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2019 DIGILAW 241 (GAU)

Md. Taminur Hussain Barlaskar v. Union of India

2019-02-21

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

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JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. HRA Choudhury, learned senior 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 appears for the authorities under the NRC as well as Ms. G Sarma, learned counsel appears for the authorities under the Union of India. 2. On being referred by the Superintendent of Police (Border), Dima Hasao, Haflong, FT Case No.32 of 2017 was registered in the Foreigners' Tribunal, Dima Hasao, Haflong. 3. Before the Tribunal, the petitioner submitted a written statement taking a stand that he is the son of Usman Ali Barlaskar, residing at village Mahadev Tilla, Police Station Haflong, Dist. Dima Hasao and to establish his linkage with Usman Ali Barlaskar, the petitioner amongst others relied upon the voter Elector Photo Identity Card, PAN Card, voters lists of 1985, 1993 and 1997 in the name of Md. Usman Ali Barlaskar and the voters lists of 2005, 2016 and 2011 showing the name of the petitioner along with Md. Usman Ali Barlaskar. 4. Before the Tribunal, the voters list of 1965, containing the name of Makmoda Bibi, wife of Haji Kala Mia as well as a land patta of 1953 in the name of Imtaz Ali were also exhibited. The petitioner also relied upon an affidavit sworn by Md. Usman Ali Barlaskar stating that Haji Kala Mia and Intaj Ali Barlaskar are one and the same person. 5. The voters list of 1965 shows the name of Makmuda Bibi to be the wife of Haji Kala Mia. It being so, a question naturally arises as to whether Haji Kala Mia and Intaj Ali, the father of Md. Usman Ali Barlaskar are one and the same person or not. 6. We have not come across any material on record from which it can conclusively be said that Kala Mia and Intaj Ali Barlaskar are one and the same person except for the affidavit of Md. Usman Ali Barlaskar. But at the same time, a registered sale deed dated 07.04.1972 has been brought to our notice by which Osman Ali Barlaskar, son of Intaz Ali Barlaskar and Makmuda Bibi, wife of Intaj Ali Barlaskar had purchased certain land. Usman Ali Barlaskar. But at the same time, a registered sale deed dated 07.04.1972 has been brought to our notice by which Osman Ali Barlaskar, son of Intaz Ali Barlaskar and Makmuda Bibi, wife of Intaj Ali Barlaskar had purchased certain land. The sale deed further mentions that the purchase of land had taken place pursuant to an agreement of sale dated 28.06.1970/29.06.1970. In the event, the registered sale deed of 07.04.1972 was pursuant to an agreement of sale dated 28.06.1970/ 29.06.1970, the same would be an indication that Usman Ali Barlaskar, son of Intaz Ali and Makmuda Bibi, wife of Intaz Ali Barlaskar existed in the State of Assam prior to 25.03.1971. But to make a conclusive determination of their existence in the State of Assam prior to 25.03.1971 on the basis of an agreement to sell dated 28.06.1970/ 29.06.1970, further materials would be required to ascertain and conclude the existence of such agreement to sell. If such materials are brought on record and the existence of the agreement to well 28.06.1970/ 29.06.1970 is established, the same can lead to a conclusion that Usman Ali Barlaskar, son of Intaz Ali Barlaskar and Makmuda Bibi, wife of Intaz Ali did exist in the State of Assam prior to 25.03.1971. Once the existence of Usman Ali Barlaskar is established, he can make his deposition in favour of the petitioner to provide him with a linkage. But the same itself would again be subject to the appropriate verification and scrutiny that the person who so deposes as Usman Ali Barlaskar is actually the same person who is referred in the sale deed dated 07.04.1972. For the purpose, the petitioner may lead any evidence to establish the existence of the agreement to sell dated 28.06.1970/ 29.06.1970. Upon such materials being brought on record, the Tribunal shall pass its reasoned order thereon. 7. As we have noticed of there being a possibility that Usman Ali Barlaskar may come forward to say that petitioner is his son and that he may be a person who existed in the State of Assam prior to 25.03.1971, we deem it appropriate that the petitioner should be given an opportunity to bring such materials on record. 7. As we have noticed of there being a possibility that Usman Ali Barlaskar may come forward to say that petitioner is his son and that he may be a person who existed in the State of Assam prior to 25.03.1971, we deem it appropriate that the petitioner should be given an opportunity to bring such materials on record. Accordingly, the order dated 25.07.2017 is hereby set aside and the petitioner shall appear before the Tribunal on 18.03.2019 along with all necessary witnesses and evidences that may be required to prove the existence of the agreement to sell dated 28.06.1970/29.06.1970, wherein Usman Ali Barlaskar, son of Intaz Ali Barlaskar was a party. 8. It is clarified that apart from the aforesaid requirement of proving the existence of the agreement to sell dated 28.06.1970/ 29.06.1970, no further evidence shall be admissible from the petitioner save and except the evidence of Usman Ali Barlaskar, son of Intaz Ali Barlaskar in the event he desires to come to depose that the petitioner is his son, provided it could be established that Usman Ali Barlaskar, son of Imtaz Ali Barlaskar himself existed in the State of Assam prior to 25.03.1971. 9. As the order of the Tribunal has been interfered with, we direct the release of the petitioner forthwith from the detention camp at Silchar upon submission of two surety bonds to the satisfaction of the Superintendent of Police (Border), Dima Hasao as well as the Superintendent of Police (Border), Cachar, Silchar respectively. Both the Superintendent of Police (Border) shall make enquiry and verify as regards the authenticity of the two prominent persons who give the surety and also satisfy themselves that the said two persons would ensure the presence of the petitioner as and when required. 10. The writ petition stands allowed to the extent indicated above.