Gauhati High Court
WP(C)/364/2020 on 7 April, 2022
Author: Soumitra Saikia
Bench: N. Kotiswar Singh, Soumitra Saikia
Page No.# 1/24
GAHC010300352019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP (C)/364 OF 2020
Md. Tafajjul Hussain @ Tafajjul Hussain,
Son of Md. Abbas Ali @ Abbas Ali,
Resident of village- Bhelowguri,
Post Office-Modertoli, Police Station- Doboka,
District-Hojai, Assam. Pin-782440.
........Petitioner
-Versus-
1. Union of India, Represented by the Secretary to the
Govt. of India, Ministry of Home Affairs, Shastri Bhawan,
Tilok Marg, New Delhi-1.
2. The State of Assam, Represented by the
Commissioner and Secretary teo the Government of
Assam, Home Department, Dispur, Guwahati-781006.
3. The Deputy Commissioner, Hojai. P.O and P.S.
Sankardev Nagar, Hojai, Dist-Hojai, Assam, Pin-782442.
Page No.# 2/24
4. The Superintendent of Police (Border), Hojai. P.O &
P.S- Sankardev Nagar, Hojai, Dist-Hojai, Assam, Pin-
782442.
5. The State Coordinator, National Registration of
Citizen (NRC) Assam, 1st Floor Achyut Plaza, G.S. Road,
Bhangagarh, Kamrup (M), Assam, Guwahati-781005.
6. The Member, Foreigners Tribunal, Nagaon Court
No.7th AT Lanka, Hojai, P.O & P.S-Lanka, District-Hojai,
Assam, Pin-782446.
........Respondents
-B E F O R E -
HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MR. JUSTICE SOUMITRA SAIKIA For the Petitioner : Mr. I. Hussain, learned Counsel. For the Respondents : Mr. J. Payeng, learned Standing Counsel, F.T Ms. L. Devi, learned Counsel, NRC on behalf of Mr. R. K. Devchoudhury Mr. A. Bhuyan, learned Counsel, ECI.
Date of Hearing : 07.09.2021.
Date of Judgment : 07.04.2022
JUDGMENT AND ORDER (CAV)
(Soumitra Saikia, J)
This Writ petition is filed by the petitioner, Md. Tafajjul Hussain @ Tafajjul Hussain, who has challenged the order dated 11.10.2019 passed by the Member, Foreigner's Tribunal, Nagaon Court No.10 th at Sankardev Page No.# 3/24 Nagar (Doboka), Hojai, Assam, in case No. FT(D) Case No.880/2015.
2. Upon a reference made to the Foreigner's Tribunal, Nagaon Court No.10th at Sankardev Nagar (Doboka), Hojai, Assam vide reference No.S.P.(B)'s F.T. Case No.332/2015, the present Foreigner's Tribunal case was registered against the petitioner. The petitioner was suspected to be a foreigner, who had entered Assam, on or after 25 th of March, 1971 from the specified territory i.e. Bangladesh without any valid documents. The Tribunal initiated the reference by serving Notice on the petitioner. The petitioner appeared before the Tribunal and filed his Written Statement and produced documents in support of his case that he is not an alien, who had entered Assam from the specified territory. The petitioner also presented 2 (two) witnesses as defence witnesses to support his case before the Tribunal. The Tribunal examined the materials presented before the Tribunal but however, declined to accept the contentions of the petitioner and rendered its opinion by answering the reference in affirmative that the petitioner is a foreigner as per Section 2 (a) of the Foreigners' Act, 1946 and who had illegally entered into the territory of India specifically Assam on or after 25 th of March, 1971 from the specified territory i.e. Bangladesh without any valid documents. Being Page No.# 4/24 aggrieved, the present writ petition has been filed by the petitioner challenging the order dated 11.10.2019 passed by the Member, Foreigner's Tribunal, Nagaon Court No.10 th at Sankardev Nagar (Doboka), Hojai, Assam, in case No. FT(D) Case No.880/2015.
3. We have heard the learned counsels for the parties. We have also perused the pleadings on record as well as the Tribunal records, which were called for by this Court.
