Gauhati High Court
Page No.# 1/17 vs The Union Of India And 3 Ors on 8 May, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/17
GAHC010121312017
2025:GAU-AS:5785-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/500/2017
SMT. JOYTAN BIBI
W/O NOUSAD ALI R/O VILL- KAIMARI PART-V, P.O. KAIMARI P.S.
GOLAKGANJ DIST. DHUBRI, ASSAM.
VERSUS
THE UNION OF INDIA and 3 ORS.
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF INDIA, DEPARTMENT
OF HOME, NEW DELHI.
2:THE STATE OF ASSAM
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI- 6.
3:THE DEPUTY COMMISSIONER
DIST. DHUBRI
ASSAM.
4:THE SUPERINTENDENT OF POLICE
B
DIST. DHUBRI
ASSAM
Advocate for the Petitioner : MS.S PAUL, MR.P C DEY,MR.I HAQUE
Advocate for the Respondent : , GA, ASSAM,ASSTT.S.G.I.
Page No.# 2/17
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
For the petitioner : Mr. P.C. Dey, Advocate
For the Union of India : Mr. J. Sarma, CGC.
For the State respondent : Mr. H.K. Hazarika, Govt. Advocate.
For FT & NRC : Mr. G. Sarma, standing counsel.
For ECI : Mr. M. Islam, standing counsel.
Date of hearing : 17.12.2024, 08.05.2025.
Date of judgment : 08.05.2025.
JUDGMENT AND ORDER
(K.R. Surana, J)
Heard Mr. P.C. Dey, learned counsel for the petitioner. Also
heard Mr. J. Sarma, learned CGC for the Union of India; Mr. H.K. Hazarika,
learned Govt. Advocate for the State; Mr. G. Sarma, learned standing counsel for
the FT matters and NRC and Mr. M. Islam, learned counsel, appearing on behalf
of Mr. A.I. Ali, learned standing counsel for Election Commission of India.
2) By filing this writ petition under Article 226 of the Constitution
of India, the petitioner, Jaytan Bibi, has assailed the opinion dated 08.11.2016,
passed by the learned Member, Foreigners Tribunal No.(8 th), Dhubri in FT Case
No. 8/149/GKJ/2015, bearing FT Case No. 4645/GKJ/2011, arising out of Ref.
IM(D)T Case No. 5917/98, by which she was declared to be a foreigner of post
25.03.1971 stream.
3) On receipt of notice of the proceedings, the petitioner had filed
her written statement on 19.12.2015 and claimed that she was a genuine citizen
of India and there was no reasonable ground to declare her as foreign national.
She had stated that before her marriage with Nausad Ali of village- Kaimari Part-
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V, she was residing with her parents at village- Shilghagri, under Boxirhat P.S.,
Dist. Coochbehar, West Bengal. Her father's name is Abbas Ali Sk. @ Sk. Abbas,
whose name is recorded in the voter list of 1966 of village- Balakuti under
Tufanganj (SC) Assembly Constituency. Her mother's name is Surjya Bibi @
Surjya Bewa and her brother's name is Ismail Miya. Later on, her father had
shifted his village to Silghagri and on 02.11.1981, he had purchased a plot of
land from Jafor Ali Sk. The name of her father is recorded as final khatian holder
vide khatian no. 45, Mouza- Silghagri, Coochbehar, West Bengal and the names
of her parents were recorded in the voter list of 1975 of the said village. She
had stated that her name was entered in ration-card on 18.11.1988 as
Mossamad Jayton Nessa. After her marriage with Nausad Ali, she has been
residing with her husband at village Kaimari Part-V and her name is entered in
enumeration list of 1997 and 2004. Her mother, Surjya Bibi @ Surjya Bewa has
an election identity card.
4) In her written statement, the petitioner had annexed the
following documents, viz., (1) Gaon Panchayat Certificate from Bhanukumari-II
Gaon Panchayat; (2) certified copy of the voter list of 1966; (iii) sale deed; (4)
ration card; (5) enumeration list of 1997; (6) enumeration list of 2004; (7) final
khatian; (8) voter list of 1975; (9) voter identity card.
