Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 55 (GAU)

Shaha Ali @ Saha Ali v. Union Of India

2020-01-20

MANOJIT BHUYAN, NANI TAGIA

body2020
JUDGMENT Nani Tagia, J. - Heard Mr. A. Das, learned counsel, appearing on behalf of the review petitioner. Also heard Ms. G. Hazarika, learned counsel appearing on behalf of Respondent No. 1; and Mr. A. Kalita, learned counsel appearing on behalf of Respondents No. 2, 3 & 4. 2. This Review Petition has been filed by the petitioner seeking review of the order, dated 13.12.2018, passed by this Court in WP(c)4158/2017 by which order, the writ petition filed by the petitioner, assailing the order, dated 05.06.2017, passed by the learned Member, Foreigners Tribunal, Chirang, Assam, in Case No. FT/CHR/08/16, holding the review petitioner/writ petitioner to be an illegal migrant of post-1971 stream, was dismissed. 3. While dismissing the writ petition filed by the petitioner, this Court had held as follows, in the order, dated 13.12.2018 passed in WP(c)4158/2017: ' 4. 3. While dismissing the writ petition filed by the petitioner, this Court had held as follows, in the order, dated 13.12.2018 passed in WP(c)4158/2017: ' 4. In support of his case, the writ petitioner/opposite party has exhibited the following exhibits:- Exhibit-1 is the certified true copy of voters list of 1965 pertaining to HouseNo. 27, Village-Bhakuamari under No. 47 Sorbhog LAC wherein the name of oneSoyed Ali, S/O Moyoj (45 years) whom the writ petitioner/opposite party hasprojected as his grandfather is recorded as a lone voter; Exhibit-2:- is the certified true copy of voters list of 1970 pertaining to HouseNo. 27, Village-Bhakuamari under No. 47 Sorbhog LAC wherein also the name of one Soyed Ali, Son of Moyej (27 years) together with the name of SabatonNessa, wife of Soyed (50 years) whom the writ petitioner/opposite party has projected as his grandfather and grandmother respectively stands recorded; Exhibit-3:- is a digitally signed computer generated certified copy of electoral roll of 1989 pertaining to House No. 4, Village-Banduguri No. 31 under Sidli (ST)LAC wherein also the name of writ petitioner/opposite parties projected grandfather and of grandmother namely, Soyed Ali (57 years) and SabatonNessa (50 years) together with the name of writ petitioner/opposite party fatherSamad Ali (24 years) has been recorded; Exhibit-4 is the certified true copy of voters list of 1997 pertaining to House No. 73, Village-Chatiborgaon under No. 31 Sidli (ST) LAC wherein the name of the writ petitioner/opposite party father, Samad Ali 30 years and the name of Samad Alis wife Khatija Khatun (22 years) stands recorded; Exhibit-6 is the digitally signed computer generated copy of electoral roll of2014 pertaining to House No. 73, Village-Satipur under No. 31 Sidli (ST) LAC wherein the name of Samad Ali (45 years) and the name of writ petitioner/opposite party Shaha Ali @ Swahea Ali (19 years) as son of Samad Ali stands recorded. 5. From the Exhibits mentioned above, we find that Exhibits 1 and 2 are the only documents on evidence which dates back to the pre 1971 period. 5. From the Exhibits mentioned above, we find that Exhibits 1 and 2 are the only documents on evidence which dates back to the pre 1971 period. In the two Exhibits mentioned above i.e. Exhibits 1 and 2, notwithstanding the age discrepancies found in respect of Soyed Ali, we find that the name of Sayed Ali who is the projected grandfather of the writ petitioner/opposite party finds its name mentioned in both the voter list of 1965 and 1970 pertaining to House No. 27, Village Bhakuamari under No. 47 Sorbhog LAC. Since the name of the writ petitioner/opposite partys projected father Samad Ali finds its name recorded only in the electoral roll of 1989 pertaining to House No. 4 village Banduguri under No. 31 Sidli (ST) LAC, the writ petitioner/opposite party will have to show his lineage through his projected grandfather Soyed Ali which finds mentioned in the electoral roll of 1965 and 1970 (Exhibits- 1 and 2). The writ petitioner/opposite party, therefore will have to prove that his projected father Samad Ali is the son of Soyed Ali whose name finds recorded in the electoral roll of 1965 and 1970. 