4. It is seen that the petitioner in his Written Statement stated that he was born on 01.01.1976 and was brought up at the village 2 No. Borkur, P.O-Bhuragaon, P.S- Bhuragaon, Dist of Morigaon, Assam. The further case of the petitioner is that his forefather's name was enrolled in the draft chitha of 1937-38 under Morigaon District, Mouza-Bhuragaon, 2 No. Borkur Kissamat, vide A.P No. 22, Dag No. 467 and 35 and the same is recorded in the name of his forefather, namely, Taleb Ali, S/O- Monor Uddin. It is also stated that the name of his forefather was also recorded in NRC of 1951, vide Legacy Data code No.270-0008-3209, Image ID No.17102941 of village 2 No. Borkur Pathar, Bukoni Mouza, Lahorighat Thana, District-Nagaon, Assam and that the name of his forefather is shown to be recorded as Telebali Shek, S/O-Monirddin. Similarly, his Page No.# 5/24 grandfather's name was also entered into NRC of 1951 as Eyaj Uddin Shek, S/O-Talebali and shown to be a resident of village 2 No. Borkur Pathar, Bukoni Mouza, Lahorighat Thana, District-Nagaon, Assam. The petitioner in his written statement stated that the names of his forefather, grandfather and father's name has been enrolled in the draft chitha of 1968-69 under Morigaon District, Mouza-Bhuragaon, 2 No Borkur Kissamat, vide P.P. No. 111, Dag No.4, 6, 7, 35 as Taleb Ali, S/O-Monor Uddin, Eyaj Uddin S/O-Taleb Ali and Abbas Ali S/O-Eyaj Uddin. His forefather's name has also been found recorded in the draft chitha of 1968-69 under Morigaon District, Mouza-Bhuragaon, 2 No Borkur Kissamat, vide A. P. No.22, Dag No-4, 6, 7, 35 as Taleb Ali S/O-Monor Uddin. In the said draft chitha the name of his grandfather was also recorded as Eyaj Uddin S/O-Taleb Ali. The petitioner in his written statement stated that the names of his parents and family members have been enrolled in the Voters list since 1977. In the Voter's list of 1977 it was recorded under 81 No Lahorighat LAC vide Sl. No. 27, 28, 29 and 30, House No-4, Part No.66 of Vill-2 No Borkur Pathar, P.S-Lahorighat, Mouza- Bhuragaon, District-Nagaon, Assam. The names of the family members of the petitioner are found enrolled in Voters list of 1985, 1989, 1993, 1997, 2005, 2010, 2014, 2016. The petitioner stated that his name has Page No.# 6/24 been enrolled in the Voter list with effect from 1997 along with his family members under 81 No Lahorighat LAC vide Sl. No. 383,384, 385, 386, 387 and 388, House No-106, Part No.30 of Vill-2 No Borkur Pathar, P.S- Lahorighat, Mouza-Bhuragaon, District-Nagaon, Assam. It is further stated that the petitioner and his family members had shifted their residence from 2 No Borkur Pathar to Niz Doboka in the year 2003 and presently the petitioner and his family members have been residing in Niz Doboka (Doboka Pathar), but the petitioner again shifted his residence from Niz Doboka to Bheluguri in the year 2010 and at present he is presently residing in Bheluguri.
5. Before the Tribunal, the petitioner exhibited as many as 27 (twenty seven) exhibits. The particulars of the exhibits as evident from the records as also mentioned in the impugned order of the Tribunal are extracted as under-
"i) Ext.1: Photo-copy or computer print-out of a computer generated NRC Details in the name of Talebali Shek of 2No. Borkor Pather in the district of Morigaon,
ii) Ext.2: Photo-copy or computer print-out of a computer generated NRC Details in the name of Eaj Uddin Shekh of 2 No Borkor Pather in the district of Morigaon, Page No.# 7/24
iii) Ext.3: Photo-copy of a certified copy of a document,
iv) Ext.4: Certified copy of a Hand-written Chittha Copy issued by the Circle Officer at Bhuragaon Revenue Circle for the village: 2No. Borkur Pather Gaon under mouza Bhuragaon in the district of Morigaon,
v) Ext.5: Certified copy of a Hand-written Chittha Copy issued by Sub Deputy Collector (S.D.C.), Bhuragaon Revenue Circle, for the village:
2No. Borkur Gaon under mouza Bhuragaon in the district of Morigaon,
vi) Ext.6: Certified copy of a Jamabandi vide P.P. No.:22 for the village:
Borkur Pather No.2 under mouza Bhuragaon,
vii) Exts.7(A), 7(B), 7(C), 7(D), 7(E), 7(F), 7(G) & 7(H): Land Revenue Paying Receipts for the Annual Patta No.:22 in the village: 2No. Borkur,
viii) Ext.8(A): Land Revenue Paying Receipt for the Periodic Patta No.:111 in the village: 2 No. Borkur,
ix) Ext.8(B): Land Revenue Paying Receipt for the Periodic Patta No.:193 in the village: Bhe: Gaon,
x) Ext.9: Certified copy extract of a voter list for the village: 2No. Borkur Pather under 81No. Lahorighat LAC in the year -1985,
xi) Ext.10: Certified copy extract of a voter fist for the village: 2No.
