Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1758 (GAU)

Rajab Ali S/o Lt. Palan Bepari @ Palan Ali @ Palan Mia v. Union of India Rep. by the Secy. to the Govt. of India, Ministry of Home Affairs, Shastri Bhawan, New Delhi

2018-12-18

MANOJIT BHUYAN, NANI TAGIA

body2018
ORDER : NANI TAGIA, J. 1. Heard Ms. R. Choudhury, learned counsel for the petitioner as well as Ms. G. Sarmah, learned counsel for the respondent no. 1; Mr. A. Kalita, learned counsel for respondent nos. 2, 3 and 4 Mr. A.I. Ali, learned counsel for respondent no. 5 and Ms. A. Verma, learned counsel for respondent no. 6. 2. By this petition, under Article 226 of the Constitution of India, the writ petitioner has challenged the legality and validity of the order dated 15.06.2016 passed by the Foreigner's Tribunal, Bongaigaon No. 2, Abhayapuri, in Case no. BNG/FT/Case No. 1510/09 (REF: IM(D)T Case No. 276/99) whereby, the writ petitioner namely, Md. Rajab Ali, son of Lt. Palan Bepari, village Dumuria Pt-I, P.S. Abhayapuri, District-Bongaigaon, Assam has been held to have entered into Assam (India) from Bangladesh illegally after 25.03.1971. 3. From the order of the Tribunal dated 15.06.2016, it appears that the writ petitioner/opposite party had filed his written statement and documents on 27.08.2015 and on 02.01.2016 the writ petitioner/opposite party filed his evidence on affidavit. It is also found from the order of the Tribunal that when the case was fixed on 25.05.2016, the writ petitioner/opposite party was absent, however, the engaged Advocate of the writ petitioner/opposite party was present with an application for adjournment, which, however, was rejected and the case proceeded. 4. The writ petitioner/opposite party in his written statement had stated that his father's name is Palan Bepari, son of Gadu, whose name has been recorded in the voter's list of 1966, 1970, 1985 and 1997. 5. 4. The writ petitioner/opposite party in his written statement had stated that his father's name is Palan Bepari, son of Gadu, whose name has been recorded in the voter's list of 1966, 1970, 1985 and 1997. 5. In support of his case, the writ petitioner had exhibited the following documents: Ext.‘A’ is the voter's list of 1997 wherein the name of petitioner's projected father appears as Polan Mia, Son of Godu Sikdar, in respect of 45 Bagbhor LAC, village Mandia Pathar, District Barpeta; Ext.‘B’ is the voter list of 1985, wherein the name of petitioner's projected father appears as Polan Mia, Son of Godu Sikdar, in respect of 45 Bagbhor LAC, village Mandia Pathar, District Barpeta; Ext.‘C’ is the voter list of 1970, wherein the name of petitioner's projected father appears as Polan Bepari, son of Godu, in respect of LAC 52 Bhagbor LAC, village Mandia Pathar, District Kamrup; Ext.‘D’ is the voter list of 1966, wherein the name of petitioner's projected father appears as Polan Bepari, son of Godu in respect of 52 Bagbhor LAC, village Mandia Pathar, District Kamrup; Ext.‘E’ is the voter list of 2011, wherein petitioner's name appears as Rojav Ali appears as son of Polan Ali, in respect of 35 Abhayapuri South (LAC) villages Dumuria Pt. 1, District Mogaigaon; Ext.‘F’ is the voter's list of 2015, wherein petitioner's name appears as Rajav Ali appears as son of Polan Ali, in respect of 35 Abhayapuri South (LAC) village Dumuria Pt.-1, District Mogaigaon; Ext.‘G’ is the name correction affidavit sworn and filed by the writ petitioner/opposite party; 6. From perusal of the exhibits mentioned above, it is found that name of petitioner's projected father in the voter list of 1966 and 1970 was Polan Bepari and in the voter list of 1985 and 1997, it was Polan Mia; whereas in the voter list of 2011 and 2015 it is Polan Ali. 7. On the basis of aforesaid exhibits the learned Tribunal has held that opposite party has projected Polan Bepari @ Polan Mia as his father whose name appears in Exts. 7. On the basis of aforesaid exhibits the learned Tribunal has held that opposite party has projected Polan Bepari @ Polan Mia as his father whose name appears in Exts. ‘A’, ‘B’, ‘C’ and ‘D’ at village Mandia Pathar, P.S. Bagbhor in the District of Kamrup and in Exhibits- ‘E’ and ‘F’ the writ petitioner/opposite party's name appeared at village Dumuria Pt-I under Abhayapuri LAC in the District of Bangaigaon; and, by the aforesaid documents submitted by writ petitioner/opposite party, it is held by the Tribunal that the opposite party has not been able to establish any link with his projected father. 8. Ms. R. Choudhury, learned counsel appearing for the writ petitioner submits that the order of the learned Tribunal is a cryptic one and the conclusion reached by the learned Tribunal that the writ petitioner/opposite party has not been able to establish any link with the projected father, is based on non appreciation of the evidence available in record, inasmuch as, the learned Tribunal has not discussed at all the evidence of the writ petitioner/opposite party adduced before the learned Tribunal in the form of Exhibits -‘A’ to ‘G’ mentioned above. The learned counsel further submits that Ext. ‘G’ which is the name correction/clarification affidavit filed by the writ petitioner/opposite party with regard to the discrepancies in the name of petitioner's father, as appearing in the various voter's list exhibited before the learned Tribunal, have not at all been considered and discussed. 