Judgment & Order (Cav):

Shamima Jahan, J.

1. Heard Mr. J. Ahmed, learned counsel appearing for the petitioner. Also heard Ms. A. Verma, learned Standing Counsel, Home Department, Mr. G. Sarma, learned Standing Counsel, NRC,Mr. P. Sarma, learned Government Advocate, Assam, Mr. N. Kalita, learned counsel representing Mr. A. I. Ali, learned Standing Counsel for the ECI; Mr. B. Chakravarty, learned CGC,s appearing for the Union of India.

2. By this application filed under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the opinion dated 29.06.2017, passed by the learned Member, Foreigners’ Tribunal No. 3rd, Morigaon, Assam, in FT Case No. 6 of 2015, corresponding to FT Case No. 85 of 2004 dated 24.08.2004, whereby the petitioner was declared as a foreigner of post-25.03.1971 stream.

FACTS

3. It is the case of the petitioner that the learned Tribunal did not consider the relevant materials placed by him, while deciding the issue, as to whether the reference made by the Superintendent of Police (B), Morigaon, would be answered in the affirmative or not. The petitioner, to establish himself as an Indian citizen had placed reliance on the voters’ list of 1966, wherein he stated that his grandfather, namely, Kasam Ali, appeared as a voter from village Tumukabari (Islampur), Mouza- Mikirbheta, in the district of Nagaon. He further placed reliance on the voters’ list of 1989, to show that his father Md. Abbas Ali, further shown as son of Kasam Ali, appeared as a voter from village-Khalapia, Bhehuguri, Mouza-Silpukhuri, P.S.-Mikirbheta, in the district of Nagaon. Thereafter, he placed the voters’ list of 1997, wherein his father shown as son of Kasam Ali, was shown as a voter from the same place. The said voters’ list also reflected name of one Mazibur Rahman as a voter, which according to the petitioner is his elder brother. The age shown in respect of the brother of the petitioner was 22 years. Further, the serial number reflected in the said voters’ list in respect of the father and the brother of the petitioner were shown as 1307 and 1310, respectively. Thereafter, he relied on the voters’ list of 2005, by which the same position continued and the serial numbers of the father and the brother of the petitioner were shown as 98 and 102, respectively. Similarly, in the voters’ list of 2011, the father and brother of the petitioner were shown as voters with Serial No. 115 and 119, respectively. The petitioner also placed reliance on the voters’ list of 2005, wherein his name appeared as a voter, and the serial number assigned against his name was 103. In all the voters’ lists, subsequent to 2005, the place from where the aforesaid voters appeared was stated to be from village-Khalapia, Parliguri, under the Police Station-Mikirbheta, in the district of Nagaon. It is further stated that the voters’ list mentioned above were exhibited before the Tribunal.

4. Apart from the said voters’ list, the petitioner had placed reliance on the certificate issued by the Government Gaonburah of Kahuati, Khalapia, on 24.10.2014, by which it was certified that the petitioner is the inhabitant of the place, where the said Gaonburah resided.

5. The petitioner further had placed reliance on few other voters’ lists, which were, however, not exhibited before the learned Tribunal. He relied upon the voters’ list of 1970, by which it is reflected that his grandfather, i.e., Kasam Ali, appeared as a voter from the same place, as mentioned in 1966 voters’ list. He also placed reliance in the voters’ list of 2011, wherein, it was reflected that petitioner had also appeared as a voter along with his father and brother from the subsequent place, i.e., Khalapia, Parliguri, in the district of Nagaon. Similar is the voters’ list of 2014, which the petitioner placed showing that he appeared along with his father and brother from the said place. It be reiterated here that the petitioner had not placed the voters’ list mentioned in the paragraph under consideration before the Tribunal.

6. The petitioner before this Court had filed an additional affidavit and brought on records, certain additional documents. In the said additional affidavit, the petitioner has sought to enunciate the fact that along with the voter/voters reflected in the voters’ list, which were placed before the Tribunal, the other family members were also there in the said voters’ list. In respect of voters’ list of 1989, apart from his father being shown as son of Kasam Ali, his grandmother, his mother as well as his uncle were also shown as voters and the serial numbers of the other family members shows the continuity, i.e., his father was at Serial No. 40, and other relatives were at Serial Nos. 41, 42 and 43. However, the said voters’ list of 1989, placed by way of an additional affidavit, is not a certified voters’ list. Similarly, in the voters’ list of 1997, the petitioner had annexed and exhibited the said voters’ list before the Tribunal only by showing his father and his brother, but in this additional affidavit, he had shown by way of an uncertified voters’ list that other relatives were also listed as voters, i.e., his mother, his grandmother, his two uncles, and by the said voters’ list, he had also placed that the serial numbers of the said voters were in continuity, i.e., against his father, Serial No. 1307 was mentioned and against his brother, Serial No. 1310 is mentioned, and in the uncertified voters’ list, the other relatives were shown at Serial Nos. 1308, 1309, 1311 and 1312. Further, in case of voters’ list of 2005, the petitioner had again placed the uncertified copy of the same to enunciate the fact that other family members were there along with his father and brother, and himself with the continuing serial numbers. It be stated here that as far as the petitioner’s appearing as voter in 2005, was placed and exhibited separately, with that of his father and brother, but the serial number tallies with the uncertified voters’ list of 2005.