5) Thereafter, on 03.02.2016, the petitioner had filed her
evidence-on-affidavit as DW-1 and by reiterating what has already been stated
in her written statement, exhibited the Gaon Panchayat certificate (Ext.1); copy
of application for information issued by O/C, Election, S.D.O. Office, Tufanganj
containing remark that Sekh Abbas, son of Ajimuddin of village- Balakuti was an
elector in the year 1966 under Tufanganj (SC) A.C. in part no. 51, serial no. 44
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(Ext.2); sale deed (Ext.3); ration card (Ext.4); enumeration list of 1997 (Ext.5);
enumeration list of 2004 (Ext.6); final khatian (Ext.7); voter list of 1975 (Ext.8);
elector voter identity card (Ext.9); sale deed dated 25.01.1965 by which her
mother and father had purchased land (Ext.10); enumeration list of 1993
(Ext.11). On 25.02.2016, the petitioner was examined by the learned Tribunal
and discharged.
6) In support of her case, the petitioner had examined Ismail
Miya, her projected brother as DW-2 by filing his evidence-on-affidavit on
15.06.2016. DW-2 had reiterated the statement of the petitioner and he had
further stated that his father's name was recorded as Sekh Abbas, son of
Ajimuddin of village- Balakuti, in the voter list of 1971 under Tufanganj (SC)
Assembly Constituency. DW-2 had exhibited an information copy issued under
High Court Form No. (M) 55 (Civil)/ (M) 30 (Criminal) containing remark that
"Sekh Abbas s/o Ajimuddin vill. Balakuti was an elector under Tufanganj (SC)
AC in the year 1971 in Part No. 158 at Sl. No. 419" as Ext.12.He had also
exhibited the printed voter list of 1983 as Ext.13; link/ panchayat certificate as
Ext.14, wherein it was written that the petitioner is the daughter of Abbaj Ali
and his sister and that she had left the area i.e. place of her birth for village
Kaimari Part-V under Dhubri District due to her marriage. He had submitted his
voter identity card, issued by Electoral Registration Officer, Tufanganj dated
01.03.1995, as well as a photocopy of the printed voter list of 2016. The
Panchayat Certificate in favour of the DW-2 was exhibited as Ext.15; his elector
photo identity card was exhibited as Ext.15(1); and printed voter list of 2016 as
Ext.15(2). The DW-2 was cross examined by the learned Asst. Govt. Pleader
(AGP for short) on 08.08.2016 and discharged.
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7) Thereafter, the opinion of the learned Tribunal, which is assailed
in this writ petition, was passed on 08.11.2016.
8) The learned counsel for the petitioner has submitted that the
exhibited documents were discarded by the learned Tribunal on untenable
grounds. Moreover, it is submitted that while discussing the evidence, the
learned Tribunal did not consider or discuss the evidence of Ismail Miya (DW-2).
Moreover, apart from referring to Ext.1, Ext.2, Ext.3, and Ext.10, no other
exhibits were discussed. Though a passing reference has been made to Ext.4,
Ext.5, Ext.6, Ext.7, Ext.8, Ext.9, and Ext.11, however, the learned Tribunal has
not discussed and/or appreciated those exhibited documents. Hence, it is
submitted that the resulted opinion is not sustainable on facts and in law.
9) It was submitted that the Investigating Officer had perfunctorily
made the enquiry and most of the columns of the enquiry report has been left
blank. Accordingly, it was submitted that the grounds of suspecting the
petitioner to be a foreigner was not supplied to the petitioner for which the
petitioner was prevented from taking proper defence in the proceeding.
10) In support of his submissions, the learned counsel for the
petitioner has cited the following cases: (1) Farida Khatun v. The Union of India
& Ors., 2020 (4) GLT 611 ; and (2) Md. Rajab Ali & Ors. v. The Union of India &
Ors., (2015) 0 Supreme Gau 734.
11) The learned counsel for the petitioner has taken a plea that the
LVO report and the forwarding of the reference by the Electoral Registration
Officer (ERO for short) were left blank and thus, it was evident that there was
no investigation. Accordingly, it was also submitted that the grounds for
suspecting the petitioner to be a foreigner was not disclosed to her. In support
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of the said submissions, the following cases were cited, viz., (i) State of Assam
v. Moslem Mondal, 2013 (1) GLT 809 , (ii) Amina Khatun v. Union of India &
Ors., 2022 (4) GLT 102, (iii) Anjana Biswas v. Union of India & Ors., 2023 (2)
GLT 1102, (iv) Md. Rahim Ali @ Abdul Rahim v. State of Assam, 2024 (4) GLT
(SC) 97, (v) Sushil Mondal v. Union of India & Ors., 2022 (1) GLT 790 , and (vi)
Soidur Rahman @ Sahidur Rahman & 3 Ors. v. Union of India & Ors., W.P.(C)
7517/2017, decided on 26.11.2024.