9. Per contra, Mr. A. Kalita, learned State counsel submits that in view of various discrepancies in the name of petitioner's projected father as appearing in the various voter's list, there emerges 3 (three) distinct and different namesof the petitioner's projected father i.e. Polan Bepari, vide Exhibits- ‘C’ and ‘D’, Polan Mia, vide Exhibits- ‘A’ and ‘B’ and Polan Ali, vide Exhibits- ‘E’ and ‘F’. On the face of such three distinct and different names of the petitioner's projected father, it can hardly be said that the writ petitioner/opposite party has been able to establish any link with his projected father. A name clarification affidavit with regard to the discrepancies in the name of the petitioners projected father stated to be filed by the writ petitioner/opposite party vide Ext. ‘G’ can be of no assistance to the writ petitioner/opposite party, submits Mr. A name clarification affidavit with regard to the discrepancies in the name of the petitioners projected father stated to be filed by the writ petitioner/opposite party vide Ext. ‘G’ can be of no assistance to the writ petitioner/opposite party, submits Mr. Kalita, inasmuch as, such self serving affidavit have no any evidentiary value under the Evidence Act, 1872 and the same therefore, cannot be relied on and acted upon by the Court. 10. Rival submissions advanced at the bar have received due consideration of this Court. The question which requires determination by this Court is; whether the writ petitioner has been able to show that Polan Ali of voter list of the year 2011 and 2015 is the one and the same person of Polan Bepari of the voter list of 1966 and 1970 and Polan Mia of the voter list of 1985 and 1997? And, whether the learned Tribunal, while deciding the question framed as above, did consider and deliberate upon entire evidence brought on record by the respective parties before it? 11. On perusal of the impugned order dated 15.06.2016 passed by the learned Tribunal, we find that while holding that the writ petitioner/opposite party has not been able to establish any link with his projected father, the learned Tribunal has given its decision and reason thereof as follows, which are quoted herein below: “OP has projected Palan Bepari alias Palan Miya as his father whose name appears in Exhibit-A, B, C and D at village Mandia Pathar, Police Station-Baghbor in the district of Kamrup. In Exhibit-E and Exhibit-F OP's name has appeared at village Dumuria Part-I under Abhayapure police station in the district of Bongaigaon. By the aforesaid document submitted by OP has not able to establish any link with his projected father. For the reasons and discussions above, the evidence and documents submitted by OP in support of his version are found to be not sufficient and trustworthy to prove that he is an Indian by birth.” 12. From perusal of the decision and reason given by the learned Tribunal as indicated above, we find that there has been absolutely no discussion with regard to the evidence adduced by the writ petitioner/opposite party in the form of written statement, evidence on affidavit as well as Exhibits- ‘A’ to ‘G’. From perusal of the decision and reason given by the learned Tribunal as indicated above, we find that there has been absolutely no discussion with regard to the evidence adduced by the writ petitioner/opposite party in the form of written statement, evidence on affidavit as well as Exhibits- ‘A’ to ‘G’. Whatever may be the nature and value of the evidence adduced by the parties, the same requires to be considered while arriving at a decision by the learned Tribunal, which has not been done in the instant case by the learned Tribunal. More particularly, we find, Exhibit-G has not at all been discussed by the learned Tribunal in its order dated 15.06.2016, notwithstanding the relevancy and admissibility thereof. 13. In that view of the matter, we set aside the impugned order dated 15.06.2016, passed by the learned Foreigner's Tribunal, Bongaigaon No. 2, Abhayapuri in BNGN/FT/Case No. 1510/09 (REF: IM(D)T Case No. 276/99) and remand the matter back to the learned Tribunal for fresh decision in the matter and for passing of a reasoned and speaking order by taking into account all the relevant evidences that have been adduced before it by the parties. We make it clear that no fresh or additional evidence would be allowed to be introduced by any of the parties. Fresh adjudication in the matter would only be on the basis of the evidence already available on record. The writ petitioner is, accordingly, directed to appear before the learned Tribunal on 05.01.2019 to receive further instruction in the matter. 14. The writ petition is disposed of in terms above. 15. Office to send back the records to the concerned Foreigner's Tribunal forthwith.