Page No.# 1/6 GAHC010181052018 2025:GAU-AS:1729 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5645/2018 PARIJAN NECHHA @ BIBI D/O- JABBAR MIAH @ ABBDUL JABBAR @ JABBAR ALI SK, W/O- SOFIOR RAHMAN, R/O- VILL- JHAPUSHBARI PT-III, P.O. JHAPUSHBARI, P.S. AGOMONI, DIST- DHUBRI, ASSAM, PIN- 783349 VERSUS THE UNION OF INDIA AND 9 ORS. REP. BY THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI- 01 2:THE ELECTION COMMISSIONER OF INDIA REP. BY THE CHIEF ELECTION COMMISSIONER NEW DELHI-01 3:THE STATE OF ASSAM REP. BY CHIEF SECY. TO THE GOVT. OF ASSAM DISPUR GHY-6 4:THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-6 5:THE STATE CO-ORDINATOR NRC ASSAM BHANGAGARH GHY-5 6:THE DIRECTOR GENERAL OF POLICE Page No.# 2/6 ASSAM ULUBARI GHY-5 7:THE SUPERINTENDENT OF POLICE (B) DHUBRI DIST- DHUBRI ASSAM PIN- 783348 8:THE DY. COMMISSIONER DHUBRI DIST- DHUBRI ASSAM PIN- 783301 9:THE OFFICER-IN-CHARGE AGOMONI POLICE STATION DIST- DHUBRI ASSAM PIN- 783349 10:THE ELECTORAL REGISTRATION OFFICER NO 25 GOLAKGANJ EAST LAC DIST- DHUBRI ASSAM PIN- 78334 Advocate for the Petitioner : MR. M U MONDAL, MS. N NASRIN,MD. I H KHAN Advocate for the Respondent : ASSTT.S.G.I. (R1), SC, ELECTION COMMISSION. (R2),SC, NRC (R5),SC, F.T (R3,4,6TO10) BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 17.02.2025 (K.R. Surana, J) Heard Mr. M.U. Mondal, learned for the petitioner. Also heard Mr. G. Sarma, learned standing for the FT matters; Mr. H.K. Hazarika, learned Govt. Page No.# 3/6 Advocate and Mr. A.I. Ali, learned standing counsel for the ECI. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned opinion dated 04.07.2018, passed by the learned Member, Foreigners’ Tribunal (II), Dhubri in FT Case No. 170/AGMN/17, corresponding to Police Ref. Case No. 6580/98, thereby declaring the petitioner to be a foreigner of post 25.03.1971 stream. 3. From receipt of notice of the proceedings, the petitioner has appeared before the learned Member, Foreigners’ Tribunal (II), Dhubri and filed her written statement wherein she has annexed 20 documents and claimed that she has not the foreigner, but the citizen of India by birth. In support of her defence, the petitioner examined herself as DW-1 and she has exhibited the following documents, viz., Birth Certificate (Ext.1), School Certificate (Ext.2), Aadhar Card (Ext.3), PAN Card (Ext.4), Khasmahal land patta (Ext.5), Mutation Notice (Ext.6), certified copy of voters list of 1966 (Ext.7), Sale Deed, by which the father of the petitioner had purportedly purchased land at village Mahishkuchi in West Bengal (Ext.8), Apik of petitioner’s father (Ext.9). The petitioner claims that she is the daughter of Abdul Jobbar Sk, grand-daughter of Late Bhondor Sk and that she has married to Sofir Rahman of village Jhapusabari Pt.II under Agomani PS in the district of Dhubri, Assam. The DW-1 was cross examined and discharged. The projected father of the petitioner, namely, Jabbar Miya was examined as DW-2 and he has re-exhibited the same documents already exhibited by the petitioner. The DW-2 was also cross- examined and discharged. The Head Teacher of Govt. school, namely, Saldanga Vidyasagar Vidyapith was summoned and examined as DW-3, who had exhibited the school certificate (Ext.2) issued by the earlier Headmaster. 4. Upon examination of the pleadings and evidence on record, the Page No.# 4/6 learned Tribunal had discarded Ext.5 and 6 on the ground that the petitioner has failed to submit the present status of the land relating to the exhibited document to prove the existence and linkage with her projected father. Ext. 5 was rejected as being doubtful as there was overwriting and Ext.6 was also rejected as the date was illegible and though at the top of the document there is a writing being “Sri Sri Maharajar Hokum” but the Govt. Emblem containing the State Emblem of pillar of Asoka was there and moreover, the name of the father of the petitioner was written as Abdul Jabbar Shikh, son of Bhandar Sk. Accordingly, the said documents were rejected, being not trustworthy or reliable to prove the identity of existence of the concerned person. As the petitioner had not