Ajibar Sk @ Ajibar Ali V. The Union of India and The Election Commissioner of India and The State of Assam and The State Coordinator National Register of Citizens (NRC) and The Dy. Commissioner Chirang and The Superintendent of Police (B) Chirang

WP(C)/7903/2019

AI Insights

The case revolves around Ajibar Sk, who challenged the opinion of the Foreigners' Tribunal, Chirang, which declared him a foreigner based on the 1971 cutoff date for entry into Indian territory. The petitioner presented various documents and testimonies to prove his Indian citizenship, including electoral rolls and land ownership records. However, the court found these documents insufficient to establish that the petitioner's father, Maser Mollah, was present in India before the specified date. The court referenced previous judgments that deemed NRC 1951 details inadmissible as evidence, further weakening the petitioner's case.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 695983 (HC-ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH)
• Appeal Type: Others
• Pronouncement Date: 04-03-2020
• Assessment Year: misc
• Other Referred Cases: Bhanbhasa Sheikh Vs. Union of India, 1970 Assam LR 206
• Laws Referred To: Foreigners' (Tribunal) Order, 1964, Census Act, 1948
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: G HAZARIKA; B DAS; A KALITA; U DAS
• Assessee Lawyers: H R A CHOUDHURY
• Keywords: Elector Photo Identity Card; Foreigner; Foreigners tribunal; Land ownership; NRC; PAN card
• Section: 15; 2.1

