Gauhati High Court
Pratap Debnath @ Pranab Debnath vs The Union Of India on 30 September, 2022
Bench: N. Kotiswar Singh, Nani Tagia
Page No.# 1/17
GAHC010155132018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6216/2018
1. PRATAP DEBNATH @ PRANAB DEBNATH,
SON OF LATE BIRAJ MOHAN DEBNATH,
RESIDENT OF VILLAGE- KANABORI, P.S. JAGIROAD,
DIST. MORIGAON, ASSAM, PIN- 782410.
2: PARITOSH DEBNATH,
SON OF LATE BIRAJ MOHAN DEBNATH,
RESIDENT OF VILLAGE- KANABORI, P.S. JAGIROAD,
DIST. MORIGAON, ASSAM, PIN- 782410.
3: MANIK DEBNATH,
SON OF LATE BIRAJ MOHAN DEBNATH,
RESIDENT OF VILLAGE- KANABORI, P.S. JAGIROAD,
DIST. MORIGAON, ASSAM, PIN- 782410.
4: SHANKAR DEBNATH,
SON OF LATE BIRAJ MOHAN DEBNATH,
RESIDENT OF VILLAGE- KANABORI, P.S. JAGIROAD,
DIST. MORIGAON, ASSAM, PIN- 782410.
5: SMTI. BAKULI DEBNATH,
WIFE OF LATE BIRAJ MOHAN DEBNATH,
RESIDENT OF VILLAGE- KANABORI, P.S. JAGIROAD,
DIST. MORIGAON, ASSAM, PIN- 782410.
......Petitioners.
VERSUS
1. THE UNION OF INDIA,
REP. BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA,
SHASTRI BHAWAN, NEW DELHI- 110001.
Page No.# 2/17
2:THE STATE OF ASSAM,
THROUGH THE SECRETARY TO THE GOVT. OF ASSAM,
HOME DEPTT., DISPUR,
GUWAHATI, ASSAM- 781006.
3:THE UDA, OFFICE OF THE MEMBER OF THE
FOREIGNERS TRIBUNAL- 1ST, MORIGAON,
ASSAM, PIN- 782105.
4:THE SUPERINTENDENT OF POLICE (BORDER), MORIGAON,
ASSAM, PIN-782105.
5:THE OFFICER-IN-CHARGE,
JAGIROAD POLICE STATION,
DIST. MORIGAON, ASSAM, PIN- 782410.
6:THE STATE COORDINATOR,
OFFICE OF THE STATE COORDINATOR, NRC ASSAM,
1ST FLOOR, ACHYUT PLAZA, GS ROAD, BHANGAGARH,
GUWAHATI, ASSAM, PIN- 781005.
7:THE ELECTION COMMISSIONER OF INDIA,
ASHOKA ROAD, NEW DELHI- 110001.
......Respondents.
BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MR. JUSTICE NANI TAGIA For the Petitioners: Ms. D. Ghosh, Adv.
Ms. N. Deka, Adv.
Mr. S. Roy, Adv.
......Advocates.
For the Respondents: Mr. P.K. Medhi, CGC.
Mr. J. Payeng, SC, FT,
Mr. A.I. Ali, SC, ECI,
Ms. U. Das, Addll. Sr. GA, Assam.
......Advocates.
Date of Hearing : 25.04.2022.
Date of Judgment : 30.09.2022
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JUDGMENT AND ORDER
[N. Kotiswar Singh, J.]
Heard Ms. D. Ghosh, learned counsel for the petitioners. Also heard Mr. P. K. Medhi, learned CGC; Mr. J. Payeng, learned Standing Counsel, FT; Mr. A. I. Ali, learned Standing Counsel, ECI; Ms. L. Devi, learned Standing Counsel, NRC and Ms. U. Das, learned Government Advocate, Assam, appearing on behalf of their respective respondents.
2. In this writ petition, the petitioners have challenged the order, dated 28.02.2018, passed by the learned Member, Foreigners' Tribunal No. 1, Morigaon, Assam, in Case No. F.T.(C)133/2010. The learned Tribunal held that the proceedees therein, had entered India illegally on the ground that they had failed to discharge their burden of proof as envisaged under Section 9 of the Foreigners' Act, 1946, and declared them illegal migrants who entered India (Assam) after 25.03.1971.