12) Per contra, the learned standing counsel for the FT matters has
referred to the affidavit-in-opposition filed on behalf of respondent no.3 and it is
submitted that during enquiry, the petitioner was absent and hence, the Local
Verification Officer could not collect any document in support of her nationality
and accordingly, the identity of her father could not be established in the
investigation report. It is submitted that in paragraph-9 of the writ petition, the
petitioner has stated that her name appeared along with her projected husband
in the Electoral Roll of village- Kaimari Part-V under 25 Golakganj LAC, but the
said evidence does not establish the case of the petitioner because the name of
Joynab Bibi, husband Nausad Ali also appears in the same village under Sl. No.
623, House No. 241, Part No.15 with "D" status under 25 Golakganj LAC.
Moreover, it is submitted that pursuant to the impugned opinion dated
08.11.2016, the name of the petitioner has been deleted from the Electoral Roll.
It is submitted that there is no legal flaw in the opinion. It is submitted that in
the case of Md. Rahim Ali v. The Union of India & Ors., 2018 (4) GLR 542:
(2018) 0 Supreme (Gau) 1508,the law is settled that the ground for suspecting
the petitioner to be a foreigner can be mentioned in the notice itself, does not
required to be elaborated or furnished separately. It is submitted that the
petitioner has not been able to prove her relationship with her projected father
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or that she and her parents were citizens of India. In support of his submission,
the learned standing counsel for the FT matters has cited the following cases:
(1) Sayamuddin v. The Union of India, (2019) 5 GLR 179; (2) Sayamuddin v.
The Union of India, WA 170/2019, decided on 29.07.2019; (3) Rukia Begum
Barbhuiya v. The Union of India & Ors., 2023 (4) GLT 1208: (2023) 0 Supreme
(Gau) 568; and (4) Sarbananda Sonowal v. The Union of India; (2005) 5 SCC
665.
13) Perused the pleadings and documents contained in the writ
petition and affidavit-in-reply filed by the petitioner as well as affidavit-in-
opposition filed on behalf of respondent no.3. Also considered the cases cited at
the Bar by learned counsel for both sides.
14) On the basis of the submissions made by the learned counsel for
the petitioner, two following points of determination arise for decision in this writ
petition:-
i. Whether the reference, which is based on LVO report, as
forwarded by the ERO, wherein certain paragraphs/ columns were
left un-filled, vitiates the proceedings before the Foreigners
Tribunal?
ii. Whether the impugned opinion is otherwise liable to be
interfered with?
15) The point of determination no. (i), that the reference was made
on the basis of LVO report, the columns of which was left blank and/or not
properly filled up and therefore, the petitioner was not provided with the
grounds of suspecting her to be a foreigner was not furnished to her, is taken up
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first.
16) It may be pertinent to mention here that in all the six cases cited
by the learned counsel for the petitioner, the reference was made by the
jurisdictional Superintendent of Police (Border), based on the police
investigation. As per documents available in the Tribunal's record that was called
for, the Election Commission of India had ordered extensive revision of the
Electoral Roll of 25 Golakganj Assembly Constituency with reference to
01.01.1997 as qualifying date. Accordingly, on the said direction, the ERO had
required an enquiry. The enquiry was made by the LVO, who had submitted the
LVO Report dated 14.10.1997, stating therein that at the time of verification the
petitioner was absent. Thus, the ERO made a suo motu reference under the
"Annexure-B" format to the Superintendent of Police (Border), Dhubri, enclosing
therewith the "Format for Verification Officer's Report" in the prescribed
"Annexure-A", addressed to the Electoral Registration Officer, 25- Golakganj
Assembly Constituency. Hence, it is apparent that the said verification was
ordered by the Election Commission, a competent authority under the
Representation of the People Act, 1951.
