Gauhati High Court
Page No.# 1/8 vs Union Of India And 5 Ors on 10 March, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/8
GAHC010190672018
2025:GAU-AS:2584
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5963/2018
NARAYAN BARMAN
S/O- LT JUDHISTIR BARMAN, R/O- VILL- BARIKADANGA, P.S. BARAMA,
DIST- BAKSA, BTC (ASSAM)
VERSUS
UNION OF INDIA AND 5 ORS.
REP. BY THE SECY., TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, SHASTRI BHAWAN, NEW DELHI-1
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-6
3:THE DY. COMMISSIONER
BAKSA
P.O. AND DIST- BAKSA (ASSAM)
4:THE SUPERINTENDENT OF POLICE (B)
BAKSA
P.O. AND DIST- BAKSA (ASSAM)
5:THE ELECTION COMMISSION OF INDIA
NEW DELHI
6:THE STATE COORDINATOR
NATIONAL REGISTRAR OF CITIZENS (NRC)
ASSA
Advocate for the Petitioner : MR. A DEY, MR. J LASKAR
Page No.# 2/8
Advocate for the Respondent : ASSTT.S.G.I., SC, NRC,SC, F.T,SC, ELECTION COMMISSION.
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 10.03.2025
(K.R. Surana, J)
Heard Mr. J. Laskar, learned counsel for the petitioner. Also heard Ms. A.
Gayan, learned CGC; Mr. G. Sarma, learned Standing Counsel for F.T. matters;
Mr. M. Islam, learned counsel on behalf of Mr. A. Ali, learned Standing Counsel
for ECI; Mr. P. Sarmah, learned Additional Sr. Government Advocate for the
State; Mr. R. Talukdar, learned Government Advocate and Mr. G. Sarma, learned
Standing Counsel for NRC.
2. By filing this writ petition under Article 226 of the Constitution of India, the
petitioner has assailed the opinion dated 31.05.2018, passed by the learned
Members, Foreigners Tribunal, Baksa, Tamulpur in F.T. Case No.
828/BAKSA/2016 thereby declaring him to be a foreigner who illegally entered
into India on or after 25th March, 1971 stream.
3. On receipt of notice, the petitioner appeared before the learned Tribunal
and submitted his written statement, denying that he was a foreigner and
claimed that he was born and brought up at village Barikadanga under mouza
Madhyam Baksa in the district of Baksa. His father's name is Judhistir Barman
and his mother's name is Premabala Barman, who were residents of the same
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village. The petitioner claimed that his father's name appeared as a voter in the
Electoral Roll of 1965 and his name had appeared in the Electoral Roll of 1970.
Accordingly, he was a citizen of the country.
4. Initially the case proceeded ex-parte against the petitioner and accordingly,
the orders dated 11.10.2017 and 30.12.2017 were assailed by the petitioner by
filing WP(C) No. 985 of 2018. This Court by an order dated 22.03.2018, set
aside the orders dated 11.10.2017 and 30.12.2017 and directed the petitioner
to appear before the Tribunal along with his written statement on 22.03.2018.
Accordingly, the petitioner appeared before the learned Trial Court and filed his
written statement.
5. In support of his defence, the petitioner had filed his evidence-on-affidavit.
On a perusal of the record it appears that Ext.-1 in the evidence-on-affidavit was
the certified copy of the voter's list of 1956. Paragraph 6 of the evidence-on-
affidavit has been struck off. However, the subsequent exhibited documents
which were marked in the evidence-on-affidavit as Ext.-2 to Ext.-5 are found to
have been exhibited as Ext. Nos. 1 to 4 and Ext.-5 is the photocopy of Elector
Photo Identity Card (EPIC for short). Thus there is no corresponding correction
in the evidence-on-affidavit regarding the exhibits, which are ultimately marked
as Exts.-1 to 4. The petitioner has exhibited the Electoral Roll of 1965 containing
the name of his projected father as Ext.-1. The Electoral Roll of 1970 containing
his name has been exhibited as Ext.-2, Electoral Roll of 1997 is the certified
copy of voter list as Ext.-3 and Electoral Roll of 2005 is the certified copy of
voter list of 2005 as Ext.4 are respectively marked as Exts.-2, 3 & 4 respectively
and the EPIC is marked as Ext.-5.
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6. The record reveals that there was no cross-examination of the petitioner,
who had examined himself as PW-1.
7. The learned Tribunal, while appreciating the documentary evidence in the
final opinion, amongst others, held that the petitioner had not disclosed all the
required basic material facts in the written statement which was within his
exclusive knowledge. The Electoral Roll of 1965, 1970, 1977 and 2005, which
were marked as Ext-1 to Ext.-4 were discarded on the ground that those
documents are not proved by the appropriate authority. Moreover, on the
ground that the petitioner had not submitted any document between 1970 and
1997, exhibited Electoral Rolls were discarded due to the age discrepancy
contained therein. Moreover, Ext.-4 was discarded as it was not reflected in the
written statement of the petitioner. Resultantly, it was held that there were
multiple materials contradictions which rendered the evidence of the petitioner
as it raises serious doubt about credibility of the exhibits. Accordingly, it was
held that the petitioner has failed to discharge his burden as required in Section
9 of the Foreigners Act, 1946. Hence, it was held that the petitioner had entered
into India on or after 1971 from the specified territory and accordingly, he was
held to be a foreigner.
8. Heard the submissions made by learned counsel for the petitioners as well
as the learned Standing Counsel for the F.T. matters. While the learned counsel
for the petitioner has made his submissions against the impugned opinion, the
learned Standing Counsel for F.T. matters has advanced his submission in
support of the impugned opinion.
