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2019 DIGILAW 280 (GAU)

Khushban Bibi v. Union of India

2019-03-01

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

body2019
JUDGMENT : 1. Heard Mr. A.T. Sarkar, learned counsel for the petitioner, Mr. A.I. Ali, learned counsel for the Election Commission of India, Mr. U.K. Nair, learned Senior counsel for the State of Assam, appearing for the Foreigners' Tribunal and Border Affairs, 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, Nagaon, the FT (D) Case No. 1079/2015 was registered against the petitioner before the Foreigners' Tribunal, No. 10, Nagaon at Sankardev Nagar, Hojai, Assam. In the written statement before the Tribunal, the petitioner took a stand that the name of her father Manohar Ali appeared in the voter list of 1966 of village Rowar Par, Mouza Naw-Mati in the District of Nagaon and further that the father of the petitioner had exhibited a sale deed dated 25.01.1951 and accordingly after death of her father, the land was mutated in the name of the petitioner and her other brothers and sisters. 3. Before the Tribunal, the petitioner exhibited the voter list of 1966 of village Rowar Par, Mouza Naw-Mati in the District of Nagaon, which contains the names of Manohar Ali, son of Sobed Ali, age 40 years at Sl. No. 214 and Sarful wife of Manohar Ali age 60 years at Sl. No. 215 and both of them are shown to be residing in the House No. 70. The voter lists of 1970, 1977 and 1997 are also exhibited, which contains names of Manohar Ali and Sarful but the subsequent voter list corrected the age of Sarful, wife of Manohar Ali and made it 48 years in the voter list of 1977. 4. The petitioner also exhibited a jamabondi of village Pub-Rowar Par wherein it is shown that the relevant land in question was mutated amongst, others in the name of the petitioner and her other brothers and sisters in place of Manohar Ali, son of Sobed Ali. The said jamabondi is exhibited as Ext. 15 before the Tribunal. 5. We have gone through the order of the Tribunal dated 07.09.2018 in FT (D) Case No. 1079/2015 wherein an opinion was rendered that the petitioner is a foreigner, who entered the territory of India after 25.03.1971. It is taken note of that the Ext. The said jamabondi is exhibited as Ext. 15 before the Tribunal. 5. We have gone through the order of the Tribunal dated 07.09.2018 in FT (D) Case No. 1079/2015 wherein an opinion was rendered that the petitioner is a foreigner, who entered the territory of India after 25.03.1971. It is taken note of that the Ext. 15, jamabondi had neither been taken into consideration nor it was discussed. 6. As the jamabondi may provide the link of the petitioner with Manohar Ali of voter list of 1966, we are of the view that the said jamabondi ought to have been given, at least, a consideration by the Tribunal. 7. In paragraph 113 of the pronouncement of the Full Bench in the State of Assam vs. Moslem Mondal & Ors. reported, (2013) 1 GauLT 809 , it has been provided that in the event the relevant material is not taken into consideration, it would be a case for interference under the certiorari jurisdiction under Article 226 of the Constitution of India. 8. Accordingly as the Ext. 15, the jamabandi was not taken into consideration, which may be a relevant material, the order of the Tribunal dated 07.09.2018 in FT (D) Case No. 1079/2015 is hereby set aside. The petitioner shall now appear before the Tribunal on 23.03.2019 and on her appearance, the Tribunal shall give a due consideration to the Ext. 15, jamabondi and pass its reasoned order thereon within a period of 30 days thereafter. 9. In the event, the petitioner fails to appear or does not cooperate with Tribunal within the specified period, the Tribunal shall be at liberty to pass any order as per law. 10. The writ petition is allowed to the extent indicated above.