WP(C)/364/2020
2022 Latest Caselaw 1256 Gua

                                                                  Page No.# 1/24

GAHC010300352019




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



                    WP (C)/364 OF 2020
                      Md. Tafajjul Hussain @ Tafajjul Hussain,
               Son of Md. Abbas Ali @ Abbas Ali,
               Resident of village- Bhelowguri,
               Post Office-Modertoli, Police Station- Doboka,
               District-Hojai, Assam. Pin-782440.


                                                             ........Petitioner




                        -Versus-


                    1. Union of India, Represented by the Secretary to the
                    Govt. of India, Ministry of Home Affairs, Shastri Bhawan,
                    Tilok Marg, New Delhi-1.


                    2. The State of Assam, Represented by the
                    Commissioner and Secretary teo the Government of
                    Assam, Home Department, Dispur, Guwahati-781006.


                    3. The Deputy Commissioner, Hojai. P.O and P.S.
                    Sankardev Nagar, Hojai, Dist-Hojai, Assam, Pin-782442.
                                                                          Page No.# 2/24

                        4. The Superintendent of Police (Border), Hojai. P.O &
                        P.S- Sankardev Nagar, Hojai, Dist-Hojai, Assam, Pin-
                        782442.


                        5. The State Coordinator, National Registration of
                        Citizen (NRC) Assam, 1st Floor Achyut Plaza, G.S. Road,
                        Bhangagarh, Kamrup (M), Assam, Guwahati-781005.

                        6. The Member, Foreigners Tribunal, Nagaon Court
                        No.7th AT Lanka, Hojai, P.O & P.S-Lanka, District-Hojai,
                        Assam, Pin-782446.


                                                                   ........Respondents

-B E F O R E -

HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MR. JUSTICE SOUMITRA SAIKIA For the Petitioner : Mr. I. Hussain, learned Counsel. For the Respondents : Mr. J. Payeng, learned Standing Counsel, F.T Ms. L. Devi, learned Counsel, NRC on behalf of Mr. R. K. Devchoudhury Mr. A. Bhuyan, learned Counsel, ECI.

     Date of Hearing          : 07.09.2021.
     Date of Judgment        : 07.04.2022


                           JUDGMENT AND ORDER (CAV)
(Soumitra Saikia, J)

This Writ petition is filed by the petitioner, Md. Tafajjul Hussain @

Tafajjul Hussain, who has challenged the order dated 11.10.2019 passed

by the Member, Foreigner's Tribunal, Nagaon Court No.10 th at Sankardev Page No.# 3/24

Nagar (Doboka), Hojai, Assam, in case No. FT(D) Case No.880/2015.

2. Upon a reference made to the Foreigner's Tribunal, Nagaon Court

No.10th at Sankardev Nagar (Doboka), Hojai, Assam vide reference

No.S.P.(B)'s F.T. Case No.332/2015, the present Foreigner's Tribunal case

was registered against the petitioner. The petitioner was suspected to be

a foreigner, who had entered Assam, on or after 25 th of March, 1971 from

the specified territory i.e. Bangladesh without any valid documents. The

Tribunal initiated the reference by serving Notice on the petitioner. The

petitioner appeared before the Tribunal and filed his Written Statement

and produced documents in support of his case that he is not an alien,

who had entered Assam from the specified territory. The petitioner also

presented 2 (two) witnesses as defence witnesses to support his case

before the Tribunal. The Tribunal examined the materials presented

before the Tribunal but however, declined to accept the contentions of the

petitioner and rendered its opinion by answering the reference in

affirmative that the petitioner is a foreigner as per Section 2 (a) of the

Foreigners' Act, 1946 and who had illegally entered into the territory of

India specifically Assam on or after 25 th of March, 1971 from the

specified territory i.e. Bangladesh without any valid documents. Being Page No.# 4/24

aggrieved, the present writ petition has been filed by the petitioner

challenging the order dated 11.10.2019 passed by the Member,

Foreigner's Tribunal, Nagaon Court No.10 th at Sankardev Nagar (Doboka),

Hojai, Assam, in case No. FT(D) Case No.880/2015.

3. We have heard the learned counsels for the parties. We have also

perused the pleadings on record as well as the Tribunal records, which

were called for by this Court.

