O R D E R

29.05.2019 (Manojit Bhuyan, J)

Heard Mr. M.A. Sheikh, learned counsel for the review petitioner as well as Mr. J.

Payeng, learned counsel represents respondent nos.2, 3 and 4. Ms. B. Das, learned counsel represents respondent no.5 whereas Ms. U. Das, learned counsel appears for respondent no.6. None to represent respondent no.1.

Petitioner seeks review of the order dated 17.09.2018 dismissing the writ petition i.e. WP(C) 6376/2018 wherein challenge was made to the opinion dated 26.07.2018 of the Foreigners’ Tribunal Bongaigaon No.2, Abhayapuri in BNGN/FT/Case No.1893/2008. The present review petition is laid on the following grounds :

“(i) For that the impugned order was passed on one of the ground that there was no voter list showing the name of parents of the petitioner between the period of 1970 but prior to

1997. At the time of passing the impugned order voter list of 1989 was not in the hand of the petitioner. So it could not be annexed with the connected writ petition. But the said voter list of 1989 containing the name of the father of the petitioner as Sabed Ali @ Abed Ali, son of Jatra Sheikh, name of her mother Mohiran Nessa, name of her stepmother Sakura Khatun, name of her brother Munser Ali and name of her sister Jamila Khatun was obtained by the petitioner from the concern authority after the impugned order dated 17.09.2018. Said voter list of 1989 is an important evidence which the petitioner could not produce when the impugned order was passed. As such the impugned order is liable to be reviewed.

(ii) For that by pursuing the evidence-in-chief of DW-2 where he specifically stated as follows -.

“(3) I cast my vote for the first time in the year 1997 and in the said voter list name of my mother and myself entered together.”

It goes to show that father of DW-2 died before 1997. But on the question put by the member of the Foreigners’ Tribunal No.2, Abhayapuri the DW-2 stated as follows- “My father first cast vote in the year 1997”. Now for proper appreciation of evidence of DW-2 as a whole it is necessary to ascertain whether his examination-in-chief was correct or whether his answer given against the question put by the Tribunal was correct.

For this exercise it is necessary to take recourse to 2 voter list. 1st voter list is Voter List of 1970 (Ref. Annexure 3 to the writ petition) containing the name of father and mother of DW- 2. General presumption will be that the father of DW-2 whose name appeared in the Voter List of 1970 he cast his vote in 1970 and it negates the reply of DW-2 to the question of Member of the Tribunal that his father first cast vote in 1997. It is also pertinent to mention here that the relevant record (Ref. page 49 of the writ petition) recorded that “Answer to the question put by Member, FT.” On perusal of the said relevant record it is seen that it is not recorded in question and answer form. The learned Tribunal failed to record the question against which the said contradictory answer that DW-2’s father first cast vote in 1997. As such it cannot be ascertain from the record against what question said contradictory answer was given by DW-2. If it would have been cross-examination by the prosecution then the manner would have been otherwise. Another voter list which can be relied upon in this aspect is Voter List of 1997 (Annexure 4 to the writ petition) which contains names of mother of DW-2 and name of DW-2 himself. It goes to show that father of DW-2 died before 1997, so his name did not enter into the voter list along with the mother of the DW-2. A person whose name is not entered into 1997 he could not cast his vote in 1997. As such the said Voter List of 1997 negate the contradictory answer of DW-2 before the Tribunal. The aforesaid aspects are not considered at the time of passing the impugned order. Though those aspects were very material and as such aforesaid aspects are sufficient reason for review of impugned order.

(iii) For that none entry of name of father of petitioner i