WP(C)/338/2020
2021 Latest Caselaw 2896 Gua

                                                                      Page No.# 1/9

GAHC010009302020




                           THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                            PRINCIPAL SEAT AT GUWAHATI


                                 WP(C) No. 398/2020


                   Abed Ali @ Abed, aged about 41 years,
                   S/O Late Tufan Ali @ Tufan,
                   R.O.- Village-Bakrikuchi,
                   P.S.- Mukalmua, District-Nalbari, Assam.
                                                                     ......Petitioner.

               -Versus-
         1.   The Union of India,
               Represented by the Secretary to the Govt. of India,
               Home Department, New Delhi-1.

         2.   The State of Assam,
              Represented by the Commissioner and Secretary to the
              Govt. of Assam,
              Home Department, Dispur,
              Guwahati-06.

         3.    The Election Commission of India, Nirvachan Sadan,
               Ashok Road, New Delhi
               PIN-110001.

         4.   The Deputy Commissioner, Nalbari,
               District- Nalbari, Assam
               PIN- 781335.

         5.    The Superintendent of Police (Border), Nalbari,
               District- Nalbari, Assam,
               PIN- 781335.
                                                                              Page No.# 2/9


6.     The State Coordinator,
       National Registration of Citizen, Assam,
       Bhangagarh, Guwahati-05.

                                                                    ......Respondents.

BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MRS. JUSTICE MALASRI NANDI

For the Petitioner : Mr. H.R.A. Choudhury (Sr. Adv.), Mr. S. Hoque, Mr. A. Akbar.

......Advocates.

For the Respondent No.1                      : Mr. R.K.D. Choudhury,
                                               Asstt. Solicitor General of India.
                                               Ms. L. Devi, Advocate.
For   the   Respondent    Nos.   2       &    5:Mr. J. Payeng, Special         Counsel,
                                                Foreigners Tribunal.
For the Respondent No.3                       : Mr. A.I. Ali, Standing Counsel, ECI.
For the Respondent No.4                       : Ms. U. Das,
                                              Additional Senior Govt. Advocate.
For the Respondent No.6                      : Ms. L. Devi, Standing Counsel, NRC.
                                                                        ......Advocates.




Date of Hearing and Judgment         :         16.11.2021.
                                                                                    Page No.# 3/9



                              JUDGMENT AND ORDER (ORAL)


[N. Kotiswar Singh, J.]

Heard Mr. S. Hoque, learned counsel for the petitioners. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K.D. Choudhury, learned ASGI for respondent No.1; Ms. L. Devi also appears for respondent No.6 as the learned Standing Counsel, NRC; Mr. J. Payeng, learned Special Counsel, Foreigners Tribunal appearing for respondent Nos.2 and 5; Mr. A.I. Ali, learned Standing Counsel, ECI for respondent No.3; Ms. U. Das, learned Additional Senior Government Advocate, Assam for respondent No.4.

2. In this petition, the petitioner has challenged the order dated 22.10.2019 passed by the learned Foreigners Tribunal No.2, Nalbari in F.T. (Nal-2) Case No.30/16 [F.T Case No.236/07] by which the learned Tribunal held that the evidence, both oral and documentary adduced by the OP (petitioner herein) are not reliable and trustworthy and accordingly, held that the petitioner failed to discharge his burden to prove that he is born to genuine Indian parents and declared him a foreigner of post 1971 stream as he appeared to have entered into India illegally after 25.03.1971.

3. Mr. Hoque, learned counsel for the petitioner has submitted that the petitioner appeared before the Tribunal and also adduced several documents in support of his claim that the petitioner is an Indian. However, the learned Tribunal without appreciating the evidences on record held the petitioner to be a foreigner of post 25.03.1971 stream.

4. It has been submitted that the learned Tribunal did not consider the various documents relied on by the petitioner but made reference only to the voters lists by observing that the name of the petitioner's father who was otherwise eligible to be enlisted as a voter in the voters lists of 1966 and 1971, was not recorded in these voters lists. It was also observed that the age and place of birth of his father had neither been mentioned. Accordingly, the learned Tribunal held that as the O.P. has failed to prove the case, which conclusion according to the petitioner, cannot be sustained as the learned Tribunal did not consider the other relevant materials and evidences on record.

Page No.# 4/9

5. Mr. Payeng, learned counsel for the State, however, submits that what is material is the proof of the petitioner's linkage with his projected father and whether his father was in India before 1971 and it is only this aspect which requires to be proved and other evidences are of no relevance.

It has been submitted that in the present case, since the petitioner could not prove that his projected father Tufan Ali was a resident of Assam before 1971 with necessary evidence, it cannot be said that the petitioner is the son of aforesaid Tufan Ali or that he is an Indian.

6. We have heard the learned counsel for the parties and perused the materials on record.

7. As mentioned above, the petitioner had exhibited as many as 14 documents.

It may not be necessary to give a description of the aforesaid documents as these have been described in para No. 8 of the impugned order dated 22.10.2019.

Accordingly, para No. 8 of impugned order dated 22.10.2019 is reproduced hereinbelow.

