HALIMA KHATUN @ HALIMA MIYA v. THE UNION OF INDIA AND 6 ORS.

BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE RAJESH MAZUMDAR ORDER Date : 04.08.2025 (K.R. Surana, J) Heard Mr. H.K. Sarma, learned counsel for the petitioner. Also heard Mr. P.K. Medhi, learned CGC; Mr. M. Islam, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for the ECI; Mr. G. Sharma, learned standing counsel for the FT matters and NRC; and Mr. P. Sarmah, learned Additional Senior Govt. Advocate for respondent.

#2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Halima Khatun @ Halima Miya has assailed the impugned opinion dated 24.07.2018, passed by the learned Member, Foreigner’s Tribunal-III, Barpeta in F.T. Case No. 2362(III) of 2016, arising out of Ref. IMDT Case No. 5866/98, by which the petitioner was declared as an illegal migrant under Section 2(a) of the Foreigner’s Act, 1946.

#3. Upon receipt of notice of the proceedings, the petitioner had appeared before the said learned Tribunal and had filed her written statement denying that she was a foreigner and stated that Hatem Ali, her projected father, was a citizen of India and born and brought up at vill-Majgaon, Mouza-Bhawanipur, under P.S- Barpeta under the then undivided district of Kamrup and she was Page No.# 3/9 presently residing at vill-Golibandha, Mouza-Paka, P.S. Sarthebari, in the district of Barpeta. It was projected that the name of her father appeared in the voter list of 1965 of vill-Majgaon and the name of her grandfather, namely, Ismail Hussain and the name of the mother of the petitioner namely, Jeleman Nessa, also appeared in the said voter list. It was stated that the name of the parent’s of the petitioner appeared in the voter’s list of 1970 at vill-Majgaon and that her grandfather had died before 1970 and thereafter, the father of the petitioner had shifted to vill-Negurkata, P.S-Tamulpur, in the present district of Baksa. The petitioner projected that the name of her father appeared in the voter’s list of 2005 of vill-Negurkata in the district of Baksa (BTAD) and that name of her father is also enlisted in the voter’s list of 2010 of the said village.

#4. The petitioner had projected that she had got married to one Chan Miya, son of Hekim Ali of vill-Negurkata, Mouza-Kumarikata under P.S-Tamulpur in the then district of Nalbari and the name of the petitioner along with her husband appeared in the voter’s list of 1993. The petitioner projects that in the voter’s list of 1993, her name was stated to be Halima Begum in place of Halima khatun and the both are names of same person. By referring to the voter list of 1993, it was stated that the name of the petitioner was written as Halima Begum in place of Halima Khatun and both are same person. It was projected that thereafter, the family members of petitioner had shifted to vill-Golibandha from vill-Negurkata. However, her name was shown as ‘D’ voter in the voter’s list of 1997. It was also stated that the name of the petitioner was written as Halima Miya in place of Halima Khatun and that both are same and one person.

#5. Accordingly, relying on the Gaonburah’s certificate of vill-Golibandha, it has been stated that case against the petitioner was baseless and concocted. Along with her written statement, the petitioner had enclosed photocopies of Page No.# 4/9 voter’s list of 1965, 1970, 1993, 2005 and 2010 and Gaonburah’s certificate of vill-Majgaon, vill-Negurkata and vill- Golibandha.

#6. In her evidence-on-affidavit, the petitioner as DW-1 has reiterated the statements made in the written statement regarding name of the petitioner’s father and grandfather which appeared in the voter’s list of 1965 and the name of her parents appeared in the voter’s list of 1970. The petitioner, in support of her evidence has exhibited the following documents:- a. Exhibit-A-Voter List of 1965. b. Exhibit-B-Voter List of 1970. c. Exhibit-C-Voter List of 1993. d. Exhibit-D-Voter List of 2005. e. Exhibit-E-Voter List of 2010. f. Exhibit-F-Certificate of Gaonburah of Village-Majgaon. g. Exhibit-G-Certificate of Gaonburah of Village-Negurkata. h. Exhibit-H-Certificate of Gaonburah of Village-Golibandha.

