Page No.# 1/11 GAHC010177702020 2025:GAU-AS:8003-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5343/2020 ASHOK ALI S/O- RAMJAN MONDAL @ RAMJAN, R/O- VILL- BAGHMARA CHAR, P.S. ALOPATI CHAR, DIST.- BARPETA, ASSAM VERSUS THE UNION OF INDIA AND 5 ORS REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SASTRI BHAWAN, NEW DELHI, SASTRI BHAWAN, NEW DELHI, PIN- 110001 2:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-6 3:THE SUPERINTENDENT OF POLICE (B) BARPETA P.O. AND P.S. BARPETA DIST.- BARPETA ASSAM PIN- 781301 4:THE DY. COMMISSIONER BARPETA P.O. BARPETA DIST.- BARPETA ASSAM PIN- 781301 5:THE ELECTION COMMISSION OF INDIA Page No.# 2/11 REP. BY THE CHIEF ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI INDIA PIN- 110001 6:THE NATIONAL REGISTER OF CITIZEN REP. BY THE STATE COORDINATOR ASSAM ACHYUT PLAZA BHANGAGARH KAMRUP (M) ASSAM PIN- 78100 Advocate for the Petitioner : MR. M A SHEIKH, K U AHMED,MR. S H RAHMAN,MS F INTAZ Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, NRC,SC, ELECTION COMMISSION. BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 13.06.2025 (K.R. Surana, J) Heard Mr. M.A. Sheikh, learned counsel for the petitioner. Also heard Mr. K. Gogoi, learned CGC, representing respondent no.1; Mr. G. Sarma, learned standing counsel for FT matters, representing respondent nos. 2, 3 and 6; Mr. P. Sarmah, learned Addl. Senior Government Advocate, representing respondent no. 4; and Mr. H. Kuli, learned counsel, appearing on behalf of Mr. A.I. Ali, learned standing counsel for respondent no.5. 2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 13.06.2019, passed by Page No.# 3/11 the learned Member, Foreigners Tribunal No.6th, Barpeta in F.T. 38/2016 [corresponding to R/ Case No. 3526/98 dated 08.05.98], by which the petitioner, namely, Ashok Ali was declared to be a foreigner of post 25.03.1971 from the specified territory. 3) It would suffice to mention herein that, on receipt of notice of the proceeding, the petitioner had entered appearance in the case and had filed his written statement on 20.07.2016. 4) On an examination of the materials available on record, it is seen that the impugned opinion is vitiated by non-application of judicial mind on five counts. The same are elaborated hereinafter. 5) It may be mentioned that the Tribunal’s record discloses that though the written statement was filed on 20.07.2016, but the learned Tribunal has passed the corresponding order on 20.09.2016, fixing the next date for filing of evidence on 05.09.2016. This is the first instance of non-application of mind. 6) Thereafter, the petitioner had filed his evidence-on-affidavit as DW-1 on 05.09.2016 and exhibited the following documents, viz., (i) certified copy of the electoral roll of 1966 (Ext.A); (ii) certified copy of the electoral roll of 1970 (Ext.B);(iii) certified copy of the electoral roll of 1997 (Ext.C); (iv) certified copy of the electoral roll of 2010 (Ext.D); (v) Gaonburah’s certificate dated 18.07.2016 of No.1 Baghmara Char Village (Ext.E); and an affidavit (Ext.F). 7) By order dated 05.09.2016, the next date for cross-examination of the petitioner was fixed on 05.11.2016. Without any prayer for adjournment by the State or by the petitioner, by order dated 05.11.2016, the matter was adjourned to 29.12.2016, for cross-examination of the petitioner. However, the Page No.# 4/11 learned Tribunal had allowed the learned counsel for the petitioner to receive back the original documents. This appears to be the second instance of non- application of mind by the learned Tribunal because on 05.11.2016, no petition was filed by the petitioner to take back the original exhibited documents, which even otherwise could not have been returned before the petitioner (as DW-1) was cross-examined by the learned counsel representing the State. 