WP(C)/163/2018
2021 Latest Caselaw 2623 Gua

GAHC010003992018




                             IN THE GAUHATI HIGH COURT
               (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

                                    PRINCIPAL SEAT AT GUWAHATI

                                        WP(C) No. 163/2018



                   Puspa Khatun,
                   W/O Abdur Rahman,
                   D/O Sona Ullah,
                   Village-Guileja, PS-Kalgachia,
                   District-Barpeta, Assam, Pin-781319.
                                                                             ......Petitioner.
                         -Versus-

                   1.    The Union of India,
                         represented by the Secretary to the Ministry of Home Affairs,
                         New Delhi, Pin-110001.
                   2.    The State of Assam,
                         represented by the Commissioner & Secretary to the Government
                         of Assam, Home Department,
                         Dispur, Guwahati-781006.
                   3.    The Deputy Commissioner, Barpeta,
                         Dist.-Barpeta, Assam, Pin-781301.
                   4.    The Superintendent of Police (B), Barpeta,
                         Assam, Pin-781301.
                   5.    The Election Commission of India,
                         New Delhi, Pin-110001.
                   6.    The State Coordinator,
                         National Register of Citizens (NRC),
                         Bhangagarh, Guwahati-781032.
                                                                          ......Respondents.

           WP(C) 163/2018                                                       Page - 1 of 4
                              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. A.M. Ahmed,
                          Mrs. H. Ahmed,
                          Mr. A. Matin.                       ......Advocates.


For the Respondents:      Asstt.G.I.,
                          Mr. J. Payeng, SC, FT,
                          Mr. A. Bhuyan, SC, ECI,
                          Ms. K. Phukan, Jr. GA, Assam,
                          Ms. L. Devi, SC, NRC.              ......Advocates.



Date of Hearing & Judgment :     29th October, 2021


                       JUDGMENT AND ORDER (ORAL)

[N. Kotiswar Singh, J.]

Heard Mr. A. Matin, learned counsel for the petitioner. Also heard Ms. L.

Devi, learned counsel appearing on behalf of Mr. R.K. Dev Choudhury, learned

Asstt. Solicitor General of India, for the respondent No.1 as well as appearing

as standing counsel, NRC, for respondent No.6; Mr. J. Payeng, learned special

counsel, FT, appearing for respondent Nos.2 and 4; Mr. A. Bhuyan, learned

standing counsel, ECI, appearing for respondent No.5 and Ms. K. Phukan,

learned Junior Government Advocate, Assam, appearing for respondent No.3.

2. The present petition has been filed taking various pleas amongst others

WP(C) 163/2018 Page - 2 of 4 that though the petitioner had adduced the evidence of her father as DW-2,

who was examined by the learned Tribunal, the said evidence was never

considered by the learned Foreigners' Tribunal No.5 th, Barpeta, Assam, at the

time of rendering the impugned opinion dated 07.12.2017 passed in F.T. Case

No.335/2016.

3. We have perused records received. From the original record we observed

that one Sona Ulla, aged about 77, had filed an affidavit. The proceedings of

the Tribunal also indicate that on 30.10.2017, DW-2 was examined. Perusal of

the opinion also shows that the learned Tribunal had recorded in paragraph 3 of

the impugned opinion dated 07.12.2017 that to prove the case, the proceedee

examined two witnesses including herself and exhibited some documents. We

have also further noted that there is no discussion about the evidence of the

aforesaid two witnesses in the impugned opinion. In the impugned opinion, the

learned Tribunal has merely referred to the documents exhibited and there was

no reference or discussion of the oral evidence of the aforesaid two witnesses

including the proceedee. Under the circumstances, it is clear that the Tribunal

while rendering its opinion on 07.12.2017, did not advert to the evidence of the

aforesaid two witnesses.

4. We are of the view that the evidence of a father is highly relevant. As to

what extent the said evidence would be applicable in the present case has to be

appreciated by the Tribunal. Accordingly, we are satisfied that the learned

WP(C) 163/2018 Page - 3 of 4 Tribunal has not adverted to highly relevant evidences on record which renders

its opinion unsustainable in law.

5. In view of the above, we are of the opinion that the matter requires re-

consideration by the learned Tribunal and the learned Tribunal will pass a fresh

opinion by appreciating all the documents and exhibits by considering these

holistically and not in isolation before arriving at the opinion as to whether the

petitioner is a foreigner or not in terms of the reference made by the competent

authority.

6. Accordingly, we allow this petition by setting aside the impugned opinion

dated 07.12.2017 passed by the learned Foreigners' Trubunal No.5 th, Barpeta,

Assam in F.T. Case No.335/2016. The petitioner will accordingly, appear before

the aforesaid Tribunal on or before 30.11.2021 and thereafter, the learned

Tribunal will proceed with the matter and pass a fresh opinion in accordance

with law.

7. Since the petitioner is already on interim bail, she may be allowed to

continue to remain on bail under the same terms and conditions till the fresh

opinion is rendered.

                 Sd/- Malasri Nandi                Sd/- N. Kotiswar Singh
                         JUDGE                                JUDGE



Comparing Assistant


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