#7. The petitioner had also examined one Sri Dharani Kalita who was stated that he was serving as RMO (Romeo Machine Operator) as Election Officer, Bajalee. He appeared before the learned Tribunal and proved in original the voter’s list of 1965 and 1970. In the voter’s list of 1970, the name of Hatam Ali son of Ismail appears. The petitioner had also examined one Ayub Nabi, who was then Government Gaonburah of Charge No. 2 and 1, who had issued a certificate (Ext. F) to the petitioner and he stated that he had heard that the daughter of Hatem Ali was born in vill-Majgaon. In his cross-examination he had stated that he could not prepare the carbon copy of the certificate and also submitted that he had not produced the document with regard to issue of certificate.

#8. The petitioner also examined one Md. Hatem Ali, projected father as DW-4, who had stated that the petitioner is his daughter. He stated that he had 5 (five) sons, namely, (1) Derbar Ali, (2) Hamed Ali, (3) Inol Haque, (4) Nurzul Page No.# 5/9 Islam, (5) Nurul Islam. He had also stated that he has 2 (two) daughters, namely, (1) Halima (proceedee) and (2) Habiza Khatun, younger daughter. He had stated his elder daughter i.e, petitioner’s marriage was solemnized with Sandu @ Sun Miya of vill-Golibandha. He had referred to the names of 4 (four) sister’s and 2 (two) brother’s. He had also stated that he had shifted from vill- Majgaon to vill-Negurkata, under P.S-Tamulpur in the present district of Baksa and the petitioner was born at vill-Majgaon. He had exhibited his voter identity card (Ext.I).

#9. The learned counsel for the petitioner has submitted that due to certain minor discrepancies in the name and age of the petitioner, the evidence her witnesses in defence of the petitioner was rejected and she was declared to be a foreigner. It has also been submitted that the learned Tribunal had rejected the prayer of the petitioner being a citizen of India as doubtful because of her shifting of residence and that the name of her siblings do not appear in the Gaonburah certificate and accordingly adverse presumption was drawn against the petitioner and it was submitted that the witnesses examined by the petitioner and cross-examined by the prosecution corroborate and no contradictions can be brought out. Accordingly, it is stated that the petition be allowed and the opinion impugned in this writ petition be interfered with.

#10. The learned standing counsel for the FT matters has opposed the prayer made in the writ petition and has made his submissions in support of the opinion of the learned Tribunal.

#11. On examining the materials available on record and on careful perusal the records received from the learned Tribunal it is observed that the learned Tribunal, by referring to the evidence of all the 4 (four) witnesses examined by the petitioner, has held that the evidence of the petitioner was contradictory to Page No.# 6/9 that of the father and that the learned Tribunal was has referred to the inconsistencies in the age and the names of sibling of the petitioner and it was held that the contents of the certificates which were exhibited as Ext. F, G and H were contradictory and held to not reliable.

#12. In this regard, on examining the records, it is noted that on

15.06.2018, learned Tribunal had put some questions to the petitioner which is found to be recorded in the back page of the affidavit which is filed in support of the written statement, wherein the petitioner had stated that she had not mentioned the year of birth in the written statement. She had stated that the name of the father is Hatem Ali and amongst others, she had stated that she had 5 (five) brothers, namely, (1) Dilbor Ali, (2) Hamed Ali, (3) Inol Ali, (4) Narzul Islam and (5) Nurul Haque Islam and she has one sister, namely, Habiza Khatun. The father of the petitioner who had appeared as DW-4 had stated that his 5 (five) sons are, namely, (1) Derbar Ali, (2) Hamed Ali, (3) Inol Haque, (4) Nurzul Islam and (5) Nurul Islam and his 2 (two) daughter are, namely, Halima (proceedee) and Habiza Khatun. Therefore, there are inconsistencies in the name of the brother and sister of the petitioner in comparing her evidence with that of her projected father.

#13. The Tribunal appears to be correct in its appreciation of the 3 (three) certified exhibits, being Gaonburah certificate dated 30.04.2019, certificate dated 31.05.2017, issued by Sri Nobin Rajbongshi, In-Charge Lat Gaonburah and certificate dated 11.11.2016 issued by Sri Dhoniram Roy, Gaonburah wherein it is mentioned the petitioner was a person from his village and that the name of petitioner’s father and mother appeared in the 46 No. Sarthebari Legislative Assembly Constituency of 2015.