4. It is seen that the petitioner in his Written Statement stated that he

was born on 01.01.1976 and was brought up at the village 2 No. Borkur,

P.O-Bhuragaon, P.S- Bhuragaon, Dist of Morigaon, Assam. The further

case of the petitioner is that his forefather's name was enrolled in the

draft chitha of 1937-38 under Morigaon District, Mouza-Bhuragaon, 2 No.

Borkur Kissamat, vide A.P No. 22, Dag No. 467 and 35 and the same is

recorded in the name of his forefather, namely, Taleb Ali, S/O- Monor

Uddin. It is also stated that the name of his forefather was also recorded

in NRC of 1951, vide Legacy Data code No.270-0008-3209, Image ID

No.17102941 of village 2 No. Borkur Pathar, Bukoni Mouza, Lahorighat

Thana, District-Nagaon, Assam and that the name of his forefather is

shown to be recorded as Telebali Shek, S/O-Monirddin. Similarly, his Page No.# 5/24

grandfather's name was also entered into NRC of 1951 as Eyaj Uddin

Shek, S/O-Talebali and shown to be a resident of village 2 No. Borkur

Pathar, Bukoni Mouza, Lahorighat Thana, District-Nagaon, Assam. The

petitioner in his written statement stated that the names of his forefather,

grandfather and father's name has been enrolled in the draft chitha of

1968-69 under Morigaon District, Mouza-Bhuragaon, 2 No Borkur

Kissamat, vide P.P. No. 111, Dag No.4, 6, 7, 35 as Taleb Ali, S/O-Monor

Uddin, Eyaj Uddin S/O-Taleb Ali and Abbas Ali S/O-Eyaj Uddin. His

forefather's name has also been found recorded in the draft chitha of

1968-69 under Morigaon District, Mouza-Bhuragaon, 2 No Borkur

Kissamat, vide A. P. No.22, Dag No-4, 6, 7, 35 as Taleb Ali S/O-Monor

Uddin. In the said draft chitha the name of his grandfather was also

recorded as Eyaj Uddin S/O-Taleb Ali. The petitioner in his written

statement stated that the names of his parents and family members have

been enrolled in the Voters list since 1977. In the Voter's list of 1977 it

was recorded under 81 No Lahorighat LAC vide Sl. No. 27, 28, 29 and 30,

House No-4, Part No.66 of Vill-2 No Borkur Pathar, P.S-Lahorighat, Mouza-

Bhuragaon, District-Nagaon, Assam. The names of the family members

of the petitioner are found enrolled in Voters list of 1985, 1989, 1993,

1997, 2005, 2010, 2014, 2016. The petitioner stated that his name has Page No.# 6/24

been enrolled in the Voter list with effect from 1997 along with his family

members under 81 No Lahorighat LAC vide Sl. No. 383,384, 385, 386,

387 and 388, House No-106, Part No.30 of Vill-2 No Borkur Pathar, P.S-

Lahorighat, Mouza-Bhuragaon, District-Nagaon, Assam. It is further

stated that the petitioner and his family members had shifted their

residence from 2 No Borkur Pathar to Niz Doboka in the year 2003 and

presently the petitioner and his family members have been residing in Niz

Doboka (Doboka Pathar), but the petitioner again shifted his residence

from Niz Doboka to Bheluguri in the year 2010 and at present he is

presently residing in Bheluguri.

5. Before the Tribunal, the petitioner exhibited as many as 27 (twenty

seven) exhibits. The particulars of the exhibits as evident from the

records as also mentioned in the impugned order of the Tribunal are

extracted as under-

"i) Ext.1: Photo-copy or computer print-out of a computer generated NRC Details in the name of Talebali Shek of 2No. Borkor Pather in the district of Morigaon,

ii) Ext.2: Photo-copy or computer print-out of a computer generated NRC Details in the name of Eaj Uddin Shekh of 2 No Borkor Pather in the district of Morigaon, Page No.# 7/24

iii) Ext.3: Photo-copy of a certified copy of a document,

iv) Ext.4: Certified copy of a Hand-written Chittha Copy issued by the Circle Officer at Bhuragaon Revenue Circle for the village: 2No. Borkur Pather Gaon under mouza Bhuragaon in the district of Morigaon,

v) Ext.5: Certified copy of a Hand-written Chittha Copy issued by Sub Deputy Collector (S.D.C.), Bhuragaon Revenue Circle, for the village:

