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2019 DIGILAW 79 (GAU)

DOLI RANI SARKAR @ DOLI SARKAR v. UNION OF INDIA

2019-01-23

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

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JUDGMENT : A.M. BUJOR BARUA, J. 1. Heard Mr. S. Sahu, learned counsel for the petitioner. Also heard Mr. A.I. Ali, learned counsel for the Election Commission of India, Mr. A. Kalita, learned counsel for the State of Assam appearing for the Foreigners’ Tribunal and Border Areas, Ms. A. Verma, learned standing counsel for the authorities under the NRC as well as Ms. G. Sarma, learned counsel for the authorities under the Union of India. 2. The petitioner was referred by the Superintendent of Police, Border of Sonitpur district resulting in registration of FT (8) Case No.211/2015 before the Foreigners Tribunal-(8) Sonipur at Themalara. Earlier on being referred, Case No.1075/2007 was registered before the Illegal Migrants Determination Tribunal IM(D)T at Tezpur. But upon the IM(D)T being declared ultra vires, the reference case was transferred to the Foreigners Tribunal-(8) Sonitpur resulting in FT(8) Case No.211/2015. Before the Tribunal the petitioner entered appearance and filed her written statement along with some document. It is understood that the petitioner had also led some evidence before the Tribunal although from the records produced today, it is not clear as to what extent evidence was adduced by the petitioner. However on 28.11.2016, the petitioner had filed Petition No. 3748/2016 seeking sometime to adduce further evidence. By the order dated 28.11.2016, the prayer of the petitioner was allowed. Without adducing further evidence, the petitioner by remaining absent on 17.12.2016 submitted another Petition No.3925/2016 again seeking time to adduce further evidence. However, by the order dated 17.12.2016, the prayer of the petitioner was rejected. Thereafter, on 28.12.2016 another Petition No.4015/2016 was submitted seeking some more time to adduce further evidence, which also stood rejected on 28.12.2016. In the circumstance, the Tribunal passed an order dated 08.04.2017 declaring the petitioner to be not a citizen of India. We have perused the orders dated 17.12.2016 and 28.12.2016 by which the prayer for further evidence was rejected. 3. We have also perused the order dated 08.04.2017 by which the petitioner was declared not to be an Indian citizen. The order of 17.12.2016 and 28.12.2016 merely states that the prayer for further evidence was rejected without stating any ground nor discussing as to what nature of evidence was sought to be led by the petitioner. 3. We have also perused the order dated 08.04.2017 by which the petitioner was declared not to be an Indian citizen. The order of 17.12.2016 and 28.12.2016 merely states that the prayer for further evidence was rejected without stating any ground nor discussing as to what nature of evidence was sought to be led by the petitioner. The order of 08.04.2017 declaring the petitioner to be not a citizen of India merely takes into consideration the evidence led by PW-1 and 2 who are State witnesses. The order does not reveal that whatever other evidence was led by the petitioner was also taken into consideration in arriving the order dated 08.04.2017. 4. We are of the view that if the petitioner had submitted an application for further evidence, it was for the petitioner to state in detail as to what evidence she intends to lead and thereupon it was for the Tribunal to give a consideration to either accept such further evidence or reject the same by giving a reasoned order. The Tribunal simply cannot reject the prayer for further evidence by writing one word ‘rejected’ without giving any reason nor discussing the nature of the evidence sought to be led. 5. In respect of the order dated 08.04.2017, we are of the view that if the petitioner had already led some evidence, it was the duty of the Tribunal to give a consideration to such evidence and take the same into account while arriving at its final opinion. 6. For both the reasons above, we are of the view that the order dated 08.04.2017 in FT(8) Case No-211/2015 by Member Foreigners Tribunal(8), Sonitpur, Thelamara is unsustainable and the same is accordingly set aside. 7. The petitioner shall now appear before the Member Foreigners Tribunal-(8), Sonitpur, Thelamara on 11.02.2019 and on her appearance, the Tribunal shall pass a reasoned order on her earlier Petitions No.3925/2016 and 4015/2016, either accepting or rejecting the further evidence sought to be led, by discussing the nature of evidence sought for and thereupon give its reason for any such rejection or acceptance. Upon such consideration being given against the Petition No.3925/2016 and Petition No.4015/2016, the Tribunal shall take into consideration whatever evidence had been led by the petitioner which is on record and pass a reasoned final order. 8. The aforesaid be done within 15 days from the date of appearance of the petitioner. Upon such consideration being given against the Petition No.3925/2016 and Petition No.4015/2016, the Tribunal shall take into consideration whatever evidence had been led by the petitioner which is on record and pass a reasoned final order. 8. The aforesaid be done within 15 days from the date of appearance of the petitioner. The petitioner shall appear before the Foreigners Tribunal-(8) Sonitpur, Thelamara on 11.02.2019. As the petitioner is under detention, the Superintendent of Police, Border, Sonitpur shall ensure the presence of the petitioner before the Tribunal on 11.02.2019. Upon her appearance, the Tribunal shall give a consideration as to the requirement of further detention of the petitioner by passing a reasoned order. 9. Writ petition is allowed to the extent as indicated above.