Borkor Pather under 81No. Lahorighat LAC in the year -1989,
xii) Ext.11: Certified copy extract of a voter list for the village: 2No. Borkur under 81No. Lahorighat LAC in the year -1993,
xiii) Ext.12: Certified copy extract of a voter list for the village: 2No. Borkur Pather under 81No. Lahorighat LAC in the year -1997,
xiv) Ext.13: Certified copy extract of a voter list for the village: Doboka, Ward No.:10 and Niz-Doboka under 90No. Jamunamukh LAC in the Page No.# 8/24 year-2005,
xv) Ext.14: Certified copy extract of a voter list for the village: Niz Doboka and Ward No.:10 -Doboka Town under 90No. Jamunamukh LAC in the year-2010, xvi) Ext.15: Photo-copy of a voter list for the village: Bheleuguri, xvii) Ext.16: Photo-copy of a voter list for the village: Bheleuguri under 90No. Jamunamukh LAC, xviii) Ext.17: Receipt of payment of registration fee issued by the Sub- Registrar, Hojai, xix) Ext.18: Computer generated Jamabandi copy vide P.P. No.:111 for the village: 2No. Borkur Pather under mouza Bhuragaon in the district of Morigaon, xx) Ext.19: Transfer/Leaving Certificate issued vide Sl. No.:12 on 02/05/2016 in the name of Md. Tafajjul Hussain by the Headmaster, Balidunga M. E. School, xxi) Ext.20: Gaon Panchayat Certificate issued vide Sl. No.:57 on 18/11/200 in the name of Tafajjul Hussain by the Secretary, Balidunga Gaon Panchayat, xxii) Ext.21: Gaon Burah Certificate issued vide Sl. No.:782 on 04/05/2016 in the name of Md. Tafajjul Hussain by the Gaon Burah of 2No. Borkur Pather, xxiii) Ext.22: Gaon Panchayat Certificate issued vide Memo. No.: 1(B)16- 17/3489 on 13/05/2016 in the name of Tofajjul Hussain by the President, Balidunga Gaon Panchayat, xxiv) Ext.23: Gaon Panchayat Certificate issued vide Memo No.:1(B) 16- Page No.# 9/24 17/3488 on 13/05/2016 in the name of Abbash Ali by the President, Balidunga Gaon Panchayat, xxv) Ext.24: Gaon Burah Certificate issued vide SI. No.:(A) 4740 on 28/03/2018 in the name of Tafajul Hussain by Sri Pabitra Bodo, Gaon Burah of Bhelowguri Gaon, xxvi) Ext.25: Photo-copy of an Elector Photo Identity Card in the name of Tafajul Husen, xxvii) Ext.26: Affidavit, xviii) Ext.27: Certified copy extract of a voter list for the village: 2No, Borkur Pather under 81No. Lahorighat LAC in the year - 1977 and xxix) Ext. 27 (A): Certified copy extract of a voter list for the village:
2No, Borkur Pather under 81No. Lahorighat LAC in the year - 1977." The petitioner also adduced evidence as D.W.1. His father Abbas Ali was examined as D.W.2. One Md. Jaynal Abedin S/O Late Asmat Ali, Aged about -70 years was examined as D.W.3 by the petitioner before the Tribunal.
