Allowed

Adam Ali v. the Union of India and 5 Ors.

Gauhati HC16 Jun 2022WP(C)/1311/2018

Case brief

AI extract

What is this about?

In a writ petition against a Foreigners Tribunal order declaring the petitioner a foreigner, the Gauhati High Court held that the Tribunal erred in rejecting evidence not mentioned in the written statement. Relying on Haidar Ali Vs. Union of India, the Court remanded the matter for re-assessment of evidence without penalizing delays or omissions in pleadings.

What did the court decide?

Impugned order of Foreigners Tribunal set aside; matter remanded to Tribunal for reconsideration of evidence; petition allowed.

Adam Ali Vs the Union of India and 5… — Constitutional and Fundamental Rights | Gauhati HC (2022)

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GAHC010039012018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/1311/2018

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ADAM ALI S/O SONAULLAH R/O VILL- KALTOLI, P.S. MUKALMUA DIST. NALBARI, ASSAM

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VERSUS

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THE UNION OF INDIA AND 5 ORS.

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REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, TILOK MARG, NEW DELHI-1.

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2:THE STATE OF ASSAM

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6.

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3:THE SUPERINTENDENT OF POLICE (B)

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NALBARI P.O. AND DIST. NALBARI ASSAM

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4:THE DEPUTY COMMISSIONER

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NALBARI P.O. AND DIST. NALBARI ASSAM

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5:THE ELECTION COMMISSION OF INDIA

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NEW DELHI.

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6:THE ASSAM STATE CO -ORDINATOR OF NRC

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BHANGAGARH GUWAHATI -5

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Advocate for the Petitioner : MR. A R SIKDAR

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Advocate for the Respondent : ASSTT.S.G.I.

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BEFORE HON’BLE THE CHIEF JUSTICE (ACTING) MR. N. KOTISWAR SINGH HON’BLE MR. JUSTICE NANI TAGIA

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:: O R D E R ::

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16.06.2022

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[N. Kotiswar Singh, CJ(Acting)]

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Heard Mr. A.R. Sikdar, learned counsel for the petitioner. Also heard Mr. K.K. Parashar, learned Central Government Counsel appearing for respondent Nos.1 & 4; Mr. G. Sarma, learned Standing Counsel, Foreigners Tribunal appearing for respondent Nos.2 & 3; Ms. K. Phukan, learned Govt. Advocate, Assam appearing for respondent No.4 and Mr. A. Bhuyan, learned Standing Counsel, ECI for respondent No.5;

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In this petition, the petitioner has challenged the impugned order dated 18.12.2017 passed by the learned Foreigners Tribunal No.3, Nalbari in F.T.(Nal-3) Case No.79/2017 by which the petitioner was declared a foreigner.

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Learned counsel for the petitioner submits that while coming to such a conclusion, the learned Tribunal has been swayed mainly by the fact that many of the evidences adduced in course of the proceeding could not be accepted for the reason that these find no mention in the written statement.

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Learned counsel for the petitioner submits that merely because certain facts and evidences had been mentioned in the written statement, such an evidence adduced in course

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of proceeding/trial could not have been ignored.

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In this regard, learned counsel for the petitioner has placed reliance on the decision of this Court in Haidar Ali Vs. Union of India and Ors., [ 2021 (3) GLT 85 ], [WP(C) No.1818/2019, disposed of on 30.03.2021].

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This Court in para No.29 of Haidar Ali (supra) held as follows,

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“29. From the above, what is important to note is that the Foreigners Tribunal constituted under the Foreigners (Tribunals) Order, 1964 merely provides a proceedee a reasonable opportunity for making a representation and producing evidence in support of his case before the Tribunal and as such, normally, the rules of pleadings including that of “written statement” as provided under the CPC are not applicable.

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As a corollary, the principles contained in the CPC relating to the scope of written statement and limitations placed thereon cannot be strictly applied in the proceedings before the Tribunal though the principles may generally be applied.

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In fact, all opportunities should be given to a proceedee to enable him to produce all such documents which come to his possession even at a later stage also, to substantiate his claim that he is an Indian. No pedantic view should be taken, if there has been some delay or if the same is not mentioned in the written statement. Even under the scheme of the CPC, the right to file any document at a later stage, even if at the appellate stage, is always there, subject to leave of the court and if such documents are relevant and highly necessary and could not be produced earlier after exercise of due diligence (vide Order XLI Rule 27 CPC).

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Thus, if the proceedee is able to make out a case for filing a document at a later stage, the same cannot be denied and no adverse inference can be drawn. Similarly, if any fact is introduced at the time of adducing evidence, though the same is not mentioned in the written statement, no exception can be made. It cannot be said to be improvement and adverse inference accordingly taken thereof.

