IMPORTANT POINT
The court emphasized the necessity of a fair hearing and proper verification of identity before declaring someone a foreigner, reaffirming the principles of natural justice.

ORDER :

(S.P. Khaund, J)

Heard Mr. P.K. Roychouhury, learned counsel for the petitioner. Also heard Mr. P.S. Bhattacharyya, learned CGC for the respondent No. 1, Mr. G. Sarma, learned Standing Counsel representing the Home Department of Government of Assam, respondent Nos. 2 and 4, Mr. R. Talukdar, learned Government Advocate, Assam for the respondent No. 3 and Mr. H. Kuli, learned counsel appearing on behalf of Mr. A.I. Ali, learned Standing Counsel for the Election Commission of India, respondent No. 5.

2. The petitioner has filed this application under Article 226 of the Constitution of India challenging the opinion dated 27.09.2018 passed by the learned Foreigners’ Tribunal No. 11th , Barpeta at Sorbhog in Case No. (Bpt/11th ) F.T. 712/2016 whereby the petitioner was declared as a foreigner of post 1971 stream.

3. It is submitted that the petitioner is a citizen of India and she is a voter at village – Puthimari under 40 No. Sorbhog LAC in the district Barpeta and as such, the Election Commission of India issued an Elector Photo Identity Card in her favour. Aadhaar Card was also issued in her favour by the Government of India. It is averred that the petitioner received a notice on 12.06.2018 in connection with Case No. (Bpt/11th ) F.T. 712/2016 and she appeared before the learned Tribunal. It is contended that although the notice reveals that the petitioner failed to produce any valid document during enquiry regarding her citizenship but in reality no enquiry was held relating to the petitioner’s nationality, nor did the Enquiry Officer visit her house. The Electoral Registration Officer (ERO in short) report reveals the verification of one HanufaKhatun, W/O - Abddul Hakim, D/O - Abdul Jubbar Sonar of village – Khudnabari (Annexure-14), which is not related to the petitioner.

4. When the police team of Sorbhog Police Station visited the petitioner’s house in her absence in the first week of November, 2024, the petitioner learnt that an ex-parte order dated 27.09.2018 has been passed declaring her as a foreigner of post 1971 stream in connection with the aforementioned case. The petitioner then obtained a certified copy of the impugned ex-pare opinion on 08.11.2024.

5. It is submitted that the petitioner’s name appears in the voters lists of 1997, 2005, 2010, 2017, 2019, 2021 and 2024 at village –Puthimari under No. 40 Sorbhog LAC in Barpeta district whereas, the name of her grandfather Osman Mollah appears in the voters list of 1965 at village -Khudna Bari Pathar, Mouza – Kharija Bijni under No. 47 Sorbhog LAC in Barpeta district. The petitioner could not produce the aforementioned documents in the proceedings before the learned Tribunal and has prayed for an opportunity to prove her citizenship before the learned Tribunal.

6. It is further submitted that the petitioner is not the daughter of Abdul Jabbar Sonar nor she is the wife of Abdul Hakim of village – Khudnabari but reference was made by the Superintendent of Police (Border), Barpeta [SP(B), Barpeta in short] against the petitioner on the report of ERO of No. 40 Sorbhog LAC based on the Local Verification Officer’s report. The report shows that the petitioner is a resident of village – Khudnabari and her father’s name is shown as Jubbar Sonar, but subsequently the name of Jubbar Sonar was struck off. Her husband’s name was written as Asin. The ERO’s report reveals that the petitioner’s address is village - Puthimari. The referral officer accepted the documents with respect to one Hanufa Khatun, W/O – Abdul Hakim, D/O – Abdul Jubbar Sonar, a resident of village – Khudnabari under Dakhin Gobardhana Gaon Panchayat but the petitioner is the wife of Yasin, daughter of Hazrat Ali Mollah of village – Puthimari. It is submitted that the report of the ERO was not in respect of the petitioner but reference against the petitioner was made in a mechanical manner, without properly verifying the materials collected