3. In order to appreciate the rival contentions raised by the contesting parties, it may be apposite to briefly refer to the facts of the case involved.
4. As also mentioned in the impugned order, dated 28.02.2018, upon receipt of the reference from the competent authority, the learned Tribunal registered the case and summons were issued to the proceedees, namely, (1) Shri Pranab Debnath, S/o of Shri Dhiraj Mohan Debnath, (2) Shri Paritosh Debnath (brother), (3) Shri Manik Debnath (brother), (4) Shri Sankar Debnath (brother), (5) Shri Dhiraj Mohan Debnath (father), and (6) Smti. Bakuli Debnath (mother), of village Kanabori under Jagiroad PS in the district of Morigaon, Assam.
5. Upon receipt of the notice, the Opposite Parties, named-above, duly appeared before the learned Tribunal and filed their written statement, in which, it was Page No.# 4/17 mentioned that Pratap Debnath was wrongly written as Pranab Debnath and similarly, the name of another proceedee, Dhiraj Mohan Debnath has been wrongly written, instead of Biraj Mohan Debnath and accordingly, prayed for correction of the names. The learned Tribunal, accordingly, by order dated 18.07.2016, after perusal of the voter ID and Gaon Burah Certificate, ordered for correction of the names.
6. In the written statement, it was contended that though the proceedee Nos. 1, 2, 3 and 4 were born and brought up at village Kanabari under Jagiroad PS and their father Shri Biraj Mohan Debnath (OP No. 5), now deceased, was born at Lumding Town, Ward No. 4 under Nagaon District and OP No. 6, Smti. Bakul Debnath, also known as Bakuli, was born and brought up at village Nakhola under Jagiroad PS. It was mentioned in the written statement that the grandfather of OP Nos. 1, 2, 3 and 4 is Mahesh Ch. Debnath but he was also known as Khirod. It was also stated that OP No.5, Biraj Mohan Debnath cast his vote in the year 1966 and later on, shifted to the village Nakhola after buying a piece of land on 05.04.1960. It has been further stated in the written statement that the father of OP No. 6 is Harish Ch. Debnath who had been casting his vote since 1965. It has also been mentioned that Biraj Mohan Debnath (OP No. 5) has already expired. Accordingly, it was submitted that OPs are Indian citizens.
7. In the present proceeding, the OPs filed a number of documents to prove their case, which, are as follows:
(i) Ext. A Death Certificate of Biraj Mohan Debnath
(ii) Ext. B 1997 Voter list of all OPs
(iii) Ext. C 1977 voter list of parents of DW-1
(iv) Ext. D 1966 voter list of Biraj Mohan Debnath
(v) Ext. E School Certificate of Manik Debnath
(vi) Ext. F Admit Card of OP4
(vii) Ext. G School Certificate of OP6
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(viii) Ext. H Gaonburah Certificate
(ix) Ext. I 1965 voter list of Harish Ch. Debnath (father of OP6).
(x) Ext. J 1970 voter list of father of OP6.
(x) Ext. K Land document of Biraj Mohan Debnath.
8. Apart from filing the aforesaid documents, the petitioners also examined several witnesses, namely, Manik Debnath (OP No. 3), who examined himself as DW-1 and Smti. Bokuli Debnath (OP No. 6) who examined herself as DW-2.
9. In his evidence, Manik Debnath (OP No. 3) stated that his father Biraj Mohan Debnath (OP No. 5) expired on 18.07.2007 and he hailed from Lumding in Nagaon district. He also stated that his mother Smti. Bokuli Debnath was born at Na-Khula Grant of Jagiroad and all the brothers were born and brought up at Konabori under Jagiroad PS. He further stated that his grandfather is Mohesh Ch. Debnath who was also known as Khirod and he exhibited the above-mentioned documents. In the cross- examination, he also stated that they were 4 (four) brothers, namely, (1) Paritosh, (2) Pratap, (3) himself, and (4) Sankar, and all of them were staying together in Jagiroad.
