BHOMAR ALI AHMED V. THE UNION OF INDIA and 3 ORS.

WP(C)/6023/2017

AI Insights

The case involves Bhomar Ali Ahmed, who filed a writ petition under Article 226 of the Constitution of India, challenging an opinion by the Foreigners Tribunal, Bongaigaon No. 2, which declared him a foreigner based on documents and evidence presented. The Tribunal's decision was contested due to alleged misreading and misinterpretation of the petitioner's evidence and statements, particularly regarding familial relationships and the significance of various documents like voters lists and educational testimonials. The High Court found procedural errors and misinterpretations by the Tribunal, leading to the setting aside of the Tribunal's opinion and remanding the case for a fresh evaluation.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 722000 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 05-09-2019
• Assessment Year: misc
• Laws Referred To: Article 226 of the Constitution of India
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: G HAZARIKA; J PAYENG
• Assessee Lawyers: A MATIN
• Keywords: Foreigner; Foreigners tribunal; Illegal entry; Jurisdictional Error; Writ of Certiorari; Impugned opinion
• Section: 31.08.2017

Judgement Text

"Page No.# 1/4 GAHC010141892017 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 6023/2017 1:BHOMAR ALI AHMED S/O LATE TASER ALI, VILLAGE- GOALPARA PT. I, PS- ABHAYAPURI, DIST. BONGAIGAON, ASSAM VERSUS 1:THE UNION OF INDIA and 3 ORS. REP. BY THE MINISTRY OF HOME AFFAIRS, NEW DELHI 2:THE STATE OF ASSAM REP. BY THE COMMISSIONER and SECRETARY TO THE GOVT.OF ASSAM HOME DEPTT. DISPUR GUWAHATI-781006 3:THE DEPUTY COMMISSIONER BONGAIGAON DIST. BONGAIGAON 4:THE SUPERINTENDENT OF POLICE B BONGAIGAON ASSA Advocate for the Petitioner : MR.A MATIN Advocate for the Respondent : BEFORE HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE KALYAN RAI SURANA Page No.# 2/4 ORDER Date : 05-09-2019 (K.R. Surana, J) Heard Mr. A. Matin, learned counsel for the petitioner. Also heard Ms. G. Hazarika, learned counsel for the respondent No.1 and Mr. J. Payeng, learned Standing Counsel, Foreigners Tribunal appearing for respondents No.2 to 4. None appears on call for the other respondents. 2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner seeks quashing of the impugned opinion dated 31.08.2017, passed by the learned Foreigners Tribunal, Bongaigaon No. 2 at Abhayapuri in Case No. BNGN/FT-2/APR/629/2016, corresponding to BNGN IMDT Case No. 500/2004, thereby declaring him to be a foreigner who had illegally entered into the territory of India (Assam) from the specified territory after 25.03.1971 without any valid document. 3) Referring to the written statement as well as evidence-on-affidavit filed by the petitioner, learned counsel for the petitioner has submitted that the petitioner is known by two names, i.e. Bhomar Ali Ahmed and Bhomar Ali. He projects Abdul Dewani @ Abdul Ali @ Abdul as his grand-father and Misiron Nessa as his grand-mother, and Taser Ali @ Toser Ali as his father and Aymana Bewa as his mother. It is submitted that Iyakub Ali is the brother of the petitioner’s father, and that Omar Ali @ Onar Ali is the elder brother and Komed Ali is the younger brother of the petitioner. It is also projected that the grand-parents of the petitioner were all throughout resident of Village- Goalpara Part-I and that the petitioner was born there. The grand-father is stated to have died about 49 years ago, i.e. in or about the year 1968, grand-mother died about 30 years ago i.e. in or about the year 1987 and father died in the year 1983. It is submitted that the grand-mother’s age was shown as 27 years in the voters list of 1985, which is incorrect and ought to have been 74 years. 4) In support of his defence, the petitioner has exhibited the following 16 documents, viz., (i) voters list of 1966 in respect of Village- 372 Goalpara Part-I containing the names of his grand-father, grand-mother, father, paternal uncle and aunt (Ext.I); (ii) Page No.