Interim order passed earlier stands vacated.