Gauhati High Court
Petitioner vs The Union Of India on 14 June, 2022
Author: Malasri Nandi
Bench: Malasri Nandi
Page No.# 1/20
GAHC010235362017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2535/2017
ABDUL AZIZ @ MD. ABDUL AZIZ @ ABDUL AJIJ
S/O- MAZAM ALI @ MAJAM ALI,
VILL- NAGARJHAR, P.O- CHARCHARIA,
P.S- HOWLY, DIST- BARPETA, ASSAM.
......Petitioner
VERSUS
1. THE UNION OF INDIA,
REPRESENTED BY THE SECRETARY OF THE MINISTRY OF HOME
AFFAIRS, GOVT. OF INDIA, 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,
DIST- BARPETA, ASSAM
4:THE SUPERINTENDENT OF POLICE(B), BARPETA,
DIST- BARPETA, ASSAM
5:THE OFFICER-IN-CHARGE,
HOWLY POLICE STATION
DIST- BARPETA, ASSAM
6:MR. S K SHARMA
MEMBER FOREIGNERS TRIBUNAL
BARPETA 11TH, ASSAM.
...........Respondents
Page No.# 2/20 Advocate for the Petitioner : Mr. M.U. Mahmud, Mr. M. Ali, Mr. A. Das, Mr. S. Islam, Mr. S. Hoque ....... Advocate Advocate for the Respondents : Mr. B. Sharma, CGC Mr. J. Payeng, Special Counsel, F.T. Ms. U. Das, Government Advocate.
...... Advocates
BEFORE
HON'BLE THE CHIEF JUSTICE (ACTING) MR. N. KOTISWAR SINGH
HON'BLE MRS. JUSTICE MALASRI NANDI
Date of Hearing : 17.11.2021
Date of Judgment : 14.06.2022
JUDGMENT AND ORDER (CAV)
[N. Kotiswar Singh, CJ (Acting)]
Heard Mr. M.U. Mahmud, learned counsel for the petitioner. Also heard Mr. B. Sharma, learned Central Government Counsel appearing for respondent No.1; Mr. J Payeng, learned Special Counsel, F.T. appearing for respondent Nos. 2, 4, 5 & 6; and Ms. U. Das, learned State Counsel, Assam, appearing for the respondent No.3.
2. In this petition the petitioner has challenged the impugned opinion dated 02.02.2017 passed by the Foreigners Tribunal, Barpeta-11th, Assam, in F.T Case No.32/2015, by holding Page No.# 3/20 that the petitioner has failed to discharge the burden of proof under Section 9 of the Foreigners Act, 1946 and held him to be an illegal immigrant who entered India without valid documents after 25.03.1971.
The petitioner was proceeded before the aforesaid Tribunal after the reference was made as his citizenship was found doubtful.
3. The petitioner after receiving notice appeared before the Tribunal and filed his written statement dated 29.08.2016 and he also exhibited number of documents like voters list of 1966, 1970, 1985 and 2005 etc. and other documents in support of his claim that he is an Indian. He also examined himself as D.W.1 and one Idris Ali as D.W.2, whom the petitioner claims to be his own brother and one Gaonburah as D.W3, namely Allauddin. The Tribunal after considering both the oral and documentary evidences adduced by the petitioner held him to be a foreigner.
4. The petitioner claimed to be the son of one Md. Majam Ali and Nekjan Nessa, both Indian citizens and hence, he is also an Indian. As regards the identity of petitioner's parents i.e. Md. Majam Ali whom the petitioner claims to be his father and one Nekjan Nessa, whom the petitioner claims to be his mother, the petitioner submitted that their names were reflected in the voters lists of 1966 and 1970. The voters lists of 1966 and 1970 were marked and exhibited as Exhibits-A and B respectively.
5. Learned Tribunal made the observation that Exhibit -A which is the certified copy of the voter list of 1966 was proved in original and in Exhibit-A the name of the projected parents had been shown as Majam Ali and Nekjan Nessa vide serial No.240 & 241 with House No.81 of Village Guileza under 51 No. Jania LAC. The Tribunal also noted that the Exhibit-B, Page No.# 4/20 which is the photocopy of the certified copy of 1970's voters list which was proved in original and the names of the aforesaid parents had also been shown at Serial No.299 & 300 and House No.81 of the same Constituency.
