IMPORTANT POINT
The Foreigners' Tribunal's failure to consider crucial evidence and procedural irregularities necessitates remand for a fresh decision.

JUDGMENT :

(KALYAN RAI SURANA, J.)

Heard Mr. N.H. Barbhuiya, learned counsel for the petitioner. Also heard Ms. A. Verma, learned standing counsel for the FT matters, respondent nos.2 and 6; Mr. G. Sarma, learned standing counsel for the NRC, respondent no.4; and Mr. P. Sarmah, learned Additional Senior Govt. Advocate appearing for respondent no.5. None appears on call for the Union of India.

2. It is noted that the petitioner has arrayed the learned Member, Foreigners’ Tribunal No.6th , Barpeta as respondent no.3. As the order of the said learned Tribunal has been assailed, the said learned Member is neither a necessary party nor an appropriate party in this writ petition. Accordingly, the name of respondent no.3 is ordered to be struck off, however, without disturbing the seriatim of the respondents.

3. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 09.10.2018, passed by the learned Member, Foreigners’ Tribunal No.6th , Barpeta in F.T. Case No. 491/15, arising out of R/Case No. C/6415/98, thereby declaring the petitioner to be a foreigner, who has entered Assam on or after 25.03.1971.

4. At the outset, it may be mentioned that to give evidence in support of the petitioner, the petitioner has examined her projected father, namely, Akbar Ali as DW-4, who had, amongst others, had exhibited his Electoral Photo Identity Card (EPIC for short) as Ext.-L. However, the said exhibit finds no mention in the impugned opinion dated 09.10.2018. Moreover, the DW-3, who was examined by the learned Tribunal had also exhibited Ext-2 and Ext-3, which are also not referred to or discussed by the learned Tribunal in the opinion assailed in this writ petition. Moreover, in the said context, it has been submitted by the learned standing counsel for the FT matters that on perusal of the records of the learned Tribunal, she has noted that there was no cross- examination of the petitioner by the A.G.P. However, the learned Member had put questions to the petitioner, who was examined as DW-1, but the same is recorded as cross-examination through the Court. Accordingly, she has submitted that in issues where the citizenship of a proceedee is under doubt, cross-examination by the Assistant Government Pleader is very necessary. Therefore, on the ground that the documentary evidence tendered by the DW-3 and DW-4, were not considered by the learned Tribunal in the impugned opinion, the Court intends to remand the matter for a fresh decision in accordance with the law.

5. Nonetheless, the necessary facts have to be averred to. Accordingly, it would be appropriate to mention the facts on which the case was decided by the learned Tribunal by its impugned opinion.

6. On a reference made by the Superintendent of Police (Border), Barpeta under reference IM(D)T No. C/6415/98, whereby doubt was expressed regarding the nationality of the petitioner, a proceeding was registered. Consequent upon the judgment rendered in the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665, by which the IM(D)T Act, 1983 was declared to be ultra vires, proceedings were transferred to the Foreigners Tribunal under the Foreigners (Tribunals) Order, 1964. Upon receipt of notice, the petitioner had appeared and filed her written statement and thereafter, submitted her evidence on affidavit as DW-1 and had exhibited the following documents, viz. (1) certified copy of the E/Roll 1966 as Ext-A; (2) certified copy of the E/Roll 1970 as Ext-B; (3) certified copy of the E/Roll 1985 as Ext-C; (4) certified copy of the E/Roll 1989 as Ext-D; (5) certified copy of the E/Roll 1997 as Ext-E; (6) certified copy of the E/Roll 2005 as Ext-F; (7) certified copy of the E/Roll 2010 as Ext-G; (8) certificate of G.P. Secretary of Vill: 72 no. Baghmarachar as Ext-H; (9) certificate of Gaonburha of village: 3 no. Baghmarachar as Ext-I, (10) certificate of Gaonburha of village: