Gauhati High Court
Page No.# 1/2 vs The Union Of India And 5 Ors on 3 March, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/20
GAHC010093862018
2025:GAU-AS:2579
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3797/2018
MD. ABDUL KADIR AND 4 ORS.
S/O LT. HASEN ALI
R/O VILL- SOLMARI
P.S. MOIRABARI
DIST. MORIGAON, ASSAM
2: SAHAR BHANU
W/O MD. ABDUL KADIR
R/O VILL- SOLMARI
P.S. MOIRABARI
DIST. MORIGAON
ASSAM
3: AZIZUL HAQUE
S/O MD. ABDUL KADIR
R/O VILL- SOLMARI
P.S. MOIRABARI
DIST. MORIGAON
ASSAM
4: EZAZUL HOQUE
S/O MD. ABDUL KADIR
R/O VILL- SOLMARI
P.S.MOIRABARI
DIST.MORIGAON
ASSAM
5: BAHARUL HOQUE
S/O MD. ABDUL KADIR
R/O VILL- SOLMARI
P.S. MOIRABARI
DIST. MORIGAON
ASSA
Page No.# 2/20
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP.B Y THE MINISTRY OF HOME AFFAIRS, NEW DELHI.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI -6.
3:THE DEPUTY COMMISSIONER OF MORIGAON
P.O.
P.S. AND DIST. MORIGAON
ASSAM
4:THE SUPERINTENDENT OF POLICE (B)
MORIGAON
P.O. AND DIST. MORIGAON
ASSAM
5:THE ELECTION COMMISSIONER OF INDIA
THROUGH ITS SECRETARY
NIRBACHAN
BHAWAN
NEW DELHI-1.
6:THE STATE CO-ORDINATOR
NATIONAL REGISTER OF CITIZEN (NRC)
ASSAM
BHANGAGARH
GUWAHATI -5
Advocate for the Petitioner : MR. A R SIKDAR, MD A ALI
Advocate for the Respondent : ASSTT.S.G.I., MR J PAYENG,SC, F.T,MR. D BARUAH,SC,
ECI,MS. A VERMA,SC, NRC
Page No.# 3/20
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE MALASRI NANDI
Advocates for petitioners Mr. A.R. Sikdar, Mr. A. Ali.
Advocates for respondent Ms. K. Phukan, CGC.
no.1
Advocates for respondent Mr. G. Sarma, Standing counsel, FT matters.
nos. 2, 4 and 6
Advocates for respondent Mr. P. Sarmah, Addl. Senior Govt. Advocate.
no.3
Advocate for respondent Ms. P. Barua
no.5
Date of hearing 03.03.2025
Date of order 03.03.2025.
JUDGMENT
(K.R. Surana, J) Heard Mr. A.R. Sikdar, learned counsel for the petitioners. Also heard Ms. P. Phukan, learned CGC for the Union of India; Ms. P. Barua, learned standing counsel for the Election Commission of India; Mr. Mr. G. Sarma, learned standing counsel for the FT Matters and N.R.C.; and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate.
Challenge in this writ petition:
2) By filing this writ petition under Article 226 of the Constitution of India, the petitioners have assailed the opinion dated 21.09.2017, passed by the learned Member, Foreigners Tribunal No. 5th, Morigaon, in Case No. FT (C) 192/2016 (New) [corresponding to F.T.(C) 1286/2012 (Old), arising out of IM(D)T Case No. 353/1999]. By the said opinion, the petitioners were declared to be foreigners of after 25.03.1971.
Page No.# 4/20 Case of the petitioners before the Foreigners Tribunal:
3) In brief, the case of the petitioners is that upon service of notice, the petitioner no. 1, namely, Abdul Kadir had entered appearance before the learned Tribunal and filed his written statement and contested the proceeding by denying that the petitioners were foreigners and claimed that all were Indian citizens. The petitioner no. 1 had stated that the investigating officer had registered a case against them without conducting proper investigation to harass the petitioners. In respect of the petitioner no. 1, it was stated that he was born and brought up in village- Solmari, under PS and District- Morigaon and his name appeared in the voter list of 1989, 1997, 2005 and the name of his partners also appeared in the NRC of 1951. It was stated that the parents of the petitioner no. 1 had expired when he was a child and their names did not appear in the voter list of 1965 and 1971 and the petitioner no. 1 lived with his maternal uncle and his name was entered in the voter list after he had attained the age of majority. The petitioner no. 1 had also given brief details about the petitioner nos. 2 to 5 in his written statement.