2No. Borkur Gaon under mouza Bhuragaon in the district of Morigaon,

vi) Ext.6: Certified copy of a Jamabandi vide P.P. No.:22 for the village: Borkur Pather No.2 under mouza Bhuragaon,

vii) Exts.7(A), 7(B), 7(C), 7(D), 7(E), 7(F), 7(G) & 7(H): Land Revenue Paying Receipts for the Annual Patta No.:22 in the village: 2No. Borkur,

viii) Ext.8(A): Land Revenue Paying Receipt for the Periodic Patta No.:111 in the village: 2 No. Borkur,

ix) Ext.8(B): Land Revenue Paying Receipt for the Periodic Patta No.:193 in the village: Bhe: Gaon,

x) Ext.9: Certified copy extract of a voter list for the village: 2No. Borkur Pather under 81No. Lahorighat LAC in the year -1985,

xi) Ext.10: Certified copy extract of a voter fist for the village: 2No. Borkor Pather under 81No. Lahorighat LAC in the year -1989,

xii) Ext.11: Certified copy extract of a voter list for the village: 2No. Borkur under 81No. Lahorighat LAC in the year -1993,

xiii) Ext.12: Certified copy extract of a voter list for the village: 2No. Borkur Pather under 81No. Lahorighat LAC in the year -1997,

xiv) Ext.13: Certified copy extract of a voter list for the village: Doboka, Ward No.:10 and Niz-Doboka under 90No. Jamunamukh LAC in the Page No.# 8/24

year-2005,

xv) Ext.14: Certified copy extract of a voter list for the village: Niz Doboka and Ward No.:10 -Doboka Town under 90No. Jamunamukh LAC in the year-2010,

xvi) Ext.15: Photo-copy of a voter list for the village: Bheleuguri,

xvii) Ext.16: Photo-copy of a voter list for the village: Bheleuguri under 90No. Jamunamukh LAC,

xviii) Ext.17: Receipt of payment of registration fee issued by the Sub- Registrar, Hojai,

xix) Ext.18: Computer generated Jamabandi copy vide P.P. No.:111 for the village: 2No. Borkur Pather under mouza Bhuragaon in the district of Morigaon,

xx) Ext.19: Transfer/Leaving Certificate issued vide Sl. No.:12 on 02/05/2016 in the name of Md. Tafajjul Hussain by the Headmaster, Balidunga M. E. School,

xxi) Ext.20: Gaon Panchayat Certificate issued vide Sl. No.:57 on 18/11/200 in the name of Tafajjul Hussain by the Secretary, Balidunga Gaon Panchayat,

xxii) Ext.21: Gaon Burah Certificate issued vide Sl. No.:782 on 04/05/2016 in the name of Md. Tafajjul Hussain by the Gaon Burah of 2No. Borkur Pather,

xxiii) Ext.22: Gaon Panchayat Certificate issued vide Memo. No.: 1(B)16- 17/3489 on 13/05/2016 in the name of Tofajjul Hussain by the President, Balidunga Gaon Panchayat,

xxiv) Ext.23: Gaon Panchayat Certificate issued vide Memo No.:1(B) 16-

Page No.# 9/24

17/3488 on 13/05/2016 in the name of Abbash Ali by the President, Balidunga Gaon Panchayat,

xxv) Ext.24: Gaon Burah Certificate issued vide SI. No.:(A) 4740 on 28/03/2018 in the name of Tafajul Hussain by Sri Pabitra Bodo, Gaon Burah of Bhelowguri Gaon,

xxvi) Ext.25: Photo-copy of an Elector Photo Identity Card in the name of Tafajul Husen,

xxvii) Ext.26: Affidavit,

xviii) Ext.27: Certified copy extract of a voter list for the village: 2No, Borkur Pather under 81No. Lahorighat LAC in the year - 1977 and

xxix) Ext. 27 (A): Certified copy extract of a voter list for the village: 2No, Borkur Pather under 81No. Lahorighat LAC in the year - 1977."

The petitioner also adduced evidence as D.W.1. His father Abbas

Ali was examined as D.W.2. One Md. Jaynal Abedin S/O Late Asmat Ali,

Aged about -70 years was examined as D.W.3 by the petitioner before the

Tribunal.