"8. In the affidavit-in-chief the O.P. stated the same which he stated in his W/S.

Ext-1 is the unregistered sale agreement showing Tufan Ali (S/O- Lt. Nayab Ali), R/O- of vill- Ahata, P.S.- Mukalmua, Dist.- Nalbari, (Assam) had given an advance amount to Sarat Thakuria for purchasing a plot of land in vill- Bakrikuchi. Ext-2 is the certified copy of voter list of 1966 wherein the name of Nayab Ali (S/O- Kalam) is recorded vide Sl.No. 142 of vill- 3 No. Bhelengimari under 61 No. Hajo LAC. Ext-3 is the copy of the NRC of 1951 wherein the name of Nayab Ali (S/O- Kalam) is enlisted in vill- Bhelengimari. Ext-4 is the revenue payment receipt dated 12/3/1953 in the name of Nayab Ali. Ext.5 is the revenue payment receipt dated 17/4/1945 in the name of Nayab Ali. Ext-6 is the revenue payment receipt dated 23/5/1936 in the name of Kalam Sheikh. Ext-7 is the certified copy of voter list of 1979 wherein the name of Tufan Ali (S/O- Nayad) is recorded vide Sl.No.609 of vill- Barmara (Sobhamari) under 60 No. Barkhetri LAC. Ext-8 is the certified copy of voter list of 1993 wherein the name of Tufan Ali Page No.# 5/9

(S/O- Nayab) is recorded vide Sl.No.1083 of vill- Bhangnamari under 60 No. Barkhetri LAC. Ext-9 is the certified copy of voter list of 1997 wherein the name of Abed Ali (S/O- Tufan) is recorded vide Sl.No.29 of vill- Bhangnamari under 60 No. Barkhetri LAC. Ext-10 is the certified copy of voter list of 2005 wherein the names of Abed & Sabed (Both S/O- Tufan) are recorded vide Sl.No.711 & Sl.No.713 respectively of vill- Naptipara under 60 No. Barkhetri LAC. Ext-11 is the certified copy of voter list of 2010 wherein the names of Abed (S/O- Tufan) is recorded vide Sl.No.27 of vill- Naptipara under 60 No. Barkhetri LAC. Ext-12 is the certified copy of voter list of 2014 wherein the names of Abed & Sabed (both S/O- Tufan) are recorded vide Sl.No. 32 & 33 respectively of vill- Naptipara under 60 No. Barkhetri LAC. Ext-13 is the Eelctor Photo Identity card of the O.P. Ext-14 is the affidavit dated 26/4/2016 sworn by the O.P. himself before the Notary Public."

8. What we have noted is that after narrating the particulars of the aforesaid 14 exhibits, the learned Tribunal gave the opinion by holding that the petitioner did not state the age of his father nor his place of birth in his written statement. Further, the learned Tribunal also held that in the voters list of 1979 (Ext.7), the age of Tufan Ali was recorded as 39 years which signifies that Tufan Ali was eligible to be enlisted as a voter in 1966 or 1971 and at the relevant time the cut off year to be eligible for voting was 21 years but there was no explanation in the written statement nor in the evidence of O.P. as to why his father's name was not enlisted in the voters lists of 1966 or 1971. The learned Tribunal, accordingly, held that the O.P. failed to prove his projected case.

Para No. 9 of the order dated 22.10.2019 which contains the reasons and decision of the learned Tribunal is reproduced hereinbelow.

"9. The O.P. claimed that Tufan Ali is his father and his name is enlisted in the voter list of 1979 (Ext-7) of vill- Baramara (Sobhamari) under 60 No. Barkhetri LAC. The O.P. in his W.S. neither stated the age of his father nor his place of birth. In the voter list of 1979 (Ext-7) the age of Tufan Ali is recorded as 39 years which signifies that Tufan Ali was eligible to be enlisted as a voter in 1966 or 1971, the relevant cut off year in as much as the voting age at the relevant period was 21 years but there is no explanation in the W.S. or in the evidence of the O.P. as to why his father's name was not enlisted in the voter list of 1966 or 1971. The O.P. failed to prove his projected case and as such not Page No.# 6/9

entitled to be declared as an Indian."

9. Perusal of the aforesaid reasons and the decision as reproduced above, would clearly indicate that the learned Foreigners Tribunal No.2, Nalbari, while giving opinion based it primarily on the voters list of 1979 (Ext-7) by pointing out that it does not contain various information which is of high significance, that is, particulars of petitioner's father and also the absence of the name of the petitioner's father in the voters list of 1966 or 1971.

10. In this regard, we would like to observe that if the petitioner had not relied upon any other evidence, perhaps, the conclusion arrived at by the learned Tribunal based on the aforesaid voters list of 1979 could have been permissible. However, the fact remains that apart from the aforesaid voters list of 1979 (Ext-7), the petitioner also relied on 13 other exhibits of which we find no reference in the final decision made by the learned Tribunal.

In other words, learned Tribunal has not referred to any of the documents other than Ext.7 before making his opinion.