6. In respect of Exhibits. 1 and 2, the Tribunal held that these two documents are Computer generated in terms of the provisions of Section 65 B (4) of the Indian Evidence Act, 1872. The documents were required to be proved for their authenticity and the same not having been done in terms of the said provision these documents are unreliable for Page No.# 10/24 evidence. The Tribunal relied on the Judgment passed by this Court in WP(C) No. 6443/2017 (Ahitan Nessa -Vs- Union of India). 6.1. Exhibit. 3 was considered in-admissible in evidence as photocopy of the same was submitted before the Court.
6.2. Exhibits 4, 5 and 6 being the land documents were held to be unproved in the absence of the testimony of the lawful custodian of these documents.
6.3. Exhibits. 7 (A), 7(B), 7(C), 7(D), 7(E), 7(F), 7(G), 7(H)-- Land Revenue Paying Receipts for the Annual Patta No.:22 in the village: 2No. Borkur, were held to be unproved in accordance with law and hence did not have any probative value.
6.4. Exhibit. 8 (A)-- Land Revenue Paying Receipt for the Periodic Patta No.:111 in the village: 2 No. Borkur, 6.5. Exhibit. 8 (B)-- Land Revenue Paying Receipt for the Periodic Patta No.:193 in the village: Bheloguri. Both these exhibits i.e. Exhibit. 8 (A) and Exhibit. 8 (B) were held to be not proved in accordance with law and the Tribunal, therefore, held that the said exhibits did not have any Page No.# 11/24 probative value.
6.6. In respect of Exhibit.9-Voter List for the year 1985 was held to prove that Md. Abbas Ali, aged about 40 years is son of Eyaj Uddin of 2 No. Borkur Pather Gaon in the year-1985.
6.7. Exhibit.10-Voter List for the year 1989 was held to prove that Md. Abbas Ali, age about 38 years is son of Eyaj of 2 No. Borkur Pather Gaon in the year-1989.
6.8. In respect of Exhibit.11-Voter List for the year 1993, the Tribunal held that the said exhibit proved inter-alia that Md. Abbas Ali, aged about 41 years is son of Reyaj of 2 No. Borkur Pather Gaon in the year-1993. 6.9. In respect of Exhibit.12-Voter List for the year 1997, the Tribunal held that the exhibit proved inter-alia Md. Arbas Ali, age about 46 years is son of Eyaj Udin of 2 No. Borkur Pather Gaon in the year-1997. 6.10. In respect of Exhibit.13-Voter List for the year 2005, the Tribunal held that the exhibit proved inter-alia that Md. Tafajjul Hussain, age about 30 years is son of Abbas Ali and Abbas Ali, age about 50 years is son of Late Eyaj Uddin of village: Doboka, Ward No.:10 and Niz-Doboka in the Page No.# 12/24 District of Nagaon.
6.11. In respect of Exhibit.14-Voter List for the year 2010, the Tribunal held that the exhibit proved inter-alia that Md. Tafajjul Hussain, age about 32 years is son of Abbas Ali and Abbas Ali, age about 54 years son of late Eyaj Uddin of village: Niz Doboka, Ward No.:10 and Doboka Town in the District of Nagaon.
6.12. It was observed by the Tribunal in respect of the exhibits discussed above that the name of Abbas Ali, projected to be the father of the petitioner appears from the year 1977-2010. The Tribunal observed that from the year 1977 to 1997 the voters list showed the address as village 2 No. Borkur Pather and thereafter the village were shown as Niz Doboka. That apart prior to 1977 neither the names of the projected father (Abbas Ali) nor the projected paternal grandfather (Eyaj Uddin) appeared in any Voters list and this non appearance of their names is also not explained by the petitioner. It was also observed by the Tribunal that the name of the petitioner itself did not appear in any voter list prior to 2005, which makes the claim of the petitioner doubtful in the absence of any explanation by the petitioner. It was further observed by the Tribunal Page No.# 13/24 that the petitioner failed to disclose the name of his mother, names of his siblings if any, names of his projected father's siblings, if any and that of his paternal grandmother and maternal grandparents. He had also failed to disclose his projected father's place of birth and status at the time of filing the Written Statement. The Tribunal observed that the citizenship of the petitioner is therefore questionable.