4) In support of his defence, on 18.07.2017, the petitioner had examined himself as DW-1 and had exhibited the following documents, viz., (i) NRC of 1951 (Ext.A); (ii) certified copy of voter list of 2005 of the petitioner nos.
1 and 2 (Ext.B); (iii) Gaonburah certificate of petitioner no. 1 (Ext.C); (iv) Gaonburah certificate of marriage of petitioner nos. 1 and 2 (Ext.D); (v) voter list of 1971 in the name of Omar Ali (Ext.E); (vi) birth certificates of petitioner nos. 3, 4 and 5 (Ext.F, Ext.G and Ext.H). He had stated that they were not foreigners and were Indian by birth. No other witnesses were examined by the petitioners.
Finding and opinion of the learned Tribunal:
Page No.# 5/20
5) The learned Tribunal, upon examining the pleadings and evidence on record, held that the petitioner no. 1 has not been able to link himself with his projected parents by producing any document having his name enlisted with his projected parents. In respect of petitioner no. 2, it was held that she could not establish her link with her projected parents through voter list of 1965 (Ext.E) in the absence of any documents having her name together with her projected parents. Accordingly, it was held that the petitioner nos. 1 and 2 were foreigners of after 25.03.1971 and accordingly, it was held that the petitioner nos. 3 to 5 were also declared foreigners of after 25.03.1971.
Submissions of the learned counsel for the petitioners:
6) The learned counsel for the petitioner has submitted that the records received from the Tribunal reveals that the enquiry was made in respect of the petitioner no. 1 alone and therefore, reference was made only against the petitioner no.1. Accordingly, it was submitted that the learned Foreigners Tribunal could not have registered any proceeding against the petitioner nos. 2 to 5 without any reference being initiated against them.
7) It was further submitted that vide order dated 04.08.2017, the case was fixed on 22.08.2017, for the evidence of the petitioner no.2, but on 22.08.2017, the petitioner no. 2 could not personally appear before the learned Tribunal and therefore, their learned counsel had prayed for adjournment as the Gaonburah could not appear to give evidence as he was busy for giving flood relief. However, the learned Tribunal had rejected the petition on the ground that in spite of granting sufficient opportunity, the petitioners did not examine DW-2 and did not produce DW-3. Accordingly, the next date was fixed on 12.09.2017. It was submitted that on 12.09.2017, the learned counsel for the petitioners did not appear before the learned Tribunal during office hours and Page No.# 6/20 accordingly, the next date of the case was fixed on 21.09.2017, for passing final opinion. It was submitted that on 21.09.2017, the learned Tribunal, without granting any opportunity of hearing to the petitioners, pronounced its opinion.
However, after the opinion was pronounced, the learned counsel for the petitioner no.1 had filed a petition, which was registered as petition no. 1402/17 to allow the petitioner no. 1 to exhibit some documents, which was rejected. Accordingly, it was submitted that the learned Tribunal failed in its duty to give sufficient opportunity to the petitioner no. 1 to prove few more documents as the issue related to citizenship rights of the petitioner no. 1. In support of the said contention, the learned counsel for the petitioner has placed reliance on the decision of the coordinate Bench of this Court in the case of (i) Sarbananda Sonowal v. Union of India & Ors., (2007) 1 SCC 174, and (ii) Haidar Ali v. Union of India & Ors., 2021 (3) GLT 85, and it was submitted that the matter be remanded back to the learned Tribunal with a direction to allow the petitioner to adduce further evidence in support of his citizenship.
Submission by the learned standing counsel for the FT matters:
8) The learned standing counsel for the FT matters has referred to the provisions of the Foreigners (Tribunals) Order, 1964 and it was submitted that the learned Tribunal was mandated by law to render its opinion in a time bound manner and moreover, the opinion was passed after affording all opportunity to the petitioners to prove their defence. Accordingly, it was submitted that the cases cited by the learned counsel for the petitioners would not help the petitioners in any manner.
9) It was submitted that petition no. 1402/2017 dated 21.09.2017 was filed by the petitioner no.1 after the opinion was pronounced, which cannot be entertained or allowed. Accordingly, the learned standing counsel for the FT Page No.# 7/20 matters has supported the opinion impugned in this writ petition.
