Gauhati High Court
Rousana Begum @ Rosona Begum vs The Union Of India And 5 Ors on 7 December, 2022
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
Page No.# 1/5
GAHC010247342022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7893/2022
ROUSANA BEGUM @ ROSONA BEGUM
W/O. SRI SULTAN MAMUD, D/O. LT. SOLEMAN ALI @ MIAH, VILL. SHER
NAGAR, P.O. AGOMANI, P.S. AGOMANI, DIST. DHUBRI, ASSAM, PIN-783335.
VERSUS
THE UNION OF INDIA AND 5 ORS
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, DEPTT. OF HOME, NEW
DELHI.
2:THE STATE OF ASSAM
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GUWAHATI-06.
3:THE SUPDT. OF POLICE (B)
DIST. DHUBRI
P.O. AND P.S. DHUBRI
ASSAM.
4:THE DEPUTY COMMISSIONER
DIST. DHUBRI
P.O. AND P.S. DHUBRI
ASSAM.
5:THE ELECTION COMMISSIONER OF INDIA
REP. BY THE SECRETARY OF THE COMMISSION
HEAD QUARTER
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NEW DELHI.
6:THE STATE COORDINATOR
NRC
ACHYUT PLAZA
BHANGAGARH
DIST. KAMRUP (M)
GUWAHATI-05
ASSAM
Advocate for the Petitioner : MR I HAQUE
Advocate for the Respondent : DY.S.G.I.
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
ORDER
07.12.2022 [N. Kotiswar Singh, J.] Heard Mr. I. Haque, learned counsel for the petitioner. Also heard Ms. S. Baruah, learned CGC, appearing for respondent No.1; Ms. A. Verma, learned special counsel, FT, appearing for respondent Nos.2 and 3; Mr. A.I. Ali, learned standing counsel, ECI, appearing for respondent No.5; Ms. L. Devi, learned standing counsel, NRC, appearing for respondent No.6 and Ms. U. Das, Additional Senior Government Advocate, Assam, appearing for respondent No.4.
2. Considering the nature of this case and upon hearing of all the parties and also on perusal of the records, we are of the view that this petition can be disposed of at this stage without calling for the records or issuing any formal notice to the respondents.
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3. Facts to the minimal which will be necessary for disposal are referred to. Upon a reference being made against the petitioner to the Foreigners' Tribunal No.9, Dhubri, Assam, a proceeding was initiated by registering Case No.FT-9/111/GKJ/2018 in which the learned Tribunal passed an opinion on 10.02.2021 declaring the petitioner to be a foreigner who entered India (Assam) after 25.03.1971 after considering various evidences which were adduced, however, without appreciating and considering the evidence of one witness examined by the proceedee as DW-2, namely, Rasidul Islam, whom the petitioner claims to be her elder brother.
4. Under the circumstances, it has been submitted by the learned counsel for the petitioner that since the evidence of her elder brother, which is vital and highly relevant, was not considered by the Tribunal, the opinion of the Tribunal is vitiated. Accordingly, it has been submitted that the matter may be remanded to the learned Tribunal for fresh reconsideration after taking into account the evidence of DW-2.
5. Ms. A. Verma, learned special counsel, FT, also submits that as far as the law is concerned, the Tribunal is expected to refer to all the relevant material evidences on record and if the Tribunal does not consider any important or relevant material perhaps that may be a ground for interference. However, it has to be ascertained from the records of the Tribunal as to whether the Tribunal did or did not consider any such vital material.
6. In view of the submission made, we have gone through the opinion of the Tribunal. From the opinion, it appears that the petitioner apart from filing her written statement and adducing evidence had also examined her elder brother as DW-2, which finds reference in paragraph 9 of the opinion. While the learned Tribunal had elaborately discussed the Page No.# 4/5 implication of the various evidences adduced, the learned Tribunal, unfortunately, as submitted by the learned counsel for the petitioner, had not referred to or considered the said evidence in the form of deposition of DW-2.
7. It is now well settled that whenever a decision making authority takes a decision, it is obligated to take into consideration all the relevant facts and materials and if any relevant and material fact or material has not been taken into consideration by the decision making authority, the said decision arrived at cannot be considered to be valid in as much as it will be vitiated due to non-application of mind on an important material or evidence. It will be equally true of a decision rendered by a Foreigners Tribunal, which is a quasi-judicial body.
8. In our opinion, the evidence of DW-2 will be highly relevant and material in as much as the issue before the Tribunal is to determine the citizenship of the petitioner relating to which the evidence of her close relatives become highly relevant and material. Accordingly, we are of the opinion that the learned Tribunal having not considered the evidence of the projected elder brother of the petitioner its opinion would stand vitiated.
9. Under the circumstances, without going into the other grounds raised, we are inclined to allow this petition by setting aside the impugned opinion dated 10.02.2021 passed by the learned Foreigners' Tribunal No.9, Dhubri, in Case No.F.T.-9/111/GKJ/2018 and accordingly, we remand the matter to the learned Tribunal for fresh reconsideration by taking into account the evidence of DW-2, namely, Rasidul Islam. It goes without saying that the learned Tribunal while doing so, shall re-appreciate the entire evidences afresh, not only in respect of the evidence of DW-2 in as much as the evidence of DW-2 may change the colour and contour of evidentiary value of other evidences which have been brought on record. Accordingly, the Page No.# 5/5 petitioner will appear before the learned Tribunal within 1(one) month from today and thereafter, the Tribunal will proceed with the matter in accordance with law.
10. The petition accordingly stands disposed of.
Sd/- Arun Dev Choudhury Sd/- N. Kotiswar Singh
JUDGE JUDGE
Comparing Assistant