Gauhati HC quashes order of Assam tribunal declaring person as foreigner

Guwahati (Assam) [India], January 18 : The Gauhati High Court has set aside an order given by a Foreigners' Tribunal which declared a resident of Assam as a foreigner.
The order was delivered on Tuesday by a division bench of Gauhati High Court comprising Justice Achintya Malla Bujor Barua and Justice Arun Dev Choudhary.
Gauhati High Court set aside the tribunal order delivered in June 2018. The tribunal had in June 2018, declared Ali a foreigner "who had entered the state of Assam subsequent to March 24, 1971".
Gauhati High Court said, "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 June 29, 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 March 24, 1971."
Petitioner Md. Jamir Ali was referred to the Foreigners Tribunal 1st at Nagaon for a determination as to whether the petitioner is a person who had entered India subsequent to March 24, 1971, which resulted in the registration of FT Case No. 252/2009.
Gauhati High Court relied on the statement of Petitioner Md. Jamir Ali's mother Haliman Nessa statement. Haliman Nessa who was about 80 years at the time of rendering the evidence in the tribunal has deposed that Jamer Ali is her son.
The petitioner also exhibited the voters' list of village Shillongoni of the year 1993 which shows his name at Sl. No. 87 by indicating his father to be Abbas Ali. The petitioner also exhibited the 1993 voters' list of village Shillongoni which contains the name of 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 the late Abbas Ali.
In the writ petition, the petitioner takes a stand that "his 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 circumstance the mother of the petitioner Haleman Nessa shifted to her parental home at village Shillongoni. She also stated that the petitioner Jamir Ali was born at the village of Shillongoni. The mother of the petitioner in her deposition further stated that she had shifted to the village of Shillongoni along with her three children namely Rustom Ali, Jamir Ali and Sahar Ali. The petitioner also brought in the deposition of Gaon Burah of village Shillongoni and the Gaon Burah in his deposition had stated that he knew the petitioner Jamir Ali who was born at village Shillongoni although the Gaon Burah may have denied the knowledge about the father of the petitioner."
The division bench of the Gauhati High Court said in its order that, having taken note of the aforesaid materials on record, a link is established to the extent that the mother of the petitioner in her deposition stated that she had shifted to the 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. The voters' list of 1965 of Goroimari village shows the name of Haleman Nessa showing her husband to be Abbas Ali and also that of Abbas Ali.
"The aforesaid materials clearly established 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 evidence of the mother of the petitioner Haleman Nessa 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 and that after the death of the father of the petitioner, the mother of the petitioner along with the petitioner had shifted to Shillongoni," the court observed.
"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. In exercise of certiorari jurisdiction the Court under Article 226 of the Constitution of India is also required to look into as to whether all the relevant materials on record were taken note of by the Tribunal below while arriving at its decision," said in the order copy.