8) On 29.12.2016, the petitioner (as DW-1) was present before the learned Tribunal, and the learned Tribunal had examined the petitioner on oath. The learned Tribunal had not mentioned anything on the order dated 29.12.2016, as to why it had orally examined the DW-1 on oath, when he had already submitted his evidence-on-affidavit, which was duly sworn before the Notary Public. The examination by the learned Tribunal is a “confirmatory examination” if we may so call it, for which the English translated questions by the learned Tribunal and answers by the DW-1, is extracted below: Q. When did your father die? Ans: My father died when I was a child. Q. How is Amir Hussain related to you? Ans: Amir Hussain is my elder brother. Q. Are you citizen of India? Ans: I am a citizen of India by birth. In this regard I have submitted relevant documents before this Court. The case is falsely registered against me. 9) In this case, the petitioner had filed his evidence-on-affidavit. Hence, there was no necessity under any provision of the Foreigners (Tribunals) Order, 1964 for the learned Tribunal to again examine the DW-1 on oath. Thus, the question by the learned Tribunal partakes the character of questions put to DW-1 in exercise of power under Section 165 of the Evidence Act, 1872. This appears to be the third instance of non-application of judicial mind by the learned Tribunal. Page No.# 5/11 10) The petitioner had produced another witness, namely, Siraj Ali, the Gaonburah of No.1 Baghmara Char Village, who has issued a certificate (Ext.E). However, as per order dated 09.05.2017, the said witness was examined and discharged by the learned Tribunal. On a perusal of the record, it is seen that instead of allowing the examination-in-chief to be taken by the petitioner’s side, the examination-in-chief of the said witness was taken by the learned Member as “Examination through Court”. The learned Tribunal had not mentioned anything on the order dated 09.05.2017, as to why it had recorded “DW” in the form for recording deposition and why the learned Tribunal had to orally examined the said Siraj Ali on oath without examination-in-chief being made by the petitioner’s side. It may be mentioned that the questions by the learned Tribunal is pre-printed and the answers by the said witness is recorded by hand. The question by the learned Tribunal and answers thereto by the said witness is extracted below:- Q. You are the Gaonburah of which village and since when you are working as Gaonburah ? Ans: I am working as Gaonburah of No.1 Baghmara Char since 1977. Ext.1 is my identity card and Ext.1(1) is the signature of Circle Officer. Ext.1(2) is my signature. Q. How and since when you know the 2nd party of this case? Ans: I know Ashok Ali, 2nd party of this case since childhood. He is a resident of village Baghmara Char. The name of his father is Ramjan Mondal. I have issued one certificate of proof in this case. Ext.E is the said certificate and Ext.E(1) is my signature. 11) The fourth instance of the non-application of judicial mind is evident from the fact that DW-2 had exhibited his identity card as Ext.1 and he had also exhibited the two signatures appearing therein of the Circle Officer and his own signature as Ext.1(1) and 1(2). In the entire opinion, there is no reference or discussion regarding the said exhibited document. Page No.# 6/11 12) The examination-in-chief of DW-2, having been made by the learned Tribunal is the fifth instance of non-application of mind by the learned Tribunal because under section 137 of the Evidence Act, 1872, it is for the party producing the witness to do the examination-in-chief because under Section 9 of the Foreigners Act, 1946, the burden is on the proceedee to prove that he/ she is a citizen of India. The Foreigners (Tribunals) Order, 1964 does not provide that the Tribunal would conduct the examination-in-chief of a witness produced by the proceedee/ defence. 13) With the oral examination of witness of the defence by the learned Tribunal, the learned Tribunal had failed to consider that if it was examining the defence witnesses, i.e. DW-1 and DW-2, would such examination be an “examination-in-chief”, as envisaged under Section 137 of the Evidence Act, 1872. The said provision is quoted below:- “137. Examination-in-chief.- The examination of witness by the party who calls him shall be called his examination-in-chief. Cross-examination - The examination of a witness by the adverse party shall be called his cross-examination. Re-examination - The examination of a witness, subsequent to the cross- examination by the party who called him, shall be called his re-examination.” 14) Thus, on a plain and simple reading of the provision of Section 137 of the Evidence Act, 1872, it appears that unless the party calling the witness, examines the witness, it cannot be said that there was any examination-in-chief of the said witness. Hence, the corollary issue would be that if there is no examination-in-chief, there cannot be any cross-examination. 