Page No.# 1/6 GAHC010252062024 2025:GAU-AS:2314- DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/6587/2024 HABIZA KHATUN D/O- LATE IDRISH ALI, W/O- SUBHAN ALI, R/O- VILL.- DEWKURA, P.O. GHUGUBARI, P.S. SORBHOG, DIST. BARPETA, ASSAM, PIN- 781319. VERSUS THE UNION OF INDIA AND 5 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, NEW DELHI-1. 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6. 3:THE DEPUTY COMMISSIONER BARPETA P.O. AND DIST. BARPETA ASSAM PIN- 781301. 4:THE SUPERINTENDENT OF POLICE (B) BARPETA P.O. AND DIST. BARPETA ASSAM PIN- 781301. 5:THE ELECTION COMMISSION OF INDIA NEW DELHI Page No.# 2/6 TO BE REPRESENTED BY CHIEF ELECTION COMMISSIONER OF INDIA NEW DELHI-1. 6:THE STATE COORDINATOR OF NATIONAL REGISTRATION ASSAM BHANGAGARH LACHIT NAGAR GUWAHATI-5 Advocate for the Petitioner : MR. N HAQUE, MR. S R BARBHUIYA,MR. A K AZAD,MR M HUSSAIN Advocate for the Respondent : DY.S.G.I., GA, ASSAM,SC, ECI,SC, F.T BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 05.03.2025 (K.R. Surana, J) Heard Mr. N. Haque, learned counsel for the petitioner. Also heard Mr. D.J. Das, learned CGC; Mr. G. Sarma, learned standing counsel for the FT matters and NRC; Ms. P. Barua, learned standing counsel for the ECI; and Mr. H.K. Hazarika, learned Govt. Advocate for the State respondent. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned opinion dated 06.06.2022, passed by the learned Member, Foreigners Tribunal, Barpeta 11th in Case No. FT (Bpt/11th) F.T. 1410/2017, arising out of P.E. No. IM(D)T Case No. 439(A), dated 3-7-98, by which the petitioner was declared to be a foreigner of post 25.03.1971 stream. Page No.# 3/6 3. The records of the Tribunal, which was called for by order dated 11.12.2024 is received. 4. On a perusal of the records, it appears that the learned Member had performed its quasi judicial function in a perfunctory manner, which leads to an impression that the proceeding before the said learned Tribunal was a mockery of justice. 5. The records reveal that the petitioner had appeared before the said learned Tribunal on 07.10.2021 and examined herself as DW-1. Although, as per the record of evidence, the DW-1 was cross-examined. However, there is no corresponding order on 07.10.2021, which discloses the presence of the Govt. Pleader/Assistant Govt. Pleader on 07.10.2021. Moreover, the presence of the Govt. Pleader/Assistant Govt. Pleader is not even recorded in the impugned opinion. Therefore, a natural question as “who had cross-examined the DW-1?” In absence of any explanation in the order sheet that the DW-1 was cross- examined by Govt. Advocate/Govt. Pleader/Assistant Govt. Pleader, the only plausible view would be that the learned Tribunal embarked on a cross- examination of DW-1. Such a practice is impermissible for a quasi judicial authority. 6. Thereafter, on 06.01.2022, the petitioner had produced 2 (two) witnesses, namely, (1) Ismail Hussain, and (2) Abdul Hai, whose evidence is recorded as DW-2 and DW-3. In the order dated 06.01.2022, once again the presence of the Govt. Pleader/Assistant Govt. Pleader is not found recorded. There is also no mention in the order that cross-examination of DW-2 was refused or declined and it is also not mentioned that who had cross-examined DW-3. Therefore, the record of deposition of DW-2, wherein it was mentioned that there was no cross and in the deposition of DW-3, where the cross- Page No.# 4/6 examination of DW-3 is recorded, is not in consonance with the order sheet. 7. Therefore, for clarity in the order, the Court is inclined to extract the order dated 07.10.2021 and 06.01.2022: “7.10.21: C/R has been put up. Today was the date for evi/arg. O.P. is present represented by her ld. Counsel. O.P. has examine herself as DW-1, and is praying for another adjournment for further evi/arg. Prayer is allowed. Put up on the next date. Fixed 20.11.21 for further evi/arg. x x x 6.01.222: C/R has been put up. Today was the date for F-evi/Arg. O.P. is present, represented by her ld counsel & examined G.B. as DW- 2 & his elder brother as DW-3. Evi has been recorded on oath & filed with the C/R as its parts. Put up on the next date for Arg. Fixed 2.2.22 for Arg.” 8. Accordingly, having found a cardinal defect in the matter in which the learned Member, Foreigners Tribunal, Barpeta 11th has casually taken up the adjudication of the reference against the petitioner, which was registered was Case No. FT (Bpt/11th) F.T. 1410/2017, the adjudicatory system was reduced to a farcical exercise which is nothing but a mockery of justice. 9. In this quasi judicial adjudication, the Tribunal is determining the citizenship of a person and if proceedings are casually taken up, the same corrodes the very principle of independent functioning of the Tribunal. 10. Accordingly, the Court has no hesitation to hold that the proceedings of the hereinbefore referred case was conducted in a perfunctory and casual manner. The manner in which the proceeding was taken up does not inspire the confidence of the Court that an impartial adjudication was made by the learned Tribunal. Therefore, the Court has not hesitation to set aside and quash the Page No.# 5/6 opinion dated 06.06.2022, passed by the learned Member, Foreigners Tribunal, Barpeta 11th in Case No. FT (Bpt/11th) F.T. 1410/2017. 11. As the issue of citizenship of the petitioner is in question, the matter is remanded back to the said learned Tribunal for a fresh adjudication in accordance with law. 12. As a condition or remand, it is provided that in the event the Govt. Pleader/Assistant Govt. Pleader is not present during the proceeding, the said fact must be recorded in the order sheet and though it is permissible for the Courts to put questions to the witnesses, but the same must be within the contours of the power vested under section 165 of the Evidence Act (now section 168 of the Bharatiya Sakshya Adhiniyam, 2023) and it is impermissible for the Tribunal to adorn the gown of a prosecutor while questions are to the witnesses produced by the defence. 13. We request the learned standing counsel for the FT matters to send a downloaded copy of this order to the concerned authorities in the Home Department to bring the manner in which the said Tribunal was functioning to their notice. 14. The petitioner, who was duly represented by her learned counsel, is directed to appear before the said learned Tribunal within a period of 21 (twenty one) days from the date of this order and by producing a certified copy of this order, await further instruction from the said learned Tribunal. 15. There would be no necessity of issuance of notice to the petitioner for appearance. Therefore, if the petitioner does not enter appearance within the time allowed, it would be open to the learned Tribunal to adjudicate the matter in accordance with law. 16. Accordingly, this writ petition stands disposed of. Page No.# 6/6 17. Registry shall send back the Tribunal records expeditiously. JUDGE JUDGE Comparing Assistant