11. In our view, in deciding whether a person is Indian or not, perhaps, in absence of any clinching evidence, all the admissible and relevant evidence(s) on record may have to be considered together and in a holistic manner rather than in isolation.

12. As to what is the cumulative effect of the other exhibits other than Ext.7, the learned Tribunal has not considered. In our opinion, the learned Tribunal ought to have considered the significance and effect of other documents also which petitioner submits are the basis for his claim for Indian citizenship.

13. In the present case, the learned Tribunal has not considered other relevant materials on record, except Ext.7.

In other words, if a decision has been rendered without considering all the relevant materials or evidences on record, such a decision will be vitiated as a case of non application of mind to the relevant materials.

14. It is well settled that this Court in exercise of judicial review can interfere with the opinion of the Tribunal under certain circumstances. In this regard, one may refer to the decision of the Full Bench rendered in 2013 (1) GLT 809, [the State of Assam & Anr.

Page No.# 7/9

Vs. Moslem Mandal & Ors.] where this Court clearly mentioned of scope of interference by this Court for the judicial view of an order passed by the Tribunal.

15. The Full Bench of this Court in Moslem Mandal (supra) observed in para 112 thereof that failure to take into account the relevant facts or consideration or irrelevant factors, which have a bearing on the decision of the inferior court of the Tribunal, can be a ground for interference of the Court or Tribunal's decision in exercise of the writ jurisdiction by the High Court.

Para No.112 of Moslem Mandal (supra) is reproduced hereinbelow.

"112. Article 226 of the Constitution confers on the High Court power to issue appropriate writ to any person or authority within its territorial jurisdiction. The Tribunal constituted under the 1946 Act read with the 1964 Order, as noticed above, is required to discharge the quasi-judicial function. The High Court, therefore, has the power under Article 226 of the Constitution to issue writ of certiorari quashing the decision of the Tribunal in an appropriate case. The scope of interference with the Tribunal's order, in exercise of the jurisdiction under Article 226, however, is limited. The writ of certiorari can be issued for correcting errors of jurisdiction, as and when the inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it or if such Court or Tribunal acts illegally in exercise of its undoubted jurisdiction, or when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice. The certiorari jurisdiction of the writ Court being supervisory and not appellate jurisdiction, the Court cannot review the findings of facts reached by the inferior Court or Tribunal. There is, however, an exception to the said general proposition, in as much as, the writ of certiorari can be issued and the decision of a Tribunal on a finding of fact can be interfered with, if in recording such a finding the Tribunal has acted on evidence which is legally inadmissible or has refused to admit admissible evidence or if the finding is not supported by any evidence at all, because in such cases such error would amount to an error of law apparent on the face of the record. The other errors of fact, however grave it may be, cannot be corrected by a writ court. As noticed above, the judicial review of the order passed by the inferior Court or the Tribunal, in exercise of the jurisdiction under Article 226 of the Constitution, is limited to correction of errors apparent on the face of the record, which also takes within its fold a case where a statutory authority exercising its discretionary jurisdiction did not take into consideration a relevant fact or renders its decision on wholly Page No.# 8/9

irrelevant factors. Hence, the failure of taking into account the relevant facts or consideration of irrelevant factors, which has a bearing on the decision of the inferior court or the Tribunal, can be a ground for interference of the Court or Tribunal's decision in exercise of the writ jurisdiction by the High Court." (emphasis added)

16. In the present case, what we have noted is that though there are other relevant documents which have been relied on by the petitioner, the learned Tribunal has not made reference to these at the time of giving its opinion but his opinion is primarily based on the voters list of 1979, which we find to be untenable in law.

17. Accordingly, we are satisfied that the opinion of the learned Tribunal dated 22.10.2019 is required to be revisited and a fresh order be passed after taking into consideration not only Ext.7 but also all other documents and exhibits which have been relied on by the petitioner. The Tribunal has to consider the cumulative effect of these documents on the issue of citizenship and not merely by considering only one document.

18. For the reasons discussed above, the present petition is allowed by setting aside the impugned order dated 22.10.2019 passed by the learned Member, Foreigners Tribunal No.2, Nalbari in F.T.(Nal-2) Case No. 30/16 [F.T.236/07] with the direction to the learned Foreigners Tribuna No.2, Nalbari to reconsider the case of the petitioner and make a fresh opinion by considering all the documents and exhibits which have been relied on by the petitioner, which exercise shall be undertaken as expeditiously as possible.

19. The petitioner will accordingly appear before the Foreigners Tribunal on or before 16.12.2021 for further hearing of the matter.

20. It has been submitted by learned counsel for the petitioner that the petitioner has been allowed to remain on bail by order dated 20.05.2020 passed by this Court.

It is, accordingly, directed that the petitioner will continue to remain on bail on similar terms and conditions till a fresh opinion is rendered by the learned Foreigners Tribunal.

21. Learned counsel for the petitioner submits that the petitioner may be allowed to submit additional evidence (s). As regards this, the petitioner can approach the Tribunal which shall consider the same in accordance with law.

Page No.# 9/9

22. With the above observations and directions, the present petition stands disposed of.

                          JUDGE                                       JUDGE


Comparing Assistant