6. The Tribunal also noted that D.W.2, Idris Ali, whom the petitioner claims to be his brother, stated the names of his parents as Majam Ali and Sarjina Nessa. The Tribunal also observed that the local Gaonburah, namely, Allauddin who was examined as the D.W.3 had mentioned about the names of the parents of the petitioner as Majam Ali and Nekjan Nessa. The Tribunal accordingly, observed that there is contradictory evidence adduced by the D.W.1, D.W.2 and D.W.3 as regards the names of their parents. According to the learned Tribunal, the names as appearing in the certified copies of the voters list of 1966 and 1970 marked as Annexure-A & B respectively were to be affirmed and confirmed by the D.W.1 and D.W.2. However, according to the learned Tribunal the same was not done by observing that D.W.1 and D.W.2 had failed to prove the contents of the certified copy of voters lists of 1966 and 1970.
7. The learned Tribunal also held that when the projected father is alive though near about 103 years old, the petitioner ought to have proved the certified copies of the voters lists of 1966 and 1970 by producing his projected father as material witness before the Tribunal. The learned Tribunal held that failure to produce the petitioner's father as a witness amounts to suppression of materials facts before the Tribunal.
8. The learned Tribunal also held that the certificate issued by the Gaonburah marked as Exhibit-F wherein the petitioner has been shown as a resident of Village Nagarjhar was not proved. Similarly, entries of the voters list of 2015 were also not proved.
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9. The learned Tribunal also held that as the name of the Headmaster of Rupsi Janapriya Govt. Aided M.E. School was not known to the petitioner, the said certificate which was exhibited as Exhibit-C cannot be said to have been proved as the said Headmaster was not examined.
10. Accordingly, learned the Tribunal held that when the name of the projected father, namely, Majam Ali was not proved as per the inquiry made by the Tribunal, it can be presumed that both D.W.1 and D.W.2 are not related to each other and accordingly, held that the proceedee has failed to establish the linkage between the petitioner and the projected parents.
11. The learned Tribunal also observed that most of the documents were collected by the proceedee during the pendency of the reference and some were not proved by producing the attested/issuing authority and accordingly, held that these documents were not proved.
Consequently, the learned Tribunal held that the proceedee had failed to discharge the burden cast upon him under Section 9 of the Foreigners Act, 1946 read with Section 106 of the Evidence Act, 1872 and declared the petitioner to be a foreigner who had entered India after 25.03.1971.
12. Mr. Mahmud, learned counsel for the petitioner has assailed the aforesaid conclusions and finding of the learned Tribunal by submitting that it cannot be said that the petitioner had failed to prove the aforesaid documents. Learned counsel for the petitioner submits that the aforesaid voters lists of 1966 and 1970 consistently show the names of the petitioner's father and mother and with same village of Guileza. These documents being consistent, no doubt could have been cast upon the identity of his mother and father.
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13. Learned counsel for the petitioner also submits that in the voters list of 1985 and 2005 the name of the petitioner is recorded with his father Majam Ali in the same village of Guileza. Subsequently, when he shifted to village Nagarjhar, his name was entered in the voters lists of 2005 under 43 No. Barpeta Legislative Assembly Constituency, where his name appeared at Serial No.36 under house No.9(k) as Abdul Aziz son of Mazam Ali. He also submitted that shifting of his village to Nagarjhar was mentioned in the written statement.
14. Learned counsel for the petitioner submits the fact that the petitioner is the son of Majam Ali and resident of Nagarjhar is evidenced by the identity card issued by the Election Commission of India which was also exhibited.
15. Learned counsel for the petitioner also submits that Mr. Alauddin, the Gaonburah of Charcharia/Guileza/Mowamari, had issued the certificate stating that the petitioner is the son of Majam Ali, an inhabitant of the village Charcharia/Guileza/Mowamari, P.O.-Charcharia, P.S.- Kalgachia, Mouza-Ruposi, Dist.-Barpeta and it was also mentioned in the said certificate that the petitioner's father's name along with the petitioner appeared in the Electoral Roll of 1997 at Sl. No.315, House No.344, Part No.20 of 44 No. Jania LAC.
The said Alauddin was examined as D.W. 3 by the petitioner who testified about the certificate. It has been submitted that the said Alauddin, D.W.3 was cross-examined who categorically stated that he knew the proceedee and the proceedee is a cultivator by profession and had his shares in the landed property possessed by his father, namely, Majam Ali. He also testified that the name of his mother is Nekjan Nessa and the parents of the proceedee were born and brought up at Guileza. He stated that the mother of the petitioner expired at about 3 (three) years ago at Guileza and the proceedee became a D voter after Page No.# 7/20 1997 and the name of the petitioner entered in the voters list of 1985 for the first time.