# 3/4 voters list of 1970 containing the names of father, paternal uncle and aunt of the petitioner (Ext.II); voters list of 1985 containing the names of grand-mother, mother and elder brother (Ext.III); voters list of 1997 containing the name of the petitioner, his mother and younger brother (Ext.IV); voters list of 2017 containing the names of the petitioner, his mother and younger brother (Ext.V); Elector Photo Identity Card of the petitioner (Ext.VI); Income Tax PAN Card of the petitioner (Ext.VII); Passport of the petitioner (Ext.VIII); HSLC admit card of the petitioner (Ext.IX); HSLC mark-sheet of the petitioner (Ext.IX-A); Admit Card of H.S. Examination (Ext.X); Mark-sheet of H.S. Examination (Ext.X-A); Testimonial Certificate by School (Ext.X-B); HS Examination Certificate (Ext.X-C); Sale deed of 1968 in favour of the father of the petitioner (Ext.XI); Sale deed dated of 2005 in favour of the petitioner and his brother (Ext.XII). 5) The learned counsel for the petitioner has submitted that in the impugned opinion, although learned Tribunal had referred to educational testimonials of the petitioner i.e. Exts. No.VIII, IX, IX-A, X, X-A, X-B, and X-C but no discussions was made in respect of the said exhibits. Moreover, it is submitted that the learned Tribunal had misread the pleadings and evidence on record and thereby, arrived at an incorrect conclusion, inasmuch as, in the written statement, the petitioner had clearly mentioned in paragraph 6 that Omar Ali @ Onar Ali was his elder brother, but in the impugned opinion, the learned Tribunal had wrongly held that as per written statement, Onar Ali, son of Toser Ali is his uncle, and held that in the evidence, contradictory statement was made to the effect that the said person is his brother. 6) Having heard the learned counsel for the appearing parties and perused the record received from the learned Tribunal. It is apparent from the impugned opinion, that the learned Tribunal had misread and/or misconstrued the statement made in paragraph 6 of the written statement and though the petitioner had stated that Omar Ali @ Onar Ali was his elder brother, but in the impugned opinion, the learned Tribunal had misread and/or misconstrued such statement to mean as if the petitioner had pleaded that Onar Ali was the uncle. As per the learned counsel for the petitioner, the purpose of exhibiting the voters lists, educational testimonials and two sale deeds was to establish that a link between the petitioner and other members of his grand-parents’ family i.e. uncle, parents and his own Page No.# 4/4 brothers. In this regard, we express no opinion, but as documentary evidence including Exts. No.VIII, IX, IX-A, X, X-A, X-B, and X-C has been introduced by the petitioner, it was incumbent on part of the learned Tribunal to give its finding thereon. In the considered opinion of the Court, the non-consideration of exhibits No. VIII, IX, IX-A, X, X-A, X-B, and X-C and misreading of pleadings relating to Onar Ali, brother of the petitioner is ex facie untenable, amounting to jurisdictional error by the learned Tribunal, which is a good ground for this Court to issue writ of certiorari in order to set aside and quash the impugned opinion passed by the learned Tribunal. 7) Accordingly, the impugned opinion dated 31.08.2017, passed by the learned Foreigners Tribunal, Bongaigaon No. 2 at Abhayapuri in Case No. BNGN/FT-2/APR/629/2016, corresponding to BNGN IMDT Case No. 500/2004 is hereby set aside. The matter is remanded back to the learned Tribunal with a direction to hear the arguments in the matter afresh and pass a fresh opinion in accordance with law after considering the pleadings and evidence available on record. 8) In order to curtail delay, we direct that the petitioner as well as the State shall appear before the learned Foreigners Tribunal, Bongaigaon No. 2 at Abhayapuri on 23.09.2019, in Case No. BNGN/FT-2/APR/629/2016, without any notice of appearance, and by producing a certified copy of this order, the concerned parties shall seek further instructions from the said learned Tribunal. 9) The Registry shall return back the records along with a copy of this order. JUDGE JUDGE Comparing Assistant "