Judgment & Order (C.A.V.)

K.R. Surana, J.

1. Heard Mr. F.A. Hassan, learned counsel for the petitioner as well as Ms. A. Verma, learned standing counsel for the Foreigners Tribunal, Mr. A.I. Ali, learned standing counsel for the Election Commission of India, Mr. S.K. Medhi, learned CGC and Mr. P. Sarma, learned Addl. Senior Govt. Advocate.

2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the opinion dated 13.12.2018, passed by the learned Member, Foreigners Tribunal, Bongaigaon No.2, Abayapuri, in BNGN/FT-2/APR/Case No.257/2016, corresponding to BNGN IMDT Case no. 506/2003, by which the petitioner was declared to be a foreigner of post 25.03.1971 stream.

3. Upon receipt of notice of the proceedings, the petitioner had appeared before the learned Foreigners Tribunal and filed her written statement in defence and took a plea that she is a citizen of India. It was stated that the father of the petitioner, namely, Dhirendra Mondal, along with his father, late Budheswar Mondal, had migrated from the then Maimansingha district of East Pakistan to India and their names were entered in the Refugee and Rehabilitation Department and they were issued a “Token for Migrants” by the Govt. of West Bengal and they settled at village Mohanpur under North Salmara Police Station in the district of Goalpara. The father of the petitioner, along with his brother, Fotik Chandra Mondal, shifted their residence to village Nayapara (Nowapara) Part-I under Bijni Police Station, as it was then, now Manikpur Police Station, in the Goalpara district. The name of the petitioner’s father was enrolled in the voter’s list of 1970 as Dhiren Mondal instead of his correct name of Dhirendra Mondal and his name along with his father’s name also appeared in the voter list of 1971 under 34 No. Abhayapuri North LAC. The names of the father and mother of the petitioner appeared in the voter list of 1985 of village Nowapara Part-1 under 34 Abayapuri North LAC and in this voter list the name of the father of the petitioner appeared as Dhiren Chandra Mondal instead of Dhirendra Mondal. The petitioner studied upto Class-X. She was born in the year 1979 and she had married to Sri Harihar Sarkar of village Baripukhri Part-I under Abhayapuri Police Station in the district of Bongaigaon. The name of the petitioner was enrolled in the voter list in the year 2005.

4. The petitioner had explained that she was married on attaining the age of 18 years and her name was not enrolled in the voter list along with her parents because immediately after her marriage she started to live with her husband. The name of the petitioner also appeared in the voters list of 2008, 2011, 2016. The petitioner has also a PAN card issued by the Income Tax Department. Accordingly, the petitioner claims that she is a citizen of India and had prayed that the case against her may be dropped.

5. In support of her case, the petitioner had examined herself as DW-1 and reiterated the statements made in the writ petition. The petitioner had exhibited the “Token for Migrants” as Ext.1; certified copy of the voters list of 1970 as Ext.2; certified copies of the voters lists of 1971 as Ext.3; certified copies of voters list of 1985 as Ext.4; school certificate dated 29.07.2016 as Ext.5; certified copies of the voters lists of 2005, 2011 and 2016 as Ext.6, Ext.7 and Ext.8, and her PAN card was exhibited as Ext.9.

6. The records reveal that the petitioner was not cross-examined by the Govt. Advocate nor any questions were asked to the petitioner by the Court.

7. The petitioner has also examined her projected father, Dhirendra Mondal, as DW-2, who had reiterated the stand taken by the petitioner and had submitted in the evidence-on-affidavit that the petitioner was born in the year 1979 in village Nowapara part-I and that after marriage she started to live with her husband at village Baripukhuri Part-I. The father of the petitioner had referred to the migration from the then district Maimansingha of East Pakistan to India and that his father and his name was registered in the Department of Refugee Relief and Rehabilitation, Govt. of West Bengal and that they had first settled at village Mohanpur under North Salmara Police Station in the district of Goalpara and he had exhibited the voter list of 1989 as Ext.A, the Elector Photo Identity Card as Ext.B and the certified copies of the voter list of 2016 as Ext.C, which contained his name.

8. Though the petitioner was not cross-examined by the Govt. Advocate, but questions were asked to the DW-2 by the learned Tribunal. In reply to the query of the Court, DW-2 had stated that he knows the petitioner, she is his own daughter and her age was 36 years and she married about 20 years ago and her name appears in the 2005 in village Baripukhuri and her husband’s name is Harihar Sarkar. He had casted his vote in the year 1970 and he had stated that his name appeared in the “Token for Migrants” (Ext.1).

9. The learned Tribunal, on the basis of discrepancies in the name of the father of the petitioner, disbelieved the evidence. Moreover, as the name of the grandfather of the petitioner was not readable in the said “Token for Migrants” (Ext.1), the same appears to have been discarded.

10. The learned Tribunal on comparing the age of the father of the petitioner in the “Token for Migrants” and the voters list of 1970, disbelieved the evidence of DW-2 and also held that the name of the mother and uncle of the petitioner in not recorded in Ext.2.