16. Learned counsel for the petitioner submits that during the cross-examination nothing has been brought on record to shake the testimony of the aforesaid D.W.3.
17. Learned counsel for the petitioner submits that Section 90 of the Evidence Act,1872 provides that if any document is proved to be 30 years old, there will be a presumption as to the genuineness of the said document. In the present case, it has been submitted that most of the documents are more than 30 years old and as such, genuineness of these documents cannot be questioned at this stage.
18. Further, it has been submitted that if there is any objection as regards the genuineness, admissibility of the document, the said objection should have been raised at the trial stage and in the present case, it has been submitted that no objection was raised during the trial/proceeding. However, the Tribunal rejected these documents on the grounds which were never raised during the trial.
19. Learned counsel for the petitioner also submits that the certificate issued by the Gaonburah of village Guileza/ Charcharia/Mowamari is admissible and reliable and can be acted upon in such proceeding as held by this Court in Kynremri Lyngdoh vs. State of Meghalaya & Ors., [2010 (1) GauLJ 536: 2009(0) Supreme (Gau)731 . Similarly if there is any anomaly alleged in the voters list as regards the age or name of the procedee or his/her parents, objection should be raised at the trial stage.
20. Learned counsel for the petitioner further submits that it is well known that mistakes are also committed at the time of recording the names and age in the voters lists by the Election Enumerators and also by the Election Commission. If the authorities themselves Page No.# 8/20 make mistake they cannot take advantage of the said mistakes.
21. It has been submitted that in the proceeding before the Foreigners Tribunal, the authorities take advantage of the alleged irregularities/anomalies/mistakes which are not committed by the concerned proceedee but by the Authorities of the Election Commission and such anomalies/irregularities/mistakes ought to be ignored.
22. In this connection, learned counsel for the petitioner has referred to the decision of this Court in Abdul Matali vs. Union of India & Ors., [reported in 2015 (2) GauLT 617].
23. Learned counsel for the petitioner also has referred to the decision of Hon'ble Supreme Court in Sirajul Hoque vs. State of Assam & Ors. [(2019) 5 SCC 534] . The Learned counsel for the petitioner has also pointed out that the observation made by the Tribunal that most of the documents were collected by the proceedee during the pendency of the reference is uncalled for, inasmuch as, the person would try to collect the documents only when the reference has been made and proceeding has been initiated or else there would be no occasion to collect such documents in absence of the proceeding. As such, merely because the documents were collected by the proceedee during the time of proceeding, it cannot be the ground to ignore the same. The only ground on which the Tribunal can ignore the documents is about the non-admissibility and non-genuineness and relevancy of the same and not on the ground that this was obtained during the pendency of the trial.
24. Learned counsel for the petitioner also submits that if the Tribunal had doubted the genuineness of any document, it could have directed the officials to verify the genuineness of the documents but it was not done by the Tribunal. The learned counsel for the petitioner also submits that though the burden is on the proceedee in a proceeding under the Foreigner Page No.# 9/20 Tribunal, once the proceedee has been able to adduce sufficient credible evidences, it was upon the State to disprove or prove to the contrary and accordingly, onus shifts to the State. It has been stated that this is not the case where the proceedee has to prove his case beyond all reasonable doubt as in the case of criminal proceeding but the standard of proof is preponderance of probability. In this regard, the learned counsel for the petitioner has referred to the decisions of the Hon'ble Supreme Court in Standard Chartered Bank Vs. Andhra Bank Financial Services Ltd. & Ors. [(2006) 6 SCC 94], Sucha Singh Vs. State of Punjab, [(2001) 4 SCC 375], Sarbananda Sonowal (II) Vs Union of India, (2007) 1 SCC 174.
25. Learned counsel for the petitioner also submits that the decision rendered by the Hon'ble Supreme Court in Sarbananda Sonowal (I) Vs. Union of India (I), [(2005) 5 SCC 665] has been applied by ignoring the subsequent decision in the Sonawal (II) (supra) and also submits that judgments are not Euclid's theorem nor as if it was a statute but to be applied on the basis of the facts and circumstances obtaining in the particular case relying on the decision of Hon'ble Supreme Court in Deepak Bajaj Vs. State of Maharashtra and Anr., [AIR 2009 SC 628].