Reasons and decision:
10) Three following points of determination arise for decision in this case:-
i. Whether the reference made by the Superintendent of Police (Border), Morigaon was only against the petitioner no.1 and if yes, whether the learned Foreigners Tribunal could have issued notice against the petitioner nos. 2 to 5?
ii. Whether the Tribunal committed any illegality or perversity in not allowing petition no. 1402/17 dated 21.09.2017, filed by the petitioner no.1 to allow him to adduce further evidence to prove 7 (seven) additional documents, which are mentioned in the said petition?
iii. Whether the impugned opinion is liable to be interfered with?
11) The Court has carefully examined the records received from the learned Tribunal and perused the materials available on record. Also considered the submissions made by the learned counsel for both sides and also carefully considered the cases cited by both sides.
Point of determination no.(i):
12) The point of determination no.(i) is taken up first. In this regard, on a careful examination of the records of Case No. FT (C) 192/2016 (New), received from the learned Tribunal, it is seen that the Superintendent of Police (Border), Morigaon, by a memo dated 24.12.1999, had directed the S.I.(B), Page No.# 8/20 Moirabari P.S. to make an enquiry against the petitioner as to whether he is an illegal migrant by following all procedure laid down under Illegal Migrants (Determination by Tribunals) Act, 1983 and Rules framed thereunder.
Accordingly, upon receipt of enquiry report, the Superintendent of Police (Border), Morigaon, by a memo no. MRG/3/33/2000 dated 14.09.2000 [IM(D)T Case No. 353/99 dated 24.12.1999], had expressed that there was no evidence that the petitioner no. 1 had entered into India before 25.03.1971, but there was more evidence that he had entered into India after 25.03.1971 and thus, made a reference before the Illegal Migrants (Determination) Tribunal to determine whether the petitioner was an illegal migrant.
13) Hence, it is seen that the learned Tribunal's record contains no material to show that the Superintendent of Police (Border), Morigaon had either caused any enquiry against the petitioner nos. 2 to 5, or made any reference against them before the Illegal Migrants (Determination) Tribunal, Morigaon.
14) It appears that pursuant to Government notification dated 05.07.2006, the reference was made before the Foreigners Tribunal No. 2 nd, Morigaon, which was made over to the Foreigners Tribunal No. 5 th, Morigaon for disposal vide order dated 17.02.2017, fixing the next date for written statement on 18.03.2017. However, notice dated 17.02.2017, was issued upon all the petitioners to appear on 18.03.2017 and to file their written statement. But, there is no order by the learned Tribunal as to why notice was issued on the petitioner nos. 2 to 5, when the reference was made against the petitioner no. 1 alone.
15) It may be stated that a coordinate Bench of this Court, by its Page No.# 9/20 judgment rendered in the case of Sudhir Roy & Ors. v. Union of India & Ors., reported in 2019 (3) GLT 61, cited by the learned counsel for the petitioner, had categorically held that when reference was made against only one person, other members of the family cannot be declared as foreigners by the Foreigners Tribunal without reference being made against them and without following the due procedure of law of conducting an enquiry, making of reference and without being adjudicated by the Tribunal. This Bench is in respectful agreement with the said ratio. Moreover, in the case of Rina Rani Das v. Union of India, W.P.(C) No. 2706/2019, decided on 10.03.2021, a coordinate Bench of this Court has held that the Foreigners Tribunal cannot travel beyond the reference.
16) Moreover, in this case, the petitioner no. 1 had only entered appearance in the proceeding. Only the vakalatnama and written statement signed by the petitioner no. 1 are available in the record of the learned Tribunal. Thus, the formal appearance by the petitioner nos. 2 to 5 is not on record.
17) Therefore, as the learned Foreigners Tribunal is found to have travelled beyond reference made to it, the proceeding drawn up against the petitioner nos. 2 to 5, namely, (a) Sahar Bhanu, wife of Md. Abdul Kadir; (b) Azizul Haque, son of Md. Abdul Kadir; (c) Ezazul Haque, son of Md. Abdul Kadir; and (d) Baharul Hoque, son of Md. Abdul Kadir. Accordingly, the impugned opinion dated 21.09.2017, passed by the learned Member, Foreigners Tribunal No. 5th, Morigaon, in Case No. FT (C) 192/2016 (New) [corresponding to F.T.(C) 1286/2012 (Old), arising out of IM(D)T Case No. 353/1999] is hereby set aside in respect of the herein before named petitioner nos. 2 to 5. The point of determination no. (i) is answered accordingly.
