Gauhati High Court
Page No.# 1/ vs The Union Of India And 3 Ors on 17 November, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/11
GAHC010117542016
2025:GAU-AS:15549-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5229/2016
LALBHANU @ LAL BHANU BEGUM
W/O LT. AYNAL KHAN @ AYNEL KHAN @ AYNEL D/O LT. MUSLEM UDDIN
@ MUSLAM R/O VILL- KHOPNIKUCHI, P.S. HAJO DIST. KAMRUP RURAL,
ASSAM.
VERSUS
THE UNION OF INDIA and 3 ORS
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, SHASTRI BHAWAN, TILOK MARG, NEW DELHI.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT OF HOME
DISPUR
GUWAHATI-6.
3:THE SUPERINTENDENT OF POLICE B
KAMRUP RURAL
AMINGAON
P.O.
P.S. AMINGAON DIST. KAMRUP RURAL
ASSAM
GUWAHATI -32.
4:THE DEPUTY COMMISSIONER
KAMRUP RURAL
P.O.
P.S. AMINGAON
DIST. KAMRUP RURAL
ASSAM
Page No.# 2/11
GUWAHATI-32
Advocate for the Petitioner : MR.N AHMED, MR.A R SIKDAR,MISS S PERBEEN,MR.M H
TALUKDAR
Advocate for the Respondent : GA, ASSAM R2,3, and 4, ASSTT.S.G.I.(R1)
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
For the petitioner : Mr. A.R. Sikdar, Advocate.
: Mr. M.H. Talukdar, Advocate.
For the respondents : Smt. J. Sarma, CGC .
: Mr. J. Payeng, SC, FT, Border & NRC.
: Mr. P. Sharma, Addl. Sr. GA, Assam.
Date on which judgment is reserved : 14.10.2025
Date of pronouncement of judgment : 17.11.2025
Whether the pronouncement is of
the operative part of the judgment? : No
Whether the full judgment has been
Pronounced : Yes
JUDGMENT AND ORDER
(CAV)
(K.R. Surana, J)
Heard Mr. A.R. Sikdar, learned counsel for the petitioner. Also
heard Mr. J. Sarma, learned CGC; Mr. J. Payeng, learned standing counsel for
the FT, Border maters and NRC; and Mr. P. Sarmah, learned Addl. Senior Govt.
Advocate.
2) By filing this writ petition under Article 226 of the Constitution
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of India, the petitioner, namely, Lalbhanu @ Lalbhanu Begum, has assailed the
impugned opinion dated 16.06.2016, passed by the learned Member, Foreigners
Tribunal No. 4, Kamrup (Rural), Hajo, in H.F.T. Case No. 353/2015 (New)
[arising out of IM(D)T Enquiry No. 1855/2003], thereby answering the reference
in favour of the State and against the petitioner by declaring her to be a
foreigner.
3) From the nature of order that is proposed to be passed, there
appears to be no need to refer to the submissions made by the learned counsel
for the petitioner and the learned standing counsel for the FT, Border maters
and NRC.
4) It would suffice to mention that upon receipt of notice of the
proceeding, the petitioner had appeared before the learned Tribunal and she
had submitted her written statement of defence on 08.02.2016. Along with her
written statement, the petitioner had enclosed the following documents, viz.,
Gaonburah's certificate; certified copy of voter list of 1985, 1966 and 1970; her
EPIC and an affidavit.
5) In support of her defence, the petitioner had examined herself
as DW-1, wherein the contentions in her written statement were reiterated.
Along with her evidence-on-affidavit filed on 08.02.2016, the petitioner had
exhibited the following documents, viz., Gaonburah's certificate (Ext.A); certified
copy of voter list of 1985 (Ext.B), EPIC (Ext.C); certified copy of voter list of
1966 (Ext.D); certified copy of voter list of 1970 (Ext.E); an affidavit (Ext.F),
declaring that her name is Lalbhanu, but in the notice of FT Case No. 353/15,
her name is wrongly entered as Lalbanu Begum. The evidence-on-affidavit by
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DW-1 was filed on 08.02.2016 and she was cross-examined on 27.04.2016. The
Tribunal's record reveals that the said DW-1 has been re-examined on
26.05.2016.
6) The petitioner had also examined Sri Utpal Ramsiary as DW-2,
who has stated in his evidence-on-affidavit filed on 04.04.2016, that he is the
Gaonburah of village- Halangbari, Kathalmurighat and Sutpara. The records
reveal that the cross-examination of DW-2 was recorded on 27.04.2016.The
petitioner had also examined one Jamal Khan as DW-3, son of Late Belu Khan,
resident of village- Khopanikuchi, whose evidence-on-affidavit has been filed
before the learned Tribunal on 04.04.2016. The cross-examination of DW-3 has
been recorded on 27.04.2016.
