Order

29-06-2022 [N. Kotiswar Singh, J]

Heard Ms. D. Ghosh, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K. Dev Choudhury, learned Asstt. SGI appearing for respondent no.1; Mr. G. Sarma, learned Special Counsel, F.T. appearing for respondent no.3; Ms. K. Phukan, learned Government Advocate, Assam, appearing for respondent nos. 2 & 4, Mr. A. Bhuyan, learned Standing Counsel, ECI, appearing for respondent no.6 and Ms. L.

Devi, learned Standing Counsel, NRC, appearing for respondent no.5.

2. In this petition the petitioner has challenged the impugned order dated 10.11.2017 passed by the Foreigners Tribunal No.10th, Barpeta, Assam in F.T. Case No.391/2016, declaring the petitioner as a foreigner, who entered into the territory of India (Assam) illegally on or after 25.03.1971.

3. Learned counsel for the petitioner at the outset submits that though the Tribunal had discussed about the documentary evidences relied upon and exhibited by the petitioner, the Tribunal did not examine properly about the evidences of the witnesses. The petitioner examined herself as D.W.1, her brother, namely Rabbani Mandal as D.W.2 and one Brajendra Sarkar, Gaon Burha of Katajher Pather as D.W.3. Unfortunately, the Tribunal did not give much importance to the oral evidence but only to the documentary evidence and concluded that she is a foreigner.

4. In this regard, we have gone through the opinion passed by the Tribunal on

10.11.2017. The relevant portion of the opinion of the Tribunal reads as follows:

“.........on the other hand the so called brother as D.W.2 could not prove himself to be a brother of the proceedee and thus could not support the proceedee by adducing his corroborate and substantive evidence before the Tribunal. Ext.-1 is the certificate of local Gaonburah and it is seen that is used as incomplete and has been proved by producing the issuing authority as DW2 and Ext-1(i) is the signature of DW3 and DW3 also could not support the proceedee by adducing substantive evidence before this Tribunal.

After perusal of entire evidence in record it is found that the proceedee has failed to prove the relationship with either the projected parents or DW2 any way inasmuch as when her name is not recorded in any official documents including the voter lists any way and thus has failed to prove herself to be a daughter of genuine Indian parents by discharging her burden of proof as provided in Section 9 of the Foreigner’s Act 1946 read with Section 106 of the Evidence Act, 1872 and I am of the considered opinion to declare the proceedee to be a foreigner who entered into Assam on or after 25.03.1971 without valid documents.”

5. Ms. D. Ghosh, learned counsel for the petitioner, has drawn attention of this Court to the testimony of the D.W. 3, Gaonburah of Katajher Pather, which reads as follows:

“I have been serving as GB of village Katajhar Pathar since 2005 after the death of my cousin brother who was the GB before me (son of my father’s elder brother).

I know the OP Champa Khatun, daughter of Khaliluddin. She was married to Sahabuddin, s/o Gyasuddin of village Katajhar Gaon. I have issued the certificate. Ext-I is the certificate and I(a) is my signature.

I know the OP since my childhood. She is about ¾ years older than me.

The OP does not have her vote in village Katajhar Pathar.

I do not know as to whether she has her vote at Katajhar Gaon or not.

Katajhar Pathar and Katajhar Gaon is with a distance of 1 K.M.

I know that they are 5 brothers and 2 sisters.

Her father’s name appeared in the voter list of 1965 and all her brothers have their votes.

She is an Indian citizen by birth.

I have my ID Card. Ext-2 is my ID Card.”

6. It is very clear from perusal of the above testimony of D.W.3 that the D.W.3 had very categorically and specifically stated that he knew the petitioner, daughter of Kahliluddin and also about her marriage to Sahabuddin and proved the certificate issued by him. D.W. 3 clearly stated that he