Tribunal must pass an opinion by appreciating all the documents and exhibits: 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. 874 2019 Md. Bahar Ali S O Md. Sahar Ali @ Mahar Ali R O Village Balijan PS Laluk District Lakhimpur Assam Versus Petitioner The Union of India represented by the Secretary to the Ministry of Home Affairs Government of India Sastri Bhawan New Delhi Pin 110001 The State of Assam represented by the Commissioner & Secretary to the Government of Assam Home Department Dispur Guwahati 781006 The Superintendent of PoliceLakhimpur District Lakhimpur Assam Pin 787001 The Deputy Commissioner Lakhimpur PO Lakhimpur District Lakhimpur Assam The Election Commission of India represented by the Chief Election Commission of India Nirvachan Ashoka Road New Delhi India Pin 110001 The National Register of Citizen represented by the State Coordinator Ashyut Plaza Bhangagarh Kamrup(M) Assam Pin 781006 Smt. Susismita Dutta Advocate North Lakhimpur Bar Association Page C O Secretary North Lakhimpur Bar Association PO North Lakhimpur District Lakhimpur Assam Pin 787001 HON BLE MR. JUSTICE N. KOTISWAR SINGH HON’BLE MRS. JUSTICE MALASRI NANDI For the Petitioner: For the Respondents Mr. M.A. Sheikh Dr. K.U. Ahmed Mr. M. Hossain Ms. F. Intaz Mr. S.H. Rahman Advocates Mr. P.S. Lahkar CGC Mr. J. Payeng SC FT Mr. A.I. Ali SC ECI Ms. K. Phukan Jr. GA Assam Ms. L. Devi SC NRC Date of Hearing & Judgment : 27th October 2021 JUDGMENT AND ORDERof Lakhimpur North Lakhimpur dated 04.02.2000 in IM(D)T NL|227 90 wherein one Sahar Ali was declared to be not a foreigner by the Tribunal in the present proceeding before the Foreigners Tribunal Lakhimpur(1st) North Lakhimpur in Lakhimpur FT(1st) Case No.2677 2011 the same was not considered by the Learned counsel for the petitioner submits that the aforesaid opinion of the earlier Foreigners Tribunal rendered on 04.02.2000 would clinch the issue in favour of the petitioner in as much as once his father was declared not a foreigner as a natural consequence the petitioner would be an Indian and not a foreigner. However unfortunately the learned Tribunal though referred to the said opinion of the Tribunal did not make any observation as regards the applicability reliability of the said opinion while determining the fate of the petitioner in the impugned opinion dated 29.11.2018. Accordingly it has been submitted that because of the non consideration of a vital piece of evidence Page the opinion of the learned Tribunal has been vitiated and is liable to be set We have heard the learned counsel appearing for the parties and also perused the impugned opinion dated 29.11.2018. On perusal of the impugned opinion what we have noted is that the learned Tribunal referred to 4(four documents which were exhibited as Exbts. 1 2 3 and 4 as mentioned in paragraph 8 of the impugned opinion. Exbt. 1 is the extract of Voters List for the year 1965 Exbt. 2 is the extract of Voters List of 1971 Exbt. 3 is the order of the copy of the IM(D)T case in IM(D)T NL|227 90 and Exbt. 4 is the Voter Identity Card of the proceedee The learned Tribunal discussed about the Exbts. 1 and 2 by holding that the said Voters Lists do not mention the name of Sahar Ali whom the petitioner claims to be his father but mentions the name of Mahar Ali and accordingly did not find it relevant However as regards Exbt. 3 the learned Tribunal did not make any observation as to the relevancy or reliability or applicability of the said document. Similarly as regards Exbt. 4 the learned Tribunal merely stated that this is only a document in proceedee s name by which the citizenship of a person cannot be determined at all From the above what is clearly evident is that while the learned Tribunal Page considered Exbts. 