Judgement Text

"Page No.# 1/5 GAHC010259492019 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 7903/2019 1:AJIBAR SK @ AJIBAR ALI S/O- LT MASER MOLLAH @ MASER UDDIN MOLLAH, VILL- GUWABARI, P.S. BASUGAON, DIST- CHIANG, ASSAM, PIN- VERSUS 1:THE UNION OF INDIA AND 5 ORS. REP. BY THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI- 110001 2:THE ELECTION COMMISSIONER OF INDIA GOVT. OF INDIA NEW DELHI- 110001 3:THE STATE OF ASSAM REP. BY COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-06 4:THE STATE CO-ORDINATOR NATIONAL REGISTER OF CITIZENS (NRC) BHANGAGARH GHY-5 5:THE DY. COMMISSIONER CHIRANG DIST- CHIRANG ASSAM PIN- Page No.# 2/5 6:THE SUPERINTENDENT OF POLICE (B) CHIRANG DIST- CHIRANG ASSAM PIN Advocate for the Petitioner : MR H R A CHOUDHURY Advocate for the Respondent : ASSTT.S.G.I. BEFORE HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE NANI TAGIA ORDER 04.03.2020 (Nani Tagia, J.) Heard Mr. H. Ali, learned counsel for the petitioner. Also heard Ms. G. Hazarika, learned CGC for the respondent No. 1; Mr. B. Das, learned Standing counsel, Election Commission for the respondent No. 2; Mr. A. Kalita, learned Standing counsel, Foreigners’ Tribunal for the respondent Nos. 3, 5 & 6 and Mr. U. Das, learned Standing counsel, NRC for the respondent No. 4. The petitioner assails the opinion dated 11.03.2019 rendered by the learned Member, Foreigners’ Tribunal, Chirang, Kajalgaon in BNGN/FT/CHR/Case No. 80/2014, whereby, the petitioner has been held to be a foreigner who had entered into the territory of Assam on or after 25.03.1971 from the specified territory. The impugned opinion dated 11.03.2019, was rendered by the learned Member, Foreigners’ Tribunal, Chirang, Kajalgaon on reference being made under Rule 2(1) of the Foreigners’ (Tribunal) Order, 1964 by the Superintendent of Police, Chirang vide Reference Basugaon P.S./I. Case No. 09/2014. On receipt of the notice from the Foreigners’ Tribunal, the petitioner filed his written statement, wherein, the writ petitioner projected one Moser Mullah @ Moser Sk, whose name, stated to be recorded in the NRC Details of 1951 at village Latibari Page No.# 3/5 under P.S. Lakhipur of District Goalpara, as his father. In the written statement filed, the petitioner/ opposite party also stated that name of his projected father Maser uddin Mollah was entered in the Electoral Roll of No. 40 Sidli (ST) LAC of the year 1971 at village Guwabari under P.S. Sidli of District Goalpara; his name was entered in the Electoral Roll of No. 31 Sidli (ST) LAC of the year 1993, 1997 & 2008 at village Guwabari of District Chirang; he is a holder of an Elector Photo identity Card(EPIC) vide Sl. No. KLM1838579 issued by the Election Commission of India, in which his place of residence is recorded as village Guwabari under P.S. Basugaon of District Chirang, Assam; he is in possession of a PAN card issued by the Income Tax Department vide Sl. No. IQBPS7949B, wherein, his name is recorded as Ajibar Seikh, S/o Lt. Macher Molla, having date of birth 04.05.1964; and that he is the absolute owner and pattadar of a plot of land measuring 3B 0K 4L, along with his brothers covered by periodic Patta No. 128 and Dag No. 431 situated at Village Guwabari under Sidli Revenue Circle of Dist. Chirang. The petitioner/opposite party examined himself as D.W.-1 by filing examination-in-chief on affidavit, wherein, he has reiterated what has been stated in the written statement. The petitioner also examined one Ali Akbar Sk., aged about 63 years, stated to be his brother as D.W. 2. The D.W. 2 in his examination-in-chief stated that he is the elder brother of the petitioner and that his father’s name is Maser Mollah@Maser Sk whose name was recorded in the NRC Details of 1951 at House No. 32, Sl. No. 3, village Latibari under P.S. Lakhipur of District Goalpara. D.W. 2 also stated that the name of his father, namely, lt. Maser Uddin Mollah was recorded in the electoral roll of No. 40 Sidli (ST) LAC in the year 1971 at village Guwabari under P.S. Sidli, District Goalpara. D. W. 2 also stated that the petitioner/opposite party is his younger brother whose name is recorded in the electoral roll of No. 31 Sidli (ST) LAC in the year 1993, 1997 and 2008, respectively; that his brother/petitioner/opposite party is the holder of EPIC vide serial No. KLM1838579 and PAN Card No. IQBPS7949B, wherein, the name of his father is written as Macher Molla; that his younger brother/petitioner/opposite party is absolute owner and pattadar of a plot of land, along with other brothers measuring 3B 0K 4L covered by Dag No. 431 and Patta No. 128, situated at village Guwabari under Sidli Revenue Circle of District Chirang and he himself is a holder of Page No.