Accordingly, it has been submitted that the Tribunal has not properly appreciated the evidence on record and as such, the same is liable to be interfered with.
26. Learned counsel for the petitioner has also relied on the decision of the Full Bench of this Court in the State of Assam Vs. Moslem Mondal, reported in 2013 (1) GLT 809 wherein it has been held that where the Tribunal has acted on evidence which is legally admissible or refused to consider admissible evidence, it can be good ground for interference Page No.# 10/20 by this Court by issuing a writ of certiorari.
27. In the present case, it has been submitted that the Tribunal had not appreciated the admissible evidences i.e. voters lists of 1966 and 1970 and also the Gaonburah certificate and the deposition of the witnesses which were admissible evidences but ignored these evidences and the petitioner was declared a foreigner.
Submissions made by Mr. J. Payeng, learned SC, F.T.
28. Referring to Para-26 of Sarbananda Sonowal (I) (Supra), Mr. Payeng, learned Standing Counsel, Foreigners Tribunal has submitted that it has been held by the Hon'ble Supreme Court in the aforesaid case that the burden of proof is upon the proceedee as held in para No.26 thereof for which the proceedee is required to give evidence of his date of birth, place of birth, names of parents so on and so forth. However, in the present case, the said documents are not forthcoming.
In the aforesaid decision it was also emphasized by the Hon'ble Supreme Court that if the State authorities dispute the claim of citizenship by a person who asserts that he is not a foreigner it will not only be difficult but almost impossible for the State to lead evidence on the aforesaid issues. Accordingly, it has been submitted that it cannot be expected of the State to discharge any such burden on this issue and it is squarely on the proceedee to discharge this burden in view of the aforesaid decision of the Hon'ble Supreme Court and as such, the question of leading any evidences or to discharge any burden to prove by the State does not arise.
29. Mr. Payeng, learned Special Counsel, F.T. submits that though the petitioner stated the particulars of his parents but all these relate to pre-1971 and there is not a whisper as to Page No.# 11/20 what happened to them after 1971.
30. Learned State Counsel accordingly submits that though in the subsequent voters lists relied by the petitioner, the name of the petitioner's father is shown, however the names of the petitioner's parent do not appear independently along with the petitioner and as such, it will not be possible to ascertain as to whether Mazam who is recorded as the father of the petitioner in the subsequent voters lists is really the same Mazam Ali who is shown to be voter in the voters list of 1966 and 1970. In other words, there is no proof of the continuous stay or resident of the aforesaid persons named in 1966 and 1970 after 1971 and there is no documentary proof to that effect.
31. Learned State submits that the only critical fact which is required to be established in the case is the linkage between the petitioner and his projected father by way of evidences which is missing. Learned State Counsel further submits that it is on record that the name of the petitioner appears only after 1971 and his name does not appear at any point of time before 1971 along with the parents' name, presence of which, could have conclusively proved his relationship with his parents. Learned State Counsel submits that the appearance of the name of the petitioner in the subsequent voters lists does not establish the linkage between him and his projected father to establish his right of citizenship.
32. In this regard, Mr. Payeng has referred to the decision of the Hon'ble Supreme Court made in para No.15 in Bhanwaroo Khan & Ors. vs. Union of India & Ors., [(2002) 4 SCC 346] which is reproduced hereinbelow.
"15. We agree with the High Court that a case for interference with the order of deportation is not made out. Long stay in the country and enrolment in the voters' list would not confer any right to an alien to continue to stay in the country. We do not find any infirmity either with the reasoning Page No.# 12/20 adopted or the conclusion arrived at by the High Court, or even by the Government of India in its order dated 21st July, 1995 passed under Section 9 (2) of the Citizenship Act, 1955."
33. In the present case, learned FT submits that the link of the petitioner with his projected father has not been proved and nor corroborated by any evidence.
34. As regards the certificate issued by the Gaonburah Alauddin who was examined as D.W.3, learned State Counsel submits that perusal of the original certificate would indicate that in the said certificate names of three villages were mentioned, i.e., Charcharia, Guileza and Mawamari without indicating as to which of the village the said Abdul Aziz in whose favour the certificate was issued resides. Similarly, the certificate was issued on 03.01.2017 very recently. On the other hand, in the written statement as well as in the affidavit filed by the petitioner, it has been mentioned that the petitioner along with his family had shifted from the earlier address Guileza to Nagerjhar. However, it is not clear when the petitioner was residing in Guileza when the certificate was issued by the D.W.3.