6.13. In respect of Exhibit.19--Transfer / School Leaving Certificate in the name of Md. Tafajjul Hussain by the Headmaster, Balidunga M. E. School, the same was sought to be proved by the petitioner by the testimony of the author. However, the Tribunal did not accept the testimony of the author of this document as the same was not on the basis of School Admission Register.
6.14. In respect of Exhibit.20--Gaon Panchayat Certificate dated 18.11.2004, the Tribunal did not accept the Gaon Panchayat Certificate because of the unauthorized use of the State Emblem by the author in the said documents and the same was held to be not proved in accordance with law.
6.15. In respect of Exhibit.21--Gaon Burah Certificate dated Page No.# 14/24 04.05.2016, the Tribunal rejected this document as the same was not proved on the basis of contemporaneous record and as such it was considered not to have any probative value.
6.16. In respect of Exhibits.22, 23, 26 and 27 (A), the Tribunal held that these documents were not referred or contended to in the written statements and therefore they were not considered for evidence by the Tribunal.
6.17. In respect of Exhibit.24, the Gaon Burah Certificate dated 28.03.2018 the author of the said certificate was examined and he had testified that he had issued the document only on the basis of the availability of the name of the Opposite Party/petitioner in the Voters List for the year 2012 and that he knew the petitioner /Opposite Party as a inhabitant of his village. However, as the author did not produce a copy of the Voters List or any other contemporaneous record during his testimony, the Tribunal held that these documents as not proved as per law and that it had lost its probative value.
6.18. In respect of Exhibit.25, the Tribunal held that the same being a photocopy of the Electronic Photo Identity Card of the petitioner and Page No.# 15/24 therefore, not admissible in evidence.
7. The Tribunal held that amongst the documents exhibited as secondary evidence before the Tribunal, only Exhibit. 13 and Exhibit.14 were proved and from there what can be concluded is that the petitioner/Opposite Party is the son of Md. Abbas Ali.
8. The Tribunal held that the petitioner as the Opposite party before the Tribunal had failed to disclose the name of his mother, name of his brothers or sisters if any and the name of his projected father's brothers or sisters if any or that of his paternal grandmother and maternal grandparents. There was also no disclosure as to his projected father's place of birth, his status (i.e. whether he was alive or death) at the time of filing the written statement. The Tribunal held that failure to disclose all the relevant material particulars at the very first instance i.e. in his Written Statement have resulted in drawing of adverse presumption against the Opposite Party. The Tribunal referred to the Judgment of this Court rendered in AYESHA KHATUN --vs-UNION OF INDIA & OTHERS reported in (2017) 3 GLR 820.
9. The Tribunal further held that the Opposite Party failed to adduce Page No.# 16/24 cogent, reliable and admissible evidence in support of his pleadings and claims and had therefore failed to prove and establish the facts in issue in the instant case. Tribunal held that after due perusal of the records and materials available it transpires that the petitioner/Opposite party had willfully neglected to prove his case and to adduce his evidence in rebuttal. The Tribunal held that the Opposite Party miserably failed to prove and establish his claim of the citizenship in India by discharging his mandatory burden and liability as per Section 9 of the Foreigners' Tribunal Act, 1946, inspite of being granted ample opportunities to testify in respect of the allegations of the State that he is a foreigner of or on or after 25.03.1971.
10. We have heard the learned counsels for the parties and we have also perused the pleadings on record. The Tribunal records which were called for have also been duly examined.