7) The records of the Tribunal disclose that in this case, the said
learned Tribunal had taken up the proceeding in a most casual manner. This can
be gathered from the orders passed on and after 08.02.2016, and analysis of
the said orders. The said orders from 08.02.2016 to 16.06.2016 are quoted
below:
"08.02.2016: Proceedee is present and submits her written statement and
evidence in chief before this Tribunal on today.
Fixing - further evidence-in-chief/ cross on 8/3/2016.
08.03.2016: Proceedee is present on to day.
Fixing cross/app on 30/3/2016.
30.03.2016: Proceedee is absent without steps.
Fixing- 4/4/2016 for cross/app.
04.04.2016: Proceedee is present and submits evidence in chief of DW-2 (Sri
Utpal Ramsiari) and DW-3 (Jamal Khan) are submitted before this
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Tribunal on today.
Fixing -cross/app on 27/4/2016.
27.04.2016: Proceedee is present and evidence-in-chief of Sri Utpal
Ramchiari (gaonburha) is recorded as DW-2 by the Tribunal on to
day.
Fixing further evidence in chief/ cross on 24.05.2016.
24.05.2016: Proceedee is absent with steps. Seen petition no. 759/2016
dated 24.05.2016 that the proceedee could not appear in the
Court today and prays another date for argument.
Prayer is allowed.
Fixing 16.05.2016 for argument/ app.
26.05.2016: Proceedee is present on today. Argument on behalf of this
proceedee is heard on today.
Fixing 31.5.2016 for judgment.
31.05.2016: Proceedee is present. Judgment could not deliver on today due
to nonavailability of ink in the printer.
Fixing 6/7/2016 for judgment/app.
06.07.2016: Proceedee is present. Due to nonavailability of ink in the cartridge
in the printer. The Judgment of the said case could not print out
on today.
Fixing 16/6/2016.
16.06.2016: Proceedee is present on today. Judgment/ order of the said case is
pronounced in present of the proceedee Smt. Lalbanu Begum.
Judgment in written in a separate sheet. The proceedee Lalbhanu
Begum is held and declared as a foreigner and therefore, she is
liable to be deported from India in due course of law. It is hereby
ordered that proceedee Mrs. Lalbhanu Begum may be detained in
the detention camp in accordance with law and her name may be
deleted from the voter list of 55 No. Hajo L.A.C under Village-
Khoponikuchi. Inform the concerned SP (B) and D.C. (Kamrup
accordingly for taking necessary actions. A free copy of the
judgment is given to the proceedee."
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8) The sequence of events which emerge from the perusal and
analysis of the hereinbefore quoted orders of the learned Tribunal are as
follows:-
a. The record does not show that the petitioner had filed any petition to
re-examine herself. From the orders quoted hereinbefore, no order is
found to have been passed for allowing re-examination of DW-1.
b. Thus, in a casual and cavalier manner, the learned Tribunal has
permitted re-examination of DW-1, after the DW-2 and DW-3 were
cross-examined.
c. None of the hereinbefore extracted orders passed by the learned
Tribunal discloses who had cross examined the DW-1, DW-2 and DW-3.
The presence of Govt. Pleader and/or Assistant Govt. Pleader is not
recorded in any of the said orders.
d. Moreover, as per the Tribunal's record, evidence-on-affidavit by DW-2
was filed on 04.04.2016. At page-24 and back-page of page 24 of the
Tribunal's record, in the form for recording deposition, the DW-2 is
shown to have been cross-examined. But as per order dated
27.04.2016, the Tribunal had recorded the evidence of DW-2.
Therefore, the Tribunal's record appears to be contrary to the order
passed by the said learned Tribunal on 27.04.2016.
e. The cross-examination of DW-3, which is available in page 27 and
back-page of page-27, was recorded on 27.04.2016, but the same is
not reflected in the orders passed by the learned Tribunal on
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27.04.2016.
f. At page-20 of the Tribunal's record, it is seen that in the deposition
sheet, the examination-in-chief of DW-1 has been recorded by the
learned Tribunal on 26.05.2016. In the said examination-in-chief, the
petitioner, as DW-1 has exhibited two more documents, being voter list
of 1997 of her brother, Sakinuddin (Ext.G) and NRC of 1951 containing
the name of her father, Late Muslimuddin and mother, Sukurjan Nessa
(Ext.H). The recording of the said re-examination of DW-1/ petitioner
is not reflected in the order dated 26.05.2016.
g. The order dated 06.07.2016 is followed by a pre-dated order dated
16.06.2016, when the opinion of the learned Tribunal is shown to have
been rendered.
h. Moreover, there is overwriting in the next date of the case posted
vide order dated 31.05.2016, which was otherwise not material, but
has become a point of interest because the next date of the case
appears to be written as 06.07.2016, which ex facie appears to be
overwritten to read 16.06.2016. This is apparent that after 31.05.2016,
the next proceeding is recorded on 06.07.2016, thereafter back dated
opinion has been passed on 16.06.2016.
