Yarun Nessa Vs the Union of India and 5 Ors.

Heard Mr. U. Das, learned counsel for the petitioner. Also heard Ms. K. Phukan, learned CGC; Mr. J. Payeng, learned Standing Counsel for F.T. matters; Mr. M.

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Islam, learned counsel on behalf of Mr. A. Ali, learned Standing Counsel for ECI; Mr. P. Sarmah, learned Additional Sr. Government Advocate for the State; Mr. R. Talukdar, learned Government Advocate and Mr. G. Sarma, learned Standing Counsel for NRC.

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2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 23.06.2016, passed by the learned Members, Foreigner’s Tribunal No. 5, Goalpara in F.T. Case No. F.T./5/90/MA/2015, arising out of E.R.O. Reference Case No. 87-102/37, whereby it was held that since the proceedee (i.e. petitioner herein) has failed to prove that she is daughter of Eyar Ali and Achiran Bewa and accordingly, declared that the petitioner had illegally entered into the territory of India (Assam) on or after 25^th day of March, 1971.

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3. On a perusal of the records of the learned Tribunal, it is noticed that in the proceedings, before the learned Tribunal, the State was not represented by either Government pleader/ Assistant Government pleader or counsel engaged by the Home Department/State.

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4. In support of her defence, the petitioner has examined herself as DW-1 and exhibited the following documents, viz., (1) Certified copy of the Electoral Roll of 1966 (Annexure-A), (2) Electoral Roll of 1970 (Annexure-B), (3) Kabinnama of her marriage (Annexure-C) and Panchayat certificate issued by the Secretary Bibuchar Gaon Panchayat (Annexure-D).

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5. She has also examined one Asraf Ali, her projected husband as DW-2 and she has exhibited the following documents, viz., (1) Electoral Roll of 1966

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(Annexure-A). (2) The Electoral Roll of 1970 (Annexure-B) and (3) Original Kabinnama of his marriage to the petitioner (Annexure-C).

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6. The petitioner also examined one Was Uddin as DW-3. The examination of these three witnesses was done by way of filing evidence on affidavit.

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7. We are surprised to note that on 05.12.2015, 19.01.2016 and 29.03.2016, three witnesses being DWs- 1, 2 & 3 were again examined by learned Tribunal on oath. Such oral examination of the three DWs is not recorded in the order sheet so as to explain why despite filing of their respective evidence-onaffidavit, a necessity arose for the learned Tribunal to record the oral depositions of these three witnesses.

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8. We are further surprised to note that although in the evidence of affidavit, the DW-3 has not exhibited any document, but the learned Tribunal while recording his oral deposition, has exhibited a land revenue paid receipt as Ext.E, and the Electoral Roll of the year 1966 as Ext.-F. It may be stated that there is an overwriting on the letter “F”. A certificate by the Secretary, Buduchar Gaon Panchayat, issued on 16.06.2015 regarding marriage of Asiron Bewa and late Eyar Ali on 09.06.1990 has been marked as Ext.-G. It may be stated that the letter ‘G’ is over-written over letter ‘F’. There is no mention of Ext.-E, F and G in the evidence-on-affidavit by DW-3.

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9. It may me mentioned that there is no order in the order-sheet where it is mentioned that any of the three witnesses were cross-examined. However, in the impugned opinion, the learned Tribunal had recorded as follows:-

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“The proceedee in her cross stated that she got married to one Asrob Ali of

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Paschim Matia on 9/9/1994.”

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10. It is seen that though there is no record of any cross-examination of DW-1, but in the Order dated 05.12.2015, it is mentioned as follows:-

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“The OP is present and adduced evidence after deposition she is discharged. Fixed 28.12.2011 for further evidence.

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sd/- (illegible) Member Foreigners’ Tribunal 5^th Goalpara Mornai, Goalpara, Assam.”

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11. Therefore, by mere observation in the opinion that the petitioner was cross-examined, the said observation is found to have vitiated the impugned opinion by non-application of judicial mind in the matter of perusal of the records.

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12. As already indicated above, no reason is assigned in the order sheet as to what necessitated the re-examinations of DWs-1, 2 & 3 when they had already filed their respective evidence-on-affidavit. Moreover, there is no order for allowing the DW-3 to exhibit documents as Ext.-E, Ext.-F and Ext.-G. Similarly, in respect of DW-2, although in the evidence on affidavit has no reference to link certificate and land revenue receipt, during oral examination, the learned Tribunal had allowed the DW-2 to introduce link certificate as Ext.-D and relied on the revenue paid receipt as Ext.-E. There is no corresponding order to allow the DW-2 to introduce and exhibit two documents. Therefore, this Court is of the considered opinion that there are lot of procedural impropriety in the manner in which the trial of the case of the petitioner was taken-up by the concerned learned Tribunal.

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13. The Court is also constrained to observe that the State has also contributed in the manner in which the trial was allowed to proceed before the Member, Foreigners’ Tribunal No. 5^th , Goalpara by not ensuring presence of the State Counsel/GP/AGP to represent the State. We are constrained to say so because in none of the order sheets, the presence of the Assistant Govt. Pleader is recorded, but his name has been recorded only in the Cause Title of the opinion. Moreover, the opinion also does not reflect any submission made and/or participation by the learned Assistant Govt. Pleader. Therefore, the Court is of the unhesitant view that the opinion dated 23.06.2016, passed by the learned Foreigners Tribunal No. 5^th , Goalpara is not found sustainable on facts and in law.

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14. Accordingly, the Court has no hesitation to set aside the impugned opinion dated 26.06.2016, passed by the learned Foreigners’ Tribunal No. 5^th , Goalpara in F.T. Case No. F.T./5/90/MA/2015.

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15. The matter is remanded back to the said learned Tribunal for passing a fresh opinion on the basis of materials available on record. As the Court finds illegality in propriety of the manner in which the Tribunal had proceeded to decide the matter, no purpose would be served to discuss the evidence of the petitioner.

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16. The petitioner, who is duly represented by her learned counsel, is directed to appear before the said learned Tribunal within 30 days from the date of this order without waiting for any notice to be issued by the learned Tribunal.

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17. In the event the petitioner does not appear before the learned Tribunal within the time allowed by this Court, it will be open to the learned Tribunal to treat the petitioner as absent on call and pass a fresh opinion on the basis of materials and evidence available on record.

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18. We leave it to the wisdom of the State to take a call as to whether they would appear before the learned Tribunal through their pleader or not, as they may be so advised.

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19. Records to be sent back to the learned Tribunal immediately.

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20. Accordingly, the WP(C) 3608/2018 is disposed of.

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JUDGE JUDGE

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Comparing Assistant

Yarun Nessa v. the Union of India and 5 Ors.

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Yarun Nessa v. the Union of India and 5 Ors.

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