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Judgment
AM Bujor Barua, J
Heard Mr. MU Mahmud, learned counsel for the petitioner and Mr. J Payeng, learned counsel appearing for the Foreigners' Tribunal and Border Affairs. Also heard Mr. AI Ali, learned counsel for the Election Commission of India as well as Ms. G Sarma, learned counsel for the authorities under the Union of India.
On being referred by the Superintendent of Police (Border), Morigaon, FT (D) Case No.663 of 2012 was registered against the petitioner in the Foreigners Tribunal No.2, Morigaon.
Before the Tribunal, the petitioner took the stand that the name of his father Aktar Ali, son of Sonaulla, aged 48 years appears in the voters list of 1966 of village-Dhingar Aati Gaon. A further stand was taken that the voters list of 1989 also of village- Dhingar Aati Gaon contains the name of the petitioner along with his father. The petitioner also relies upon a Passport issued in his name as well as the Jamabandi of village- Dhingar Aati Gaon containing his name alongwith that of his father as well as the certificate issued by the Gaonburah of Dhingar Aati village.
Before the Tribunal, the voters list of 1966 of Dhingar Aati Gaon was produced which shows the name of Aktar Ali, son of Sonaulla, aged 48 years. The voters list of 1989 of village Dhingar Aati Gaon was also produced which contains the name of Aktar, son of Moonaullah, aged 90 and Kutubuddin, son of Aktar, aged 26 years. It is the claim of the petitioner that as his name Kutubuddin and his father's name appear together, it by itself establishes a link of the petitioner with that of Aktar Ali, son of Sonualla of the 1966 voters list of village Dhingar Aati Gaon. In order to further substantiate that Aktar Ali, son of Sonualla is the father of the petitioner and that the petitioner is a citizen of India, the Passport issued in favour of the petitioner was also produced before the Tribunal. Further the Gaonburah of village Dhingar Aati Gaon who had issued a certificate dated 14.04.2018 was also examined as DW-3 wherein he had deposed that he is the Sarkari Gaonburah of village Dhingar Aati Gaon and that the petitioner was born at village Dhingar Aati and he is the school teacher by profession and that the name of his father is Aktar Ali @ Akter Ali Munchi. Further a copy of the Jamabandi of village Dhingar Aati was also produced which shows the name of Aktar Munshi, son of Suna Ullah and the petitioner Kutub Uddin together which according to the petitioner also establish that he is the son of Aktar Munshi.
We have perused the order of the Tribunal dated 11.10.2018 by which the petitioner was declared to be a foreigner who entered after 25.03.1971. One of the reason as to why the Tribunal had refused the evidence adduced by the petitioner was that DW-2 Chand Miya who was claimed to be the brother of the petitioner had not stated in the written statement that they are 15 brothers and sisters and that DW-2 does not remember the date when his younger brother Kutubuddin had got married. Accordingly, the Tribunal arrived at a conclusion that the petitioner had failed to discharge his burden of proof with reliable and trustworthy documents and also reliable oral evidence that his parents and grandparents existed in India prior to 25.03.1971.
As we have already noted above the voters list of Dhingar Aati village contains the name of Aktar Ali whereas the voters of list of 1989 also of village Dhingar Aati contains the name of the petitioner Kutubuddin along with that of Aktar which may be a possible indication that Aktar Ali is the father of Kutubuddin. Further the Jamabandi of village Dhingar Aati showing the name of Aktar Ali Munchi and Kutubuddin together may also be an indication that Aktar Munchi is the father of Kutubuddin. Further, the DW-3, Gaonburah of village Dhingar Aati also deposes that the father of the petitioner is Aktar Ali of village Dhingar Aati.
The order of the Tribunal does not give any reason as to why the aforementioned materials produced by the petitioner does not establish that Aktar Ali of the voters list of 1966 of village Dhingar Aati is the father of the petitioner. Merely because there may be some deviation in the deposition of DW-2 Chand Miya, the whole of the evidence rendered by the petitioner cannot be discarded for such variation. At the best, the Tribunal could have rejected the evidence of Chand Miya if the same is in conflict with any other evidence. The Tribunal would also to give its reasoning as regards the Passport that was issued in favour of the petitioner.
As the aforesaid aspects which were available on record were not taken into consideration, we accordingly interfere with the order of the Tribunal dated 11.10.2018 and remand the matter back to the Tribunal for a fresh consideration to be followed with a reasoned order as to whether the materials on record does or does not indicate that the petitioner is a citizen of India. In doing so, the Tribunal shall also take note of the objection raised by Mr. Payeng, learned State Counsel that the voters list of 1989 relied upon by the petitioner does not contain the names of the family members of Aktar Ali which admittedly according to DW-2 Chand Miya, they are 15 brothers and sisters and even the name of DW-2 does not appear in the same voters list.
In passing its reasoned order, the Tribunal shall also give reason to the aforesaid objection and pass its reasoned order.
The petitioner shall appear before the Tribunal on 24.04.2019 and upon his appearance, re-considered adjudication be given within a period of 30 days thereafter.
Writ petition stands disposed of to the extent indicated above.