Gauhati High Court
Mariyam Nessa vs The Union Of India And 7 Ors on 24 June, 2022
Page No.# 1/5
GAHC010119462022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4201/2022
MARIYAM NESSA
D/O LATE ISMAIL SEIKH, W/O KHALIL ALI, R/O VILL-KHARBALLI, P.S.-
KALGACHIA, MOUZA-RUPSHI, DIST-BARPETA, ASSAM
VERSUS
THE UNION OF INDIA AND 7 ORS
REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS,
GOVERNMENT OF INDIA, SHASTRI BHAWAN, NEW DELHI-110001
2:THE STATE OF ASSAM
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-781006
3:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTION COMMISSION NIRVACHAN
SADAN
ASHOKA ROAD
NEW DELHI-110001
4:THE STATE COORDINATOR
NATIONAL REGISTRATION OF CITIZENS
ASSAM
1ST FLOOR
ACHYUT PLAZA
G.S. ROAD
BHANGAGARH
GUWAHATI
ASSAM
PIN-781005
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5:THE FOREIGNERS TRIBUNAL NO. 11TH
BARPETA
DIST-BARPETA
ASSAM
PIN-781301
6:THE DEPUTY COMMISSIONER
BARPETA
P.O.-BARPETA
DIST-BARPETA
ASSAM
PIN-781301
7:THE SUPERITENDENT OF POLICE (B)
BARPETA
DIST-BARPETA
ASSAM
PIN-781301
8:THE OFFICER-IN-CHARGE OF KALGACHIA POLICE STATION
P.O.-KALGACHIA
DIST-BARPETA
ASSAM
PIN-78131
Advocate for the Petitioner : MS. D GHOSH
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
HONOURABLE MR. JUSTICE LANUSUNGKUM JAMIR
ORDER
Date : 24.06.2022
(N. Kotiswar Singh, J)
Heard Ms. D Ghosh, learned counsel for the petitioner. Also heard Mr. K. K. Parasar,
learned standing counsel appearing for NRC as well as for CGC, Ms. A. Verma, learned
Standing Counsel appearing on behalf of Foreigners Tribunal, Ms. K. Phukan, learned
Government Advocate appearing for the State and Mr. A. I. Ali, learned Standing Counsel
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appearing for the Election Commission of India.
2) Considering the nature of the case we are of the view that it may not be
necessary to call for the records and the matter may be remanded for re-consideration.
3) In this petition the judgment dated 04.03.2022 passed by Foreigners' Tribunal
No. 11th Barpeta, Assam in (Bpt/11th). F. T. 805/2016 (IMDT Case No.1613/04) by which
the petitioner was declared a foreigner who entered Assam after 25.03.1971.
4) The learned counsel for the petitioner submits that upon receipt of notice from
the Tribunal the petitioner made her appearance and filed her written statement and also
a number of documents to show that she is an Indian and not a Foreigner.
5) The petitioner examined herself as DW-1 and also produced one Abdul Hamid,
who the petitioner claims to be her brother who was examined as DW-2. The petitioner
also exhibited as many as 12 documents to show that she is an Indian and not a
Foreigner.
6) On perusal of the opinion what we have noticed is that though the learned
Tribunal has made reference to the aforesaid exhibits and discussed the same, there is no
discussion about the evidence tendered by her projected brother Abdul Hamid, DW-2.
There is only a cryptic reference to the said evidence by observing that the claimed
relationship between OP and her projected brother Abdul Hamid is not proved and
therefore, his evidence recorded as DW-2 stands rejected.
7) We are of the view that the Tribunal ought to have discussed the evidence of
DW-2 and reasons why it was not acceptable to show the claimed relationship between
him and the petitioner. In the opinion, however, there is no such discussion except for
aforesaid cryptic observation.
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8) We are of the view that if a person testifies before the Tribunal claiming to be a
close relative, as a brother in the present case, and also making reference to documents,
it was incumbent upon the Tribunal to see the relevancy, admissibility and credibility of
such evidence adduced and thereafter, come to his own conclusion, but that having been
not done, we are of the view that it would amount to non application of mind by the
Tribunal as far as the aforesaid critical evidence of her brother is concerned.
9) It is now well settled that if a Tribunal does not take into consideration or does
not appreciate the material evidence before it, before it comes to a conclusion, such an
opinion will be vitiated on the strength of non application of mind on a material fact.
10) We are satisfied that in the present case there was non application of mind by
the learned Tribunal as far as the evidence of the projected brother Abdul Hamid DW-2 is
concerned.
11) Accordingly, without going into merit of the case any further, as regards the
discussion of the evidence on record, we remit the matter to learned Tribunal to re-
consider the evidence of the projected brother DW-2 and re-consider the said evidence
in-conjunction with other evidences on record as in our opinion all the evidences are to be
considered collectively before coming to a conclusion as to the citizenship status of the
present petitioner.
12) Accordingly, for the above reasons we allow this petition by setting aside the
impugned judgment dated 04.03.2022 passed by Foreigners' Tribunal No. 11 th Barpeta,
Assam in (Bpt/11th). F. T. 805/2016 (IMDT Case No.1613/04).
13) The matter is remitted for reconsideration by the learned Tribunal, and the
learned Tribunal after hearing the petitioner will pass a fresh opinion.
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14) The petitioner will appear before the learned Tribunal on or before 27.07.2022.
15) The learned counsel for the petitioner submits that there is a crucial document
also i.e. certificate issued by the Gaonbora and some other documents which could not be
proceeded because of lack of proper legal advice. As regards this, the petitioner may file
an application before the learned Tribunal and learned Tribunal will consider the same in
accordance with law.
16) LCR be remitted to the concerned Foreigners Tribunal forthwith.
JUDGE JUDGE
Comparing Assistant
