Gauhati High Court
WP(C)/4932/2018 on 22 November, 2021
GAHC010160582018
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
WP(C) No. 4932/2018
Shri Anup Biswas,
S/O Late Pradip Biswas,
R/O Village-Bordolani, PO-Barpak,
PS-Mayang, District-Morigaon, Assam,
Pin-782411.
......Petitioner.
-Versus-
1. The Union of India,
through the Ministry of Home Affairs,
Griha Mantralaya,
New Delhi.
2. The State of Assam,
through the Secretary to the Government of Assam,
Home Department, Dispur, Guwahati-6.
3. The Election Commission of India,
Nirvachan Sadan, Asoka Road,
New Delhi-110001.
4. The State Coordinator,
National Registration of Citizen, Assam,
Bhangagarh, Guwahati.
5. The Deputy Commissioner, Morigaon,
PO and District-Morigaon, Assam,
Pin-782105.
6. The District Election Officer, Morigaon,
PO and District-Morigaon, Assam,
Pin-782105.
7. The Deputy Commissioner of Police (B),
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City Guwahati, Guwahati-781001.
8. The Superintendent of Police (B), Morigaon,
PO-Morigaon, District-Morigaon,
Assam, Pin-782105.
......Respondents.
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MRS. JUSTICE MALASRI NANDI
For the Petitioner: Mr. S. Das,
Mr. R. Mazumdar. ......Advocates.
For the Respondents: Asstt.S.G.I.,
Mr. K.K. Parasar, SC, NRC,
Mr. J. Payeng, SC, FT,
Mr. A.I. Ali, SC, ECI,
Ms. K. Phukan, Jr. GA, Assam. ......Advocates.
Date of Hearing & Judgment : 22nd November, 2021
JUDGMENT AND ORDER (ORAL)
[N. Kotiswar Singh, J.]
Heard Mr. R. Mazumdar, learned counsel for the petitioner. Also heard Mr.
J. Payeng, learned special counsel, FT, appearing for the respondent Nos.2, 7
and 8; Mr. K.K. Parasar, learned CGC, appearing for respondent No.1 and also
appearing on behalf of standing counsel, NRC, for respondent No.4; Mr. A.I. Ali,
learned standing counsel, ECI, appearing for respondent Nos.3 and 6 and Ms.
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K. Phukan, learned Government Advocate, Assam, appearing for respondent
No.5.
2. Considering the nature of the case, we are of the view that the present
petition can be disposed of without touching upon the merit of the case as
regards the appreciation of evidence and finding thereof, for the reason that the
learned Tribunal has passed a cryptic order by holding that the
petitioner/opposite party has not proved the exhibits as per law, which in our
view cannot be sustained in law.
3. The present petition has been filed challenging the opinion of the learned
Tribunal dated 27.06.2018 passed by the learned Member, Foreigners Tribunal,
Kamrup (Metro) No.2, Guwahati, Assam, in F.T. Case No.357/2017 by which the
petitioner was declared a foreigner of post 24.03.1971 stream.
4. We have also gone through the records received from the Tribunal.
5. Perusal of the impugned order dated 27.06.2018 passed by the
Foreigners' Tribunal, Kamrup (Metro) No.2, Guwahati, would show that though
the learned Tribunal had elaborately described the various documents exhibited
by the petitioner/proceedee, while coming to a conclusion, the learned Tribunal
made merely the following observations:-
"In determining citizenship a person's continuous existence in a state is a main
factor. From continuous presence legacy of a person can be drawn. Here the
Opposite party has got his name included at the age of 31 yrs when minimum
WP(C) 4932/2018 Page - 3 of 5
age for inclusion in the voter list is 18 yrs from 1989.
The Opposite party has not proved the exhibits as per law.
The documents submitted, exhibited and projection made thereof are based on
sole declaration of the Opposite party and without any corroboration it is not
trustworthy and reasonable to accept those declaration.
Considering above discussion this Tribunal concludes that the Opposite party
failed to establish that he or his ancestors are residing in Assam, India prior to
24th March 1971 and form opinion that the Opposite party Anup Biswas S/O
Late Pradip Biswas a resident of Village-Bardalani under Mayang Police Station,
District-Morigaon, Assam is a Foreigner from Bangladesh who illegally entered
in Assam, India after 24th March 1971."
6. We are of the view that the aforesaid discussion of the documents relied
upon by the petitioner to prove his case, falls short of the requirement of law.
The learned Tribunal ought to have discussed the aforesaid exhibits as to its
admissibility, reliability, etc., which unfortunately does not appear to have been
done. In our opinion there was no proper appreciation of the evidences on
record which was required to be done. Accordingly, we are of the opinion that
the matter would require fresh reconsideration by the learned Tribunal of the
aforesaid documents/evidences adduced by the petitioner and issue a speaking
order as regards the admissibility, reliability of the aforesaid documents and
accordingly, give its opinion to the reference made.
7. For the reasons discussed above, the present petition is allowed by
setting aside the impugned opinion dated 27.06.2018 passed by the learned
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Member, Foreigners Tribunal, Kamrup (Metro) No.2, Guwahati, Assam, in F.T.
Case No.357/2017 and remand the matter to the learned Tribunal with the
direction to the learned Tribunal to pass a fresh opinion by analysing the
admissibility, reliability, etc. of the aforesaid evidences/documents relied upon
by the petitioner before rendering its opinion. The petitioner will, accordingly,
appear before the learned Tribunal on or before 22.12.2021 and after hearing
the petitioner, the learned Tribunal will pass a fresh order.
8. Learned counsel for the petitioner submits that Annexure-1 to this
petition is a photocopy of the communication regarding imprisonment of one
Satyendra Biswas, who the petitioner claims to be his grandfather and the
petitioner submits that he now wishes to file the original of the said
certificate/document before the Tribunal as only a copy of it was filed before
the Tribunal. The petitioner may do so by filing necessary application before the
Tribunal in that regard.
9. With the above observation and direction, the petition stands disposed
of.
10. LCR be remitted immediately to the concerned Foreigners' Tribunal for
the doing the needful.
Sd/- Malasri Nandi Sd/- N. Kotiswar Singh
JUDGE JUDGE
Comparing Assistant
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