Fulbanu Nessa @ Phulbanu v. The Union of India and 4 Ors

ORDER Date : 16.12.2024 (K.R. Surana, J) Heard Mr. M.U. Mahmud, learned counsel for the petitioner. Also heard Mr. G. Sarma, learned standing counsel for the FT matters, respondent nos.2, 4 and 5; and Mr. H.K. Hazarika, learned Govt. Advocate for respondent nos.3.

¶2By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned opinion dated 30.10.2017, passed by the learned Member, Foreigner's Tribunal (5th), Darrang, Mangaldai in Case No. FT(V)788/2016, arising out of S.P. Enquiry No. 16404/98, by which the petitioner was declared as an illegal migrant.

¶3On perusal of the records, it is seen from the order sheet that during the proceedings of Case No. FT(V)788/2016, the Govt. pleader was absent. After filing of the written statement, the Tribunal took up the role of examining the witnesses and accordingly, the examination-in-chief of the petitioner and her brother was recorded as DW-1 and DW-2 in the absence of Govt. pleader. However, as indicated above, there is no cross-examination on behalf of the State. Page No.# 3/4

¶4In its opinion, the learned Tribunal has discarded the exhibits, being

(1) Voters list of 1966 (Ext.1); (2) Voters list of 1970 (Ext.2); (3) NRC in the name of the projected father of the petitioner of 1966 and 1970 (Ext.3 and 4);

(4) EPIC of the petitioner (Ext.5); (5) voters list of 2011 (Ext.6); (6) EPIC of DW-2 (Ext.7); (7) Gaonburha certificate (Ext.8); (8) legacy data of 1966 of the petitioner's projected father (Ext.9 and 10).

¶5In the absence of any cross-examination, the learned Tribunal discarded the said Ext. Nos.5 and 6 on the grounds of age discrepancy and that the name of the mother did not tally in the voters list of 1970 (Ext.2) and NRC Form (Ext.9) and it was held that the petitioner has failed to prove her burden. It is true that the burden of proving that the petitioner is a citizen of India is on the petitioner under section 9 of the Foreigners Act, 1946. However, the petitioner had examined herself as DW-1 and her projected brother was examined as DW-2, but they were not cross-examined by the State. No questions were put to the DW-1 and DW-2 with regard to the deficiencies and/or descrepancies found by the learned Tribunal regarding age of petitioner. Thus, it cannot be said that the petitioner has failed to discharge her burden.

¶6In the present case, the Tribunal also did not exercise its power to question the petitioner if certain discrepancies were found. Under such circumstances, the Court is of the considered opinion that the impugned opinion is not sustainable on facts and in law.

¶7Accordingly, the Court has no hesitation to set aside the opinion dated

30.10.2017, passed by the learned Member, Foreigner's Tribunal (5th), Darrang, Mangaldai in Case No. FT(V)788/2016. Page No.# 4/4

¶8Accordingly, the matter is remanded back to the said learned Tribunal for a fresh decision.

¶9It would be open to the State respondents to take a call as to whether they want to participate in the proceedings or not.

¶10The petitioner is directed to appear before the learned Member, Foreigner's Tribunal (5th), Darrang, Mangaldai and produce a certified copy of this order within a period of 30 (thirty) days from the date of this order without awaiting for any notice from the learned Tribunal. On appearance of the petitioner, the learned Tribunal shall pass a fresh opinion in accordance with law.

¶11In the event the petitioner does not appear before the learned Tribunal within the 30 (thirty) days time allowed, it would be open to the learned Tribunal to treat the petitioner as absent on call and pass an ex parte opinion.

¶12It is provided that the petitioner shall not be arrested and deported from the Country within 30 (thirty) days from the date of this order.

¶13The records of the Tribunal be sent back.

¶14This writ petition stands allowed to the extent as indicated above.

JUDGE JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010052032017 ooooooo 2024:GAU- AS:12815-DB ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/7245/2017o FULBANUoNESSAo@oPHULBANUo W/O.oHUSSAINoALIo@oHUSSENoALI,oD/O.oLT.oABDULoALIo@oA.oALI,oVILL.o KASOMARIoSONARIBASTI,oP.S.oDALGAON,oDIST.oDARRANG,oASSAM. VERSUSo THEoUNIONoOFoINDIAoando4oORS.o REP.oBYoTHEoSECRETARYoTOoTHEoGOVT.oOFoINDIA,oMINISTRYoOFoHOMEo AFFAIRS,oNEWoDELHI-01. 2:THEoSTATEoOFoASSAM oREP.oBYoTHEoCOMM.oandoSECY.oTOoTHEoGOVT.oOFoASSAM oHOMEoDEPTT. oDISPUR oGHY.-06. 3:THEoDY.oCOMMISSIONER oDARRANG oDIST.oDARRANG oASSAM. 4:THEoSUPDT.oOFoPOLICEoB oDARRANG oDIST.oDARRANG oASSAM. 5:THEoOFFICERoINoCHARGE oDALGAONoPOLICEoSTATION Page No.# 2/4 DIST. DARRANG ASSAM Advocate for the Petitioner : MR. M U MAHMUD, MR. P K DAS,MR. S HOQUE,MR. A DAS,MR. M ALI,MR. S ISLAM,MS. C KALITA Advocate for the Respondent : , ASSTT.S.G.I.,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND