IMPORTANT POINT
The Foreigners Tribunal must adhere to due process and cannot declare family members as foreigners without proper reference and sufficient evidence.

JUDGMENT :

K.R. Surana, J.

Heard Mr. A.R. Sikdar, learned counsel for the petitioners. Also heard Ms. P. Phukan, learned CGC for the Union of India; Ms. P. Barua, learned standing counsel for the Election Commission of India; Mr. Mr. G. Sarma, learned standing counsel for the FT Matters and N.R.C.; and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate.

Challenge in this writ petition:

2) By filing this writ petition under Article 226 of the Constitution of India , the petitioners have assailed the opinion dated 21.09.2017, passed by the learned Member, Foreigners Tribunal No. 5th, Morigaon, in Case No. FT (C) 192/2016 (New) [corresponding to F.T.(C) 1286/2012 (Old), arising out of IM(D)T Case No. 353/1999]. By the said opinion, the petitioners were declared to be foreigners of after 25.03.1971.

Case of the petitioners before the Foreigners Tribunal:

3) In brief, the case of the petitioners is that upon service of notice, the petitioner no. 1, namely, Abdul Kadir had entered appearance before the learned Tribunal and filed his written statement and contested the proceeding by denying that the petitioners were foreigners and claimed that all were Indian citizens. The petitioner no. 1 had stated that the investigating officer had registered a case against them without conducting proper investigation to harass the petitioners. In respect of the petitioner no. 1, it was stated that he was born and brought up in village- Solmari, under PS and District- Morigaon and his name appeared in the voter list of 1989, 1997, 2005 and the name of his partners also appeared in the NRC of 1951. It was stated that the parents of the petitioner no. 1 had expired when he was a child and their names did not appear in the voter list of 1965 and 1971 and the petitioner no. 1 lived with his maternal uncle and his name was entered in the voter list after he had attained the age of majority. The petitioner no. 1 had also given brief details about the petitioner nos. 2 to 5 in his written statement.

4) In support of his defence, on 18.07.2017, the petitioner had examined himself as DW-1 and had exhibited the following documents, viz., (i) NRC of 1951 (Ext.A); (ii) certified copy of voter list of 2005 of the petitioner nos. 1 and 2 (Ext.B); (iii) Gaonburah certificate of petitioner no. 1 (Ext.C); (iv) Gaonburah certificate of marriage of petitioner nos. 1 and 2 (Ext.D); (v) voter list of 1971 in the name of Omar Ali (Ext.E); (vi) birth certificates of petitioner nos. 3, 4 and 5 (Ext.F, Ext.G and Ext.H). He had stated that they were not foreigners and were Indian by birth. No other witnesses were examined by the petitioners.

Finding and opinion of the learned Tribunal:

5) The learned Tribunal, upon examining the pleadings and evidence on record, held that the petitioner no. 1 has not been able to link himself with his projected parents by producing any document having his name enlisted with his projected parents. In respect of petitioner no. 2, it was held that she could not establish her link with her projected parents through voter list of 1965 (Ext.E) in the absence of any documents having her name together with her projected parents. Accordingly, it was held that the petitioner nos. 1 and 2 were foreigners of after 25.03.1971 and accordingly, it was held that the petitioner nos. 3 to 5 were also declared foreigners of after 25.03.1971.

Submissions of the learned counsel for the petitioners:

6) The learned counsel for the petitioner has submitted that the records received from the Tribunal reveals that the enquiry was made in respect of the petitioner no. 1 alone and therefore, reference was made only against the petitioner no.1. Accordingly, it was submitted that the learned Foreigners Tribunal could not have registered any proceeding against the petitioner nos. 2 to 5 without any reference being initiated against them.

7) It was further submitted that vide order dated 04.08.2017, the case was fixed on 22.08.2017, for the evidence of the petitioner no.2, but