JUDGMENT : N.Kotiswar Singh, J. Heard Mr. B.K. Sarma, learned counsel for the petitioners. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K. Dev Choudhury, learned Asstt. Solicitor General of India for respondent No.1; Mr. N. Pathak, learned Standing Counsel, Foreigners Tribunal; Ms. K. Phukan, learned Govt. Advocate, Assam. 2. These two writ petitions, WP(C) No.224/2018 and WP(C) No.229/2018 are tagged together as it has been submitted that the petitioners in both the writ petitions and proceedings are relatives and they had relied on some similar set of evidences before the learned Tribunal though in two separate proceedings and the learned Tribunals have given two separate opinions. Petitioner in WP(C) No. 224/2018 Mainul Ali is the son of Jamir Ali, whereas the petitioner in WP(C) No.229/2018 is the son of Harej Ali and grandson of Jamir Ali and as such they are related as nephew and uncle. 3. WP(C) No.224/2018 3.1 We first deal with WP(C) No.224/2018 filed by the petitioner, Md. Mainul Ali challenging the opinion dated 07.11.2017 passed by learned Foreigners Tribunal No.1, Nalbari in F.T.(Nal) Case No.(N)294/2011 [S.P. Reference No.231/09] declaring the petitioner a foreigner. 3.2 In this case, the petitioner upon receipt of summon from the learned Tribunal filed his written statement and filed certain documents in support of his claim that he is an Indian and not a foreigner. 3.3 In his written statement, the petitioner stated that he was born and brought up at village Bardhantali, Police Station and District Nalbari and his father’s name is Jamir Ali @ Jamin Ali who was a voter in 1965 and 1970 at village Bardhantali, Police Station and District Nalbari. He claimed that his mother is Jayna Bibi. It was pleaded that after partition in the family amongst his brothers, he shifted his residence to village Sariyahtoli which is adjacent to village Bardhantali and separated by a road. He claims that he has been a voter at village Sariyahtoli since 2005 and is having his Photo Identity Card and he has filed the copies of Electoral Rolls of 1965 and 1970 of his father Jamin Ali, Electoral Rolls of 2005 and 2016 of Mainul Ali, the petitioner and the Photo Identity Card of Minul Ali and a certificate from Gaonburah respectively. 3.4 He testified before the learned Tribunal as OPW-1 reiterating the stand taken by him in the written statement and exhibited the aforesaid voters lists and other documents. 3.5 The learned Tribunal noted that in the cross-examination of the petitioner, he stated that he could not remember the date and year of his birth. He also stated that his father had no brother and sister. He further stated that he did not know about the brother and sister of his grandfather. 3.6 The petitioner also examined one Hasmat Ali who was aged about 75 years, projected to be his brother as OPW3. The OPW3 deposed, interalia, that the petitioner is his youngest brother and both of them shifted their residence about 25 years ago to village Sariyahtoli from village Bardhantali. He also stated that his father had no brother and sister. 3.7 The learned Tribunal, thereafter, gave its opinion based on the reasons as mentioned in para No.9 of the impugned opinion, which is reproduced hereinbelow. “9. On careful scrutiny of the above, it transpires that Jamin Ali, son of Rupsa Sekh was a voter in India in 1965 and 1970 at Village-Bardhantali, Police Station and District Nalbri (Ext.1 and 2). Mainul Ali son of Jamir Ali has been a voter at Village Sariyahtoli since 2005. As per Ext.9 Mainul Ali was born on 1.10.1989 to Jamir Ali. At that time the age of Jamin Ali of Ext.1 had been about 70 years. As per OPW-3 who is aged about 75 years Mainul Ali is his youngest brother. The age difference between the two is about 50 years. These facts raise serious doubt about the relation between Mainul Ali of Sariyahtoli and Jamin Ali of Bardhantali. The person referred at Village-Bardhantali was always known as Jamin Ali where as the person stated to be the father of the O.P. was always known as Jamir Ali at Village-Sariyahtoli. According to the me Jamin Ali and Jamir Ali are two separate persons. Further the Exts.7 to Ext.10 are not admitted as they are not pleaded in the Written Statement. Therefore, the O.P. has not been successful to prove his linkage with Jamin Ali, son of Rupa Sekh of Village-Bardhantali. According to the me Jamin Ali and Jamir Ali are two separate persons. Further the Exts.7 to Ext.10 are not admitted as they are not pleaded in the Written Statement. Therefore, the O.P. has not been successful to prove his linkage with Jamin Ali, son of Rupa Sekh of Village-Bardhantali. The O.P. is found in India from 2005.” 3.8 From the above para No.9 of the opinion, it is clear that though the learned Tribunal found certain discrepancies in the age amongst the petitioner, his projected father and his elder brother, it is, however, widely acknowledged that the age recorded in the voters lists is neither reliable and nor accurate and discrepancies do occur and as such, the age as recorded in the voters lists cannot be the ground to reject the authenticity of the voters lists if the other parameters as regards the name of village, Police Station, Legislative Assembly Constituency and relationship etc. shown in the voters lists are otherwise consistent. The petitioner had been consistent in his plea that he is the son of Jamin Ali whose name appears in the voters lists of 1965 and 1970 in village Bardhantoli and it has been mentioned that he shifted from village Bardhantoli to Sariyahtoli which is an adjacent village and such consistent evidence could not have been rejected as unreliable merely because of difference in the age of voters in the voters lists. We are of the view that the learned Tribunal ought not to have rejected the evidences merely because of the age discrepancies and ought to have examined the issue on the basis of other parameters as discussed above. We are also of the view that the learned Tribunal was not correct in holding that Jamin Ali and Jamir Ali are two different persons based on the difference in age shown in the voters lists. In our opinion, the aforesaid difference is minor and not substantial to cast any doubt on the parentage of the present petitioner. 