THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM v. THE UNION OF INDIA AND 5 ORS

BEFORE HON’BLE MR. JUSTICE N. KOTISWAR SINGH HON’BLE MRS. JUSTICE NANI TAGIA (oral) 05-05-2022 [N. Kotiswar Singh, J] Heard Mr. S. Hoque, learned counsel for the petitioner. Also heard Mr. K.K. Parasar, learned CGC appearing for respondent nos.1; Mr. G. Sarma, learned Special Standing Counsel, F.T. appearing for respondent no.5; Mr. A. Bhuyan, learned Standing Counsel, ECI appearing for respondent no.3; Mr. P.S. Lahakar, learned Standing Counsel, NRC appearing for respondent no.6 and Mr. N.K. Das, learned Government Advocate, Assam, appearing for respondent nos.2 & 4.

In this petition the petitioner has challenged the impugned order dated 30.06.2018 passed by the Foreigners Tribunal No.2, Dhemaji at Silapather in F.T.(2nd) Case No.02/2018 declaring the petitioner as a foreigner of post 1971 stream. Page No.# 3/5

Though the learned counsel for the petitioner has raised a number of grounds to challenge the impugned order dated 30.06.2018 passed by the Foreigners Tribunal No.2, Dhemaji, the petitioner has laid emphasis particularly on the fact that one Md. Sahid Ali, son of Pyar Ali, whom the petitioner claims to be his brother and who also adduced evidence in favour of the petitioner before the Tribunal as D.W.2, had already been declared as an Indian citizen by the Foreigners Tribunal, Dhemaji vide its opinion dated 13.06.2014 passed in Case No. F.T./DMJ 723/2007 and the same was not considered at all by the Tribunal at the time of passing the impugned opinion dated 30.06.2018 and accordingly, the opinion stands vitiated on account of non-consideration of a very vital evidence on record.

We have heard learned counsel for the parties and perused the LCR and both the order dated 30.06.2018 passed by the Foreigners Tribunal No.2 at Dhemaji in F.T.(2nd) Case No.02/2018 and 13.06.2014 passed by the Foreigners Tribunal, Dhemaji in Case No. F.T./DMJ 723/2007.

From the records, it appears that the said Md. Sahid Ali had testified that the present petitioner is his brother and also that he was earlier proceeded before the Foreigners Tribunal, Dhemaji in Case No.FT/DMJ-723/2007 and by an order dated 13.06.2014, he (Md. Sahid Ali) was declared as an Indian citizen and not a foreigner.

We have noted that in the impugned order dated 30.06.2018, the Tribunal has mentioned about the order dated 13.06.2014 passed by the Foreigners Tribunal, Dhemaji in Case No. F.T./DMJ 723/2007 and exhibited the same as Exhibit-8. However, there is no discussion at all in the impugned opinion dated 30.06.2018 about the evidence given by the said Md. Sahid Ali claiming to be the brother of the petitioner and also about the relevancy of Page No.# 4/5 the said opinion dated 13.06.2014 in favour of the said Md. Sahid Ali.

In our view unless there is a categorical finding by the Tribunal that the said Md. Sahid Ali is not the brother of the present petitioner, the said evidence cannot be ignored which appears to have been done in the present case as the Tribunal has not discussed about the relevancy, authenticity or reliability of the said oral as well as documentary evidence in respect of the said Md. Sahid Ali, whom the petitioner projected as his brother. If the said Md. Sahid Ali is really the brother of the petitioner, it will be a clinching evidence in his favour.

Accordingly, this Court is of the view that the opinion dated 30.06.2018, which was passed by the Tribunal without considering a vital evidence, cannot be said to be proper, inasmuch as, an opinion rendered without considering all the relevant evidences on records would stand vitiated due to non-application of mind.

Accordingly, for the reasons discussed above, we allow this petition by setting aside the impugned opinion dated 30.06.2018 passed by the Foreigners Tribunal No.2, Dhemaji at Silapather in F.T.(2nd) Case No.02/2018 and remand the matter to the Foreigners Tribunal No.2, Dhemaji at Silapather, for a fresh re-consideration after proper scrutinization of the opinion dated 13.06.2014 passed in favour of the said Md. Sahid Ali by the Foreigners Tribunal, Dhemaji, which the Tribunal did not evaluate at the time of considering the case of the petitioner.

Accordingly, the petitioner will appear before the concerned Tribunal on 08.06.2022 and thereafter, the concerned Tribunal will pass a fresh opinion after hearing the petitioner and also by re-appreciating all the admissible evidences in the light of the observations made above. Page No.# 5/5

Since the petitioner has already been granted bail by this Court on 20.12.2019, he would continue to remain on bail on similar terms and conditions till the culmination of the proceeding in F.T.(2) Case No.02/2018.

Copy of this order be furnished to the Superintendent of Police (Border), Dhemaji for doing the needful.

Let the LCR of the Foreigners Tribunal No.2 at Dhemaji, be remitted forthwith. JUDGE JUDGE Comparing Assistant