10. Smti. Bakul Debnath (OP No. 6) examined herself as DW-2. She stated that she was born and brought up at village Na-Khula Grant at Jagiroad and she studied upto Class III at N.F. Railway High School. She also stated that she cast her vote in the year 1977 for the first time with her husband. She further stated that her husband bought landed property at Jagiroad in the year 1960.
During the cross-examination, she stated that her father had expired 20/21 years ago and her mother, Sabitri Debnath, expired some 10 years ago. She also stated that she has one younger brother, namely, Parimal Debnath and he is staying at Jagiroad Na-Khula Grant and she got married about 46/47 years ago. She further stated that her grandfather's name is Rajani Kanta Debnath.
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11. The learned Tribunal after appreciating the evidence on record, took the view, as follows.
The learned Tribunal observed that though Manik Debnath (OP No. 3) examined himself as DW-1, stating that his father Biraj Mohan Debnath had cast vote in the year 1966 and exhibited the voters list of 1966 as Ext. D, but, in the said voters list, the name of Biraj Mohan Debnath is shown as son of one Khirod and his age is recorded as 50 years. However, in the subsequent voters list of 1977, which was exhibited as Ext. C, the said Biraj Mohan Debnath, whom the petitioner claims to be his father, is shown as the son of one Mahesh and his age is also shown to be less, as 40 years and in all the voters lists of 1997, 1989 and 1993, the said Biraj Mohan Debnath was shown as son of Mahesh and his age did not exceed 56 years.
12. Coming to the other evidence on record, which is Ext. K, the land document of Biraj Mohan Debnath, the learned Tribunal observed that there are signs of over- writing which would render the said document doubtful and held that the said document had to be proved in terms of the decision of the Hon'ble Supreme Court rendered in Life Insurance Corporation of India & Anr. vs. Ram Pal Singh Bisen, reported in (2010) 4 SCC 291.
13. Coming to the death certificate of Biraj Mohan Debnath, the learned Tribunal also observed that there are signs of erasing and over-writing and as such, the said document is also doubtful and accordingly, held that the same cannot be relied upon.
14. As regards the school certificate of the OP Manik Debnath, which was exhibited as Ext. E, the learned Tribunal observed that on the top of the said certificate in the Serial No. 879, the date is written as 10.01.1990, whereas the certificate was issued on 27.05.1997 and as such, because of this discrepancy in the aforesaid dates, the learned Tribunal felt that it was also unreliable.
15. As regards the Ext. F, the admit card of Sankar Debnath, the learned Tribunal also noted that it looks doubtful as regards its originality and appears to be a scanned Page No.# 7/17 copy and held that the same is also not reliable.
16. Coming to the evidence of OP No. 6, Bakuli, who examined herself as DW-2, claiming herself to be the daughter of one Harish Ch. Debnath and wife of Biraj Mohan Debnath (OP No. 5), she exhibited voters lists of 1965 and 1970 of Harish Ch. Debnath. During the cross-examination, she stated that her mother Sabitri expired 10 years ago and her younger brother Parimal Debnath is settled in her father's landed property. She further stated that her husband expired 10 years ago.
17. The learned Tribunal also observed that though she submitted the voters list of Parimal Debnath to prove her linkage, it is not understood as to why only two voters lists of 1965 and 1970 of her purported father and mother were referred to and moreover, the name of Sabitri, the mother of Bokuli, could not be found anywhere in any of the voters lists. Thus, the learned Tribunal held that these documents are also doubtful, and accordingly, the learned Tribunal held that the petitioners have failed to establish clear relationship with the purported family members.
18. Ms. Ghosh, learned counsel for the petitioners, has taken serious objection to the manner in which the proceeding was initiated without there being a reference against all the members. Ms. Ghosh submits that the inquiry was held against only one person, namely, Pranab Debnath, son of Dhiraj Mohan Debnath but the reference was made against other members of the family also which is not permissible in view of the decisions of this Court rendered in Sudhir Roy & Ors. V. Union of India & Ors., 2019(1) GLT 353 and Basanti Biswas & Ors. Vs. Union of India & Ors ., 2019(1) GLT 363.