Point of determination no. (ii):
Page No.# 10/20
18) The point of determination no. (ii) is taken up now.
19) The record of the Tribunal reveals that by order dated 22.05.2017, the proceeding was ordered to proceed ex parte against the petitioners as they had failed to file their written statement. However, on the next date, i.e. 09.06.2017, the petitioner no. 1 had prayed to accept his written statement and to recall the order to proceed ex parte against him. The said petition no.
1087/17 dated 09.06.2017 was allowed; the written statement was accepted; and the next date of the case was fixed on 03.07.2017 for evidence of the petitioners. On 03.07.2017, the petitioners remained absent on call without any steps and accordingly, the matter was fixed on 18.07.2017, for ex parte opinion. On 18.07.2017, the petitioner no. 1 appeared before the learned Tribunal and prayed for vacating the order to proceed ex parte. Accordingly, the learned Tribunal had examined the petitioner no.1 as DW-1, who had exhibited documents. Thus, the next date of the proceeding was fixed on 04.08.2017, for evidence of petitioner no. 2 and for query by the learned Tribunal. On 04.08.2017, the petitioners' side filed a petition for adjournment as the witness could not appear due to illness and accordingly, the matter was adjourned to 22.08.2017.
20) On 22.08.2017, the DW-2 did not turn up, however, the learned counsel for the petitioner no. 1 had prayed for adjournment as the Gaonburah, the proposed DW-3 was engaged in relief work. The said adjournment petition bearing no. 1330/17 was dismissed and the case was fixed on 12.09.2017 for argument. On 12.09.2017, the petitioner no. 1 and his learned counsel were absent on call within office hours. Hence, the learned Tribunal had fixed the next date for opinion on 21.09.2017. On 21.09.2017, after the opinion was pronounced, the petitioner no. 1 had filed a petition no. 1402/17 to allow him to Page No.# 11/20 adduce further evidence to prove seven documents, which has been referred hereinbefore.
21) In this regard, the Court is of the opinion that after the order dated 12.09.2017 was passed, thereby reserving the final opinion to be delivered on 21.09.2017, it was too late in the day for the petitioner no.1 to file and move petition no. 1402/17 dated 21.09.2017, to adduce further evidence. Therefore, the Court is of the considered opinion that the learned Tribunal had committed no illegality or perversity in rejecting petition no. 1402/17 dated 12.09.2017, for further evidence after opinion dated 21.09.2017 was pronounced. The petitioner no. 1 did not file any petition within a reasonable time after his examination-in-chief was recorded on 18.07.2017 for re- examination of DW-1 to prove seven documents referred hereinbefore.
22) It is not the case of the petitioners that the evidence of the petitioner no.1 was hurriedly closed. The learned Tribunal had adjourned the proceeding to allow the petitioner no.1 to examine DW-2 and DW-3. The petitioner no.1 did not seek the assistance of the Court for issuance of summon to DW-3 on his failure to attend the case as witness for the petitioner no. 1 in spite of his request. The petitioners have not explained why the additional seven documents could not be exhibited by the petitioner no. 1, when he had examined himself as DW-1.
23) There is no effort by the petitioners to explain why despite due diligence, those seven documents could not be exhibited by DW-1 when had entered into the witness box on 18.07.2017.
24) It would be apposite to quote hereinbelow paragraph 29 of the case of Haidar Ali (supra), which has been cited by the learned counsel for the Page No.# 12/20 petitioners. The said paragraph reads as follows:-
29. From the above, what is important to note is that the Foreigners Tribunal constituted under the Foreigners (Tribunals) Order, 1964 merely provides a proceedee a reasonable opportunity for making a representation and producing evidence in support of his case before the Tribunal and as such, normally, the rules of pleadings including that of "written statement" as provided under the CPC are not applicable.
As a corollary, the principles contained in the CPC relating to the scope of written statement and limitations placed thereon cannot be strictly applied in the proceedings before the Tribunal though the principles may generally be applied.