11. The case projected by the petitioner before the Tribunal is that the petitioner was born on 01.01.1976 and was brought up at village 2 No. Borkur, P.O-Bhuragaon, P.S- Bhuragaon, Dist of Morigaon, Assam. In the Written Statement filed it was stated that one Taleb Ali, son of-Monor Page No.# 17/24 Uddin, projected to be the forefather of the petitioner, his name was enrolled in the draft chitha of 1937-38 under Morigaon District, Mouza- Bhuragaon, 2 No. Borkur Kissamat, vide A.P No. 22, Dag No. 467 and 35. Further the petitioner's forefather's name was enrolled in the NRC of 1951 vide Legacy Data code No.270-0008-3209, Image ID No.17102941 of village 2 No. Borkur Pathar, Bukoni Mouza, Lahorighat Thana, District- Nagaon, Assam as Telebali Shek, Son of-Monirddin. It was also stated that the name of petitioner's grandfather- Eyaj Uddin Shek, Son of, Talebali was enrolled in the NRC of 1951 vide Legacy Data code No.270- 0008-3225 of village 2 No. Borkur Pathar, Bukoni Mouza, Lahorighat Thana, District-Nagaon, Assam. In the draft chitha of 1968-69, the names of his forefather, grandfather and father's name namely, Talebali, Eyaj Uddin Shek and Md. Abbas Ali respectively are recorded under Morigaon District, Mouza-Bhuragaon, 2 No. Borkur Kissamat, vide P.P No. 111, Dag No. 4, 6, 7 and 35. That apart the name of the forefather, grandfather, namely, Talebali and Eyaj Uddin Shek respectively are also recorded in draft chitha of 1968-69 under Morigaon District, Mouza-Bhuragaon, 2 No. Borkur Kissamat, vide A.P No. 22, Dag No. 4, 6, 7 and 35.
12. The Voter's List of 1977, 85, 89, 93, 97 was presented before the Page No.# 18/24 Tribunal as evidences in support of his claim that the names of the parents and the family members of the petitioner are enrolled in the said Voter's List as voters under 81 No. Lahorighat LAC. The village has been consistently shown as village 2 No. Borkur Pathar, Mouza-Bhuragaon, Lahorighat Thana, District-Nagaon, Assam. It was further submitted that the name of the petitioner along with his father and other family members were reflected as voters under 90 No. Jamunamukh LAC for the years 2005, 2010, 2014 and 2016. It was stated that the change in address was because of the family shifting their residence from 2 No. Borkur Pathar to Niz Doboka village in the year 2003. Although the petitioner's father and his family members are presently residing in Niz Doboka (Doboka Pathar), but the petitioner again shifted back to his residence from Niz Doboka to Bheluguri in the year 2010 and he is permanently residing in Bheluguri. It is also contended that some landed properties were purchased by the petitioner at village Bheluguri in the year 2010 vide P.P No. 193 under Behlguri Kissamat, Mouza- Jamunamukh, P.S Doboka, District-Nagaon, Assam. That apart School Certificate issued by the Head Master of Balidunga M.E. School, Residential Certificate issued by Secretary of Balidunga Gaon Panchayat as well as Residential Certificate issued by Sarkari Gaonburah of 2 No. Page No.# 19/24 Borkur and Sarkari Gaonburah of Bheluguri Gaon were also relied upon by the petitioner to content that he was certified to be a permanent resident of the places mentioned in the certificates.
13. In order to contest the reference against the petitioner that he is a foreigner of post 27.03.1971, the petitioner must be able to establish the linkage with his father or grandfather etc. to dispel the allegation that he is a foreigner and not an Indian citizen. This is necessary because the petitioner was born on 01.01.1976 and the same is not supported by any Birth Certificate issued by the competent authority of the State.
14. It is seen from a perusal of the impugned Judgment that the Foreigners Tribunal did not accept the documentary evidences presented by the petitioner to be reliable evidence in support of his contention that he is not a foreigner but a citizen of India.
15. It is however seen that in respect of Exhibit. 4, Exhibit. 5 and Exhibit. 6, which are land documents relied upon by the petitioner to project that his grandfather, father and forefather had acquired landed properties, the Tribunal held that these documents were unproved in accordance with law and therefore, were considered not to have any Page No.# 20/24 probative value. A perusal of the Tribunal records revealed that the petitioner had filed necessary applications before the Tribunal for issuance of summons to the Revenue Officials. However, vide order dated 21.09.2019, the Tribunal held that the summons to the concerned authority were issued on 05.09.2019 on the basis of steps taken by the Opposite Party (petitioner herein) but thereafter the Opposite Party neglected to serve the same, which remained in the record of the Foreigners Tribunal. Under the circumstances, the Tribunal decided to wind up the opportunity so granted to the Opposite Party/petitioner and proceeded for an opinion on the merits of the case on that day itself, which however, could not be delivered due to paucity of time and the matter was again fixed on 11.10.2019 for opinion on merit. On 11.10.2019, the impugned opinion was delivered holding that the Opposite Party (petitioner herein) was declared as a foreigner (who entered India) on or after 25.03.1971.