9. The impugned opinion is being examined under two compartmental parts.
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One relates to the discarding of the evidence in form of Ext.-1 to Ext.-5. The
other part relates to the non-availability of documents between Electoral Roll of
1970 and Electoral Roll of 1997, which in other words is that the petitioner has
no document to exhibit between the year 1970-1997, which is a gap of 27
years.
10. In regard to the second part, the learned Standing Counsel for F.T. matters
has submitted that once the proceedee is suspected to be a foreigner, he is
required to show his continuous stay in the Country under section 6-A(3)(b) of
the Citizenship Act, 1955. In other words, the submission made by the learned
standing counsel for the F.T. matters in this regard to that once the petitioner is
a subject matter of enquiry before the Foreigners Tribunal, it was his duty is to
make all relevant disclosure in the written statement and to establish that he is
staying in the Country continuously prior to 25.03.1971. Obviously the petitioner
has miserably failed to show and prove that he was a resident of the Country
between 1970 and 1997.
11. The other part which relates to the rejection of Ext.-1 to Ext.-5 as
admissible evidence. It is seen that Ext.-5 is the EPIC of the petitioner. In this
regard it was a trite law that EPIC of petitioner is not a proof of citizenship. In
this regard we may refer to the decision of this Court in the case of Babul Islam
v. Union of India and others [WP(C) No. 3547 of 2016, decided on 09.05.2018] .
12. However, as regards the Electoral Roll of 1965, 1970, 1977 and 2005,
marked as Ext.-1 to Ext.-4, the learned Tribunal had held that those were not
proved by the appropriate authority and therefore, discarded. The said finding is
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not found to be sustainable. The records of the Tribunal disclose that the
petitioner had exhibited the Electoral Roll of 1965, 1997 and 2005, which were
duly issued certified copies. Ext.-1 is the Electoral Roll of 1965 of village
Barikadanga, which contains the name of the projected father of the petitioner,
namely, Judhistir Barman. The Electoral Roll of 1970 containing the name of the
petitioner, of village Barikadanga was marked as Ext.-2. In the said Electoral
Roll, the name of the father of the petitioner is stated as Judhistir. The Electoral
Roll of 1997, marked as Ext.-3, contains the name of the petitioner and his
father's name is Judhistir, of village Barakdanga/Khairani. The Electoral Roll of
2005 is marked as Ext.-4 and contains the name of the petitioner and his
father's name is Judhistir of village Khairani. Accordingly, it prima facie appears
that the petitioner was a resident of the same village all throughout.
13. The learned Standing Counsel for the F.T. matters, on query of the Court,
has not been able to place any judgment which requires with that the certified
copy of the Electoral Roll is not an admissible evidence and is required to be
further proved by calling the officials of the Election Commission of India and/or
the concerned Election Officer, who had issued the certified copy. On the perusal
of the Ext. Nos. 1 to 4, it is seen that those certified copies were issued by the
Election Officer, Baksa, Musalpur. The Tribunal has not recorded that the
authority who has issued the certified copies was not competent to do so. Under
such circumstance, the rejection of Ext. Nos. 1 to 4 on the ground that the
competent authority was required to prove the same is held to be an erroneous
and unsustainable opinion by the learned Member, Foreigners Tribunal, Baksa.
The Court is unable to accept that the Ext. Nos. 1 to 4, which is a certified copy
of the voter list can be rejected on the ground that a competent authority is
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required to scrutinize the same.
14. Accordingly, notwithstanding that one part of the order, where it was
observed that the petitioner could not exhibit any document between 1965 and
1997, is correct, however, as regards rejection of Ext. No. 1 to Ext. No. 4, the
impugned opinion is not found sustainable in law. Accordingly, the Court has no
hesitation to set aside the impugned opinion dated 31.05.2018 passed by the
learned Foreigners' Tribunal, Baksa, Tamulpur in F.T. Case No. 828/BAKSA/2016.
15. Resultantly, the matter stands remanded back to the said learned Tribunal
for a fresh opinion after appreciation of the evidence in accordance with law.
16. It may be mentioned that in the writ petition the petitioner has annexed a
copy of the certified copy of Electoral Roll of 1985. The said document was
never produced before the learned Tribunal. This Court in exercise of certiorari
jurisdiction would not appreciate a document which is produced by the writ
petitioner for the first time, having not been produced before the learned
Tribunal. Therefore, if any application is filed by the petitioner to consider any
other document, such prayer shall be considered by the learned Tribunal in
accordance with law and without being prejudiced by this order.
17. Accordingly, this writ petition stands allowed only in respect of that part of
the impugned opinion dated 31.05.2018 passed by the learned Foreigners'
Tribunal, Baksa, Tamulpur in F.T. Case No. 828/BAKSA/2016 by which the Ext.
No. 1 to Ext. No. 4 were discarded. The matter is remanded back to the said
learned Tribunal.
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18. The Registry shall return back the records to the Tribunal expeditiously.
19. The Court is inclined to direct the petitioner, namely, Narayan Barman to
appear before the learned Foreigners Tribunal within 30 (thirty) days from the
date of the order i.e. within 10.04.2025 and by producing a certified copy of this
order, await for further instruction by the said learned Tribunal.
20. In the event the petitioner does not appear before the said learned
Tribunal within time allowed, it is open to the learned Tribunal to treat the
petitioner as absent on call and pass appropriate order on the basis of materials
and evidence available on record.
21. Accordingly, the WP(C) 5963/2018 is allowed and disposed of on terms as
indicated above.
JUDGE JUDGE
Comparing Assistant