3.9 As can be seen from the above para No.9 of the impugned opinion, the learned Tribunal rejected the documents which were exhibited as Exts. 7 to 10 on the ground that these were not pleaded in the written statement. 3.9 As can be seen from the above para No.9 of the impugned opinion, the learned Tribunal rejected the documents which were exhibited as Exts. 7 to 10 on the ground that these were not pleaded in the written statement. We are of the view that such an approach adopted by the learned Tribunal is not correct inasmuch as it has been held by this Court in a number of cases including in Haidar Ali Vs. Union of India & 5 Ors. [WP(C) No.1818/2019, disposed of on 30.03.2021] that merely because certain facts are not disclosed in the written statement, evidence could not be rejected. The evidence has to be assessed on its own merit and cannot be ignored or rejected merely on the ground that it was not mentioned in the written statement. 3.10 Accordingly, we are of the view that the reasoning adopted by the learned Tribunal in rejecting the evidence and claim of the petitioner on the grounds mentioned in para No.9 of the impugned opinion as quoted above cannot be considered to be proper and in accordance with law. 3.11 For the reasons discussed above, we set aside the impugned opinion dated 07.11.2017 passed by the learned Foreigners Tribunal-1, Nalbari in F.T.(Nal) Case No.(N) 294/2011 and remand the matter to the learned Tribunal to reconsider the evidence on record and pass a fresh opinion as regards the citizenship status of the petitioner. 3.12 The petitioner will accordingly appear before the learned Foreigners Tribunal-1, Nalbari within a period of one month from today. 3.13 The petitioner will continue to remain on bail on similar terms and conditions as directed by this Court vide order dated 19.01.2018 till a fresh opinion is rendered by the learned Tribunal as regards the citizenship status of the petitioner. 3.14 Writ petition, WP(C) No.224/2018, is accordingly disposed of. 3.15 LCR be remitted forthwith to the concerned Foreigners Tribunal. 4. WP(C) No.229/2018 4.1 In this petition, the petitioner has challenged the impugned order dated 30.11.2017 passed by the learned Foreigners Tribunal-1, Nalbari in F.T.(Nal) Case No.(N)654/2011 [S.P. Reference Case No.229/09] by which the petitioner was declared a foreigner. 4.2 Upon receipt of the notice from the learned Tribunal, the petitioner entered his appearance and filed his written statement. 4. WP(C) No.229/2018 4.1 In this petition, the petitioner has challenged the impugned order dated 30.11.2017 passed by the learned Foreigners Tribunal-1, Nalbari in F.T.(Nal) Case No.(N)654/2011 [S.P. Reference Case No.229/09] by which the petitioner was declared a foreigner. 4.2 Upon receipt of the notice from the learned Tribunal, the petitioner entered his appearance and filed his written statement. In the written statement, the petitioner stated that he is a citizen of India by birth and was born and brought up at village Matangapar, Police Station Tamulpur, District Baksa, BTAD, Assam. He is a permanent resident of village Sariyahtoli, Police Station and District Nalbari, Assam and he claimed that his father’s name is Late Harej Ali and that his grandfather is Late Jamir Ali @ Jamin Ali and the name of his grandfather appeared in the voters lists of 1965 and 1970 at Village Bardhantali, Police Station and District Nalbari. He stated that his father shifted to village Matangapar before his birth and his father’s name appeared in the voters list of 1979 voters list at village Matangapar, Police Station Tamulpur, District Baksa, BTAD. He also stated that his father was a voter for several years and his father shifted to village Bahbari under Police Station Tamulpur, District Baksa for safety of his life because of violence which erupted during the Boroland movement and he expired on 18.01.2012 at village Bahbari. He stated that in 2003 the petitioner alone shifted to village Sariyahtoli and settled there, but his mother and brothers are residing at village Sariyahtoli. The petitioner further stated that his name was enlisted in the voter list of 2005 onwards at village Sariyahtoli, Police Station and District Nalbari, Assam where he also got the Elector Photo Identity Card and is also having a PAN Card respectively. The petitioner claimed that he is not an illegal immigrant or foreigner coming from Bangladesh as falsely alleged by the Border Police. 4.3 Along with the written statement, the petitioner filed copies of 1965 voters list of his grandfather Jamin Ali, NRC details of 1970 of Jamin Ali, voter list of Harej Ali, his father and also the death certificate of his father, voters lists of 2005 and 2016 showing his name and various other documents. 