17) We may now refer to the judgment and order of this Court in the
case of Sayam Uddin v. Union of India & Ors., 2019 (4) GLT 456 (supra) . We are
in respectful agreement with the said judgment and therefore, paragraphs 11 to
22 thereof are quoted below:-
11. In the year 1997, Election Commission of India had undertaken an intensive
revision of electoral rolls in the State of Assam as apprehensions were expressed
from various quarters that the electoral rolls were infested with the names of
foreigners/illegal migrants. In the course of this exercise citizenship status of as
many as 3,13,046 persons whose names were in the draft voters lists were found
to be doubtful and accordingly, they were marked as doubtful "D" voters in the
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electoral rolls after local verification.
12. Legality of this exercise was challenged before this Court in HRA Choudhury
Vs Election Commission of India, reported in 2002 (1) GLT 1. The challenge made
was rejected by a Division Bench of this Court. In HRA Choudhury (supra) this
Court examined the guidelines dated 17.07.1997 of the Election Commission of
India laying down the procedure to carry out the exercise.
12.1. As per paragraph 3.8 of the guidelines the Electoral Registration
Officer was required to consider the verification report received from the
Local Verification Officer. If he was satisfied on such report and such other
material/information as may be available about the eligibility of a person, he
should allow his name to continue on the electoral roll. Where, however, he
was not so satisfied and had reasonable doubt about the citizenship of any
person, he was required to refer such doubtful cases to the competent
authority under the then Illegal Migrants (Determination by Tribunals) Act,
1983 or the Foreigners Act, 1946 as the case may be. For convenience of
the Electoral Registration Officers, Election Commission devised proformas.
12.2. As per paragraph 3.9, after the case of a person was referred by the
Electoral Registration Officer to the competent authority, he should wait for
the decision of the relevant Tribunal in relation to that person and act
according to such decision.
12.3. As per paragraph 3.10, where the relevant Tribunal decided that any
such person was not a citizen of India, Electoral Registration Officer should
proceed under Rule 21 A of the Registration of Electors Rolls, 1960 to have
the name of such person deleted from the electoral roll before it was finally
published.
12.4. This Court in HRA Choudhury (supra) held that such guidelines and
decision of the Election Commission were in accordance with Article 324 of
the Constitution of India besides conforming to the principles of natural
justice. It was held that such guidelines cannot be held to be arbitrary or
vitiated by mala fide or partiality.
13. At this stage, it may be mentioned that the Illegal Migrants (Determination by
Tribunals) Act, 1983 is no longer in existence, the same having been declared
unconstitutional by the Supreme Court in Sarbananda Sonowal Vs Union of India
reported in (2005) 5 SCC 665. Therefore, in so far paragraph 3.8 of the guidelines
dated 17.07.1997 is concerned, the reference would be under the Foreigners Act,
1946.
14. The above exercise was repeated in the year 2005 with the Election
Commission of India again going for intensive revision of electoral rolls in the State
of Assam taking 01.01.2005 as the qualifying date. In this connection, guidelines
dated 17.06.2004 were issued by the Election Commission of India. Paragraph 2.2
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of the guidelines dealt with "D" voters. It was mentioned that the guidelines issued
in 1997 would be followed while dealing with such category of persons. Paragraph
8 dealt with verification by Electoral Registration Officers. It laid down the
procedure while carrying out such verification including verification by Local
Verification Officer. As per paragraph 8.6, Local Verification Officer would conduct
the verification by making an on the spot visit and the person concerned could
adduce any one or more of the documents mentioned therein in support of his
claim as a citizen of India. After due verification, the Local Verification Officer was
required to submit his report in the prescribed format. Under paragraph 8.8,
Electoral Registration Officer on receipt of the verification report from the Local
Verification Officer should consider the same. Where he was satisfied about the
eligibility of a person, he should allow the name of such person to continue on the
electoral roll but where he was not so satisfied and had reasonable doubt about
the citizenship of any person he should refer such doubtful cases to the competent
authority under the then Illegal Migrants (Determination by Tribunals) Act, 1983 or
the Foreigners Act, 1946 in a prepared format (Annexure-B to the guidelines dated
17.06.2004) to the competent authority for making reference to the Tribunal and
await the decision of such Tribunal.