6. The only link document between Soyed Ali and Samad Ali is the Exhibit-3. In Exhibit-3,which is the electoral roll of 1989 pertaining to House No. 4, Village Banduguri under No. 31Sidli (ST) LAC, the name of Soyed Ali (57 years) and Sabaton Nessa (50 years), projected grandfather and grandmother of the writ petitioner/opposite party, as well as the name of the projected father of this writ petition/opposite party Samad Ali (24 years) finds recorded therein. 7. Therefore, what is required to be decided by this Court is whether Soyed Ali, the projected grandfather of the writ petitioner/opposite party of village-Banduguri [Ext. 3] is the Soyed Ali of village Bhakuamari [Ext. 1 and 2] under No. 47 Sorbhog LAC. Neither any explanation is forthcoming from the writ petitioner/opposite party nor from the records of the Tribunal explaining that the Soyed Ali of village Banduguri which finds its place in the electoral roll of 1989 is the same Soyed Ali of Village Bhakuamari of the 1965 and 1970electoral rolls, except the submission made by the learned counsel for the writ petitioner/opposite party that Soyed Ali had shifted from village Bhakuamari to villageBanduguri. 8. 8. We have perused the written statement of the writ petitioner/opposite party filed before the learned Tribunal as well as the evidence available on record. On perusal of the written statement available in the record, we do not find any explanation as to when Soyed Ali had shifted from village Bhakuamari to village Banduguri. There is no explanation forthcoming from the writ petitioner/opposite party or from the records for the period between 1970 and 1989. It is a settled position of law that all defence has to be pleaded in the first instance in a written statement to be filed before the Tribunal including the frequent shifting of the village or place of residence. If such an explanation is not forthcoming, as it has been in the instant case, that will create doubt about the identity and bonafide of the proceede. In the instant case, in the absence of any explanation, either in the written statement filed in the tribunal or any other evidence available on record, we are unable to come to a conclusion that Soyed Ali (projected grandfather of the writ petitioner/opposite party) of village Banduguri No. 31 under Sidli (ST) LAC is the Soyed Ali of village Bhakuamari whose name had been enrolled in the voters list of 1965 and 1970 under No. 47 Sorbhog LAC. 9. 9. Once we hold that Soyed Ali of village Banduguri whose name finds place in the electoral roll of 1989 is not the same Soyed Ali of village Bhakuamari of the electoral roll of1965 and 1970, which we do, the other Exhibits namely Exhibit-4 (voter list of 1997)pertaining to House No. 73 village Chatiborgaon under No. 31 Sidli (ST) LAC showing the name of Samad Ali as the projected father of the writ petitioner/opposite party and the name of Samad Alis wife of Khatija Khatun therein; Exhibit-5 (photo copy of School Certificate)and Exhibit-6 (digitally signed computer generated copy of electoral roll of 2014) pertaining to House No. 73, village Satipur under No. 31 Sidli (ST) LAC showing the name of Samad Aliand the name of writ petitioner/opposite party Shaha Ali as the son of Samad Ali, can be of no assistance to the writ petitioner/opposite party in establishing his claim of citizenship through his projected father Samad Ali, inasmuch as, Samad Ali, who is the projected father of the writ petitioner has not been able to establish his linkage with the projected grandfather of the writ petitioner/opposite party Soyed Ali as has been held above. 10. For the reasons and discussions made herein above, we are of the considered view that the writ petitioner has not been able to make out a any case for interference by this Court under Article 226 of the Constitution of India. Accordingly, we find no infirmity in the order dated 05.06.2017 passed by the learned Member, Foreigners Tribunal, Chirang in Case No. FT/CHR/08/16.' 