15) In the absence of any provision under the Foreigners (Tribunals) Order, 1964, it has to be presumed that the power of the learned Tribunal to question is derived from Section 165 of the Evidence Act, 1872. If the Tribunal has asked questions under Section 165 of the Evidence Act, 1872, then without Page No.# 7/11 the leave of the said learned Tribunal neither the parties or their agents (which includes advocates) shall be entitled to make any objection to any question or order. 16) Thus, the only presumption that can be drawn in this case is that the learned Tribunal had exercised its power to ask any question under Section 165 of the Evidence Act to a witness. Therefore, in this case, the learned Tribunal, having asked question to the witnesses, i.e. DW-1 and DW-2, created two distinct situations. In respect of Dw-1, having examined the DW-1 and then discharging him, the learned Tribunal is found to have deprived the State an opportunity to cross-examine DW-1 and thus, the evidence of DW-1 remains unrebutted. Insofar as DW-2 is concerned, having asked questions to the said witness and discharging DW-2, the learned Tribunal is found to have deprived the petitioner to conduct the examination-in-chief of DW-2 and in the process, the learned Tribunal is also found to have deprived the State any opportunity to cross-examine DW-2. Thus, even the evidence of DW-2 remains unrebutted. 17) In the entire order-sheet, the presence of the learned AGP (Assistant Govt. Pleader) on behalf of respondent no.1 is recorded only in the order dated 30.04.2019. However, even the said order does not reflect that the learned AGP had advanced any submissions. The said order is as follows – “Today the case is fixed for argument. O.P. is present filed his attendance. A.G.P. is present. O.P. advanced argument. Heard the argument. Fixed on 13- 06-19 for final order/opinion.” The presence of the learned AGP is also recorded in the impugned opinion. 18) The petitioner, as DW-1 had exhibited four electoral rolls as Ext.A to Ext.D. However, out of the said four exhibits, by the impugned opinion, the learned Tribunal had rejected Ext.A and Ext.B on the ground that the original Page No.# 8/11 custodian of the primary evidence was not examined. The relevant part of the said observation of the learned Tribunal in the impugned opinion is as follows:- 11. Besides that, without examine the original custodian of the primary evidence to verify the contents of the entire extract copies of the voters’ lists had no evidentiary value. …” 19) In this regard, the evidence of the DW-1 on Ext.A to Ext.D remained unquestioned and unrebutted with no questions to the admissibility of those exhibits by the learned Tribunal. The State did not doubt the certified copy of voter list. It is not the finding by the learned Tribunal that by any judicial pronouncement by any Constitutional Court, the certified copy of electoral roll has been discarded as a valid piece of evidence. It is also not the finding by the learned Tribunal that a certified copy of the relevant entry in the electoral was held by any judicial pronouncement by any Constitutional Courts to be not a public document within the meaning of Section 74 of the Evidence Act, 1872 or that it has been held that provision of Section 77 of the Evidence Act, 1872 is not applicable as a proof of electoral roll. In short, the learned Tribunal had not made any discussion on the provisions of Sections 74 and 76 to 78 of the Evidence Act, 1872. Thus, summary rejection of Ext.A to Ext.D is not sustainable. 20) Therefore, in light of the discussions above, the impugned opinion is ex facie not found sustainable on facts and in law as discussed hereinbefore. The manner in which the proceeding was conducted discloses i.e. examining the DW-1 and DW-2 that the said learned Tribunal had been discharging the dual role of the prosecutor and judge. This is also evident from the fact that though the AGP was present in the learned Tribunal on 30.04.2019, but he did not advance any argument as if the Tribunal was the prosecutor. The Page No.# 9/11 rejection of Ext.A to Ext.D on the ground that custodian of the document must be examined, has rendered the decision of the said learned Tribunal as perverse. 21) Moreover, the five instances of non-application of judicial mind has also rendered the opinion as perverse. 