Gauhati High Court
Subrata Deb vs The Union Of India And 4 Ors on 8 November, 2021
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GAHC010041882019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1642/2019
SUBRATA DEB
SON OF LATE SURESH DEB, L.K. ROAD, TEZPUR TOWN, WARD NO. 14, P.S.
TEZPUR, DIST. SONITPUR, ASSAM.
VERSUS
THE UNION OF INDIA AND 4 ORS.
REP. BY THE MINISTRY OF HOME AFFAIRS, NEW DELHI-110001.
2:THE ELECTION COMMISSION OF INDIA
NIRBACHAN SADAN
ASHOKA ROAD
NEW DELHI-110001.
3:THE STATE OF ASSAM
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
HOME AND POLITICAL (B) DEPARTMENT
DISPUR
GUWAHATI-781006.
4:THE STATE COORDINATOR OF NRC
ASSAM
FIRST FLOOR
ACHYUT PLAZA
G.S. ROAD
BHANGAGARH
GUWAHATI- 781005.
5:THE SUPERINTENDENT OF POLICE (BORDER)
SONITPUR
DIST. SONITPUR
PIN- 784001
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Advocate for the Petitioner : MR. R DE
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MRS. JUSTICE MALASRI NANDI
:: O R D E R ::
08.11.2021
[N. Kotiswar Singh, J]
Heard Mr. R. De, learned counsel for the petitioner. Also heard Ms. L. Devi, learned
counsel appearing on behalf of Mr. R.K.D. Choudhury, learned ASGI appearing for respondent
No.1; Ms. Devi also appears for respondent No.4 as the learned Standing Counsel, NRC; Mr.
A.I. Ali, learned Standing Counsel, ECI for respondent No.2 and Mr. G. Sarma, learned
Standing Counsel, Foreigners Tribunal appearing for respondent Nos.3 and 5.
2. Considering the nature of the case, we are of the view that the present petition can be
disposed of at this stage without issuing any formal notice to the respondents and also
without calling for the records.
3. As we proceed to examine the issue, it may be necessary to refer briefly to the
background facts of the case.
4. From the documents annexed to the petition, it is seen that the petitioner was earlier
proceeded before the Foreigners Tribunal (1 st), Sonitpur Assam in F.T.(D) Case No.5695/2012
[Police Enquiry No. 1170/1998] and vide opinion dated 07.05.2018 he was declared a
foreigner which was challenged before this Court by the petitioner in WP(C) No. 5583/2018.
5. One of the grounds which was raised in the said writ petition, WP(C) 5583/2018, was
that after the petitioner had filed his written statement and deposed himself as DW1 and
exhibited various the documents including the HSLC Examination passed certificate issued by
the Board of Secondary Education, Assam recorded his name. Another certificate issued by
the Headmistress of Tezpur Bengali Boys' L.P. School where his date of birth was mentioned
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as '02.01.1957' was also exhibited and similarly, the death certificate of his father showing
the date as '14.09.2001' and the place of death shown as Garuwanpatti, Tezpur which was
also exhibited. However, the learned Foreigners Tribunal discarded the said Exhibit 'D', i.e.
HSLC Examination passed certificate as it did not contain the name of his father and the
residential address of the petitioner.
It was accordingly, urged in the said writ petition, WP(C) 5583/2018 that the certificate
issued by the Board of Secondary Education, Assam does not contain the name of the
parents nor any residential address of the person certified to have passed the examination.
6. This Court, after hearing the parties, was of the view that there was an error apparent
on the face of the record inasmuch as the learned Foreigners Tribunal made an error in
wrongfully appreciating the documentary evidence relied upon by the petitioner and
accordingly, this Court set aside the impugned opinion dated 07.05.2018 passed by the
learned Member, Foreigner's Tribunal (1 st) Sonitpur, Assam in F.T.(D) Case No.
5695/2012 [ Police Enquiry No. 1170/1998] and remanded the matter for a fresh order
after due consideration of the evidence on record i.e. considering the exhibited documents
already on record but not beyond the same and directed the petitioner to appear before the
said Tribunal on 05.10.2018.
The aforesaid direction as contained in para no.5 of the order dated 24.09.2018 reads
as follows.