6. In respect of Exhibits. 1 and 2, the Tribunal held that these

two documents are Computer generated in terms of the provisions of

Section 65 B (4) of the Indian Evidence Act, 1872. The documents were

required to be proved for their authenticity and the same not having been

done in terms of the said provision these documents are unreliable for Page No.# 10/24

evidence. The Tribunal relied on the Judgment passed by this Court in

WP(C) No. 6443/2017 (Ahitan Nessa -Vs- Union of India).

6.1. Exhibit. 3 was considered in-admissible in evidence as photocopy of

the same was submitted before the Court.

6.2. Exhibits 4, 5 and 6 being the land documents were held to be

unproved in the absence of the testimony of the lawful custodian of these

documents.

6.3. Exhibits. 7 (A), 7(B), 7(C), 7(D), 7(E), 7(F), 7(G), 7(H)-- Land

Revenue Paying Receipts for the Annual Patta No.:22 in the village: 2No.

Borkur, were held to be unproved in accordance with law and hence did

not have any probative value.

6.4. Exhibit. 8 (A)-- Land Revenue Paying Receipt for the Periodic Patta

No.:111 in the village: 2 No. Borkur,

6.5. Exhibit. 8 (B)-- Land Revenue Paying Receipt for the Periodic Patta

No.:193 in the village: Bheloguri. Both these exhibits i.e. Exhibit. 8 (A)

and Exhibit. 8 (B) were held to be not proved in accordance with law and

the Tribunal, therefore, held that the said exhibits did not have any Page No.# 11/24

probative value.

6.6. In respect of Exhibit.9-Voter List for the year 1985 was held to

prove that Md. Abbas Ali, aged about 40 years is son of Eyaj Uddin of 2

No. Borkur Pather Gaon in the year-1985.

6.7. Exhibit.10-Voter List for the year 1989 was held to prove that Md.

Abbas Ali, age about 38 years is son of Eyaj of 2 No. Borkur Pather Gaon

in the year-1989.

6.8. In respect of Exhibit.11-Voter List for the year 1993, the Tribunal

held that the said exhibit proved inter-alia that Md. Abbas Ali, aged about

41 years is son of Reyaj of 2 No. Borkur Pather Gaon in the year-1993.

6.9. In respect of Exhibit.12-Voter List for the year 1997, the Tribunal

held that the exhibit proved inter-alia Md. Arbas Ali, age about 46 years is

son of Eyaj Udin of 2 No. Borkur Pather Gaon in the year-1997.

6.10. In respect of Exhibit.13-Voter List for the year 2005, the Tribunal

held that the exhibit proved inter-alia that Md. Tafajjul Hussain, age about

30 years is son of Abbas Ali and Abbas Ali, age about 50 years is son of

Late Eyaj Uddin of village: Doboka, Ward No.:10 and Niz-Doboka in the Page No.# 12/24

District of Nagaon.

6.11. In respect of Exhibit.14-Voter List for the year 2010, the Tribunal

held that the exhibit proved inter-alia that Md. Tafajjul Hussain, age about

32 years is son of Abbas Ali and Abbas Ali, age about 54 years son of late

Eyaj Uddin of village: Niz Doboka, Ward No.:10 and Doboka Town in the

District of Nagaon.

6.12. It was observed by the Tribunal in respect of the exhibits

discussed above that the name of Abbas Ali, projected to be the father of

the petitioner appears from the year 1977-2010. The Tribunal observed

that from the year 1977 to 1997 the voters list showed the address as

village 2 No. Borkur Pather and thereafter the village were shown as Niz

Doboka. That apart prior to 1977 neither the names of the projected

father (Abbas Ali) nor the projected paternal grandfather (Eyaj Uddin)

appeared in any Voters list and this non appearance of their names is also

not explained by the petitioner. It was also observed by the Tribunal that

the name of the petitioner itself did not appear in any voter list prior to

2005, which makes the claim of the petitioner doubtful in the absence of

any explanation by the petitioner. It was further observed by the Tribunal Page No.# 13/24

that the petitioner failed to disclose the name of his mother, names of his

siblings if any, names of his projected father's siblings, if any and that of

his paternal grandmother and maternal grandparents. He had also failed

to disclose his projected father's place of birth and status at the time of

filing the Written Statement. The Tribunal observed that the citizenship of

the petitioner is therefore questionable.

6.13. In respect of Exhibit.19--Transfer / School Leaving Certificate in

the name of Md. Tafajjul Hussain by the Headmaster, Balidunga M. E.