22) This Court is not exercising appellate jurisdiction, but it is exercising certiorari jurisdiction in respect of the opinion of the learned Foreigners Tribunal No. 6th, Barpeta, which is limited only to examine whether the finding of the learned Tribunal is perverse. In this regard, it would be relevant to refer to paragraph nos. 59, 62 and 63 of the case of Central Council For Research In Ayurvedic Sciences v. Bikartan Das, (2023) 0 Supreme(SC) 763: AIR 2023 SC 4011, which is as follows:- 59. So far as the errors of law are concerned, a writ of certiorari could be issued if an error of law is apparent on the face of the record. To attract the writ of certiorari, a mere error of law is not sufficient. It must be one which is manifest or patent on the face of the record. Mere formal or technical errors, even of law, are not sufficient, so as to attract a writ of certiorari. As reminded by this Court time and again, this concept is indefinite and cannot be defined precisely or exhaustively and so it has to be determined judiciously on the facts of each case. The concept, according to this Court in K.M. Shanmugam v. The S.R.V.S. (P) Ltd. & Ors., reported in AIR 1963 SC 1626, ‘is comprised of many imponderables… it is not capable of precise definition, as no objective criterion could be laid down, the apparent nature of the error, to a large extent, being dependent upon the subjective element.’ A general test to apply, however, is that no error could be said to be apparent on the face of the record if it is not ‘self-evident’ or ‘manifest’. If it requires an examination or argument to establish it, if it has to be established by a long drawn out process of reasoning, or lengthy or complicated arguments, on points where there may considerably be two opinions, then such an error would cease to be an error of law. [See: Satyanarayan Laxminarayan Hegde & Ors. v. Mallikarjun Bhavanappa Tirumale, reported in AIR 1960 SC 137.] * * * 62. In the aforesaid context, it will be profitable for us to refer to the decision of this Court in the case of Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union and Another, reported in AIR 2000 SC 1508. This Court observed as under: Page No.# 10/11 “… The findings of fact recorded by a fact-finding authority duly constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ Court to warrant those findings at any rate, as long as they are based upon such materials which are relevant for the purpose or even on the ground that there is yet another view which can be reasonably and possibly undertaken. …” 63. …” 63. However, we may clarify that findings of fact based on ‘no evidence’ or purely on surmises and conjectures or which are perverse points could be challenged by way of a certiorari as such findings could be regarded as an error of law. 23) Therefore, in light of the discussions above, the Court has no hesitation to hold the impugned opinion to be perverse. Resultantly, the impugned opinion dated 13.06.2019, passed by the learned Member, Foreigners Tribunal No.6th, Barpeta in F.T. 38/2016 [corresponding to R/ Case No. 3526/98 dated 08.05.98], by which the petitioner, namely, Ashok Ali was declared to be a foreigner of post 25.03.1971 from the specified territory, is set aside. 24) Resultantly, the matter is remanded back to the said learned Tribunal at the stage of evidence of DWs, for a fresh opinion in accordance with law. Hence, the proceeding of the said Case No. F.T. 38/2016 is restored to the file of the learned Member, Foreigners Tribunal No.6th, Barpeta. 25) The petitioner, namely, Ashok Ali, who is represented by his learned counsel, is directed to appear before the said learned Tribunal on or before 04.07.2025, without any requirement of any fresh notice to be issued by the said learned Tribunal and the petitioner by producing a certified copy of this order, wait for further directions from the said learned Tribunal. 26) It is clarified that if 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 it would be permissible to Page No.# 11/11 pass such further order as may be deemed fit and appropriate. 27) The original records received on requisition from the said learned Tribunal shall be expeditiously returned back along with a copy of this order to be made a part of the record. 28) The parties are left to bear their own cost. 29) The learned standing counsel for the FT matters shall send a downloaded copy of this order to the (i) the Home & Political (B) Department, and to (ii) the Superintendent of Police (Border), Barpeta for information and record. JUDGE JUDGE Comparing Assistant