In fact, all opportunities should be given to a proceedee to enable him to produce all such documents which come to his possession even at a later stage also, to substantiate his claim that he is an Indian. No pedantic view should be taken, if there has been some delay or if the same is not mentioned in the written statement. Even under the scheme of the CPC, the right to file any document at a later stage, even if at the appellate stage, is always there, subject to leave of the court and if such documents are relevant and highly necessary and could not be produced earlier after exercise of due diligence (vide Order XLI Rule 27 CPC).
Thus, if the proceedee is able to make out a case for filing a document at a later stage, the same cannot be denied and no adverse inference can be drawn. Similarly, if any fact is introduced at the time of adducing evidence, though the same is not mentioned in the written statement, no exception can be made. It cannot be said to be improvement and adverse inference accordingly taken thereof.
Non-mentioning of any person or fact or document in the written statement, if mentioned later, cannot be said to cause any surprise or prejudice to the State so as to ignore such new fact or document. In any event, liberty is always with the State to rebut any evidence after the proceedee has completed adducing evidence.
We have also noted that the witnesses who adduced evidence are cross- examined by the State and as such, if such deposition cannot be shaken during the cross-examination, no adverse inference can be drawn against the petitioner.
25) In this case, the petitioners have not been able to demonstrate that why despite due diligence, seven more documents could not be proved when the petitioner no. 1 was examined as DW-1. Now, we may refer to the observations made in paragraph 36 of the said judgment, which is extracted below:-
Page No.# 13/20
36. What is also to be noted is that in any proceeding, whether, criminal or civil, the fact allegedly concealed and not disclosed must be something which is detrimental to the person expected to disclose, which is the reason the person is avoiding disclosure. If the fact is not detrimental, but rather beneficial to the interest of the person concerned, it defies logic that such beneficial fact should be kept undisclosed. That is the reason, a person knowingly conceals and does not disclose certain fact which is within his personal knowledge, as the person thinks that it may prove detrimental to his interest, if disclosed. Accordingly, non-
disclosure of such incriminating facts may warrant drawing of adverse inference against such a person.
However, the said principle cannot be applicable in the present case in as much as the facts which the petitioner is alleged to have not disclosed in the written statement but subsequently disclosed during the cross-examination, cannot be said to be adverse or incriminating to the claim of the petitioner for the reason that existence of other relatives of the petitioner or that of his father does not in any way impeach upon credibility of his statement. Neither, such a disclosure is inconsistent with or contradict any previous evidence. Nor does it make any difference to the "fact in issue." Of course, if the petitioner deliberately gives false information or avoids giving correct information when asked, the issue of drawing adverse inference may arise. But that is not the case here.
26) The sub-paragraph to paragraph 36 discloses the reason why this Court had accepted the plea of the petitioner in the case of Haidar Ali (supra) to examine the documents in writ proceeding. Thus, on facts, the present case is distinguishable. Moreover, with greatest respect of the case of Haidar Ali (supra), it appears that though this Court had referred to the provision of Order 41, Rule 27 CPC in paragraph 29, the decision of the Supreme Court of India in the case of Satish Kumar Gupta & Ors. Vs. State of Haryana & Ors., (2017) 4 SCC 760, was not placed before this Court for consideration. In the case, the Supreme Court of India had referred to the principles of additional evidence and held to the effect that when neither the trial court has refused to receive evidence, nor it could be said that the evidence sought to be adduced was not available despite the exercise of due diligence, nor it could be held to be Page No.# 14/20 necessary to pronounce the judgment, additional evidence cannot be permitted to fill up the lacuna or to patch up the weak points in the case. The relevant paragraphs 19 and 20 thereof are quoted below:-
19. The other part of the impugned order permitting additional evidence and remanding the case for fresh decision is uncalled for. No case was made out for permitting additional evidence on settled principles under Order XLI Rule 27 of CPC. The provision is reproduced below:-
"27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if -
(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, The Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
20. It is clear that neither the Trial Court has refused to receive the evidence nor it could be said that the evidence sought to be adduced was not available despite the exercise of due diligence nor it could be held to necessary to pronounce the judgment. Additional evidence cannot be permitted to fill-in the lacunae or to patch-up the weak points in the case N. Kamalam v. Ayyaswami, (2001) 7 SCC 503. There was no ground for remand in these circumstances.
27) Thus, in light of the observations made by the Supreme Court of India in the case of Satish Kumar Gupta (supra), as the facts of the present case is found distinguishable on facts under which the case of Haidar Ali (supra), was decided, the decision in the case of Haidar Ali (supra) would not help the Page No.# 15/20 petitioners in any manner whatsoever.