15. As pointed out by Mr. Barua, in Mameja Khatun (supra) a Single Bench of this
Court directed that "D" voters should not be allowed to cast their votes with the
clarification that "D" voters would include persons whose names were included in
the electoral rolls but their citizenship was doubted or disputed and also those
whose cases were pending before the Foreigners Tribunals. This decision of the
learned Single Bench was confirmed by the Division Bench in Writ Appeal No.
114/2011 (State Vs Mameja Khatun). By the judgment and order dated
13.10.2015, the Division Bench directed Election Commission of India and other
authorities to implement the directions of the Single Bench in letter and spirit.
16. At this stage, it may also be mentioned that in WP(C) No. 274/2009 filed by
Assam Public Works which is pending before the Supreme Court of India wherein
NRC updation exercise in the State of Assam is being monitored by the Supreme
Court of India, on 25.10.2013, Supreme Court clarified that as far as persons in the
"D" list are concerned, undoubtedly they were doubtful voters and therefore their
names could not be included unless the NRC is updated and unless the Foreigners
Tribunals declared them to be Indian citizens.
17. The Foreigners Act, 1946 is an act to confer upon the Central Government
certain powers in respect of foreigners. This Act provides for the exercise of certain
powers by the Central Government in respect of the entry of foreigners into India;
their presence in India and their departure therefrom. Section 2 (a) defines a
"foreigner" to mean a person who is not a citizen of India. Section 3 confers power
to the Central Government to make orders making provision either generally or
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with respect to all foreigners or with respect to any particular foreigner or any
prescribed class or description of foreigners, for prohibiting, regulating or
restricting the entry of foreigners into India or their departure therefrom or their
presence or their continued presence therein.
17.1. In exercise of the powers conferred by Section 3 of the Foreigners Act, 1946,
Central Government made the Foreigners (Tribunals) Order, 1964. As per order 2
(1), the Central Government may by order refer the question as to whether a
person is or is not a foreigner within the meaning of the Foreigners Act, 1946 to a
Tribunal to be constituted for the purpose for its opinion.
18. Ministry of Home Affairs, Govt. of India had issued notification dated
19.04.1958 in exercise of powers conferred by Clause-(1) of Article 258 of the
Constitution of India whereby the President with the consent of the State
Government concerned entrusted to the Governments of each of the States
mentioned therein including the State of Assam the functions of the Central
Government in making orders of the nature specified in Section 3 of the Foreigners
Act, 1946. Another notification dated 17.02.1976 was issued by the Government of
India, Ministry of Home Affairs in the exercise of the powers conferred by Article
258 (1) of the Constitution entrusting the Superintendents of Police and Deputy
Commissioners (In-charge of Police) under the Government of Assam the functions
of the Central Government in making orders of the nature specified in Section 3 of
the Foreigners Act, 1946 within their respective jurisdictions subject to the
conditions mentioned therein which included the condition that exercise of such
functions would be in respect of nationals of Bangladesh and that while exercising
such functions, Superintendents of Police and Deputy Commissioners (In-charge of
Police) shall comply with such general or special directions as the Government of
Assam or the Central Government may issue from time to time.
19. Article 258 of the Constitution deals with power of the Union to confer powers
etc on States in certain cases. Clause (1) of Article 258 starts with a non-obstante
clause. It says that notwithstanding anything in the Constitution, President may
with the consent of the Government of a State entrust either conditionally or
unconditionally to that Government or to its officers, functions in relation to any
matter to which the executive power of the Union extends. Clause (3) provides for
making of payment by the Government of India to the State concerned such sum
as may be agreed upon or in default of agreement through arbitration in respect of
any extra-cost of administration incurred by the State in connection with the
exercise of powers and duties of the Government of India conferred or imposed
upon a State Government.
20. Thus, under the Central Government notifications dated 19.04.1958 and
17.02.1976, Government of Assam, Superintendents of Police and Deputy
Commissioners (In charge of Police) have been delegated the power to make
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reference to the Foreigners Tribunal under order 2 (1) of the Foreigners (Tribunals)
Order, 1964 to seek opinion as to whether the proceedee is a foreigner or not
within the meaning of the Foreigners Act, 1946.
21. Thus from the above, what transpires is that there are two categories of "D"
voters:- (i). those who were marked as "D" voters in the electoral roll by the
Electoral Registration Officer following enquiry by Local Verification Officer; and (ii).
those whose references are pending before the Foreigners Tribunals.
