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2019 DIGILAW 63 (GAU)

HAZARAT @ HAZARAT ALI v. UNION OF INDIA

2019-01-21

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

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JUDGMENT : (A.M. Bujor Barua, J) Heard Mr. J. Sarmah, learned counsel for the petitioners. Also heard Mr. A Ali, learned counsel for the Election Commission of India, Mr. J. Payeng, learned standing 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 as well as Ms. G Sarma, learned counsel for the authorities under the Union of India. 2. The petitioner No.1 Hazarat Ali was referred by the Superintendent of Police (Border), Morigaon for an adjudication as to whether he is a foreigner, who had entered India after 25.03.1971. Accordingly, IM(D)T Case No.272/1999 was registered before the IM(D)T, Morigaon. On the Illegal Migrants (Determination by Tribunal) Act 1983 being declared ultra-vires by the Supreme Court, the reference made against the petitioner was transferred to the Foreigners Tribunal No.1, Morigaon and it was renumbered as Case No.FT(C) 585/2010. The Tribunal by its order dated 07.06.2018 arrived at an opinion that the petitioners had failed to discharge the burden u/s 9 of the Foreigners Act, 1946 that they are Indian citizens. Accordingly, by the said order of 07.06.2018, the petitioner No.1 Hazarat Ali, petitioner No.2 Rufiya Begum @ Rabina Begum and petitioner No.3 Musstt. Sahina Khatun @ Sakina Begum were declared to be foreigners/illegal migrants who had entered India (Assam) after 25.03.1971 from the specified territory without any valid documents. 3. As regards the petitioner No.1, reliance has been placed on the voters list of 1966 pertaining to village Silpukhuri, Mouza Silpukhuri, Police Station-Dhing, District-Nagaon, wherein at Sl No.917 the name of Siraj Ali son of Miraj Ali, aged 45 years appears. It is the claim of the petitioners that Siraj Ali is the father of the petitioner No.1. Sl No.918 of the voters list of 1966 bears the name of Jaher Banu, wife of Siraj Ali, aged 30 years. Reliance has also been placed on the voters list of 1977, wherein at Sl No.423, the name of Siraj Ali son of Mirajuddin aged about 50 years appears and at Sl No.424, the name of Jahera wife of Siraj, aged about 30 years appears. The voters list of 1977 also includes the name of Ismail, son of Siraj, aged 28 years. The voters list of 1977 also includes the name of Ismail, son of Siraj, aged 28 years. It is stated that Ismail, son of Siraj is the elder brother of the petitioner and his mother is also Jahera i.e. wife of Siraj as per the voters list of 1977, whose age is stated to be 30 years. 4. We are unable to believe the said contention as Ismail is aged 28 years, whereas Jahera is aged 30 years and therefore, Jahera cannot be the mother of Ismail. Be that as it may, on a query being put to the learned counsel for the petitioners as to what further documents the petitioner No.1 has to establish his linkage that he is the son of Siraj Ali, son of Miraj Ali aged 45 years, whose name appears in the voters list of 1966, it is stated that there is no such document available on record, which would establish the linkage except for the statement of the petitioner No.1 Hazarat Ali himself that Siraj Ali son of Miraj Ali aged 45 years of 1966 voters list pertaining to village Silpukhuri is his father. 5. In the aforesaid circumstance, we are unable to convince ourselves that the conclusion arrived at by the Tribunal in its order dated 07.06.2018 that the petitioner Hazarat Ali had failed to establish his relationship with Siraj Ali son of Miraj Ali, aged 45 years of voters list of 1966 of Silpukhuri village of Nagaon district is incorrect. 6. In view of the above, keeping in mind the provisions of paragraph-113 of the Full Bench decision of this Court rendered in State of Assam vs. Moslem Mondal, reported in 2013 (1) GLT 809, we are of the view that the petitioner Hazarat Ali had failed to make out any case for an interference under the certiorari jurisdiction under Article 226 of the Constitution of India. Accordingly, the writ petition pertaining to the petitioner No.1 Hazarat Ali stands dismissed for being devoid of any merit. 7. As regards the petitioners No.2 and 3, we have perused the materials by which the reference was made against the petitioner No.1 and we are of the view that there was no separate reference being made against the petitioner No.2 as well as the petitioner No.3. 7. As regards the petitioners No.2 and 3, we have perused the materials by which the reference was made against the petitioner No.1 and we are of the view that there was no separate reference being made against the petitioner No.2 as well as the petitioner No.3. It may be that the petitioners No.2 and 3 are directly related to the petitioner No.1, but we have already held in the judgment and order dated 04.01.2019 in Sudhir Roy and another -vs-Union of India and others in WP(C) No.6790/2018 that although a presumption can be drawn against the family members of a procedee who has ben declared as foreigner, but at the same time, such presumption would by itself not lead to a conclusion that the family members of the proceedee who has been declared to be a foreigner are also foreigners. Therefore, in the absence of any separate reference and adjudication being made, merely because they are directly related with the person declared to be a foreigner, such person by virtue of being close relative cannot by itself be so declared. 8. Accordingly, the opinion given in the order dated 07.06.2018 in case No. FT(C) 585/2010 in respect of the petitioners No.2 and 3 are set aside. The respondents, more particularly the Superintendent of Police (Border), Morigaon would be at liberty to proceed as per law, as may be advised and the observations made hereinabove against the petitioners No.2 and 3 shall not influence the Superintendent of Police, Morigaon in any manner. 9. The writ petition stands allowed in respect of the petitioners No.2 and 3 and dismissed in respect of the petitioner No.1. LCR be sent back immediately.