28) Accordingly, the point of determination no. (ii) is answered in the negative and against the petitioners by holding that the learned Tribunal had not committed any illegality or perversity in not allowing petition no. 1402/17 dated 21.09.2017, filed by the petitioner no.1 to allow him to adduce further evidence to prove 7 (seven) additional documents, which are mentioned in the said petition.
Point of determination No. (iii):
29) The point of determination no. (iii) is taken up now.
30) The petitioner no.1, in his written statement, has not disclosed (i) his date or even year of birth; (ii) name of his mother; (iii) date or year when his projected father had died; (iv) place of residence of his projected at the time of his death; (v) though the petitioner no.1 claims that his father had died when he was a child and was living with his maternal uncle, the petitioner no.1 has not disclosed the name of his maternal uncle; (vi) place where his projected maternal uncle was residing; (vii) names of siblings, if any, of his projected father; (viii) names of siblings, if any of his projected mother; (ix) names of his grand-parents. Thus, there is no disclosure of the family tree of the petitioner no.1. Resultantly, there is no way for the learned Tribunal to cross-check the pleadings of the petitioner no. 1 and contents of the document that were exhibited by him. Be it stated that save and except marking of documents as exhibits, the petitioner no. 1 has not proved the contents of the documents.
31) In the case of Rashminara Begum v. Union of India, 2017 (4) GLT 346, a co-ordinate Bench of this Court had held that material facts pleaded has to be prove3d by adducing cogent, reliable and admissible evidence.
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32) Moreover, in the case of Musstt. Ayesha Khatun @ Aisha Khatun v. Union Of India, (2017) 3 GLR 820: (2017) 0 Supreme(Gau) 283 , a co-ordinate Bench of this Court has held as follows:-
12. Written statement submitted by a noticee facing a proceeding under the Foreigners Act, 1946 read with Foreigners (Tribunals) Order, 1964 is the foundation of his or her defence. Since citizenship of the noticee is questioned, the noticee should come out with all material facts within his or her exclusive knowledge in terms of Section 9 of the Foreigners Act, 1946 and disclose them in the written statement. The averments made in the written statement are thereafter required to be proved by adducing cogent and reliable evidence. Failure to disclose materials particulars in the written statement by itself will raise a serious question mark on the citizenship status of the noticee.
33) Having referred to the case of Musstt. Ayesha Khatun @ Aisha Khatun, and as referred hereinbefore, it is seen that the petitioner no.1 has exhibited the following documents (i) NRC of 1951 (Ext.A); (ii) certified copy of voter list of 2005 of the petitioner nos. 1 and 2 (Ext.B); (iii) Gaonburah certificate of petitioner no. 1 (Ext.C); (iv) Gaonburah certificate of marriage of petitioner nos. 1 and 2 (Ext.D); (v) voter list of 1971 in the name of Omar Ali (Ext.E); (vi) birth certificates of petitioner nos. 3, 4 and 5 (Ext.F, Ext.G and Ext.H). He had stated that they were not foreigners and were Indian by birth. No other witnesses were examined by the petitioners.
34) The NRC of 1951 is not an admissible piece of evidence to establish parentage or son-ship. The petitioner no.1 had exhibited the purported NRC as Ext.A. However, the learned Tribunal had rejected the said Ext.A as not a believable document because there was no important particulars disclosed therein like date of birth, name of parents, national identity number, etc. It is also seen from the Tribunal's record that through the petitioner no.1 has stated in her examination-in-chief, recorded on 18.07.2017, that Ext.A. was the NRC of Page No.# 17/20 1951, but its contents were not proved. Therefore, without proving the contents of Ext.A, it cannot be said through the NRC, (Ext.A), the petitioner no.1 has been able to prove that the name of his parents appeared in the NRC of 1951. Nonetheless, it would be relevant to quote below the contents of the said NRC:-
"Certified that I have checked the original NRC 1951 and found as follows:-
H. No. 79.
H.H. No. X. Sl. No. 1 to 2.
1. Md. Hesen Ali, S/o.- Moidor Sk.
2. Msst. Jafeton Nesha, W/o. Hasen Ali, Village- Soulmari, Mouza- Moirabari, P.S. Lahorighat, Nagaon, Assam.
Sd/- Illegible 26.06.86.