School, the same was sought to be proved by the petitioner by the

testimony of the author. However, the Tribunal did not accept the

testimony of the author of this document as the same was not on the

basis of School Admission Register.

6.14. In respect of Exhibit.20--Gaon Panchayat Certificate dated

18.11.2004, the Tribunal did not accept the Gaon Panchayat Certificate

because of the unauthorized use of the State Emblem by the author in

the said documents and the same was held to be not proved in

accordance with law.

6.15. In respect of Exhibit.21--Gaon Burah Certificate dated Page No.# 14/24

04.05.2016, the Tribunal rejected this document as the same was not

proved on the basis of contemporaneous record and as such it was

considered not to have any probative value.

6.16. In respect of Exhibits.22, 23, 26 and 27 (A), the Tribunal held

that these documents were not referred or contended to in the written

statements and therefore they were not considered for evidence by the

Tribunal.

6.17. In respect of Exhibit.24, the Gaon Burah Certificate dated

28.03.2018 the author of the said certificate was examined and he had

testified that he had issued the document only on the basis of the

availability of the name of the Opposite Party/petitioner in the Voters List

for the year 2012 and that he knew the petitioner /Opposite Party as a

inhabitant of his village. However, as the author did not produce a copy of

the Voters List or any other contemporaneous record during his

testimony, the Tribunal held that these documents as not proved as per

law and that it had lost its probative value.

6.18. In respect of Exhibit.25, the Tribunal held that the same being a

photocopy of the Electronic Photo Identity Card of the petitioner and Page No.# 15/24

therefore, not admissible in evidence.

7. The Tribunal held that amongst the documents exhibited as

secondary evidence before the Tribunal, only Exhibit. 13 and Exhibit.14

were proved and from there what can be concluded is that the

petitioner/Opposite Party is the son of Md. Abbas Ali.

8. The Tribunal held that the petitioner as the Opposite party before

the Tribunal had failed to disclose the name of his mother, name of his

brothers or sisters if any and the name of his projected father's brothers

or sisters if any or that of his paternal grandmother and maternal

grandparents. There was also no disclosure as to his projected father's

place of birth, his status (i.e. whether he was alive or death) at the time

of filing the written statement. The Tribunal held that failure to disclose

all the relevant material particulars at the very first instance i.e. in his

Written Statement have resulted in drawing of adverse presumption

against the Opposite Party. The Tribunal referred to the Judgment of this

Court rendered in AYESHA KHATUN --vs-UNION OF INDIA & OTHERS

reported in (2017) 3 GLR 820.

9. The Tribunal further held that the Opposite Party failed to adduce Page No.# 16/24

cogent, reliable and admissible evidence in support of his pleadings and

claims and had therefore failed to prove and establish the facts in issue in

the instant case. Tribunal held that after due perusal of the records and

materials available it transpires that the petitioner/Opposite party had

willfully neglected to prove his case and to adduce his evidence in

rebuttal. The Tribunal held that the Opposite Party miserably failed to

prove and establish his claim of the citizenship in India by discharging his

mandatory burden and liability as per Section 9 of the Foreigners' Tribunal

Act, 1946, inspite of being granted ample opportunities to testify in

respect of the allegations of the State that he is a foreigner of or on or

after 25.03.1971.

10. We have heard the learned counsels for the parties and we have

also perused the pleadings on record. The Tribunal records which were

called for have also been duly examined.

11. The case projected by the petitioner before the Tribunal is that the

petitioner was born on 01.01.1976 and was brought up at village 2 No.

Borkur, P.O-Bhuragaon, P.S- Bhuragaon, Dist of Morigaon, Assam. In the

Written Statement filed it was stated that one Taleb Ali, son of-Monor Page No.# 17/24

Uddin, projected to be the forefather of the petitioner, his name was

enrolled in the draft chitha of 1937-38 under Morigaon District, Mouza-

Bhuragaon, 2 No. Borkur Kissamat, vide A.P No. 22, Dag No. 467 and 35.