19. It has been submitted by Ms. Ghosh, learned counsel for the petitioners, that if there had been no reference against a person, no proceeding could have been initiated against such a person. It is submitted that in the order of reference, the names of other persons did not appear except for one Pranab Debnath and as such, the proceeding initiated against the remaining persons other than Pranab Debnath Page No.# 8/17 whose name has been corrected, cannot be permissible.
20. As regards the aforesaid submission, Mr. Payeng, learned Standing Counsel, FT, has fairly admitted to the legal position that if there was no reference, no proceeding could have been initiated against any such person.
21. Accordingly, as regards this submission made by Ms. Ghosh, learned counsel that the proceeding other than Pratap Debnath, will not lie, we uphold her submission.
22. As regards the age discrepancy which has been highlighted by the learned Tribunal, it has been submitted by Ms. Ghosh, learned counsel for the petitioners, that based on the decision of the Hon'ble Supreme Court rendered in Sirajul Hoque v. State of Assam, (2019) 5 SCC 534 as well as the decision of this Court rendered in Motior Rahman v. Union of India & Ors ., 2020(1) GLT 330, such age discrepancy ought not to be taken into account and may be ignored.
23. According to Ms. Ghosh, learned counsel apart from the aforesaid age discrepancy, there is no other discrepancy in the voters lists as regards the names and other particulars. As regards the observation made by the learned Tribunal that the name of the grandfather of petitioner No. 1 has been shown as Khirod in the voter list of 1966 and the name of the grandfather has been shown to be Mahesh in other voter lists, Ms. Ghosh, learned counsel, has submitted that the above issue has been already clarified in the written statement filed much earlier, stating that Khirod is the nick name of Mahesh, the grandfather of the petitioner Nos.1 to 4 and as such, the learned Tribunal ought to have ignored any such discrepancy.
24. Ms. Ghosh, learned counsel submits that as regards shifting of the grandfather from Lumding to Na-khula Grant, the same has also been explained in the written statement.
25. It has also been submitted that there is sufficient documentary evidence to show that the land was purchased by the petitioners' father in the year 1960 i.e. on Page No.# 9/17 05.04.1960 and the observation by the learned Tribunal that there is over-writing, is not correct. It has been submitted that mere over-writing cannot be a ground to disbelieve the said document inasmuch as the petitioner can prove the bonafide and genuineness of the said document if another opportunity is granted to the petitioners by remanding the matter to the learned Tribunal as it is a fact that the father of the petitioner Nos.1 to 4 had purchased the said piece of land in the year 1960.
26. Mr. Payeng, learned Standing Counsel, FT, on the other hand, submits that the observation and the finding of the learned Tribunal cannot be said to be perverse nor based on record.
He submits that it is on record in terms of the voters list that the age of the father of the petitioner, namely, Biraj Mohan Debnath has been shown differently in different voters lists, sometimes decreasing and sometimes remaining constant, which would not be possible in respect of the same person. The age of the same person in the voters lists would increase along with the new voters list that may be published which is not so in the present case and as such, if the petitioners seek to rely on the voters lists, the petitioners also have to accept the correctness of the contents and the fact that the age of said Mahesh had been shown differently, would clearly show that these voters lists are not reliable.
27. Further, it has been submitted by Mr. Payeng, learned Standing Counsel, FT, that the change in the name of the father of Biraj Mohan Debnath as Mahesh in some documents and as Khirod in some other documents as pet name, is not supported by any documentary evidence.
28. As regards the over-writing in the name of Biraj in the said land document, the same is clearly evident and if that is so, the said document becomes doubtful and as such, the learned Tribunal did not commit any illegality by ignoring the same. Similarly, it was in the case of the death certificate as there is evidence of over-writing, which also would render the said document unreliable.
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29. Mr. Payeng, learned Standing Counsel, FT, has also submitted that in the voters list of 1966, though the name of Biraj Mohan Debnath appears, who the petitioner claims to be the father, the name of the mother ought to have been also included. The fact that the name of the mother was not shown in the voters list of 1966, would cast a doubt on the claim of the petitioner that Bokuli is the mother. At least, the name of the mother ought to have been shown in the voters list of 1970. However, the name of the mother, noted-above, is not found in the said voters list of 1970 as well.