# 4/5 EPIC vide No. KLM1838591. In addition to the above, the petitioner/opposite party had exhibited the following exhibits before the learned Tribunal, which are as follows: “..Ext. A is the computer generated copy of National Register of Citizens in respect of Vill. Latibari under PS. Lakhipur, Sub Division, Goalpara, in House No. 32 at Sl No. 3 one, Maser Sk, S/o. Aju Sk has been projected as father of the OP. Ext.A.1 is the computer generated NRC details of one, Masar Sk aged about 39 years, S/o Lt. Aju Sk resident of Vill. Latibari under PS. Lakhipur of Dist. Goalpara in House No. 32 at Sl No. 3 vide Legacy Data Code 200-0007-7232. Ext.B is the computer generated image copy of Vill. Guwabari under PS. Sidli in respect of No. 40 Sidli (ST) LAC wherein in House No. 61 at Sl No. 148 name of one Maseruddin Mollah, S/o Roju Sk aged about 65 years is enlisted as voter. Ext. B.1 is the voter details of Maseruddin Mollah, S/o Roju Sk voter Sl No. 148 at Vill. Guwabari under PS. Sidli of District Goalpara under No. 40 Sidli (ST) LAC. Ext. C is the electronic certified copy of electoral roll of 1993 in respect of No. 31 Sidli (ST) LAC wherein in House No. 95 at vill. Guwabari the name of the O.P. written as Ajibar Sk, S/o. Macher Molla aged about 17 years, and another, Teruja Nessa Bibi aged about 22 years are enlisted as voters at Sl No. 354 & 355 respectively. Ext. D is the certified extract copy of voter list of 1997 in respect of No. 31 Sidli (ST) LAC wherein in House No. 116 at Vill. Guwabari the name of the OP. Ajibar Sk, S/o. Maser Molla aged about 35 years and wife of the OP, Feroja Bibi aged about 22 years are enlisted as voters at Sl No. 387 & 388 respectively. Ext. E is the certified extract copy of voter list of 2008 in respect of No. 31 Sidli (ST) LAC wherein in House No. 116 at Vill. Nehalgaon name of the OP, Ajibar Sk, S/o. Maser Molla aged about 44 years and wife of the OP, Feroja Bibi aged about 32 years are enlisted as voters at Sl No. 396 & 397 respectively. Ext.F is the Voter Id of the OP vide No. KLM1838579. Ext.G is the Pan Card of the OP vide No. IQBPS7949B. Ext.H is the certified extract copy of Jamabandi of Vill. Guwabari under Mouza, Sidli Pt. II of Dist. Chirang in respect of Patta No. 128 wherein the name of the OP, Ajibar Ali, S/o. Lt. Maser Molla is recorded as Pattadar at Sl No. 2 by virtue of order dated 05.03.2018 of Circle Officer, Sidli Revenue Circle by right of inheritance from his deceased father, Maser Mollah. Ext.H.1 is the land Revenue Clearance Certificate vide Memo No. 342/4-02/2019 dated 04.02.2019 issued by the Tahsildar, Sidli Tahsil, Sidli certifying that land revenue and local rate in respect of PP No. 128 of Vill. Guwabari, Mouza, Sidli in the Dist. Of Chirang under Sidli Revenue Circle of Rs. 18.95 for the year 2018-19 paid in respect of Ajibar Sk, S/o Lt. Maser Molla vide CFR No. 606988 dated 20.12.2018.” From the evidence that have been brought on record by the petitioner before the learned Tribunal, as have been referred to hereinabove, more particularly Ext. A & A.1., which Page No.# 5/5 is the NRC Details, it is noticed that the petitioner projects one Moser Mullah @ Moser Sk to be his father. NRC Details of 1951 have been held to be not admissible in evidence for any purpose. Reference in this regard may be made to the decision of this Court in WP(C)6090 of 2016, wherein, in paragraph-11, thereof, this Court has held as follows: “…NRC, 1951 was prepared on the basis of the Census Act, 1948. As per Section 15 of the Census Act, 1948, record of census are not open to inspection and thus not admissible in evidence. Therefore, in Bhanbhasa Sheikh Vs. Union of India, 1970 Assam LR 206, a Single Bench of this Court categorically held that NRC extracts produced to prove domicile in India is not admissible in evidence for any purpose. We are in complete agreement with the views expressed by the learned Single Judge in Bhanbhasa Sheikh (supra).” That apart, on perusal of neither the deposition of D.W.-2 nor the various exhibits, exhibited before the learned Tribunal, referred to hereinabove, proves or establishes the existence of Moser Mullah@ Moser Sk, the projected father of the petitioner in the Indian soil prior to 25.03.1971. If the existence of the projected father of the writ petitioner prior to 25.03.1971 remains not proved, question of establishing a linkage by the writ petitioner with the projected father does not arise, in order to establish that the writ petitioner is a citizen of India, having come to the Indian Soil prior to 25.03.1971. In that view of the matter, we find no infirmity with the impugned opinion dated 11.03.2019 rendered by the learned Member, Foreigners’ Tribunal, Chirang, Kajalgaon in BNGN/FT/CHR/Case No. 80/2014. The writ petition stands, accordingly, dismissed being devoid of merit. JUDGE JUDGE Comparing Assistant "