22. In so far Electoral Registration Officer is concerned the exercise undertaken by
him while marking a person as a "D" voter in the electoral roll is a quasi judicial
exercise. If he holds the view after examining the enquiry report of the Local
Verification Officer that the concerned person is not a citizen of India he is required
to forward the case of that person to the competent authority i.e., the
Superintendent of Police. If it is so forwarded by the Electoral Registration Officer,
the jurisdictional Superintendent of Police has to make a reference to the
competent Foreigners Tribunals under order 2(1) of the Foreigners (Tribunals)
Order, 1964 based on the report received from the Electoral Registration Officer.
Question of making further enquiry by the Superintendent of Police in such a case
would not arise because enquiry has already been made by the Electoral
Registration Officer by exercising quasi judicial powers and the Superintendent of
Police cannot sit over such decision of the Electoral Registration Officer. He has to
forward the same by making the reference to the competent Foreigners Tribunal
for its opinion.
18) The said judgment by the learned Single Judge was affirmed by
the virtue of judgment and order dated 29.07.2019, passed by the Division
Bench of this Court in the case of Sayam Uddin v. The Union of India & Ors.,
W.A. 170/2019, decided on 29.07.2019.
19) It may now be stated that the said reference was made before
the Illegal Migrants (Determination) Tribunal, Dhubri [hereinafter referred to as
IM(D)T], constituted under the erstwhile Illegal Migrants (Determination by
Tribunals) Act, 1984, where the reference was registered as I.M.(D)T. Case No.
15344/D/2000 and the order to register the case was passed on 03.02.2000. All
proceedings, which were hitherto pending before the respective IM(D)T's were
transferred by the Supreme Court of India to the Foreigners Tribunal vide
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directions issued in the case of Sarbananda Sonowal v. The Union of India &
Ors., (2005) 5 SCC 665. The transfer of the said proceeding from IM(D)T has
been briefly stated in para-1 of the impugned opinion. Hence, as the orders
passed by the Supreme Court of India is binding under Article 141 of the
Constitution of India, in the considered opinion of the Court, neither this Court,
nor the learned Foreigners Tribunals would have any power or jurisdiction to
remand the reference back to the Superintendent of Police (Border) for a fresh
enquiry by the LVO/ERO.
20) Therefore, the six cases cited by the learned counsel for the
petitioner on point of determination no.1, being distinguishable on facts on
which they were decided, do not help the petitioner in any manner whatsoever.
21) Therefore, the challenge to the proceeding before the learned
Foreigners Tribunal on the ground that certain paragraphs and/or columns of
the Local Verification Officer's (LVO) Report, as forwarded by the Electoral
Registration Officer (ERO) were left blank, is held to be not maintainable on
facts and in law morefully referred to hereinbefore.
22) The point of determination no. (i) is accordingly, answered in the
negative and against the petitioner.
23) The point of determination no. (ii) is taken up now.
24) On perusal of the impugned opinion dated 08.11.2016, in
paragraph-6 thereof, it is seen that the learned Tribunal has merely referred to
the particulars of Ext.1 to Ext.9 and Ext.11. In paragraph-7 thereof, a brief
discussion has been made by the learned Tribunal in respect of Ext.1, Ext.2,
Ext.3, and Ext.10 and has assigned brief reasons for discarding those evidence.
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The Gaon Panchayat certificate (Ext.1) was discarded on the ground that the
said document was not proved with official records. The copy of application for
information issued by O/C, Election, S.D.O. Office, Tufanganj containing remark
that Sekh Abbas, son of Ajimuddin of village- Balakuti was an elector in the year
1966 under Tufanganj (SC) A.C. in Part No. 51, serial no. 44 (Ext.2) was
discarded as it was not a voter list as stated in the evidence of the petitioner
and that it was not proved with relevant record. The sale deed dated
02.11.1981 (Ext.3) was discarded because it was a post 1971 document and it
did not establish linkage of the petitioner with Abbas Ali Sk as her projected
father. The sale deed dated 25.01.1965 (Ext.10), by which the petitioner's
mother and father had purchased land was discarded on the ground that it was
not a legible document. Moreover, the entire evidence was discarded because
there was no evidence to show that Abbas Ali Sk, whose name appears in the
High Court Form of Application (Ext.2), whose name is shown in the remark
column as Sekh Abbas, but there is no record after 1966 regarding any certified
copy of the voters list in the name of Abbas Ali Sk and/or Sekh Abbas or that
the name of the petitioner appeared in any voter list along with her projected
husband.
