Mohiran Nessa Vs the Union of India and 5 Ors.

Heard Mr. F. U. Borbhuiya, learned counsel appearing on behalf of learned counsel for the petitioner. Also heard Mr. G. Sarma, learned Standing Counsel for FT and Border matters, Mr. A. I. Ali, learned Standing Counsel for ECI and Mr. P. Sarmah, learned Additional Senior Govt. Advocate for the State.

¶28

By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned opinion dated 27.07.2018, passed by the learned Member, Foreigners Tribunal (II), Dhubri (Assam) in Case No. F.T. Case No. 351/F/15, arising out of (Police Ref. Case No. 37/D/08, thereby declaring the petitioner namely, Mohiran Nessa as an illegal migrant of post 25.03.1971 stream.

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It is suffice to mention that on receipt of a reference from the Superintendent of Police (Border), Dhubri the proceedings was registered before the learned Member, Foreigners Tribunal (II), Dhubri (Assam), in Case No. F.T. Case No. 351/F/15 arising out of (Police Ref. Case No. 37/D/08.

¶31

On receipt of notice, the petitioner appeared and file her written statement and documents and in support of her defence, the petitioner had examined herself as DW-1 and her projected uncle, namely, Aksed Ali @ Akached Ali as DW-2 and the following documents were exhibited :-

¶32

One regd. Kabinnama of Marriage (Exbt-A)

¶33

Certified copy of E/Roll, 1966 (Exbt-B)

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Certified copy of E/Roll, 1970 (Exbt-C)

¶35

Certified copy of E/Roll, 1979 (Exbt-D)

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Certified copy of E/Roll, 1997 (Exbt-E)

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Certified copy of E/Roll, 2005 (Exbt-F)

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One Voter I/Card (Exbt-G)

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Another Voter I/Card (Exbt-H)

¶40

One regd. sale deed No. 150 dated 22-7-2003 (Exbt-I)

¶41

One Voter I/Card (Exbt-J)

¶42

The learned Tribunal on discussion of the exhibited documents and considering the evidence of DW-1, answered the reference in favour of the State and against the petitioner by declaring her to be a foreigner of post 1971 stream. The learned Standing Counsel for the FT matters has made submissions to defend the impugned opinion.

¶43

However, it is notice that under the heading “Reasoning & Decision”, the learned Tribunal had discussed exhibit nos. A to F and I and the other 3 (three) documentary evidence being Exhibit nos. G, H and J were discarded on the ground that they are post 1971 documents, however, without referring to the

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¶45

exhibit nos. in the said opinion.

¶46

However, under the said heading of “Reasoning & Decision”, there is no discussion as regards the evidence tendered by the DW-2, the projected uncle of the petitioner. In the case of Farida Khatun Vs. Union of India & Ors., 2020 (4) GLT 611, this Court had held that once the petitioner has placed the evidence, the Tribunal is bound to consider each and every such evidence in order to decide its relevancy and admissibility of evidence.

¶47

In this case, as the impugned opinion does not contain the discussion and reasoning in respect of the evidence of DW-2, the Court is of the considered opinion that the impugned opinion dated 27.07.2018 stands vitiated due to nonconsideration of the evidence on record. Accordingly, the said impugned opinion dated 27.07.2018, passed by the learned Member, Foreigners Tribunal (II), Dhubri (Assam), in Case No. F.T. Case No. 351/F/15, arising out of (Police Ref. Case No. 37/D/08), is hereby set aside.

¶48

The matter is remanded back for a fresh decision by the learned Member, Foreigners Tribunal (II), Dhubri (Assam) by considering the evidence of DW-2.

¶49

The petitioner, who is duly represented by her learned counsel, shall enter appearance before the said learned Tribunal on 05.12.2025 without any requirement of service of any fresh notice of appearance. The petitioner, by producing a certified copy of the order, await for further orders/instructions from the said learned Tribunal.

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The Registry shall send back the records forthwith to the concerned Tribunal.

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The petitioner shall produce a certified copy of this order before the Superintendent of Police (Border), Dhubri to bring the order to the notice of the

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said authority.

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

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There shall be no order as to costs.

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JUDGE JUDGE

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Comparing Assistant

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

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

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