16. The Foreigners Tribunal records perused also revealed an application which was filed by the State counsel seeking permission to cross examine the defence witnesses as the Tribunal had earlier passed orders closing the cross examination of the D.Ws in the matter.
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17. Although Section 9 of the Foreigners' Act, 1946 cast the burden on the person, on whom, a reference is made before the Tribunal, to prove that he is not a foreigner but an Indian citizen, there are sufficient powers given to the Foreigners' Tribunal under the Foreigners' (Tribunals) Order, 1964, which provides that Foreigners' Tribunal shall have the powers of the Civil Court while trying a suit under the Code of Civil Procedure, 1908 and the powers of the Judicial Magistrate First Class under the Criminal Procedure Code, 1973 in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him or her on oath;
(b) requiring the discovery and production of any document;
(c) issuing commissions for the examination of any witness;
(d) directing the proceedee to appear before it in person;
(e) issuing a warrant of arrest against the proceedee if he or she fails to appear before it.
18. In other words there is ample power prescribed under the Act read with the Foreigners' (Tribunals) Order, 1964 to enforce attendance of any Page No.# 22/24 person by issuing summons for the purposes of examining him/her on oath. In the present case while there is a finding by the Tribunal in its order dated 21.09.2019 that the summons on the authorities were not served because of steps were not taken by the petitioner. However, in the facts of the present case, where the petitioner has presented land documents as evidences to support his claim that his father and grandfather etc were present in India and had landed properties between 1966 and 1971, it would have been apposite for the Foreigners' Tribunal to have the Revenue Officials summoned for the purposes of evidence to determine the authenticity of the documents issued and its evidentiary value with respect of the present case. That apart, it is seen that although the evidence in chief was recorded by the Tribunal in respect of the Defence witnesses namely, D.W.1, D.W.2 and D.W.3, the impugned order of the Tribunal does not even refer to the evidences adduced before the Tribunal. There is no evaluation of the Oral evidences adduced by the petitioner by the Foreigners Tribunal while rendering the impugned Order.
19. Considering the above, as had been held by this Court that citizenship is a valuable right and every opportunity available in law must be afforded to every person whose citizenship has come under the cloud Page No.# 23/24 because of the reference made by the State to the Tribunal, it is necessary for the Foreigners' Tribunal to properly evaluate all the evidences presented before the Tribunal-be it oral or documentary evidences. The evidence pertaining to the authenticity of the land documents exhibited as Ext.4, Ext.5 and Ext.6 are necessary to determine the presence/absence of the linkage between the petitioner and his father, his grandfather etc. Since " preponderance of probability" is the basis for evaluation of the evidences presented before the Tribunal by the petitioner, rejection of the certified copies of the land documents exhibited by the petitioner without the testimony of the Revenue authorities cannot be accepted as a proper evaluation as per law of the evidence. Accordingly, we are of the view that this impugned order passed by the Foreigners' Tribunal cannot be sustained; the same is therefore interfered with and set aside. The matter is remanded back to the Tribunal for a fresh decision in the matter after causing issuance of summons to the concerned officials who may be the appropriate authority to adduce evidences in respect of the land documents submitted by the petitioner before the Tribunal.
20. Considering the fact that the matter will be heard again from the Page No.# 24/24 stage of evidence, we also permit the State to cross-examine the Defence witnesses and accordingly, the order dated 21.09.2019 passed by the Foreigner's Tribunal, Nagaon Court No.10 th at Sankardev Nagar (Doboka), Hojai, Assam closing the cross-examination of the Defence witness is also interfered with and set aside. Although the matter is remanded back for a fresh decision, it is made clear that liberty is granted only for summoning and examining the Revenue authorities in respect of the land documents presented by the petitioner and cross examination thereof if sought for and the State counsel is also permitted to cross examine the Defence Witnesses presented by the petitioner before the Foreigners' Tribunal. It is made clear that no new evidence other than those permitted above can be produced before the Tribunal. The entire exercise is directed to be completed within a period of 2 (two) months from today.
21. Writ petition is accordingly allowed to the extent indicated above. Tribunal records be remitted forthwith. No order as to cost.
JUDGE JUDGE Comparing Assistant