#14. Therefore, as per Ext. F, the petitioner was a resident of vill-Majgaon Page No.# 7/9 having married Hatem Ali a resident of vill-Majgaon. As per Ext. G, the Gaonburah certificate dated 31.05.2017, the petitioner was an inhabitant of vill- Lengurkata and that as per certificate dated 11.11.2016 (Ext. H), the petitioner was a resident of vill-Golibandha, being married to Chandu Miya of the said village. The petitioner, in her cross-examination had stated that her marriage was solemnized at vill-Lengurkata where her husband was residing and about 20 (twenty) years later her family shifted to vill-Galibandha and she has also stated that during her childhood her father’s family shifted to vill-Lengurkata from vill-Majgaon. Therefore, the marital home appears to be at 3 (three) locations.

#15. The contents of the said certificates, if taken at its face value, appear to be a mismatch with the statement made by the petitioner. In this case, as per projection made by the petitioner, in this writ petition, as per affidavit sworn in support of the writ petition, the petitioner was 57 (fifty seven) years of age on

03.10.2018, when the affidavit was sworn, which makes her year of birth being 1961 and at time the age when the person could exercise right of franchise was 21 (twenty one) years and therefore, the name of the petitioner ought to have appeared in the voter list on or after 1982. However, her name appears first time in the voter’s list of 1994, however, there is no explanation of why the petitioner did not exercise her right to franchise immediately on or after 1982 till

#16. In this writ petition, the writ petitioner has annexed a copy of certificate issued by the Secretary of 108 No. Majgaon Gaon Panchyat, wherein her date of birth is mentioned to as 01.03.1994. If the contents of the said certificate is conjointly read with cross-examination of DW-1, she had stated in her cross-examination that her marriage was at vill-Lengurkata, where her Page No.# 8/9 husband was residing and about 20 (twenty) years later her family shifted to vill-Golibandha. Therefore, the said statement makes petitioner to have shifted to vill-Golibandha in the year 2015 and accordingly, renders the contents of Gaonburah certificate as Ext. F and H as false, being inconsistent with the age of the petitioner. In respect of Ext. G, which is a Gaonburah certificate dated

31.05.2017, there is a foot note by the Gaonburah to the effect that the petitioner, a resident of vill-Lengurkata, was then a permanent resident of vill- Golibandha.

#17. The statement made are inconsistent with paragraph no. 5 of this petition, wherein she had stated that she got married to Chan Miya of vill- Negurkata and the name was enlisted in the voter’s list of 1993 where her name was written as Halima Begum in place of Halima Khatun and she had stated that thereafter, her family shifted to vill-Golibandha. Therfore, the shifting of village after 20 (twenty) years of marriage is not the projected case of the petitioner in her evidence on affidavit or in her written statement. Therefore, the petitioner has not been able to connect herself to her projected father, namely, Hatem Ali in so far as documents are concerned.

#18. As stated above, Hatem Ali, who deposed as DW-4, named his sons and the petitioner However, merely, by oral evidence, the projected father of the petitioner has not been able to prove that the petitioner was his daughter. As per his cross-examination, he could not say the year of birth of the writ petitioner.

#19. On evidence of the 4 (four) witnesses examined by the petitioner including herself, the evidence is vague and so far as the marriage and shifting is concerned. Resultantly, as the evidence rendered by the petitioner is not consistent with that of her projected father and also with that of DW-2 and 3, Page No.# 9/9 the Court is inclined to hold that the petitioner has not been able to show that opinion rendered by the learned Tribunal is vitiated by wrong appreciation of pleadings or evidence on record or that while rendering the opinion, the Tribunal had considered certain extraneous materials, inconsistent with the records and arrived at a wrong conclusion.

#20. Accordingly, the Court is inclined to hold that the petitioner has not been able to discharge her burden under Section 9 of the Foreigners Act, 1946 and failed to prove her linkage with her projected father.

#21. Resultantly, this writ petition stands dismissed without any interference to the opinion dated 24.07.2018, passed by the learned Member, Foreigner’s Tribunal-III, Barpeta in F.T. Case No. 2362(III) of 2016, arising out of Ref. IMDT Case No. 5866/98, by which the petitioner was declared as an illegal migrant under Section 2(a) of the Foreigners Act, 1946.

#22. The records of the Tribunal be returned along with the copy of this order to be made a part of the record. JUDGE JUDGE Comparing Assistant