7. Apart from the said evidence, the petitioner had submitted his written statement before the Tribunal stating inter alia , that the Superintendent of Police (Border), Morigaon, had investigated on false information and false allegation and that he had enough documents to prove that he is an Indian citizen. In the said written statement, he had placed reliance on the voters’ list with the further statement that the father and brother were declared as Indian citizens and the same findings may also be applied to him.

8. Apart from the same, the petitioner had also given his deposition by examining himself as DW No. 1, wherein he had reiterated that his father and brother were declared as Indian citizens. The petitioner was, thereafter, crossexamined by the State and in the same, he had stated that he has three brothers and that he has two paternal uncles. The uncle of the petitioner was examined as DW No. 2, and he stated that father of the petitioner was his elder brother and that his father died some 40 years back. He had also narrated other family members in his deposition. However, the learned Tribunal, upon consideration of all the evidence on record, returned the finding that the petitioner could not prove that he is an Indian citizen and answered the reference in the affirmative.

SUBMISSIONS:

9. Mr J Ahmed, learned counsel for the petitioner submits that the father and brother of the petitioner were declared as Indians, vide order dated 18.11.2013, and that the same relief be granted to the petitioner. He relied on the voters’ list of 1966, where the petitioner’s grandfather appeared as a voter and the list of 1989 onwards, where the father of the petitioner and other family members, along with himself had appeared as voters. Apart from the voters’ list that the petitioner had exhibited before the Tribunal, the learned counsel also relied on few other voters’ lists as mentioned above to establish the linkage of the petitioner with his ancestor. The learned counsel also relied on the additional affidavit to demonstrate the fact that other relatives of the petitioner appeared as voters in the voters’ lists, which he had exhibited before the Tribunal. He relied on the following Judgments:

                   i) Haidar Ali vs Union of India, reported in2021 (3) GLT 85.

                   ii) Judgment delivered by this Court in WP(C) No. 2926 of 2019 (Talebar Rahman vs- Union of India); on 22.10.2019.

                    iii) Sujab Ali vs Union of India; reported in2021 (4) GLT 664

10. On the other hand, Ms A Verma, learned Standing Counsel for FT matters, submitted that the petitioner had not mentioned about his siblings and other family members in his written statement. She also stated that the projected uncle of the petitioner had also not mentioned about other family members in his deposition. She further stated that the projected uncle of the petitioner had suddenly appeared in the case and that the petitioner had placed voters’ list of 1966 and then the voters’ list of 1989, i.e., after a log gap of more than 20 years. She placed reliance on the following judgments

                   i) Momin Ali vs Union of India; reported in (2017) 2 GLT 1076;

                   ii) Nur Begum vs Union of India; reported in 2023 (3) GLT 347

                   iii) Borhan Ali -vs. Union of India, reported in (2018) 4 GLT 392.

                   iv) Aziz Miah vs Union of India; reported in2023 (4) GLT 246.

11. The learned counsel for the petitioner in reply to the submissions of the learned counsel for the FT matters, had placed a judgment of the Hon’ble Supreme Court, rendered in State of Rajashtan vs. T. N. Sahani & Others ; reported in (2001) 10 SCC 619, by which the Hon’ble Supreme Court had held that new documents can be seen in a proceeding.

