Mamtaz Begum @ Mamataz Begam vs Union Of India And 5 Ors

AM Bujor Barua, J

Heard Mr. SB Rahman, learned counsel for the petitioner and Mr. J Payeng, learned counsel appearing for the Foreigners' Tribunal and Border Areas. Also heard Mr. AI Ali, learned counsel for the Election Commission of India and Ms. A Verma, learned standing counsel for the authorities under the NRC as well as Ms. G Sarma, learned counsel for the authorities under the Union of India.

On being referred by the Superintendent of Police (Border), Kamrup, FT Case No. 1590 of 2007 was registered. Subsequently, on the reference being trasnfered to the Foreigners' Tribunal No.1, Kamrup (Rural), Ulubari, it was re-numbered as GFT (R) Case No. 231 of 2017.

Before the Tribunal, the petitioner filed a written statement. The petitioner took the stand that the name of her father was Sabur Ali, son of Fajar Ali and it was recorded in the annual Khiraj Patta No.194 of revenue village-Malibari, Mouza-Pub Somoria of Kamrup district. A stand was also taken that the name of her parents Sabur Ali and Jabeda Khatun appeared in the voters list of 1966 at serial No.109 and 110, House No.30 of village-Duramari. Further stand was taken in the voters list of 1970 also the name of her parents appear.

Before the Tribunal, the petitioner exhibited the voters list of 1966 of village Duramari, Mouza-Sontoli, PS Boko, which contains the name of Sabur Ali, son of Fajar Ali, aged 30 years at serial 109 and Jabeda Khatun, wife of Sabur Ali, aged 22 years at serial No.110. The voters list of 1970 of village -Duramari was also exhibited containing the name of Sabur Ali, aged 34 years at serial No.113. The voters list of 1977 of village-Duramari containing the name of Saburuddin and Jabeda Khatun was also exhibited. Further, the voters list of 1997 of village-Duramari containing the name of Saburuddin, son of Fajar Ali, aged 53 years and Jabeda Khatun, wife of Sabur Ali, aged 45 was also exhibited. Further the voters list of 2005 of village-Duramari containing the name of Sabur Uddin, son of Fajar Ali and Jabeda Khatun, wife of Sabur Ali was also exhibited.

We do not notice much discrepancy in the age of Sabur Ali in the voters lists that have been exhibited by the petitioner. In order to establish a link with Sabur Ali of voters list of 1966 onwards of village Duramari, the petitioner relies upon a certificate issued by the Gaonburah of village-Duramari wherein it is certified that the petitioner is the daughter of Saburuddin of village-Duramari.

The Gaonburah of village-Duramari deposed before the Tribunal as DW-4, wherein he had specifically deposed that the petitioner Mumtaz Begum is known to him and that she is the daughter of Sabur Ali @ Saburuddin who is also a resident of village-Duramari, of which the DW-4 is the Gaon burah.

In the cross-examination by the State authorities, DW-4 had specifically stated that he was born in the same village of the petitioner and that is how he knows her and that the petitioner is elder to him and presently lives in village-Rangeshwari after her marriage. In cross, DW-4 also stated that the petitioner has three sisters and six brothers and that he had issued certificate after verifying the voters lists etc.

From the deposition of DW-4, it is apparent that a positive deposition had been led that he firstly knows the petitioner and that the petitioner is from the same village as that of DW-4, where he again is the Gaonburah and secondly that the father of the petitioner is Saburuddin @ Sabur Ali. The said statement had been reiterated in the cross-examination and no material had been led by the State authorities that the deposition made by DW-4 is incorrect.

However, Mr. J Payeng, learned State counsel raises a question that in the absence of any further materials, the deposition led by DW-4 may be unbelievable.

We are of the view that DW-4 having led specific evidence which was confronted in cross-examination but remained undemolished, a further factor cannot be brought in that the evidence so led may not be believable in the absence of any further evidence. But however, if the State respondents are of the view that the evidence led by DW-4 may be incorrect, State respondents may subject DW-4 to any further cross-examination to confront the deposition being led and also would be at liberty to produce any further relevant materials, which may indicate that the deposition of DW-4 is incorrect.

We have gone through the order of the Tribunal and have noticed that the aforesaid aspect of the matter regarding the evidence led by DW-4, has not been given its due consideration. Accordingly, we interfere the order dated 12.01.2018 of the Foreigners Tribunal No.1, Kamrup (Rural) Ulubari in GFT (R) Case No. 231 of 2017 and it is hereby set aside.

Upon the order being set aside, the Tribunal shall give a further consideration to the link that the petitioner may have establish with Sabur Ali of voters list of 1966 of village-Duramari and the other subsequent voters lists through the evidence of DW-4, Gaonburah of the village-Duramari. In doing so, as the State respondents having raised an apprehension that the evidence led by DW-4 may not be correct, they will be at liberty to cross-examine DW-4 in any manner or to provide any further materials to indicate that the evidence led by him is incorrect.

Accordingly, the petitioner along with DW-4 shall appear before the Tribunal on 20. 03.2019 for continuing the proceeding further in the manner indicated above. Upon such appearance, the Tribunal shall give its further consideration within a period of 30 days .

It is stated that the petitioner is in detention camp at Kokrajhar detention camp.

As we have interfered the order dated 12.01.2018, we order that the petitioner be released forthwith subject to a submission of two surety bonds from two prominent persons who give the surety subject to the satisfaction of the Superintendent of Police (Border) Kamrup (Rural) who shall verify and satisfy himself as to the authenticity and acceptability of the two surety bonds to his satisfaction.

Upon appearance before the Tribunal, it shall be open for the Tribunal to pass further order as to whether the petitioner has to be kept in detention or not.

Writ petition stands allowed to the extent as indicated above.