Dy. Supdt. of Police (B), Nowgong, (Assam).
F.T.(C) No. 192/16Ext.-A."
35) Thus, a perusal of the record show that the document that was proved as Ext.A by the petitioner no.1 is a purported certificate issued the Deputy Superintendent of Police (Border), Nagaon. The said Ext.A cannot be said to be a duly issued certified copy. The petitioner no.1 has not led any evidence that the police personnel who had issued a purported certified copy is a person empowered under section 78 of the Evidence Act, 1872 to issue a certified copy of NRC of 1951. Moreover, the petitioner no.1 did not take any steps to call for the original NRC of 1951 and to prove its contents. It was also not proved that the police officer issuing Ext.A, was the custodian of NRC of 1951 and authorized to issue a certificate. There is no order by the learned Page No.# 18/20 Tribunal to dispense with the examination and proving of the original NRC of 1951. Thus, the Court is constrained to hold that a document which is hitherto inadmissible in evidence, cannot become admissible merely because the document has been allowed to be marked by the learned Tribunal as Ext.-A. Therefore, apart from the reasons assigned by the learned Tribunal, the discussion hereinbefore is yet another reason for this Court not to rely on Ext.A.
36) The electoral roll of 2005 of village- Solmari, which is exhibited and marked as Ext.B, contains two names, i.e. (i) A. Kadir, father- Late Hasen Ali, and (ii) Sahar Bhanu, husband- A. Kadir. The petitioner no.1 has not disclosed the name of his wife in his written statement, but her name has been disclosed for the first time in his evidence-in-chief. However, the said electoral roll of 2005 does not establish that the petitioner no.1 has his or his father's existence in India before 25.03.1971.
37) The identity letter dated 02.04.2017, issued by the Govt. Gaonburah of Ulubari, Solmari, Sonarigaon (Ext.C), and certificate dated 27.04.2017, issued by the Govt. Gaonburah of Salpara and Kandulimari (Ext.D) in the name of the petitioner no.1 is inadmissible in evidence, as the said two exhibits contain mark of State Emblem of Pillar of Asoka. If one needs an authority on the point, the decision of this Court in the case of Afuja Begum @ Afruja Begum v. Union of India & Ors., W.P.(C) 7340/2016, decided on 19.04.2018, may be referred to.
38) The electoral roll of 1971 of village- Pub-Kundulimari, which is exhibited and marked as Ext.E contains the single name of Umar Ali, son of Diyari, father of petitioner no.2. Therefore, the said document does not help the petitioner no. 1 in any way.
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39) The birth certificates of the projected sons of the petitioner no.1, which are exhibited and marked as Ext.F, Ext.G and Ext.H also do not help the petitioner no.1 to establish his or his father's existence in India prior to 25.03.1971.
40) It may be stated herein that while examining the records received from the learned Tribunal, this Court has ignored the spelling discrepancy in the names of the petitioner and the father of the petitioner.
41) Therefore, the evidence tendered by the petitioner no.1 is found to be correctly appreciated by the learned Tribunal and resultantly, the impugned opinion is not found to be vitiated by any perversity whatsoever. The point of determination no. (iii) is accordingly answered in the negative and against the petitioner.
42) In light of the discussions above, the impugned opinion is not found to suffer from any perversity or illegality whatsoever. The petitioner has failed to demonstrate that the learned Tribunal has made any error in appreciating the pleadings and evidence on record. It could not be shown that any pleadings or evidence has been misread or misconstrued. The petitioner has also failed to show that the opinion impugned in this writ petition is contrary to the well settled principles of law. Thus, the challenge to the impugned opinion dated 21.09.2017, passed by the learned Member, Foreigners Tribunal No. 5 th, Morigaon, in Case No. FT (C) 192/2016 (New) [corresponding to F.T.(C) 1286/2012 (Old), arising out of IM(D)T Case No. 353/1999], fails. Resultantly, this writ petition is dismissed.
43) The interim order dated 14.06.2018, passed in this writ petition, thereby granting bail to the petitioner, stands vacated.
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44) The parties are left to bear their own cost.
45) The consequences of the said opinion shall follow.
46) The records of the Tribunal be sent back together with a
downloaded true copy of this judgment and order so as to make the same a part of the record.
JUDGE JUDGE Comparing Assistant