Assam Resident Declared ‘Foreigner’ By Nagaon Tribunal: Gauhati High Court Quashes 2018 Decision, Says Tribunal Didn't Consider Material On Record
The Gauhati High Court on Tuesday set aside an order declaring an Assam resident as a foreigner, observing that the Foreigners Tribunal did not take note of the material on record while passing the decision.The division bench of Justice Achintya Malla Bujor Barua and Justice Arun Dev Choudhury relied upon the deposition of the petitioner’s mother and the other materials on record...
The Gauhati High Court on Tuesday set aside an order declaring an Assam resident as a foreigner, observing that the Foreigners Tribunal did not take note of the material on record while passing the decision.
The division bench of Justice Achintya Malla Bujor Barua and Justice Arun Dev Choudhury relied upon the deposition of the petitioner’s mother and the other materials on record and held that he has successfully established a link with his mother and father and therefore he is not a foreigner.
"As we have arrived at the clear conclusion that the petitioner has established his link with Abbas Ali whose name appeared in the voters’ list of 1965 of Goroimari village and the materials through which the link was established have not been taken note by the learned Tribunal, we accordingly, set aside the order/opinion dated 29.06.2018 in FT Case No. 252/2009 of the Foreigners Tribunal 1st at Nagaon, Assam and declare that it cannot be held that the petitioner is a foreigner who had entered the State of Assam subsequent to 24.03.1971," said the court.
Facts
The petitioner Md. Jamir Ali was referred to the Foreigners Tribunal 1st at Nagaon for a determination as to whether he is a person who had entered India subsequent to 24.03.1971, which resulted in registration of FT Case No. 252/2009. In June 2018, the Tribunal declared him a foreigner "who had entered the State of Assam subsequent to 24.03.1971."
In the reference, Ali had examined his mother Haleman Nessa who was about 80 years at the time of rendering the evidence. She in her deposition stated that Ali is her son and her entire family including the children are all Indians. She said no other case questioning the citizenship is pending against her family members.
Ali also exhibited the voters’ list of 1965 in respect of Goroimari village wherein at Sl. No. 98 the name of his mother appeared, showing her husband to be Abbas Ali. The petitioner also exhibited the voters’ list of village Shillongoni of the year 1993 which shows his name at Sl. No. 87 and indicates his father to be Abbas Ali. He also exhibited 1993 voters’ list of village Shillongoni which contains the name of his brother Rustom Ali at Sl. No. 86 showing his father to be Abbas Ali. The voters’ list of 1993 of village Shillongoni at Sl. No. 85 also contains the name of Haleman Nessa, wife of Late Abbas Ali.
Before high court, his counsel argued that Ali's mother Haleman Nessa in her evidence had clearly stated that her husband was Abbas Ali Sarkar who was a resident of village Goroimari and that her husband died while the petitioner was still in her womb and in the circumstances she shifted to her parental home at village Shillongoni. She also stated that her son was born at village Shillongoni.
Court’s Decision
The court said a link is established to the extent that the petitioner's mother in her deposition stated that she had shifted to village Shillongoni after the death of her husband along with her three children namely Rustom Ali, Jamir Ali and Sahar Ali.
"The voters’ list of 1993 of village Shillongoni shows the name of the mother of the petitioner Haleman Nessa, showing her husband to be Abbas Ali as well as that of his elder brother Rustom Ali showing his father to be Abbas Ali and that of the petitioner again showing his father’s name to be Abbas Ali," said the court.
It also noted that the voters’ list of 1965 of Goroimari village shows the name of Haleman Nessa showing her husband to be Abbas Ali. "The aforesaid materials clearly establish the link of the petitioner with that of Abbas Ali of Goroimari whose name appeared in the 1965 voters’ list of the same village," the court said.
It further said the evidence of the petitioner's mother had not been controverted by the state authorities in cross examination before the Tribunal so as to dispute her claim that the petitioner is her son whose father died while he was still in the womb.
"Upon perusal of the order/opinion of the learned Tribunal it is noticed that the aforesaid materials on record have not been taken note of while declaring that the petitioner is a foreigner who had entered the State of Assam subsequent to 24.03.1971," said the court, while quashing the Tribunal decision.
Case Title: Jamir Ali v. Union of India & 6 Ors.
Citation: 2023 LiveLaw (Gau) 5
Coram: Justice Achintya Malla Bujor Barua and Justice Arun Dev Choudhury
Judgment Date: 17.01.2023