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Gauhati High Court
Page No.# 1/5 vs The Union Of India And 5 Ors on 13 March, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/5
GAHC010138712019
2026:GAU-AS:3673
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4254/2019
BINOY DAS
S/O- LATE BIPIN RAM DAS, VILL- BASUDEVNAGAR, P.O-
BASUDEVNAGAR, P.S- PATHERKANDI, DIST- KARIMGANJ, ASSAM, PIN-
788723
VERSUS
THE UNION OF INDIA AND 5 ORS
REP. BY THE SECRETARY TO THE GOVT OF INDIA, MIN OF HOME
AFFAIRS, NEW DELHI- 110001
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
HOME DEPTT
DISPUR
GHY- 06
3:THE DEPUTY COMMISSIONER
KARIMGANJ
PIN- 788710
4:THE ELECTION COMMISSION OF INDIA
NEW DELHI- 110001
5:THE STATE COORDINATOR
NRC
ASSAM
GUWAHATI- 781005
6:THE SUPERINTENDENT OF POLICE(B)
KARIMGANJ
DIST- KARIMGANJ
Page No.# 2/5
PIN- 78871
Advocate for the Petitioner : MR H R A CHOUDHURY, MR F U BARBHUIYA,MS S DAS
Advocate for the Respondent : ASSTT.S.G.I., SC, NRC,SC, ELECTION COMMISSION.,SC, F.T
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA
ORDER
Date : 13.03.2026
(K.R. Surana, J)
Heard Mr. F.U. Barbhuiya, learned counsel for the petitoner, Ms. S.B.
Choudhury, learned CGC; Mr. N. Kalita, on behalf of Mr. A.I. Ali, learned
standing counsel for the ECI; Mr. G. Sharma, learned standing counsel for the
FT matters and NRC; and Mr. P. Sarmah, learned Additional Senior Govt.
Advocate for respondent are present.
2. By filing this writ petition under Article 226 of the Constitution of
India, the petitioner has assailed the impugned opinion dated 10.05.2019,
passed by the learned Member, Foreigners Tribunal-II, Karimganj (now
Sribhumi), Assam, in F.T. Case No. 589/2015, Police Ref. I.M.D.T. Case No.
64/01 by S.P. (B), Karimganj; old F.T. Case No. 190/06 of F.T.-I, Karimganj, by
which the petitioner was declared as an illegal migrant.
3. In view of the nature of order which is proposed to be passed, the
entire facts and evidence have not been referred to.
4. It is suffice to mention that in order to contest the reference, where
the petitioner is alleged to be an illegal migrant/ foreigner, apart from filing
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the written statement, the petitioner had examined himself as DW-1 and
along with his evidence-on-affidavit, the petitioner had exhibited the following
documents:
Certified copy of voter's list of 1966 (Ext.1), showing the names of 2
(two) as Bipin Ram Das, son of Surja Ram Das and Monobala Das wife
of Bipin Ram Das; certified copy of voter's list of 1997 (Ext.2) showing
the name of Binoy Das son of Bipin Ram Das and Sita Rani Das wife of
Binoy Das; voter's list of 2005 (Ext.3) disclosing the name of 5 (five)
voters including the name of Binoy Das son of Bipin Ram Das; money
receipt dated 27.01.2003, issued by the Dhalcherra Gaon Panchayat
(Ext.4); EPIC of the petitioner (Ext.5); certified copy of final khatian
(Ext.6).
5. The petitioner had also filed an additional evidence-on-affidavit.
6. He was cross-examined by the State earlier on 15.02.2019 and he
was again cross-examined on the additional evidence-on-affidavit on
25.04.2019. He has also examined one Satyendra Kr. Das as DW-2. It appears
that he knew the petitioner since childhood and he is resident of the same
village and he has exhibited his EPIC as Ext.7. He was cross-examined on
25.04.2019.
7. In the impugned opinion although 7 (seven) exhibits have been
referred to, the discussion and appreciation of the evidence was restricted to
Ext.1 and Ext.6, and there is no finding by the said learned Tribunal on Ext
nos. 2 to 5 and Ext.7. Moreover, Ext.1 and Ext.6 were discarded on the finding
that they were not related to the petitioner and the evidence of PW-2 was
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discarded, as not believable without any documents. Resultantly, the
petitioner was declared to be a foreigner of 25.03.1971 stream. As the
learned Tribunal has not discussed Ext nos. 2 to 5 and Ext.7, the Court is of
the considered opinion that this call for a remand back to the said learned
Tribunal for fresh appreciation of the evidence on record.
8. This Court in exercise of certiorari jurisdiction, cannot venture to
examine and deal with the Ext nos. 2 to 5 and Ext.7, as this Court is not
exercising any appellate or revisional jurisdiction. In exercise of certiorari
jurisdiction, original documents ought not to be examined so as to make this
Court act like a Tribunal having original jurisdiction to appreciate the exhibited
documents.
9. Accordingly, the writ petition stands partly allowed to the extent as
indicated above subject to following orders:-
i. The impugned opinion dated 10.05.2019, passed by the
learned Member, Foreigners Tribunal-II, Karimganj (now
Sribhumi), Assam, in F.T. Case No. 589/2015, Police Ref. I.M.D.T.
Case No. 64/01 by S.P. (B), Karimganj; old F.T. Case No. 190/06 of
F.T.-I, Karimganj, is hereby set aside.
ii. The matter is remanded back to the learned Foreigners
Tribunal-II, Karimganj, Assam, for a fresh opinion after discussing
all the exhibited documents.
iii. The petitioner, who is duly represented by his learned
counsel is directed to appear before the said learned Tribunal on
or before 29.04.2026 and by producing a certified copy of the
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order, and wait for further orders that may passed by the said
learned Tribunal.
iv. It is made clear that if the petitioner does not appear
before the said learned Tribunal on the date fixed, the said learned
Tribunal shall have the liberty to treat the petitioner as absent on
call and pass such order as may be deem fit and proper.
10. The Registry shall send back the records expeditiously to the said
learned Tribunal.
11. Accordingly, the writ petition stands allowed by interfering with the
impugned opinion dated 10.05.2019, as per terms as indicated above.
12. The parties shall bear their own cost.
JUDGE JUDGE
Comparing Assistant