11. The evidence of DW-2 was disbelieved as his name was recorded as Dhiren Mondal in the voters list of 1970 and in view of the age discrepancy in respect of DW-2 in the “Token for Migrants” (Ext.1) and the voters list of 1970 and as the name of his father was not readable in the Ext.1, and accordingly, the Court doubted that the name of the father of the petitioner, being different, may not be the father of the petitioner and accordingly, it was held that the lineage between DW-2 and the petitioner could not be established. Accordingly, the evidence, not found being trustworthy, was discarded and the petitioner was declared to be a foreigner post 1971 stream.

12. On a perusal of the materials available in the writ petition and the Tribunals record, it appears that the petitioner had filed her written statement on 09.08.2016 and the learned Tribunal had fixed the next date on 24.08.2016 for examination of documents. The petitioner had produced all her documents on 24.08.2016 and the learned Tribunal recorded the presence of the petitioner and further recorded that the documents submitted by the petitioner had been examined and thereafter the date was fixed on 30.11.2016 for evidence-onaffidavit.

13. On 30.11.2016, the petitioner had submitted her evidence-on-affidavit as well as the evidence-on-affidavit of DW-2. Accordingly, the next date was fixed on 22.12.2016 for cross-examination of DW-2. The DW-2 was absent on 22.12.2016, but he was present on 09.02.2017 when he was examined by the learned Tribunal. It is noticed that the original documents are not available in the records of the Tribunal. However, the photocopies of the exhibited documents are available at page-52 to 60 of the record which are all signed by the learned Member, Foreigner Tribunal, Bongaigaon No.2, Abhayapuri. However, for reasons not recorded in the order-sheet, there is no endorsement in those documents that the photocopies are proved in original. As indicated above, the learned Tribunal had recorded in its order dated 24.08.2016 that the Tribunal had itself examined all the documents submitted by the petitioner. Therefore, if a particular entry relating to the grandfather of the petitioner could not be read by the learned Tribunal, the said fact ought to have been brought to the notice of the petitioner while examining the documents on 24.08.2016. Having admitted the “Token for Migrants” by putting signature, the learned Tribunal had admitted Ext.1 in evidences. Therefore, in the considered opinion of the Court, the exhibited documents cannot be discarded merely because by passage of time, the entry made in the said document has faded. It may be stated that the said “Token for Migrants” is of the year 1955 and appears to have been written by ink pen, which has faded by passage of time. The reason for discarding the Token for Migrants (Ext.1) is that the name of the grandfather of the petitioner is not readable. The said document was not discarded on the ground that it does not reflect the name of the father of the petitioner. The name of the father of the petitioner is found reflected in the said document, albeit as Dhirendra Mondal. The learned Tribunal did not question the DW-1 on the discrepancy of the name of the father. Moreover, when the Tribunal had put questions to the DW-2, the learned Tribunal did not dispute or question DW-2 as regard the discrepancy in his name.

14. In this case, as the petitioner had examined her father as DW-2 and no questions were put to DW-2 in the way his name is written in the Token for Migrants vis-à-vis the voters list of 1970, 1971 and other voters lists, and as such discarding the evidence of the petitioner and DW-2 cannot be sustained. In this case in hand, the learned Tribunal took adverse view regarding the discrepancy regarding the name of the father of the petitioner without putting DW-2 to any question regarding the discrepancy or to explain the same. In this case, when the father of the petitioner is alive and has adduced evidence as DW-2, the discrepancy in the age of the father of the petitioner in the Token for Migrants (Ext.1) and the various Electoral Rolls could not be so fatal so as to discard the evidence completely. The fact that the name of the father of the DW-2 was Buddeswar Mondal and Budheswar or would not be so fatal as to discard the evidence of DW-2.

15. In this regard, it is reiterated that the DW-2 was not put any question for the purpose of explaining the discrepancy in the name of his father.

16. Resultantly, the Court is of the considered opinion that the opinion rendered by the learned Foreigners Tribunal stands vitiated by taking into consideration materials which were not put to the petitioner as DW-1 or DW-2. Had the learned Tribunal not put questions to DW-2, it could have been accepted that the discrepancies in the documents made the documents inadmissible in evidence. However, when the learned Tribunal had put questions to DW-2 and in response to which the DW-2 had asserted that the petitioner was his daughter and in that regard he had placed reliance on the Token for Migrants (Ext.1), the answer by DW-2 to the query of the Court corroborated the case of the petitioner.

17. Resultantly, the Court is inclined to set aside the impugned opinion dated 13.12.2018 passed by the learned Member, Foreigners Tribunal, Bongaigaon No.2, Abayapuri, in BNGN/FT-2/APR/Case No.257/2016, corresponding to BNGN IMDT Case no. 506/2003.

18. The mater is now remanded back to the said learned Tribunal for passing a fresh opinion in light of the finding of the Court.

19. Accordingly, the petitioner, who is represented by her learned counsel, is directed to appear before the learned Member, Foreigners Tribunal, Bongaingaon No.2, Abhayapuri, within the outer limit of 20.01.2026 and by producing a certified copy of the order, await further order or direction from the said learned Tribunal.

20. It is clarified that if the petitioner fails to appear within the time allowed, it would be open to said learned Tribunal to treat the petitioner as absent on call and pass its fresh opinion in accordance with law.

21. The writ petition stands allowed to the extent as indicated above.

22. There shall be no order as to cost.

23. The Registry shall send back the records of the Tribunal back expeditiously along with a copy of this order to be made a part of the record.