9) Thus, the order-sheet of the learned Tribunal shows
manipulation of order-sheet, resulting in passing of a back-dated opinion by the
learned Tribunal on 16.06.2016, notwithstanding that after 31.05.2016, the next
date when the proceeding was taken up was on 06.07.2016. The order-sheet
also discloses that it does not reflect correct sequence of proceedings.
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Therefore, it is strange that a back-dated opinion has been released by the
learned Member, Foreigners Tribunal No.4, Kamup at Hajo on 16.06.2016, after
passing of the order dated 06.07.2016.
10) The learned Tribunal has neither offered any explanation in the
order-sheet as to why there was an omission to record recording of re-
examination of the DW-1 on 26.05.2018, not there was any attempt to
regularise the order-sheet by recording in the subsequent order that there was
an omission to record the re-examination of DW-1 on 26.05.2016 in any
subsequent order.
11) Therefore, in light of the gross-irregularity in the conduct of the
proceedings in question, the impugned opinion is found to have been vitiated.
Resultantly, the Court has no hesitation to set aside the impugned opinion dated
16.06.2016, passed by the learned Member, Foreigners Tribunal No. 4, Kamrup
(Rural), Hajo, in H.F.T. Case No. 353/2015 (New) [arising out of IM(D)T Enquiry
No. 1855/2003].
12) As the orders dated 27.04.2016, 26.05.2016, 31.05.2016,
06.07.2016 and 16.06.2016, prima facie, appears to be incorrect vis-à-vis the
record of the said learned Tribunal and/or manipulated as stated hereinbefore,
those orders are also set aside. Consequently, the examination of DW-1
recorded on 26.05.2016 will also stand expunged.
13) The matter is remanded back to the said learned Tribunal at the
stage of re-examination of petitioner (DW-1). The expression "re-examination"
has been used in this order because as per Section 137 of the Evidence Act, the
examination-in-chief, cross-examination and re-examination have been
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described. Therefore, as after cross-examination of DW-1, the said DW-1 has
been examined again, the Court has used the term "re-examination" in respect
of evidence of DW-1 that was recorded on 26.05.2016. The re-examination of
DW-1 has to be ordered because such re-examination is not found recorded in
the order dated 26.05.2016. It may be mentioned that the record does not
show that the petitioner had filed any petition to re-examine herself. From the
orders quoted hereinbefore, there is also no order allowing re-examination of
DW-1. Therefore, how the re-examination of DW-1 was recorded, is a question
mark as to the manner in which the Tribunal's proceeding has been conducted.
Be that as it may, as the re-examination of DW-1 is on record, she has become
entitled to have her re-examination recorded again, otherwise, the petitioner
would suffer irreparable prejudice. However, this time, before embarking to
record the re-examination of DW-1, the learned Tribunal shall record the same
in the order-sheet.
14) This writ petition stands partly allowed to the extent as indicated
above by ordering remand of the matter to the stage re-examination of DW-1.
15) The petitioner, who is represented by her learned counsel, is
directed to appear before the learned Member, Foreigners Tribunal No. 4,
Kamrup (Rural), Hajo, on or before 22.12.2025, without requirement of any
fresh notice of appearance to be served on her. Upon appearing, the petitioner
shall produce a copy of this order before the said learned Member and await
further order(s) that may be passed by the said learned Tribunal. It is clarified
that in the event the petitioner fails to appear before the said learned Tribunal
within the time allowed, it would be open to the said learned Tribunal to treat
the petitioner as absent on call and pass such appropriate order as it may deem
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fit and proper, after considering the directions contained in this order.
16) There shall be no order as to cost.
17) The petitioner shall produce a certified copy of this order before
the Superintendent of Police (Border), Kamrup at Amingaon to bring the order
to the notice of the said authority.
18) The Court hopes and trusts that the learned Member, Foreigners
Tribunal No. 4, Kamrup at Hajo shall examine the records and pass orders to
rectify procedural errors referred hereinbefore, which has come to the notice of
the Court, or which may also come to the notice of the said learned Tribunal
after perusing the record.
19) Before parting with the records, it may be mentioned that it
pains to record that the learned counsel for the appearing parties have failed to
peruse the Tribunal's records carefully so as to assist the Court in all possible
manner. The anomalies referred to hereinbefore as come to the notice of the
Court only upon its careful examination without any assistance from the learned
appearing counsel.
20) The Court is inclined to request the Registry to place this order
before the learned Registrar (Judicial) of this Court, so that this order is placed
before the Special Monitoring Bench in respect of infrastructure of Foreigners
Tribunals to explore the possibilities that the Home and Political (B) Department
would create a portal, accessible to the said Department, where the daily orders
passed by the Foreigners Tribunals would be uploaded for internal assessment
and monitoring of the functioning of the Foreigners Tribunals.
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21) The learned standing counsel for FT, Border and NRC shall send
a downloaded copy of this order to the concerned authorities of the Home and
Political (B) Department, Govt. of Assam, for their record.
22) Registry shall send back the record expeditiously.
JUDGE JUDGE
Comparing Assistant
