The Tribunal while rendering its opinion did not advert to the evidence of the witnesses: High Court of Gauhati

 IN THE GAUHATI HIGH COURT The High Court of Assam Nagaland Mizoram and Arunachal Pradesh PRINCIPAL SEAT AT GUWAHATI WP(C) No. 163 2018 Puspa Khatun W O Abdur Rahman D O Sona Ullah Village Guileja PS Kalgachia District Barpeta Assam Pin 781319 Versus Petitioner The Union of India represented by the Secretary to the Ministry of Home Affairs New Delhi Pin 110001 The State of Assam represented by the Commissioner & Secretary to the Government of Assam Home Department Dispur Guwahati 781006 The Deputy Commissioner Barpeta Dist. Barpeta Assam Pin 781301 The Superintendent of PoliceBarpeta Assam Pin 781301 The Election Commission of India New Delhi Pin 110001 The State Coordinator National Register of CitizensBhangagarh Guwahati 781032 Page HON BLE MR. JUSTICE N. KOTISWAR SINGH HON’BLE MRS. JUSTICE MALASRI NANDI For the Petitioner: For the Respondents Mr. H.R.A. ChoudhuryMr. A.M. Ahmed Mrs. H. Ahmed Mr. A. Matin. Advocates Mr. J. Payeng SC FT Mr. A. Bhuyan SC ECI Ms. K. Phukan Jr. GA Assam Ms. L. Devi SC NRC Date of Hearing & Judgment : 29th October 2021 JUDGMENT AND ORDER (ORAL N. Kotiswar Singh J Heard Mr. A. Matin learned counsel for the petitioner. Also heard Ms. L Devi learned counsel appearing on behalf of Mr. R.K. Dev Choudhury learned Asstt. Solicitor General of India for the respondent No.1 as well as appearing as standing counsel NRC for respondent No.6 Mr. J. Payeng learned special counsel FT appearing for respondent Nos.2 and 4 Mr. A. Bhuyan learned standing counsel ECI appearing for respondent No.5 and Ms. K. Phukan learned Junior Government Advocate Assam appearing for respondent No.3 The present petition has been filed taking various pleas amongst others Page that though the petitioner had adduced the evidence of her father as DW 2 who was examined by the learned Tribunal the said evidence was never considered by the learned Foreigners Tribunal No.5th Barpeta Assam at the time of rendering the impugned opinion dated 07.12.2017 passed in F.T. Case We have perused records received. From the original record we observed that one Sona Ulla aged about 77 had filed an affidavit. The proceedings of the Tribunal also indicate that on 30.10.2017 DW 2 was examined. Perusal of the opinion also shows that the learned Tribunal had recorded in paragraph 3 of the impugned opinion dated 07.12.2017 that to prove the case the proceedee examined two witnesses including herself and exhibited some documents. We have also further noted that there is no discussion about the evidence of the aforesaid two witnesses in the impugned opinion. In the impugned opinion the learned Tribunal has merely referred to the documents exhibited and there was no reference or discussion of the oral evidence of the aforesaid two witnesses including the proceedee. Under the circumstances it is clear that the Tribunal while rendering its opinion on 07.12.2017 did not advert to the evidence of the aforesaid two witnesses We are of the view that the evidence of a father is highly relevant. As to what extent the said evidence would be applicable in the present case has to be appreciated by the Tribunal. Accordingly we are satisfied that the learned Page Tribunal has not adverted to highly relevant evidences on record which renders its opinion unsustainable in law. In view of the above we are of the opinion that the matter requires re consideration by the learned Tribunal and the learned Tribunal will pass a fresh opinion by appreciating all the documents and exhibits by considering these holistically and not in isolation before arriving at the opinion as to whether the petitioner is a foreigner or not in terms of the reference made by the competent Accordingly we allow this petition by setting aside the impugned opinion dated 07.12.2017 passed by the learned Foreigners Trubunal No.5th Barpeta Assam in F.T. Case No.335 2016. The petitioner will accordingly appear before the aforesaid Tribunal on or before 30.11.2021 and thereafter the learned Tribunal will proceed with the matter and pass a fresh opinion in accordance Since the petitioner is already on interim bail she may be allowed to continue to remain on bail under the same terms and conditions till the fresh Sd Malasri Nandi Sd N. Kotiswar Singh opinion is rendered Page 

Summary: The Tribunal had not adverted to highly relevant evidence on record which rendered its opinion unsustainable in law. Such an opinion was held by The Hon’ble High Court of Gauhati before The Hon’ble Mr. Justice N. Kotiswar Singh and The Hon’ble Mrs. Justice Malasri Nandi in the matter of Puspa Khatun Vs. The Union of India and Ors [WP(C) No. 163/2018].  The facts of the case were related to various pleas which were taken to file the petition. The evidence of the father that was put forward by the petitioner was never considered by the learned Foreigners’ Tribunal. It was found that to prove the case, the proceedee examined two witnesses including herself and exhibited some documents. It was opined that the documents exhibited were merely referred by the Tribunal and no discussion regarding the same had happened.  The Hon’ble Court found the father’s evidence highly relevant. It was also opined by The Hon’ble Court that the Tribunal did not advert to highly relevant evidence on record which rendered its opinion intolerable in law.  After thorough consideration, The Hon’ble Court ruled out “… Accordingly, we allow this petition by setting aside the impugned opinion dated 07.12.2017 passed by the learned Foreigners’ Tribunal No.5th, Barpeta, Assam in F.T. Case No.335/2016. The petitioner will accordingly, appear before the aforesaid Tribunal on or before 30.11.2021 and thereafter, the learned Tribunal will proceed with the matter and pass a fresh opinion in accordance with law… Since the petitioner is already on interim bail, she may be allowed to continue to remain on bail under the same terms and conditions till the fresh opinion is rendered.”