Learned counsel further submits that in the voters list of 2005 and 2016, petitioner's name appeared in the village Nagarjhar and as such, it has been submitted that the aforesaid certificate issued by the Gaonburah Alauddin cannot be relied upon as it was issued in the year 2017 when the petitioner was not a resident of Guileza and there is no mention of the village Nagarjher in the said certificate. Accordingly, it has been submitted that this certificate is absolutely false and unreliable.
35. Learned State Counsel further submits that in the cross-examination of the petitioner, he had clearly stated that he shifted to Nagarjher in the year 1977 and since then he has been living in the Nagarjher and as such, the said certificate could not have been issued in 2017 and relied upon as such.
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36. Mr. Payeng also submits that how a private document is to be proved has been explained by the Hon'ble Supreme Court in Rupajan Begum vs. Union of India & Ors. [(2018) 1 SSC 579] in which it has been held in para No.16 as follows:
"16. The certificate issued by the G.P. Secretary, by no means, is proof of citizenship. Such proof will come only if the link between the claimant and the legacy person (who has to be a citizen) is established. The certificate has to be verified at two stages. The first is the authenticity of the certificate itself; and the second is the authenticity of the contents thereof. The latter process of verification is bound to be an exhaustive process in the course of which the source of information of the facts and all other details recorded in the certificate will be ascertained after giving an opportunity to the holder of the certificate. If the document and its contents is to be subjected to a thorough search and probe we do not see why the said certificate should have been interdicted by the High Court, particularly, in the context of the facts surrounding the enumeration and inclusion of the documents mentioned in the illustrative list of documents, as noticed above. In fact, the said list of illustrative documents was also laid before this Court in the course of the proceedings held from time to time and this Court was aware of the nature and effect of each of the documents mentioned in the list.
37. Accordingly, it has been submitted by Mr. Payeng that only when the aforesaid process mentioned there is satisfied then the said document can be said to be a valid document. In the present case, it is clearly seen that it is a private document issued by one Alauddin claiming to be the Gaonburah and as such, the contents of the document are required to be proved by referring to the other official records which has not been done. He submits that to the similar effect, the same has been held in Basiron Nessa vs Union of Indian & Ors. [2018 (4) GLT 692] in para-25 thereof.
38. Mr. Payeng submits that in the present case also, while issuing the said certificates by the Gaonburah no original documents were referred to and no register or records were maintained by the Gaonburah to prove the contents of the Gaonburah Certificate. Mr. Payeng, Page No.# 14/20 accordingly, submits that it cannot be said that the said document had been proved.
39. Further, it has been submitted that in the certificate issued by the Gaonburah, National Emblem has been used and this Court in a number of cases has held that the use of National Emblem by the Gaonburah is not permissible and as such documents are not admissible in law.
40. As regards the school transfer certificate relied on by the petitioner to prove his citizenship, it has been submitted by Mr. Payeng that it is purely a private document which is required to be proved by adducing evidence of the author with reference to the records of the school. However, in the present case neither the author of the certificate was examined nor the contents of the certificate was proved with reference to the school records and as such, the said transfer certificate cannot be relied upon.
41. Mr. J. Payeng has relied on the decision of this Court in Abdul Motlib vs. Union of India & Ors.,[W.P.(C) No.4674/2016, decided on 11.06.2018].
This Court has discussed the modality of proof of a school certificate in the aforesaid decision Abdul Motlib (supra). In the said case, this Court had rejected the transfer certificate on the ground that the Issuing Authority of the certificate along with the relevant records of the school were never produced nor proved.
42. Mr. Payeng submits that accordingly, since the aforesaid 2 (two) documents i.e. School certificate and Gaonburah certificate could not be proved there is no other document to link the petitioner with his projected parents.
43. Mr. Payeng, learned State Counsel further submits that the evidence of Idris Ali (DW2), the projected brother of the petitioner is merely an oral evidence without any corroborating Page No.# 15/20 documentary evidence. Further, the fact that the said brother could not recollect the name of his mother by stating to be Sarjina instead of Nekjan Nessa clearly proved that he is a fictitious person and not the real brother of the petitioner. Had he been the real brother there is no reason why he could not remember his own mother's name i.e. Nekjan Nessa which is on record and as such it is clear that the D.W.2 is not the real brother and as such, his evidence cannot be relied upon.