25) In the impugned opinion, the learned Tribunal is found to have
not made any mention regarding existence of the evidence-on-affidavit or cross-
examination of DW-2. Resultantly, there is no discussion at all for his evidence.
It may be mentioned that the DW-2 had exhibited the following documents, viz.,
certified copy of voter list of 1971 (Ext.12), printed voter list of 1983 (Ext.13),
Panchayat Certificate (Ext.14), Panchayat Certificate (Ext.15), Identity Card
[Ext.15(1)], photocopy of printed voter list of 2016 [Ext.15(2)], as mentioned
hereinbefore, which has not been discussed in the impugned opinion.
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26) In the said context, on examination of the Tribunal's record, it is
observed that in the order dated 08.08.2016, the learned Member has recorded
as follows: -
"Heard argument both sides. Also heard AGP for the State. DW-2 crossed by AGP
and discharged.
Fixing 08/11/16 for order."
27) Therefore, the prima facie impression gathered from the said
order dated 08.08.2016, is that the learned Tribunal had first heard the
arguments and thereafter, the learned AGP had cross-examined DW-2, which
appears to be highly irregular and discloses total non-application of judicial
mind, at least when the learned Tribunal had recorded the order.
28) By the decision of this Court in the case of Rousana Begum @
Rosona Begum v. Union of India & Ors., WP(C) 7892/2022, decided on
07.11.2022; and Farida Khatun (supra), it is well settled by this Court that
whenever a decision-making authority takes a decision, it is obligated to take
into consideration all the relevant facts, affidavits and evidence. Accordingly, it
has been held that if any relevant facts or material has not been taken into
consideration by the Foreigners Tribunal, which is a quasi-judicial body, the
decision cannot be considered to be valid and would be vitiated due to non-
application of mind on an important materials or evidence. Whatever be the
worth of the evidence of DW-2, and the left-out exhibits, the learned Foreigners
Tribunal was under a legal obligation to consider those evidence in the
impugned opinion.
29) Under the circumstances, except for the decision of point of
determination no. (i), without going into any other grounds raised, the Court is
of the considered opinion that due to non-consideration of the entire evidence
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of DW-1 and DW-2 including all the exhibited documents, the impugned opinion
is held to be vitiated due to non-application of judicial mind and accordingly, the
impugned opinion dated 08.11.2016, passed by the learned Member, Foreigners
Tribunal No.8th, Dhubri in FT Case No. 8/149/GKJ/2015, bearing FT Case No.
4645/GKJ/2011, is liable to be set aside, which we accordingly do.
30) The matter is remanded back to the said learned Tribunal for a
fresh opinion after consideration of the entire evidence. It is clarified that as the
Court has not examined the merit of the evidence tendered by the DW1 and
DW-2, the learned Tribunal shall appreciate the entire evidence uninfluenced by
any observation made herein.
31) It may be mentioned that in the cause title of this petition, the
petitioner has stated her name to be Joytan Bibi. However, in the affidavit sworn
in support of the writ petition, her name is stated to be Jayton Bibi. Therefore,
the learned Tribunal shall also satisfy itself with regard to the identity of the
petitioner-proceedee.
32) The petitioner is directed to appear before the said learned
Tribunal on or before 31.05.2025 for hearing, without requirement of any fresh
notice for appearance, and by producing a certified copy of the order, await for
further order of the learned Tribunal. The said learned shall hear and pass a
fresh opinion in matter in accordance with law.
33) The court is remanding the mater back for a fresh opinion
because in exercise of certiorari jurisdiction, it is not for this Court to act as an
appellate forum and examine the evidence as if exercising original jurisdiction.
34) It is clarified that in the event the petitioner fails to appear for
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hearing on or before 31.05.2025, it would be open to the said learned Tribunal
to treat the petitioner absent on call and proceed to decide the matter in
accordance with law.
35) This writ petition stands allowed to the extent as indicated
above.
36) There shall be no order as to cost.
37) The Registry shall send back the records of the learned Tribunal
along with a copy of this order to be made a part of record.
JUDGE JUDGE
Comparing Assistant