1 2 and 4 the learned Tribunal did not consider the Exbt. 3 at all. In our view the learned Tribunal ought to have considered the relevancy and applicability of the aforesaid document marked as Exbt. 3 by which according to the petitioner the citizenship of his father was decided We take this view for the reason that on perusal of the aforesaid opinion dated 04.02.2000 in IM(D)T NL|227 90 while deciding the said case the learned Tribunal also referred to two voters lists namely voters list in respect of Nowboicha LAC of 1965 and 1971 which documents the petitioner is also relying in the instant proceeding before the learned Tribunal in Lakhimpur FT(1st) Case No.2677 2011. Therefore it cannot be said that the aforesaid opinion which was rendered based on same set of documents are not relevant Accordingly we are of the view that this is a vital piece of evidence which will be highly relevant for determining the status of the petitioner as to whether he is a citizen of India or not As regards Exbt. 4 we would like to observe that the Exbt. 4 in which the name of the proceedee has been clearly mentioned though cannot be the sole piece of evidence to determine his citizenship it in conjunction with other materials can be relevant to determine the citizenship. To that extent this is also relevant and could not be ignored Accordingly we are of the view that the matter requires re consideration by the learned Tribunal and the learned Tribunal will pass a fresh opinion by Page 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 authority Accordingly we allow this petition by setting aside the impugned opinion dated 29.11.2018 passed by the learned Foreigners Trubunal LakhimpurNorth Lakhimpur in Lakhimpur FT(1st) Case No.2677 2011. The petitioner will accordingly appear before the aforesaid Tribunal on or before 29.11.2021 and thereafter the learned Tribunal will proceed with the matter and pass a fresh opinion in accordance with law However since citizenship of the petitioner has come under cloud he will remain on bail during the proceedings for which he will appear before the Superintendent of PoliceLakhimpur within 15(fifteen) days from today by furnishing a bail bond of ` 5 000 with one local surety of the like amount to the satisfaction of the said authority. The concerned Superintendent of Police B) shall also take necessary steps for capturing the fingerprints and biometrics of the iris of the petitioner. It is also made clear that the petitioner shall not leave the jurisdiction of the Lakhimpur district without obtaining permission from the Superintendent of PoliceLakhimpur Sd Malasri Nandi Sd N. Kotiswar Singh Page 

Summary: The name of the procedure has been clearly mentioned, though cannot be the sole piece of evidence to determine his citizenship, it, in conjunction with other materials, can be relevant to determine the citizenship. 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 Md. Bahar Ali Vs. The Union of India and Ors [WP(C) No. 874/2019].  The facts of the case were associated with a petition where it was pleaded by the petitioner that a vital document Exbt.-3 was exhibited by him on the opinion of Foreigners’ Tribunal (IMDT) of Lakhimpur, North Lakhimpur wherein the Tribunal declared Sahar Ali, the father of the petitioner to be not a foreigner. The counsel representing the petitioner stated that since the father was declared as not a foreigner, naturally his son, the petitioner would be an Indian and not a foreigner. However, the Tribunal was non-considerate of this and due to which an important piece of evidence, the opinion of the learned Tribunal has been vitiated and is liable to be set aside, as submitted by the said counsel. The documents furnished in Exbts.-1, 2, 3 and 4 had extracts of voters list, voter’s identity card and copy of the opinion of Foreigners’ Tribunal (IMDT). In the voter list, the Tribunal did not find Sahar Ali, the name of the petitioner’s father but Mahar Ali which was not relevant.  The Hon’ble High Court after considering all the submissions stated that “… we allow this petition by setting aside the impugned opinion dated 29.11.2018 passed by the learned Foreigners’ Tribunal, Lakhimpur (1st), North Lakhimpur in Lakhimpur FT(1st) Case No.2677/2011. The petitioner will accordingly, appear before the aforesaid Tribunal on or before 29.11.2021 and thereafter, the learned Tribunal will proceed with the matter and pass a fresh opinion in accordance with law… The concerned Superintendent of Police (B) shall also take necessary steps for capturing the fingerprints and biometrics of the iris of the petitioner. It is also made clear that the petitioner shall not leave the jurisdiction of the Lakhimpur district without obtaining permission from the Superintendent of Police (B), Lakhimpur.”