ANALYSIS AND FINDINGS

12. It is noticed that in none of the voters’ lists, the father of the petitioner was seen along with the grandfather of the petitioner as voters. In 1966 voters’ list, the projected grandfather of the petitioner appeared as a voter, and then in 1989 voters’ list, the father of the petitioner shown as son of Kasam Ali, i.e., projected grandfather of the petitioner was shown as a voter, and thereafter, the projected father of the petitioner was shown as a voter along with projected brother of the petitioner and subsequently, in the year 2005, the petitioner was shown as a voter vide 2005 voters’ list. Although it is noticed that petitioner along with his projected father had appeared as voters in the concerned year which can be deduced from 2005 Voter’s List, but the fact remains that the petitioner could not place any voters’ list, by which his linkage can be established with his ancestor prior to the cut-off date of 25th of March, 1971. However, it cannot be lost sight of the fact that the projected uncle of the petitioner examined as DW-2 stated that his father expired some 40 years back, which would suggest that the grandfather of the petitioner who is the father of DW-2, must have died in the year 1976. By calculation, it can further be deduced that father of the petitioner must have been born in 1952, as can be seen from the age mentioned in the 1989 voters’ list, wherein the age of the father of the petitioner was shown as 37 years. As such, by further calculation, it can be concluded that the father of the petitioner became eligible to vote in the year 1973, and by noticing that grandfather of the petitioner had died after 3 years therefrom, i.e. in the year 1976, there is less possibility of any voters’ list where the father and the grandfather of the petitioner would have appeared together. However, by taking the age mentioned in the voters’ list of 1997, wherein the father of the petitioner was shown to be of 55 years of age, by necessary calculation, the birth year of the petitioner’s father goes to the year 1942, and in that case, the petitioner’s father should have appeared along with the petitioner’s grandfather in a common voters’ list. However, it cannot also be left to be considered that age discrepancies are inevitable in the voters’ lists. If the age given in 1989 Voters’ List is to be considered, then a common voters’ list of the petitioner’s father and grandfather would not have likely to surface, but if the age as mentioned in 1997 is considered, a common voters’ list would have surfaced. Further, in 1989 voters’ list, the father of the petitioner was shown to be the son of Kasam Ali, and also in the voters’ list of 1997 and it is seen that the name of the grandfather of the petitioner, i.e., Kasam Ali is similarly spelled as that of the name of the grandfather of the petitioner appearing in 1966 voters’ list. However, from 2005 onwards, both the name of the petitioner’s father and the petitioner’s grandfather appears to be little different, i.e., father of the petitioner was spelled as Abas Ali and grandfather of the petitioner was spelled as Kasem Ali. Further, it is also seen in the uncertified copies of the voters’ lists placed by the petitioner which, however, is not admissible, but for the ends of justice, the name of the petitioner appeared along with his father and other relatives with the continuous serial number. Although there was no impediment for the petitioner to apply for the certified copy of the said voters list, but the said was not done in the instant case, and it is a settled position of law that uncertified copies are not admissible in evidence.

CONCLUSION:-

13. In view of the findings made above that the petitioner could not establish the linkage with his grandfather by way of showing a common voters’ list of his father and grandfather, this Court, in the interest of justice, decides that the matter be heard afresh by the learned Tribunal. Accordingly, without going into the other grounds raised by the petitioner, this Court is of the considered opinion that the petitioner has been able to make out a case for remand of the matter to the learned Member,Foreigners’ Tribunal No. 3rd, Morigaon, Assam, for re-hearing the case. As such, the present case is remanded to the said Tribunal, to re-hear it afresh and consider the grounds set forth by the petitioner. It is reiterated that this remand order is passed mainly on the ground that there is less possibility of the existence of a voters’ list, showing both the father and grandfather of the petitioner together along with the other fact that the name of the grandfather has been properly spelled and reflected as the petitioner’s grandfather in the 1989 voters’ list.

14. Further, it is directed that the petitioner while contesting the case before the learned Tribunal should place the certified copies of the voters’ list which he had annexed in the additional affidavit filed before this Court. At no point of time, the petitioner should place uncertified copies of the voters’ list before the learned Tribunal. The learned Tribunal is directed to consider the case on merits and as per law.

15. In order to facilitate fresh opinion, the impugned opinion dated 29.06.2017, passed by the learned Member, Foreigners’ Tribunal No. 3rd, Morigaon, Assam, is hereby set aside.

16. The petitioner who is duly represented by the learned counsel is directed to appear before the learned Member, Foreigners’ Tribunal No. 3rd, Morigaon, Assam, on or before the 20th of July, 2026, and by producing the certified copy of the order, take an appropriate step and await for further orders to be passed by the learned Tribunal.

17. Further, it is made clear that if the petitioner fails to appear before the learned Tribunal within the time allowed, it would be open to the learned Tribunal to treat the petitioner as absent on call and pass appropriate order(s) or fresh opinion by discussing the pleadings and evidence on record.

18. Writ petition stands allowed to the extent indicated above, by remanding the matter back for fresh opinion.

19. The Registry shall send back the Tribunal record expeditiously, along with a copy of this order to be made a part of the record by the learned Tribunal.

20. There shall be no order as to cost(s).