Further the petitioner's forefather's name was enrolled in the NRC of

1951 vide Legacy Data code No.270-0008-3209, Image ID No.17102941

of village 2 No. Borkur Pathar, Bukoni Mouza, Lahorighat Thana, District-

Nagaon, Assam as Telebali Shek, Son of-Monirddin. It was also stated

that the name of petitioner's grandfather- Eyaj Uddin Shek, Son of,

Talebali was enrolled in the NRC of 1951 vide Legacy Data code No.270-

0008-3225 of village 2 No. Borkur Pathar, Bukoni Mouza, Lahorighat

Thana, District-Nagaon, Assam. In the draft chitha of 1968-69, the names

of his forefather, grandfather and father's name namely, Talebali, Eyaj

Uddin Shek and Md. Abbas Ali respectively are recorded under Morigaon

District, Mouza-Bhuragaon, 2 No. Borkur Kissamat, vide P.P No. 111, Dag

No. 4, 6, 7 and 35. That apart the name of the forefather, grandfather,

namely, Talebali and Eyaj Uddin Shek respectively are also recorded in

draft chitha of 1968-69 under Morigaon District, Mouza-Bhuragaon, 2 No.

Borkur Kissamat, vide A.P No. 22, Dag No. 4, 6, 7 and 35.

12. The Voter's List of 1977, 85, 89, 93, 97 was presented before the Page No.# 18/24

Tribunal as evidences in support of his claim that the names of the

parents and the family members of the petitioner are enrolled in the said

Voter's List as voters under 81 No. Lahorighat LAC. The village has been

consistently shown as village 2 No. Borkur Pathar, Mouza-Bhuragaon,

Lahorighat Thana, District-Nagaon, Assam. It was further submitted that

the name of the petitioner along with his father and other family

members were reflected as voters under 90 No. Jamunamukh LAC for the

years 2005, 2010, 2014 and 2016. It was stated that the change in

address was because of the family shifting their residence from 2 No.

Borkur Pathar to Niz Doboka village in the year 2003. Although the

petitioner's father and his family members are presently residing in Niz

Doboka (Doboka Pathar), but the petitioner again shifted back to his

residence from Niz Doboka to Bheluguri in the year 2010 and he is

permanently residing in Bheluguri. It is also contended that some landed

properties were purchased by the petitioner at village Bheluguri in the

year 2010 vide P.P No. 193 under Behlguri Kissamat, Mouza-

Jamunamukh, P.S Doboka, District-Nagaon, Assam. That apart School

Certificate issued by the Head Master of Balidunga M.E. School,

Residential Certificate issued by Secretary of Balidunga Gaon Panchayat

as well as Residential Certificate issued by Sarkari Gaonburah of 2 No. Page No.# 19/24

Borkur and Sarkari Gaonburah of Bheluguri Gaon were also relied upon

by the petitioner to content that he was certified to be a permanent

resident of the places mentioned in the certificates.

13. In order to contest the reference against the petitioner that he is a

foreigner of post 27.03.1971, the petitioner must be able to establish the

linkage with his father or grandfather etc. to dispel the allegation that he

is a foreigner and not an Indian citizen. This is necessary because the

petitioner was born on 01.01.1976 and the same is not supported by any

Birth Certificate issued by the competent authority of the State.

14. It is seen from a perusal of the impugned Judgment that the

Foreigners Tribunal did not accept the documentary evidences presented

by the petitioner to be reliable evidence in support of his contention that

he is not a foreigner but a citizen of India.

15. It is however seen that in respect of Exhibit. 4, Exhibit. 5 and

Exhibit. 6, which are land documents relied upon by the petitioner to

project that his grandfather, father and forefather had acquired landed

properties, the Tribunal held that these documents were unproved in

accordance with law and therefore, were considered not to have any Page No.# 20/24

probative value. A perusal of the Tribunal records revealed that the

petitioner had filed necessary applications before the Tribunal for issuance

of summons to the Revenue Officials. However, vide order dated

21.09.2019, the Tribunal held that the summons to the concerned

authority were issued on 05.09.2019 on the basis of steps taken by the

Opposite Party (petitioner herein) but thereafter the Opposite Party

neglected to serve the same, which remained in the record of the

Foreigners Tribunal. Under the circumstances, the Tribunal decided to

wind up the opportunity so granted to the Opposite Party/petitioner and

proceeded for an opinion on the merits of the case on that day itself,

which however, could not be delivered due to paucity of time and the

matter was again fixed on 11.10.2019 for opinion on merit. On

11.10.2019, the impugned opinion was delivered holding that the

Opposite Party (petitioner herein) was declared as a foreigner (who

entered India) on or after 25.03.1971.

