Gauhati High Court: The Division Bench of Kalyan Rai Surana and Susmita Phukan Khaund, JJ., set aside the order declaring the petitioner an illegal migrant despite having requisite documents and ordered for fresh consideration of evidences.
Background
The case arose when the Senior Superintendent of Police made a refence to the Foreigners’ Tribunal for an opinion about the nationality of the petitioner. In furtherance of this, notices were issued and the petitioner appeared and submitted his written statement in support of his nationality. He also adduced the evidence of 3 witnesses and exhibited several documents.
The petitioner contended that his late grandfather was a voter since 1966 and his name has been enrolled in the voters list of 1966. His grandfather’s name also appears in the National Register of Citizens of 1951 and accordingly, a legacy data was provided in favour of his grandfather vide Legacy Data Code Number. As a linkage, the petitioner exhibited the jamabandi copy of the land owned by his grandfather and also submitted the land revenue paying receipts. But, these documents were not considered by the Tribunal.
The shadow of doubt was raised by the respondents on the petitioner as there was a gap of more than 19 years, but no explanation was offered by the petitioner to prove continuous residence of the petitioner’s parents and grandparents as mandated by Section 6-A(2), Citizenship Act, 1955 (the Citizenship Act). It was submitted that there are slight discrepancies in recording the age of the petitioner’s parents in the electoral rolls.
After careful examination of entire materials on record, it was held by the Tribunal that the petitioner has failed to prove that he is the grandson of his projected grandfather and no linkage evidence was produced to prove his plea. The petitioner was thereby declared to be a foreigner. The petitioner aggrieved by the impugned judgment and order, filed a writ petition before this Court.
Decision and Analysis
The Court after giving thoughtful consideration to the submissions at the Bar, it was reiterated that apart from these contradictions, there were documents linking the names of the petitioner along with his father, and his father with his grandfather. Hence, it was incumbent upon the Tribunal to record reasons while discarding the documentary evidence linking the petitioner to his father, and his father to his grandfather.
The Court also emphasised that there ought to have been some elaborate discussions while discarding the petitioner’s submissions of shifting of residence of the petitioner’s grandfather to an adjacent village despite it being mentioned in the petitioner’s written statement. The Tribunal has also not spelt out reasons, while discarding the jamabandi of 1958—1965.
On considering the entire aspect of the matter, the Court held that some documents are required to be included in the assessment of evidence for proper adjudication of the case of the petitioner in accordance with law. The sustainability or perversity of the decision of the Tribunal should only be assessed after certain nuances in the evidence as well as some documents discussing the core issue is properly dealt with by the Tribunal.
The Court reiterated case laws on the jurisdiction of a writ court qua the writ of certiorari, in the recent decision of Central Council for Research in Ayurvedic Sciences v. Bikartan Das (2023) 16 SCC 462 : 2023 SCC OnLine SC 996, that there are Two cardinal principles of law governing exercise of extraordinary jurisdiction under Article 226 of the Constitution more particularly when it comes to issue of writ of certiorari, the first cardinal principle of law is that it demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record and should not be issued on mere asking. The second cardinal principle is that, Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects.
The Court thereby set aside the judgment and order dated 14 May 2019 passed by the learned Foreigners’ Tribunal and held that the cryptic judgment of the Tribunal appears to be perverse and requires a thorough and elaborate discussion by dealing with the documentary evidence submitted by the petitioner. Hence, the Court deemed it appropriate to remand this case for consideration of the evidence and for the entire aspect of the matter.
[Sahidul Islam v. Union of India, WP(C) No. 4467 of 2019, decided 29-4-2026]
*Judgment authored by: Justice Susmita Phukan Khaund
Advocates who appeared in this case :
For the Petitioner: A.M. Khan, Advocate
For the Respondent: U.K. Goswami, CGC, G. Sarma, SC, FT & NRC, P. Sarmah, Addl. Sr. Govt. Advocate, Assam, A I Ali, SC, ECI