30. Mr. Payeng, learned Standing Counsel, FT, accordingly, submits that no ground has been made out even for remanding the matter and if the matter is remanded back to the Tribunal at this stage, there will be no end to the proceeding and it will defeat the very purpose of detection of the foreigners within a time bound period as mandated in the Foreigners (Tribunals) Order, 1964.
31. Mr. Payeng, further submits that in the voter lists of 1966 and 1971, apart from the similarity in the name of Biraj Mohan Debnath, there is no similarity in all other aspects in terms of age, village and these differences of age, village would clearly show that these voter lists refers to two different persons and not the same person who the petitioners claim to be their father.
32. Mr. Payeng, learned Standing Counsel, in support of his submission, has also relied on paragraph 112 of the decision rendered by this Court in State of Assam & Ors. V. Moslem Mondal & Ors., reported in 2013(1) GLT 809 in which it was held that the scope of writ of certiorari is limited and unless, there is prima facie illegality and perversity in the finding of the Tribunal, the Court ought not to interfere in such finding and in the present case, no such perversity or illegality is apparent on the face of the record.
33. Ms. D. Ghosh, learned counsel for the petitioner, on the other hand, submits that there had been no fair investigation as mandated and clarified by Full Bench of this Court in paragraph No.97 of the Moslem Mondal and Ors. (supra) and Page No.# 11/17 enquiry/investigation was carried out in respect of only one person, namely, Pratap Debnath @ Pranab Debnath.
34. We have examined the original records.
In the record, it is seen that the investigation was carried out primarily in respect of Pranab Debnath who the petitioner No.1 claims to be Pratap Debnath.
In Form-I which is the format containing the information about the person enquired upon, as ascertained by the Enquiry Officer, we see that the named person mentioned is only Sri Pranab Debnath, though the said form also mentions the names of Paritosh Debnath, Manik Debnath, Shankar Debnath and also their parents, Biraj Debnath and Bakuli Debnath, as relatives of the said proceedee. It, thus, appears that the investigation was primarily related to Pranab Debnath. Similarly, in the Form II which contains the report of the Enquiry Officer, the person enquired upon has been mentioned as Sri Pranab Debnath only, though it also mentioned in other columns of the report his relatives, i.e. remaining petitioners.
In the order of reference made by the Superintendent of Police (Border), Morigaon dated 23.11.2004, the reference was made only in respect of Pranab Debnath, son of Biraj Mohan Debnath, village Konabari, P.S. Jagiroad and the names of other persons are not mentioned in the said order of reference by the Superintendent of Police (Border), Morigaon.
35. Thus, it appears that though in course of enquiry, the names of other persons also have been mentioned as relatives of Pranab Debnath who were investigated upon, when the reference was made by the Superintendent of Police (Border), Morigaon when the IMDT Act was applicable, the reference was made only against Pranab Debnath.
From the records, even after the IMDT Act was struck down, it appears that no fresh enquiry was made and in the proceeding which was initiated before the Foreigners Tribunal under the Foreigners (Tribunals) Order, 1964, there is nothing to Page No.# 12/17 show that the investigation was carried out in respect of other family members as well.
36. Mr. Payeng, learned Standing Counsel, FT also has fairly admitted to the legal position that if there was no investigation, no reference could have been made and the proceeding, in respect of the person against whom no reference was made, would not be valid.
37. In the present case, since no reference was made against the other petitioners except Pranab Debnath @ Pratap Debnath, in our view, the proceeding initiated against the remaining petitioners will not lie. Hence, the opinion of the Tribunal against the petitioners, except the petitioner No.1 will be of no consequence.
38. Accordingly, having held that the finding of the learned Tribunal in respect of other remaining petitioners will be non est, we will proceed to examine the matter only in respect of the petitioner No.1, namely, Pratap Debnath.
39. Coming to the issue of inconsistency in the age of the father of the petitioner No.1, namely, Biraj Mohan Debnath which was recorded differently in different voters lists, we are of the view that such difference in age cannot be the sole ground for disbelieving the evidence if there are other credible corroborating evidences available inasmuch as the voters lists generally do not reflect the correct age of the voters.