disclosed her family tree, the learned Tribunal was of the view that in absence of disclosure of complete family tree is also creating a doubt. Ext.6 and 7 were rejected owing to the discrepancy in the name of the petitioner’s projected father and the learned Tribunal was of the opinion that at a later stage, the documents in favour of the petitioner’s grandfather was converted to Jabbar Ali Sekh and Jabar Miya and accordingly, it was held that without any corroborating evidence, the identity of the person by various names is quite impossible. Moreover, in respect of Ext.7, it was held that as the certified copy was document procured from the State of West Bengal, primary evidence by way of original copy of the West Bengal ought to have been submitted through the testimony of the lawful custodian of the primary evidence. Accordingly, by holding that the Ext.2, school certificate was proved through DW-3, school Head Teacher, the learned Tribunal had opined that the petitioner has failed to establish her linkage with an Indian parents relatable to opinion prior to 25.03.1971, which is the cutoff date for identification of the foreigners in the State of Assam as per Section 6-A of the Citizenship Act, 1955. Accordingly, the Page No.# 5/6 petitioner was declared to be a foreigner under Section 2(a) of the Foreigners’ Act, 1946 and it was also opined that the family members also fall in the category of Section 2(a) of the Foreigners Act, 1946. Accordingly, reference was answered in the affirmative and in favour of the State. 5. From the discussion made by the learned Member, Foreigners’ Tribunal (II), Dhubri, we note with concerned that the evidence of DW-2 was not discussed save and except by stating that the Tribunal has perused the evidence and documents of DW-1 and 2, which reveals that the present status of land covered by Ext.5 and 6 was not proved. Similarly, there is no discussion on the evidentiary value of any other exhibited documents, save and except Ext. nos.2, 5, 6 and 7. 6. In this regard, this Court is of the concerned opinion that whatever evidence of DW-1 and 2 would be or whatever value the Ext. nos. 1 to 4, 8 and 9 would hold, it was incumbent on part of the learned Tribunal to refer to the said evidence and pronounce its opinion on such evidence and/or exhibited documents. 7. Accordingly, for non-discussion of the evidence of DW-2 and for non- consideration of Ext. nos. 1 to 4, 8 and 9, the Court is of the concerned opinion that the opinion of the learned Tribunal is vitiated by not discussing the evidence of DW-2 and the exhibits referred above. Therefore, the only conclusion which can be arrived is that the learned Tribunal has proceeded mechanically in appreciation of the evidence on record which is not sustainable in fact and in law. Accordingly, without any hesitation, this Court is inclined to set aside and quash the opinion dated 04.07.2018, passed by the learned Member, Foreigners’ Tribunal (II), Dhubri in FT Case No. 170/AGMN/17, corresponding to Police Ref. Case No. 6580/98 and the reference which was Page No.# 6/6 registered as FT Case No. 170/AGMN/17 is remanded back to the learned Member, Foreigners’ Tribunal (II), Dhubri for a fresh opinion in accordance with law. 8. To facilitate fresh hearing, the petitioner is directed to appear before the learned Member, Foreigners’ Tribunal (II), Dhubri within 19.03.2025 and by producing a certified copy of this order seek further instructions from the said Tribunal. It is made clear that if the petitioner fails to appear within the time allowed, it would be open to the learned Tribunal to presume that the petitioner is not participating in the proceedings and thereafter, proceed ex parte in accordance with law without expecting a notice of appearance from the learned Tribunal. 9. Accordingly, it is provided that till 19.03.2025, no coercive steps shall be taken against the petitioner. This petition stands allowed to the extent as indicated above. 10. Parties are left to bear their own cost. 11. The Registry shall send back the Tribunal records as expeditiously as possible. JUDGE JUDGE Comparing Assistant