16. The Foreigners Tribunal records perused also revealed an

application which was filed by the State counsel seeking permission to

cross examine the defence witnesses as the Tribunal had earlier passed

orders closing the cross examination of the D.Ws in the matter.

Page No.# 21/24

17. Although Section 9 of the Foreigners' Act, 1946 cast the burden on

the person, on whom, a reference is made before the Tribunal, to prove

that he is not a foreigner but an Indian citizen, there are sufficient

powers given to the Foreigners' Tribunal under the Foreigners' (Tribunals)

Order, 1964, which provides that Foreigners' Tribunal shall have the

powers of the Civil Court while trying a suit under the Code of Civil

Procedure, 1908 and the powers of the Judicial Magistrate First Class

under the Criminal Procedure Code, 1973 in respect of the following

matters, namely:-

(a) summoning and enforcing the attendance of any person and examining him or her on oath;

(b) requiring the discovery and production of any document;

(c) issuing commissions for the examination of any witness;

(d) directing the proceedee to appear before it in person;

(e) issuing a warrant of arrest against the proceedee if he or she fails to appear before it.

18. In other words there is ample power prescribed under the Act read

with the Foreigners' (Tribunals) Order, 1964 to enforce attendance of any Page No.# 22/24

person by issuing summons for the purposes of examining him/her on

oath. In the present case while there is a finding by the Tribunal in its

order dated 21.09.2019 that the summons on the authorities were not

served because of steps were not taken by the petitioner. However, in the

facts of the present case, where the petitioner has presented land

documents as evidences to support his claim that his father and

grandfather etc were present in India and had landed properties between

1966 and 1971, it would have been apposite for the Foreigners' Tribunal

to have the Revenue Officials summoned for the purposes of evidence to

determine the authenticity of the documents issued and its evidentiary

value with respect of the present case. That apart, it is seen that

although the evidence in chief was recorded by the Tribunal in respect of

the Defence witnesses namely, D.W.1, D.W.2 and D.W.3, the impugned

order of the Tribunal does not even refer to the evidences adduced before

the Tribunal. There is no evaluation of the Oral evidences adduced by the

petitioner by the Foreigners Tribunal while rendering the impugned Order.

19. Considering the above, as had been held by this Court that

citizenship is a valuable right and every opportunity available in law must

be afforded to every person whose citizenship has come under the cloud Page No.# 23/24

because of the reference made by the State to the Tribunal, it is

necessary for the Foreigners' Tribunal to properly evaluate all the

evidences presented before the Tribunal-be it oral or documentary

evidences. The evidence pertaining to the authenticity of the land

documents exhibited as Ext.4, Ext.5 and Ext.6 are necessary to determine

the presence/absence of the linkage between the petitioner and his

father, his grandfather etc. Since " preponderance of probability" is the

basis for evaluation of the evidences presented before the Tribunal by the

petitioner, rejection of the certified copies of the land documents

exhibited by the petitioner without the testimony of the Revenue

authorities cannot be accepted as a proper evaluation as per law of the

evidence. Accordingly, we are of the view that this impugned order

passed by the Foreigners' Tribunal cannot be sustained; the same is

therefore interfered with and set aside. The matter is remanded back to

the Tribunal for a fresh decision in the matter after causing issuance of

summons to the concerned officials who may be the appropriate authority

to adduce evidences in respect of the land documents submitted by the

petitioner before the Tribunal.

20. Considering the fact that the matter will be heard again from the Page No.# 24/24

stage of evidence, we also permit the State to cross-examine the Defence

witnesses and accordingly, the order dated 21.09.2019 passed by the

Foreigner's Tribunal, Nagaon Court No.10 th at Sankardev Nagar (Doboka),

Hojai, Assam closing the cross-examination of the Defence witness is also

interfered with and set aside. Although the matter is remanded back for a

fresh decision, it is made clear that liberty is granted only for summoning

and examining the Revenue authorities in respect of the land documents

presented by the petitioner and cross examination thereof if sought for

and the State counsel is also permitted to cross examine the Defence

Witnesses presented by the petitioner before the Foreigners' Tribunal. It

is made clear that no new evidence other than those permitted above can

be produced before the Tribunal. The entire exercise is directed to be

completed within a period of 2 (two) months from today.

21. Writ petition is accordingly allowed to the extent indicated above.

Tribunal records be remitted forthwith. No order as to cost.

                         JUDGE                 JUDGE



Comparing Assistant