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2025 Supreme(Gau) 1583
IN THE GAUHATI HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
KALYAN RAI SURANA, RAJESH MAZUMDAR, JJ.
Badrul Hoque S/o Late Abdul Karim - Appellant
Vs.
The Union Of India And Ors. - Respondent
WP(C) No. 178 Of 2021
Decided On : 07-08-2025
Advocate Appeared:
For the Appellant : Mr. N H Mazarbhuiyan, Mr. T K Dey, Mr. N Islam, Ms. L Wajeeda
For the Respondent: Asstt.S.G.I., SC, NRC,SC, F.T,SC, ECI
The rejection of certified voter lists by the Tribunal was erroneous, necessitating remand for proper consideration of citizenship evidence under the Foreigners Act.
Headnote:(A) Constitution of India - Article 226 - Foreigners Act, 1946 - Challenge to opinion of Foreigners Tribunal declaring appellant a foreigner - Petitioner failed to establish citizenship under the relevant evidentiary standards - Voters list and land documents not sufficiently proved as per Section 65B of the Indian Evidence Act, 1872. (Paras 2, 8, 12, 21)
(B) Jurisdiction of High Court - Scope of Article 226 - Writ of certiorari can correct errors of jurisdiction but not factual errors. (Paras 12)
Facts of the case:
Appellant was declared a foreigner by the Foreigners Tribunal, claiming to have entered India before a specified date. The court examined evidence including voters' lists and land documents purported to demonstrate citizenship.
Findings of Court:
The Tribunal failed to properly consider admissible evidence. The court set aside the Tribunal's decision and remanded the case for fresh adjudication.
Issues: Whether the evidence provided sufficiently established the appellant's citizenship.
Ratio Decidendi: The court held that the rejection of certified voter lists and related documents by the Tribunal was erroneous, and the appellant should have the opportunity to present evidence in support of citizenship.
Result: Writ petition allowed, and matter remanded for fresh adjudication.
| Table of Content |
|---|
| 1. writ petition challenging tribunal's opinion. (Para 2 , 3 , 4 , 5 , 6 , 7) |
| 2. judgment on evidence rejected by tribunal. (Para 8) |
| 3. arguments for and against the tribunal’s opinion. (Para 9 , 10) |
| 4. judicial review standards of tribunal's decisions. (Para 11 , 12 , 13 , 14 , 15 , 16) |
| 5. affirmation of public documents' admissibility. (Para 18 , 19) |
| 6. remand for fresh adjudication and directions. (Para 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27) |
JUDGMENT & ORDER :
(Rajesh Mazumdar, J)
Heard Mr. T. K. Dey, learned counsel for the petitioner. Also heard Mr. G. Sarma, learned Standing Counsel for the FT matters and NRC; Mr. H. Kuli, learned counsel appearing on behalf of Mr. A. I. Ali, learned Standing Counsel for the Election Commission of India, Mr. U. K. Goswami, learned Central Govt. Counsel and Mr. P. Sarmah, learned Additional Senior Government Advocate, Assam for the State respondents.
2. By preferring this writ petition under Article 226 of the Constitution of India, an opinion rendered on 07.11.2018 by the learned Foreigners Tribunal th No.10 , Nagaon at Sankardev Nagar, Hojai in F.T. Case No.399/2015 arising out of SP’s FT Case No. 514/2013 has been assailed, praying for interfering with the said opinion and for appropriate writ directing the respondents not to deport the petitioner from India. By the said opinion, the petitioner was declared to be a foreigner who entered into the territory of India (specifically Assam) on or after 25th March, 1971 from the specified territory (i.e. Bangladesh) without any valid document.
3. The brief facts leading to the institution of this writ petition is that, on the basis of an enquiry conducted under his orders, the Superintendent of Police (Border), Nagaon, Assam had forwarded the records of Case No. 514/2013 Barpeta, which related to the present petitioner, for an opinion as to whether the proceedee/writ petitioner was an illegal migrant in the Country.
4. On receipt of the said reference from the Superintendent of Police (B), Nagaon, Case No. FT/H/142/2014 was registered in the Foreigners’ Tribunal, Hojai, Sankardev Nagar, Assam and notices were issued to the proceedee/writ petitioner herein requiring his appearance. The proceedee appeared on 31.03.2015 and filed his Written Statement without any documents. After a few th adjournments, the case was transferred to the Foreigners Tribunal (10 ), Nagaon and registered as FT(D) Case No. 399/2015. When the proceedee did not remain present before the learned Tribunal, the evidence of the proceedee was closed on 05.12.2015 and final orders were passed on 29.01.2016, declaring the proceedee to be foreigner of the post 25.03.2017 stream.
5. Aggrieved by the said order dated 29.01.2016, the proceedee filed WP(C) No. 1476/2018 before this Court and by the order dated 02.03.2018, the following relief was granted:
“Having heard learned counsel for the parties and on due consideration, we feel that notwithstanding the default of the petitioner, it would be in the interest of justice if one more opportunity is granted to the petitioner to adduce evidence, he having filed his written statement.
That being the position, we set aside the order dated 29.01.2016 and direct the petitioner to appear before the Foreigners Tribunal, Nagaon Court No.10th at Doboka in connection with FT(D) Case No.399/2015 (State Vs. Md. Badrul Hoque) along with his written statement on 24.04.2018 at 10.30 a.m. whereafter, Tribunal shall proceed with the reference in accordance with law and conclude the same within a period of 60 days from the date of appearance.
However, if there is any default on the part of the petitioner henceforth, Tribunal would be at liberty to pass such order as may be deemed fit and proper.”
6. The proceedee thereafter appeared on 24.04.2018 before the learned Tribunal and filed his written statement with photocopies of documents in support thereof. The evidence in chief by way of affidavit was filed on 07.06.2018 and 10 following documents were