40. There is also a finding by the learned Tribunal that while the father of Biraj Mohan Debnath i.e. the grandfather of the Pratap Debnath has been shown as "Mahesh" and in some other documents as "Khirod" and as such it can be said that these refer to the same person.
41. As regards this, it has been already explained by the petitioners that "Khirod" is the pet name of "Mahesh". Since that aspect has been already explained in the written statement and as the same had neither been disputed nor challenged by the State in course of the proceeding, we are of the view that such explanation unless found to be unbelievable could not have been ignored by the Tribunal.
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42. The submission of Mr. Payeng, learned Standing Counsel, FT that any such change in the name should be supported by documentary evidence, in our view, is not warranted inasmuch as such explanation offered by the petitioners in their written statement filed before adducing oral evidence during the proceeding was never challenged nor questioned by the State.
43. As regards the alleged over-writing in the name of "Biraj" in the land document which was exhibited as Ext.K which led the Tribunal to suspect its genuineness, we again reiterate that the said fact was never pointed out while tendering evidence and exhibiting the same and proved thereof by the DW1. Even if the State had doubted about it, nothing prevented the State to get it verified from the official record inasmuch as this is a certified copy of a Registered Sale Deed, copy of which would be available with the office of the concerned Registrar. As to whether there was over- writing or not was never drawn to the notice of the witness DW1 when he exhibited the said document.
In our view, any such discrepancy ought to have been pointed out to the witness when the same was exhibited. However, the same was not done.
Though we have also examined the original records ourselves and there appears to be an over-writing, yet, it is not the case of clear over-writing. Thus, if the Tribunal had any doubt about it, it could have recalled the witness for re-examining him and bring this discrepancy to the notice of the witness. We are of the view that without giving any opportunity to the witness pointing out to the alleged over-writing, which is also not self-evident, the Tribunal could not have taken such a view.
44. As regards the observation made by the Tribunal that the death certificate of Biraj Mohan Debnath bears sign of erasing and overwriting, we have also examined the death certificate.
The document otherwise appears to be genuine. Yet, there is over-writing in respect of the word "P.O. Jagiroad". However, in the column relating to permanent address of the deceased, the same address is given as village Konabari, P.O. Jagiroad, Page No.# 14/17 Dist. Morigaon, Assam. The address of the deceased at the time of death had been shown as village Konabari with the over-writing in the name of "P.O. Jagiroad".
This over-writing, in our view, does not materially change the character of the document inasmuch as the over-writing is in respect of particular post office under which the said village Konabari falls. The said certificate, otherwise, bears the original signature of the Registrar of Birth and Death, Nakhola subsidiary Health Centre, Jagiroad, Assam with Serial No.0040137.
Again as regards this over-writing on the word "Jagiroad", no question had been put to the witness. If there had been over-writing on the date of death in the certificate or in the name of the person, perhaps, there could have been some doubt about the genuineness of the said certificate. But so far as other particulars in the said Death Certificate are concerned, there is no over-writing except in the name of Post office relating to the address of the deceased at the time of death.
Accordingly, since the said discrepancy in over-writing was not pointed out to the witness when the same was exhibited by DW1, in our view, no adverse opinion could have been arrived at inasmuch as the said over-writing, is in relation to the name of the post office and not related to any other material particular like name of the person or the date of death etc. In any event, if the State had any doubt, it could have verified from the authority concerned who issued the said death certificate. However, neither the said over-writing was brought to the notice of the said witness DW1, Manik Debnath who exhibited the said document nor the State made any attempt to get it verified to rebut the same.
Accordingly, we are of the view that the learned Tribunal ought not to have rejected the said death certificate as unreliable.
45. As regards the Admit Card issued by the Board of Secondary Education in favour of Sri Shankar Debnath, the petitioner No.4, the Tribunal ignored it by observing that a close look of the writings made, the Tribunal thought the same to be a scanned copy and not the original writing, from the texture of the impression. We are unable to Page No.# 15/17 understand such an observation made by the learned Tribunal. We have ourselves also seen the original admit card which had been relied upon. The entries made are in original ball pen ink. We do not understand how it can be said to be scanned copy.
Under the circumstances, we do not agree with the said view of the learned Tribunal.
The view of the learned Tribunal that the document appears to be procured or tampered does not appear to be based on evidence but mere surmise and cannot be a reason to disbelieve the said admit card.
46. The learned Tribunal also ignored the transfer certificate issued by the N.F. Railway School only on the ground that on the top of the said certificate, the Serial No. 879 is written dated 10.01.1990 whereas the certificate is issued on 27 th May, 1997. The learned Tribunal, accordingly, ignored the said school certificate because of the two different dates mentioned in the said certificate. However, no question was put to the witness about the said two entries, who exhibited the said document. The witness was not given an opportunity to explain why the two dates were mentioned in the said transfer certificate. The said transfer certificate, otherwise, appears to be original.
In our view, the Tribunal could not have ignored the same without drawing attention of the witness concerned who exhibited the same to explain any such discrepancy relating to the document and accordingly, we are not able to agree with the observation made by the learned Tribunal that these documents appeared to be either procured or tampered.
47. Coming to the evidence of OP No.6, Bakuli (petitioner No.5) who was examined as DW2, the learned Tribunal did not give credence to her evidence.
The learned Tribunal observed that in her evidence though DW2 stated that her mother's name is Sabitri, in the voters lists of 1965 and 1970, while it contained name of father Harish Ch. Debnath, the name of Sabitri is not shown and as such, the Page No.# 16/17 learned Tribunal held that the said voters lists of 1965 and 1970 are doubtful.
It is to be mentioned that the certified copy of voters lists produced and relied on by the proceedees are not complete voters lists of a particular year. These are only extracts of the voters list containing the names of persons in respect of whom the application is made. The said proceedee No.6 Bakuli obviously was trying to prove her legacy through her father, namely, Harish Chandra Debnath and in that context, perhaps, it was felt not necessary to get the voters list containing the name of her mother, Sabitri.
48. Be that as it may, merely because the name of her mother Sabitri is not shown in the voters list, does not necessarily mean the voters list is doubtful because the said voters lists are certified copies issued by the competent authority of the Election Commission of India. There cannot be any doubt as far as entry in the name of the father of said Bakuli i.e. Harish Chandra Debnath is concerned. Thus, the certified copy of the voters list cannot be rejected as doubtful.
49. Under the circumstances, we are of the view that the matter requires re- examination by the learned Tribunal.
Since the learned Tribunal had cast doubt on the genuineness and correctness of the certificates and documents mentioned above, i.e. land document, date of birth certificate, admit card, transfer certificate, voters lists etc. and since no opportunity was given to the witnesses to explain the same, the matter is remanded to the Tribunal for re-examination of the witness(es) and also to examine any other documents which may be produced to support the genuineness of the aforesaid documents.
50. Since we have already held that no reference was made against other remaining proceedees, except the petitioner No.1, Pratap Debnath @ Pranab Debnath, the opinion dated 28.02.2018 passed by the learned Foreigners Tribunal No.1, Morigaon in Case No. F.T.(C). 133/2010 is set aside as far as the other remaining proceedees i.e. petitioner Nos.2 to 5, Sri Paritosh Debath, Sri Manik Debnath, Shri Sankar Debnath Page No.# 17/17 and Smit. Bakuli Debnath are concerned.
However, in respect of petitioner No.1, Pratap Debnath @ Pranab Debnath as we have directed above, the matter is remanded for reconsideration by the learned Tribunal for which the said proceedee Pranab Debnath may be allowed to re-examine himself and any other witness(es) and also produce any other documents to prove the genuineness of the documents referred to above which were found doubtful by the learned Tribunal.
51. To that extent, the matter is remanded to the learned Foreigners Tribunal No.1, Morigaon, Assam for re-consideration of the citizenship status of the petitioner No.1, Pratap Debnath @ Pranab Debnath only, in the light of the direction made above.
52. Accordingly, to that extent, with the above observations and directions, the present petition is allowed.
53. LCR be remitted to the concerned Tribunal forthwith.
JUDGE JUDGE Comparing Assistant