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Non-mentioning of any person or fact or document in the written statement, if mentioned later, cannot be said to cause any surprise or prejudice to the State so as to ignore such new fact or document. In any event, liberty is always with the State to rebut any evidence after the proceedee has completed adducing evidence.

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We have also noted that the witnesses who adduced evidence are cross-examined by the

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State and as such, if such deposition cannot be shaken during the cross-examination, no adverse inference can be drawn against the petitioner.”

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Under circumstances, it has been submitted by the learned counsel for the petitioner that if the vital evidences adduced by the petitioner have been ignored merely because of the fact that these were not mentioned in the written statement, the same cannot be sustained in law.

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We have heard the learned counsel for the parties and also perused the impugned order dated 18.12.2017.

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Para No.9 of the impugned order reads as follows,

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“9. After hearing the parties and on perusal of records it is found that reference case has been made against Md. Adam Ali sonof Sonaulla, village Kaltali, P.S. Mukalmua, Dist. Nalbari, Assam. Proceedee in his written statements inter alia stated that his name is Md. Adam Ali son of late Sonaulla @ Ali, village Katali, P.S. Mukalmua, Dist. Nalbari, Assam.

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In paragraph 5 of the written statements proceedee inter alia stated that his father’s name recorded in the voter list of the year 1966 under 54 No. Chenga L.A.C. In paragraph 6 of written statements inter alia stated that his name has been recorded in the voter list of the year 2010 under 60 No. Barkhetri L.A.C. In paragraph 7 of written statements proceedee inter alia stated that Election Commissioner of India issued Elector Photo Identity Card in his name vide card No.......................... under 60 No. Barkhetri L A C and put his left thumb impression in the written statements.

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Proceedee as O.P.W. 1 inter alia deposed that Exhibit 1, 2, 3 and 4 i.e. land revenue paying receipt dated 7/2/1955, 1/4/1956, 8/8/1960 and 31/7/1961 were issued in the name of his grandfather. But, there is no statement is available in his written statements about those documents. Proceedee also nowhere stated in his evidence in chief that those documents have been discovered later on.

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O.P.W.4 Sultan Ali cousin brother of the proceedee deposed that proceedee went to School and he can write his name. Proceedee also put his signature in his evidence in chief as well as cross examination. But, in paragraph 22 of evidence in chief proceedee inter alia stated that he is an illiterate person and taking the advantage of illiteracy and ignorance present case has been referred.

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There is no statement available in written statements in respect of entry of the name of the father of the proceedee in the voter list of the year 1970, 1985 and 1989. No statements also available in written statements that proceedee cast vote since the year 1985 and his name recorded in the voter list of the year 1985 along with his father.

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Proceedee exhibited as many as 14 Nos. of documents to prove his citizenship. But, no documents have been submitted by the proceedee at the time of filing his written statements. There is no statement available either in the written statements filed by the proceedee or in evidence in chief stating the reasons of not furnishing any documents in support of his citizenship along with written statements.

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Proceedee also failed to furnish any documentary evidence along with written statements in respect of his residential status, although, he has stated in his written statements that he is residing in village Kaltali.”

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Perusal of the aforesaid para No. 9 would clearly indicate that the learned Tribunal has not considered many of the evidences adduced in course of the tria/proceeding primarily on the ground that this information has no reference in the written statement.

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In other words, since facts and evidences were not mentioned in the written statement, these were not taken into account.

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In view of the decision of this Court in Haidar Ali (supra), we are of the view that the learned Tribunal could not have ignored the evidences on record, even if these have not been mentioned in the written statement unless the documents themselves are inadmissible in law or whose genuineness or credibility which had been discredited in course of the proceeding, which does not appear to be so in the present case.

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Accordingly, we are of the view that the matter will be required to be remanded to the learned Tribunal for re-consideration and reassessment of the evidences on record, not being encumbered by the fact that these facts and evidences had not been mentioned in the written statement. These evidences have to be assessed by the learned Tribunal on their worth, after assessing their credibility and reliability in conjunction with all other evidences on record, before making his own conclusion.

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In that view of the matter, the present petition is allowed by setting aside the

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impugned order dated 18.12.2017 passed by the learned Foreigners Tribunal in F.T. (Nal)-3 Case No.79/2017.

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Petitioner will appear before the learned Tribunal No.3, Nalbari within a period of 1(one) month from today.

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Learned Tribunal after hearing the petitioner will pass a fresh opinion after appreciation of evidences and record and hearing the petitioner in accordance with law.

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The petitioner will continue to remain on bail on similar terms and conditions as directed by this Court vide order dated 12.03.2018.

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Let the LCR be remitted forthwith to the concerned Foreigners Tribunal.

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JUDGE CHIEF JUSTICE (ACTING)

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Comparing Assistant

Adam Ali v. the Union of India and 5 Ors.

Case brief

What is this about?

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Adam Ali v. the Union of India and 5 Ors.

Case brief

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