44. In this regard, learned State Counsel has also relied on the decision of the Court in Asia Khatoon vs. Union of India [WP(C) No.4020/2017, decided on 21.11.2019] in which it was held that the oral evidence of any relative without any documentary evidence supporting cannot be relied upon. To the same effect, it was held in Nur Begum vs. Union of India,[2020 (3) GauLT 347] [WP(C) No.1900/2019, decided on 18.02.2020], Basiron Bibi vs. Union of India , [2018 1 GauLT 372 para-13], Idrish Ali vs. Union India, [2020(4) GauLR (NOC)10(17) ] [WP(C) No.4116/2019 decided on 27.02.2020], Nassir Udin vs. Union of India and 3 Ors., [WP(C) 3728/16, decided on 05.04.2018], Jainal Uddin vs. Union of India, [WP(C) No.3071/2016,decided on 03.04.2018] [2018(2) GauLT 701].
45. Before we consider the rival contentions of the learned counsel for the parties, we would like to examine the reasons assigned by the learned Tribunal in rejecting the claim of the petitioner that he is not a foreigner, but an Indian.
46. As discussed above, the learned Tribunal held that the Photostat of the certified copy of voters list of 1966 was proved in original and marked as Ext. A. Similarly, the Photostat copies of certified copy of voters list of 1970 is proved in original and marked as Ext. B. Page No.# 16/20 Similarly, in respect of other documents also, the learned Tribunal examined the original documents.
47. While dealing with the voters list of 1966 and 1970, the learned Tribunal recorded that the petitioner had projected one Majam Ali and Nekjan Nessa to be his father and mother respectively whose names were enlisted in the voters lists of 1966 and 1970. However, referring to the deposition of the projected brother of the petitioner, namely, Idris Ali, who was examined as DW2, the learned Tribunal observed that the said DW2 stated the names of the parents as Majam Ali and Sarjina Nessa, though the petitioner claimed that the names of his parents were Majam Ali and Nekjan Nessa. The learned Tribunal also noted the local Gaonburah who was examined as DW3 stated the names of the father and mother of the petitioner as Majam Ali and Nekjan Nessa respectively. Thus, according to the learned Tribunal, while the petitioner and DW3 stated the names of the parents of the petitioner as Majam Ali and Nekjan Nessa, on the other hand, DW2, Idris Ali who was claiming to be the brother of the petitioner stated that the names of the parents as Majam Ali and Sarjina Nessa. Thus, the learned Tribunal held that this difference in the name of the mother i.e. Nekjan Nessa which has been mentioned as Nekjan Nessa by the petitioner and the DW3 and Sarjian Nessa by DW2 was considered to be contradictory and as such, the learned Tribunal held that the contents of the certified copies of the voters lists of 1966 and 1970 have not been proved.
48. As regards the above finding, we have perused the original records and also the depositions made by the witness including Idris Ali, DW2.
49. On perusal of the deposition of the said Idris Ali, what we have noted is that in the Page No.# 17/20 evidence-in-chief, the DW2 mentioned the name of the mother as Nekjan Nessa. However, in the cross-examination, he mentioned the name of Sajiran Nessa. While admittedly Nekjan Nessa and Sajiran Nessa are different names, however, the discrepancy was not pointed by the State in the cross-examination as it would have enable the DW2 to explain the same apparent inconsistency as to whether her mother Nekjan was also called Sajiran Nessa at home. It may be also mentioned that the DW3 who was a local Gaon Burah, who was aged about 77 years, had deposed before the Tribunal that the name of the father of the petitioner is Mazam Ali and the name of the mother of the petitioner is Nekjan Nessa. The said DW3 also described that he knew the petitioner since his birth and he was born sometime in 1955/56. The said witness DW3 was not cross-examined in any aspect, more particularly, as regards the name of the mother of the proceedee (petitioner herein) as to whether Nekjan Nessa is also known as Sajiran Nessa. Therefore, merely because there is a difference in the name of the mother, in absence of any confrontation in that regard, to show the contradiction, in our view, the deposition and the evidence ought not to be rejected, as we find, otherwise, there is corroboration in all other material aspects.