4. The petitioner seeks review of the order, dated 13.12.2018 passed in WP(c)4158/2017, on the following grounds, as stated in Paragraphs 2A to D of the review petition, which are quoted hereinbelow: A) That the petitioner states that the name of the grandfather of the petitioner Late Soheb Ali A/o Moyej appeared in the voter List of 1965 and 1970 (Exhibit 1 and 2) wherein his House No.27, of village-Bhakuamari under No.47 Sorbhog LAC has been shown. However, the age of the grandfather has been recorded as 27 years in the voter list of 1970 which is clerical mistake have been 50 years. In the year 1975, his grandfather shifted to Banduguri village with his family from dacoits. However, the age of the grandfather has been recorded as 27 years in the voter list of 1970 which is clerical mistake have been 50 years. In the year 1975, his grandfather shifted to Banduguri village with his family from dacoits. As such the name of the grandfather of the petitioner, Soyed Ali, grandmother Sataton Nessa and father Samed Ali appeared at Serial No.196,197,204, House No.4, village Banduguri under 31 Sidli (ST) LAC in the voter list of 1989 (Exhibit-3). The age of the grandfather has also wrongly recorded as 57 years instead of 69 years in the voter list of 1989. B) That the grandfather of the petitioner also was the pattadar of a plot of land measuring 2 Bighas covered by Dag No.521 of Motinga, District-Kamrup (undivided now Baksa and his name appeared in the chita of 1964- 65. The translated and photocopy of the Chita of 1964-65 are annexed herewith and marked as Annexure No. A. C) That the father of the Petitioner shifted to nearby Satibargaon village wherein his in-laws was situated under Sidli LAC in the year 1993 due to Bodo agitation wherein the Petitioner was born on 26.06.1994 and studied at Madhya Satipur L.P. School and Satiput M.E. School. His father purchased a plot a land at Satiborgaon which was subsequently mutated in the name of the Petitioner as per order dated 12.12.1996. The said Jamabandi shows at Serial No.13 the name of the father of the Petitioner as Samed Ali, son of Sayed Ali thereby providing the linkage of the father of the Petitioner from his grandfather and the school certificates and the voter list of 2013, etc. (Ext.-5) proves the linkage of the Petitioner from his father. The copy of the Jamagandi is annexed herewith and marked as Annexure-B. D) That the Petitioner states that, his father has also sworn an Affidavit declaring on oath the shifting of the family by her father Sayed Ali from Bhakuamari village to Banduguri village and by him from Barduguri to Satiborgaon due to Bodo agitation The copy of Affidavit sworn by the Father of the Petitioner is annexed as Annexure- C.' 5. In paragraph No. 3 of the review petition, the petitioner further states that he could not collect and exhibit the documents referred to in the review petition before the learned Tribunal for want of time and also due to a communication gap between the petitioner and the counsel, the above vital facts were not stated in his written statement or were exhibited before the learned Tribunal. 6. As would be seen from the review petition as quoted hereinabove; the review petitioner seeks review of the order dated 13.12.2018 passed in WP(c)4158/2017 on the ground of vital evidence not being able to produce before the learned Tribunal. The grounds on which the review petitioner seeks review of the order dated 13.12.2018 passed in WP(c)4158/2017, is not tenable and the same cannot be accepted as a valid ground for review of the order dated 13.12.2018 passed in WP(c)4158/2017 inasmuch as this Court in exercise of supervisory jurisdiction under Article 226 of the Constitution of India in respect of the order passed by the learned Foreigners Tribunal do not examine or look into the evidence which were not produced and exhibited before the learned Tribunal. Accordingly, we do not find any error apparent on the face of the order dated 13.12.2018 passed in WP(c)4158/2017 requiring any review of the order passed. 7. In view of the above, we are of the view that no case for review of the order dated 13.12.2018 passed in WP(c)4158/2017 have been made out by the petitioner. 8. Accordingly, the review petition being devoid of merit, stands dismissed.