4.4 Petitioner deposed himself of OPW1 and stated in similar line what have been in the written statement. Petitioner also examined two other witnesses. 4.4 Petitioner deposed himself of OPW1 and stated in similar line what have been in the written statement. Petitioner also examined two other witnesses. One Madhab Baishya, aged about 62 years, son of Upen Baishya, the Village Headman of village Sariyahtoli who issued certain certificate in favour of the petitioner, was examined as OPW2. Petitioner also examined one Jaher Ali, aged about 64 years, son of Late Bhadra Sekh of village Bardhantali as OPW3 who the petitioner claims to be his uncle. OPW3 stated that Harerj Ali, the father of the petitioner was earlier staying in village Bardhantali and later shifted to village Sariyahtoli and both the villages are separated by a road. 4.5 The learned Tribunal, however, on appreciation of evidences adduced by the petitioner rejected the plea of the petitioner that he is an Indian citizen. The said reason and conclusion of the learned Tribunal is to be found in para No.8 of the impugned order which is reproduced hereinbelow. “8. On careful scrutiny of the above, it transpires that Jamin ali, son of Rupa Sekh was a voter in Indian in 1965 and 1970 at village Bardhantali, Police Station and District Nalbari (Ext.1 and 2). Hajer Ali son of Jamir was residing at first in village Bahbari from 1979. Though his name appeared till 2013 but the O.P. could not exhibit any document with him. Most interestingly, in Annexure-4 Death Certificate Harej Ali shown expired on 08.01.2012 but his name appeared in 2013 Electoral, i.e. after his death. Naser Ali son of Harez was all along at Village-Sariyahtoli and could not show any connection with Harez Ali of Motongapar or Bahbari. In absence of any evidence I consider that Harez Ali of Motongapar or Bahbari was not the father of the O.P. and also that Jamin Ali of Bardhantali and Jamir the father of Harez Ali were different persons.” 4.6 Learned Tribunal rejected the plea of the petitioner on the ground that he could not exhibit any document to establish the linkage with his father and grandfather respectively though his name appeared in the year 2013. Further, the learned Tribunal observed that though the petitioner’s father Harez Ali was shown to be expired on 08.01.2012, his name appeared in the voters list of 2013 that is after his death. Further, the learned Tribunal observed that though the petitioner’s father Harez Ali was shown to be expired on 08.01.2012, his name appeared in the voters list of 2013 that is after his death. 4.7 The contention of the petitioner is that sometimes even the names of dead persons appear in the voters lists as proper revision is not undertaken by the authorities concerned and as such this aspect ought to have been taken into account by the learned Tribunal. 4.8 As regards the observation that in absence of any evidence, Harez Ali of Motongapar or Bahbari was not the father of the petitioner and also that Jamin Ali of Bardhantali and Jamir, the father of Harej Ali were different persons does not appear to be consistent with evidences as the petitioner had specifically pleaded that the name of his grandfather was enlisted in the Electoral Rolls of 1965 and 1970 at village Bardhantali and his father shifted to village Motongapar before the birth of the petitioner. It was also pleaded in the written statement that some villagers called his grandfather by two names, i.e. Jamir Ali and Jamin Ali and as such, these names refer to one and the same person. He also deposed before the learned Tribunal to the same effect. Thus, we see that there is some explanation available in the evidence of the petitioner as mentioned in the written statement as well as in the deposition before the learned Tribunal. 4.9 This Court has in WP(C) No.224/2018 set aside the opinion dated 07.11.2017 rendered by the learned Tribunal-1, Nalbari in F.T.(Nal) Case No.(N)294/2011 and remanded the matter to the learned Tribunal for fresh consideration and since it is claimed that the petitioner therein Md. Mainul Ali and the present petitioner are related being the uncle and nephew respectively, tracing the common linkage through Late Jamir Ali @ Jamin ali, whose names are reflected in the voters lists of 1965 and 1970, we also remand the present matter to the learned Foreigners Tribunal-1, Nalbari for re-consideration by appreciating the evidences on record and in the light of the observations made above by us and to pass a fresh opinion as regards the citizenship status of both the petitioners. 4.10 The present petition, WP(C) No.229/2018 is accordingly, allowed by setting aside the impugned opinion dated 30.11.2017 passed by the learned Foreigners Tribunal No.1, Nalbari in F.T.(Nal) Case No.654/2011. 4.10 The present petition, WP(C) No.229/2018 is accordingly, allowed by setting aside the impugned opinion dated 30.11.2017 passed by the learned Foreigners Tribunal No.1, Nalbari in F.T.(Nal) Case No.654/2011. 4.11 The petitioner will accordingly appear before the learned Foreigners Tribunal-1, Nalbari within a period of one month from today. 4.12 The petitioner will continue to remain on bail on similar terms and conditions as directed by this Court vide order dated 19.01.2018 till a fresh opinion is rendered by the learned Tribunal as regards the citizenship status of the petitioner. 4.13 Writ petition, WP(C) No.229/2018, is also accordingly disposed of. 4.14 LCR be remitted forthwith to the concerned Foreigners Tribunal.