50. What we have observed is that the name of the projected parents find enlisted in the voters lists of 1966 and 1970 in the same village Guileza under 51 No. Jania Legislative Assembly Constituency and in the voters list of 1985, the name of A. Aziz as the son of Mazam is also found in respect of the same village Guileza.
51. The said Idris Ali (DW2) had deposed that his name appears in the voters list of 1985 and 1997 at Serial No. 627 and 311, House No.304 and 383, Part No.16 and 20 in village Guleza with Jania LAC. In the said voters lists, the name of said Idris Ali is found as the son of Majam in respect of same village Guileza.
Page No.# 18/20 Therefore, what appears is that if the names of both the petitioner and his brother DW2 Idris Ali appear in the voters lists of 1985 and 1997 as sons of Majam in respect of the same village Guileza, these are evidences to indicate that they are the sons of same Majam Ali of village Guileza as such, in our view, the said discrepancy in describing the name of the mother Nekjan Nessa and Sajiran Nessa may not be of great significance.
52. That apart, while considering the certificate issued by the Headmaster of Rupsi Janapriya Govt. Aided M.E. School, the fact that the petitioner could not remember the name of the Headmaster cannot be a ground to disbelieve the said document.
53. The learned Tribunal had already observed that the Photostat copy of the Transfer Certificate has been issued by the Headmaster has been proved in original. Thus, having seen the original document, the learned Tribunal could not have disbelieved the same merely on the ground that the petitioner did not remember the said Headmaster.
54. Learned Tribunal also held that the Headmaster who is a material witness was not examined to prove the said document. However, it appears that the said document was issued sometime in the year 1969 and as such, it was more than 30 (thirty) years old when it was produced before the learned Tribunal and as such, in view of Section 90 of the Evidence Act, 1972, unless the authenticity of the said document is questioned, there will be presumption that the said document is genuine. However, no question was asked about the genuineness and authenticity of the said document by the State.
55. Further, the learned Tribunal held that most of the documents were collected by the proceedee during the pendency of the reference and some were not proved by producing attested/issuing authorities of such documents. Any such general observation without making Page No.# 19/20 reference to the specific document is not proper for the reason that if certain documents are more than 30 (thirty) years old, perhaps, the genuineness, unless challenged, may not be questioned.
56. Further, if the documents are public documents, production of certified copies of the said public document like voters lists would suffice. Moreover, merely because the documents were collected by the petitioner during the pendency of the reference, it cannot be a ground to ignore the same as the documents have to be examined as regards the genuineness, authenticity, reliability and relevance of the documents independently.
57. Thus, in our view, the general observation made by the learned Tribunal that most of the documents were collected by the petitioner during the pendency of the reference and some were not proved by producing attested/issuing authorities cannot be a ground to ignore the said documents.
58. Under the circumstances, we are of the opinion that the reasons assigned by the learned Tribunal for ignoring some of the documents and evidences of the petitioner do not appear to be in accordance with law which would render the opinion of the learned Tribunal unsustainable in law.
59. Accordingly, in our opinion, the learned Tribunal would be required to re- examine/reassess the evidences on record in the light of the observations made above by us and thereafter, the learned tribunal will render a fresh opinion as regards the citizenship status of the petitioner.
60. Under the circumstances, we are of the view that it may not be necessary to deal with the various submissions advanced by the learned counsel for the petitioner and the Page No.# 20/20 respondents and they would be at liberty to do the same at the time of hearing before the Tribunal.
61. In that view of the matter, we remand the matter to the learned Foreigners Tribunal, Barpeta 11th for reconsideration of the evidence on record and for giving a fresh opinion as regards the citizenship status of the petitioner.
62. The petitioner will appear before the learned Foreigners Tribunal, Barpeta 11 th within a period of one month from today.
63. Accordingly, for the reasons discussed above, the present petition is allowed by setting aside the impugned opinion dated 02.02.2017 rendered by the learned Foreigners Tribunal, Barpeta-11th in F.T. Case No.32/2015.
64. The petitioner will continue to remain on bail on similar terms and conditions as directed by this Court vide order dated 04.05.2021 till a fresh opinion is rendered by the learned Foreigners Tribunal, Barpeta 11th as regards the citizenship status of the petitioner.
65. The present petition is, accordingly, disposed of.
66. LCR be remitted forthwith to the concerned Foreigners Tribunal.
JUDGE CHIEF JUSTICE (ACTING) Comparing Assistant