Page No.# 1/5 GAHC010211472018 2025:GAU-AS:1044 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/6584/2018 MARIOM NESSA @ MARIYAM NESA W/O. LT. FAJAR ALI, D/O. LT. MD. MAHIMUDDIN MIYA, VILL- KUTHURIJHAR, P.S. GOBARDHANA, DIST. BAKSA, ASSAM. PIN- 781315. VERSUS THE UNION OF INDIA AND 6 ORS. REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI-1. 2:THE ELECTION COMMISSION OF INDIA NEW DELHI-1. 3:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-6. 4:THE ASSAM CO-ORDINATOR OF NRC BHANGAGARH ASSAM GHY-5. 5:THE DEPUTY COMMISSIONER BAKSA DIST. BAKSA ASSAM PIN- 781343. 6:THE SUPERINTENDENT OF POLICE (B) BAKSA DIST. BAKSA Page No.# 2/5 ASSAM PIN- 781343 7:THE OFFICER-IN-CHARGE GOBARDHANA POLICE STATION DIST.- BAKSA ASSAM PIN- 781315 Advocate for the Petitioner : MR. M U MAHMUD, MR. M ALI,MR S ISLAM,MD. S ISLAM Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,MR J PAYENG,SC, NRC,MS. A VERMA,SC, ECI,MR. D BARUAH BEFORE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK HON’BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER 23.01.2025 (Susmita Phukan Khaund, J.) Heard Mr M U Mahmud, learned counsel for the petitioner and Ms K Phukan, learned CGC, for the respondent No. 1, Union of India. Also heard Mr H Kuli, learned Standing Counsel, Election Commission of India for the respondent No. 2, Mr G Sharma, learned Standing Counsel, Home Department, Assam, for the respondent Nos. 3, 4, 6 and 7, Mr P Sharma, learned Additional Senior Government Advocate, Assam, for the respondent No. 5. 2. The petitioner, Mariom Nessa @ Mariyam Nesa, has filed this application under Article 226 of the Constitution of India, challenging the impugned order dated 18.07.2018, passed by the learned Member, Foreigners’ Tribunal, Baksa, Tamulpur, in connection with FT Case Case No. 593/BAKSA/2016, Reference FT No. 758/2013 of SP(B) Baksa, whereby the petitioner/opposite party was declared a foreigner, who had illegally entered into India, after 25.03.1971 from the specified territory of Bangladesh. Page No.# 3/5 3. It is submitted on behalf of the petitioner that her parents’ names have been recorded along with the names of her family members in the Voters Legacy Data and Voters’ List of 1965, of 47 No. Sarbhog LAC, at Serial No. 141 and 142 under House No. 42. 4. It is admitted by the petitioner that there are some anomalies regarding her name, her father and her husband’s names, but the petitioner has a strong case and sufficient evidence to substantiate her stance that she is an Indian national. 5. The learned Member has erroneously declared her to be a foreigner without even considering the documents submitted by the petitioner and the evidence adduced by her. 6. Learned Standing Counsel, Home Department, Assam, has submitted that the learned Tribunal formed an opinion due to the multiple material contradictions in the evidence adduced by the petitioner/proceedee. It has been correctly held by the learned Tribunal that the petitioner failed to produce any document to prove a linkage with her projected father, Late Mahimuddin Miya. 7. We have considered the submissions at the Bar with circumspection. 8. The opinion and the order of the learned Tribunal dated 18.07.2018, reflects that the petitioner had submitted photocopy of the certified copy of the Voters’ List of 1965 with her parents’ names of 47 No. Sarbhog LAC. The petitioner has also submitted copy of certified copy of Voters’ List of 1970 of the same LAC, along with her written statement. The petitioner’ parents’ names are recorded in the Voters’ List of 1970 in the said LAC, and that her name appears, along with the names of her husband Fajar Ali, in the Voters’ List of 1989, as well as the Voters’ List of 1997, of 47 No. Sarbhog LAC. However, the learned Tribunal formed the impugned opinion without even cross-examining the petitioner/proceedee. The learned Tribunal went ahead and decided the proceeding against the petitioner on the basis of the available materials on record. It appears that the case was suddenly truncated by the learned Tribunal without affording an opportunity to Page No.# 4/5 the petitioner/proceedee to prove her case on the basis of her documents. She was not even cross-examined due to the absence of the Assistant Government Pleader. While forming the opinion, the exact words recorded by the learned Tribunal are reproduced hereinbelow verbatim- “12. The proceedee/opposite party was not cross-examined at the time of my predecessor probably due to absence of Assistant Government Pleader. 13. Though after assuming office I was supposed to re-hear the reference in appropriate cases but to avoid multiplicity and time consumption, I now proceed to render my opinion in this case on the basis of the available materials on record, which, however, is treated as incomplete and the scope of re-hearing may be availed by this Tribunal as and when felt necessary. 14. I have heard the arguments of both sides.” 9. From the record of the case, it is seen that after receipt of the notice, the petitioner on 20.01.2018 and 16.02.2018, remained absent with steps. Thereafter, on 23.02.2018, she appeared in the matter and also filed her written statement with seven numbers of documents- Annexure-I to Annexure-VII. 10. Subsequently, on 15.03.2018, the petitioner filed her evidence-on-affidavit with six exhibits. Thereafter, on 09.04.2018, Defence Witness No. 2, In-Charge Government Gaonburha of Village-Chunbari, filed his affidavit-in-evidence, on the same day. He was cross-examined by the Assistant Government Pleader, present on that day. 11. Thus, in this instant case, it appears that the petitioner ought to be accorded a fair opportunity to substantiate her pleadings/written reply/written statement (‘WS’, in short), as has been prayed by her for her cross-examination by the State through the Assistant Government Pleader. 12. In the wake of the foregoing discussions, we are constrained to set aside the opinion dated 18.07.2018, passed by the learned Member, Foreigners’ Tribunal, Baksa, Tamulpur, in connection with FT Case Case No. 593/BAKSA/2016, Reference FT No. Page No.# 5/5 758/2013 of SP(B) Baksa. 13. The petitioner shall appear before the learned Foreigners’ Tribunal, Baksa, Tamulpur, in said FT Case No. 593/BAKSA/2016, on 20.02.2025, along with a certified copy of this order, and thereafter, on the dates to be fixed by the learned Tribunal in the matter. 14. The learned Member, Foreigners’ Tribunal, Baksa, Tamulpur, shall make every endeavour to dispose of the matter on or before 30.04.2025. 15. Needless to say, if the petitioner fails to appear before the Foreigners’ Tribunal, Baksa, Tamulpur, in said FT Case No. 593/BAKSA/2016, on 20.02.2025, and thereafter, on the dates fixed by the said Tribunal, as directed above, then the said Foreigners’ Tribunal shall be at liberty to pass the necessary order(s) in the said FT Case No. 593/BAKSA/2016, in accordance with law. 16. With the above observation and direction, this writ petition is allowed to the extent above. 17. Registry shall forthwith send back the relevant records of FT Case No. 593/BAKSA/2016 (Union of India –Vs- Musstt. Mariyam Nesa), decided on 18.07.2018, to the Office of the learned Member, Tribunal, Baksa, Tamulpur, with a copy of this order. 18. Registry shall also forward a copy of this order to the Superintendent of Police (Border), Baksa, Tamulpur, for its necessary use. JUDGE JUDGE Comparing Assistant