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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
N. KOTISWAR SINGH, MALASRI NANDI, JJ.
Md Mainul Ali, S/o Lt. Jamir Ali @ Jamin Ali – Appellant
Versus
The Union Of India – Respondent
WP(C)/224, 229 of 2018
Decided on : 16-06-2022
Citizenship status – Foreigner - Voters lists - Challenging opinion passed by learned Foreigners Tribunal No.1 in F.T.(Nal) Case [S.P. Reference] declaring petitioner a foreigner - In this case, petitioner upon receipt of summon from the learned Tribunal filed his written statement and filed certain documents in support of his claim that he is an Indian and not a foreigner - He claims that he has been a voter at village Sariyahtoli since 2005 and is having his Photo Identity Card and he has filed copies of Electoral Rolls of 1965 and 1970 of his father Jamin Ali, Electoral Rolls of 2005 and 2016 of Mainul Ali, petitioner and Photo Identity Card of Minul Ali and a certificate from Gaonburah respectively - Learned Foreigners Tribunal-1 for re-consideration by appreciating evidences on record and in light of observations made above by us and to pass a fresh opinion as regards citizenship status of both petitioners.
Finding of the court :
In absence of any evidence, Harez Ali of Motongapar or Bahbari was not father of petitioner and also that Jamin Ali of Bardhantali and Jamir, the father of Harej Ali were different persons does not appear to be consistent with evidences as the petitioner had specifically pleaded that name of his grandfather was enlisted in Electoral Rolls of 1965 and 1970 at village Bardhantali and his father shifted to village Motongapar before birth of petitioner. It was also pleaded in written statement that some villagers called his grandfather by two names, i.e. Jamir Ali and Jamin Ali and as such, these names refer to one and same person. He also deposed before learned Tribunal to same effect - Set aside opinion rendered by learned Tribunal-1 in F.T.(Nal) Case and remanded the matter to learned Tribunal for fresh.
Result: WP(C) allowed
JUDGMENT :
N.Kotiswar Singh, J.
Heard Mr. B.K. Sarma, learned counsel for the petitioners. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K. Dev Choudhury, learned Asstt. Solicitor General of India for respondent No.1; Mr. N. Pathak, learned Standing Counsel, Foreigners Tribunal; Ms. K. Phukan, learned Govt. Advocate, Assam.
2. These two writ petitions, WP(C) No.224/2018 and WP(C) No.229/2018 are tagged together as it has been submitted that the petitioners in both the writ petitions and proceedings are relatives and they had relied on some similar set of evidences before the learned Tribunal though in two separate proceedings and the learned Tribunals have given two separate opinions.
Petitioner in WP(C) No. 224/2018 Mainul Ali is the son of Jamir Ali, whereas the petitioner in WP(C) No.229/2018 is the son of Harej Ali and grandson of Jamir Ali and as such they are related as nephew and uncle.
3. WP(C) No.224/2018
3.1 We first deal with WP(C) No.224/2018 filed by the petitioner, Md. Mainul Ali challenging the opinion dated 07.11.2017 passed by learned Foreigners Tribunal No.1, Nalbari in F.T.(Nal) Case No.(N)294/2011 [S.P. Reference No.231/09] declaring the petitioner a foreigner.
3.2 In this case, the petitioner upon receipt of summon from the learned Tribunal filed his written statement and filed certain documents in support of his claim that he is an Indian and not a foreigner.
3.3 In his written statement, the petitioner stated that he was born and brought up at village Bardhantali, Police Station and District Nalbari and his father’s name is Jamir Ali @ Jamin Ali who was a voter in 1965 and 1970 at village Bardhantali, Police Station and District Nalbari. He claimed that his mother is Jayna Bibi. It was pleaded that after partition in the family amongst his brothers, he shifted his residence to village Sariyahtoli which is adjacent to village Bardhantali and separated by a road. He claims that he has been a voter at village Sariyahtoli since 2005 and is having his Photo Identity Card and he has filed the copies of Electoral Rolls of 1965 and 1970 of his father Jamin Ali, Electoral Rolls of 2005 and 2016 of Mainul Ali, the petitioner and the Photo Identity Card of Minul Ali and a certificate from Gaonburah respectively.
3.4 He testified before the learned Tribunal as OPW-1 reiterating the stand taken by him in the written statement and exhibited the aforesaid voters lists and other documents.
3.5 The learned Tribunal noted that in the cross-examination of the petitioner, he stated that he could not remember the date and year of his birth. He also stated that his father had no brother and sister. He further stated that he did not know about the brother and sister of his grandfather.
3.6 The petitioner also examined one Hasmat Ali who was aged about 75 years, projected to be his brother as OPW3. The OPW3 deposed, interalia, that the petitioner is his youngest brother and both of them shifted their residence about 25 years ago to village Sariyahtoli from village Bardhantali. He also stated that his father had no brother and sister.
3.7 The learned Tribunal, thereafter, gave its opinion based on the reasons as mentioned in para No.9 of the impugned opinion, which is reproduced hereinbelow.
“9. On careful scrutiny of the above, it transpires that Jamin Ali, son of Rupsa Sekh was a voter in India in 1965 and 1970 at Village-Bardhantali, Police Station and District Nalbri (Ext.1 and 2). Mainul Ali son of Jamir Ali has been a voter at Village Sariyahtoli since 2005. As per Ext.9 Mainul Ali was born on 1.10.1989 to Jamir Ali. At that time the age of Jamin Ali of Ext.1 had been about 70 years. As per OPW-3 who is aged about 75 years Mainul Ali is his youngest brother. The age difference between the two is about 50 years. These facts raise serious doubt about the relation between Mainul Ali of Sariyahtoli and Jamin Ali of Bardhantali. The person referred at Village-Bardhantali was always known as Jamin Ali where as the pers
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