"5. We have given our thoughtful consideration on the submission of the learned counsel
and also the manner of appreciation of the evidence on record which we are unable to accept.
Keeping in view that an error apparent is very much on the face of the order we are satisfied to
set aside the impugned order dated 07.05.2018 passed by the learned Member, Foreigners'
Tribunal (1st), Sonitpur, Assam in F.T.(D) Case No.5695/2012 against the Police Enquiry
No.1170/1998 and remand the matter for a fresh order after giving due consideration to the
evidence on record, i.e., considering the exhibited documents already on record but not beyond
the same. The petitioner shall appear before the said Tribunal on 05.10.2018 where after the
learned Member shall pass an order on the basis of the materials already on record within a
period of one month from the date of appearance of the petitioner before the Tribunal."
7. Mr. De, learned counsel for the petitioner submits that the petitioner in terms of the
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direction of this Court appeared before the Foreigners Tribunal and sought to prove the
aforesaid exhibited documents by requesting the Tribunal to issue notice to the authors of the
said documents /competent persons who issued the certificate. However, the learned Tribunal
rejected the same by holding that this Court did not permit calling for witnesses and as such,
the prayer for allowing to adduce further evidence was rejected.
The impugned order dated 26.11.2018 passed in F.T.(D) Case No. 5695/2012 by the
learned Foreigners Tribunal, Tezpur(1st), Assam reads as follows,
"26.11.2018
Proceedee is present. Heard the petitioner filed on 12-11-18 to allow the Proceedee to
produce more witnesses specifically the Election Officer, Tezpur and the Head Master of Tezpur
Bengali Boy's School to prove his documents and prayed to issue summons to said witnesses.
But in the order of Hon'ble Gauhati High Court in W.P.(C). 5583/2018 passed on
24.09.2018 it is clearly stated that the matter is remanded for a fresh order giving due
consideration to the evidence on record i.e. considering the exhibited documents already on
record but not beyond the same.
Hence no prayer for allowing to adduce further evidence may be allowed. Therefore the
prayer of the Proceedee is rejected.
Fixing 10-12-2018 for fresh judgment."
8. Learned counsel for the petitioner urges before this Court that though this Court while
disposing of the writ petition, WP(C) No. 5583/2018 on 29.04.2018 directed that the matter
be re-considered by the Tribunal considering the exhibited documents already on record but
not beyond the same, it does not necessarily mean that no witness could have been
examined to prove the documents already exhibited and calling for such witnesses to prove
the documents cannot amount to adducing further evidence and cannot be said to be going
beyond the evidence/documents already on record filed by the petitioner.
9. It has been submitted that in the present case the petitioner is not seeking to file any
additional documents but merely seeking to prove the documents already filed for which the
witnesses need to be examined.
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10. Heard the learned counsel for the parties. Law mandates that documents unless
acknowledged by the opposite parties need to be proved, for which, if it is the primary
evidence, perhaps, the examination of the party may suffice. However, in respect of
secondary evidence, the documents and contents thereof need to be proved as provided
under the Evidence Act, which necessarily would require examination of the witnesses or
authors of the documents.
11. In our view, examination of such witnesses or authors of the documents under the
Evidence Act which have been already exhibited does not amount to examining additional
evidence as contemplated in the order date 24.09.2018 passed by this Court.
12. Accordingly, we find merit in this petition and set aside the impugned order dated
26.11.2018 and remand the matter to the Foreigners Tribunal to allow the petitioner to call
for and examine such witnesses as may be necessary to prove the documents which have
been already filed by the petitioner as mentioned in the order dated 24.09.2018 passed by
this Court in WP(C) No. 5583/2018. The only bar placed by the Court is the order dated
24.09.2018 is that no additional documents can be brought in.
In the present case, the petitioner is not seeking to file additional documents.
13. Accordingly, the petitioner will appear before the Foreigners Tribunal, Tezpur (1 st),
Assam again on or before 08.12.2021 and the learned Tribunal will proceed with the matter
as per our observation made today and the order dated 24.09.2018 passed in WP(C)
No.5583/2018.
14. With the aforesaid observation and direction, the present writ petition stands disposed
of.
JUDGE JUDGE
Comparing Assistant
