Hajarat Ali V. The Union of India, Rep. by the Secretary of the Min of Home Affairs, Govt of India, New Delhi and The State of Assam Rep. by the Commissioner and Secretary to the Govt of Assam Home Deptt. Dispur, Guwahati and The Deputy Commissioner Goalpara Dist- Goalpara, Assam and The Superintendent of Police Goalpara Dist- Goalpara, Assam and The Officer-in-Charge Agia Police Station Dist- Goalpara, Assam

WP(C)/7386/2017

AI Insights

Hajarat Ali, the petitioner, challenged the decision of the Foreigners Tribunal No.1, Goalpara, which declared him an illegal migrant based on insufficient evidence to prove his citizenship under the Foreigners Act, 1946. The Tribunal had relied on discrepancies in voter lists and other documents over the years, leading to the conclusion that Hajarat Ali had not established his identity as an Indian citizen. The High Court, after reviewing the evidence and testimonies, found that the Tribunal had not properly considered significant documents and testimonies that could support the petitioner's claim. The case was remanded back to the Tribunal for a fresh evaluation.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 813269 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 14-06-2022
• Assessment Year: misc
• Other Referred Cases: Sirajul Hoque v. State of Assam, Abdul Matali Vs. Union of India and Ors., Sita Ram Bhau Patil Vs. Ramchandra Nago Patil and others, Abdul Khalique (Md) Vs. Union of India and others, State of Assam Vs. Moslem Mondal, Basiran Bibi Vs. Union of India
• Laws Referred To: Foreigners Act, 1946
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: L DEVI; J PAYENG; U DAS
• Assessee Lawyers: M U MAHMUD; M ALI; S HOQUE
• Keywords: Burden of Proof; Citizenship; Evidentiary value; Illegal immigrant; Voter list discrepancies
• Section: 9

Judgement Text

"Page No.# 1/19 GAHC010053292017 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7386/2017 HAJARAT ALI , S/O- LATE SAGAR ALI, VILL- KALPANI, P.S- AGIA, DIST- GOALPARA, ASSAM. ……Petitioner. VERSUS THE UNION OF INDIA, REP. BY THE SECRETARY OF THE MIN OF HOME AFFAIRS, GOVT OF INDIA, NEW DELHI- 1 2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM HOME DEPTT. DISPUR, GUWAHATI-6 3:THE DEPUTY COMMISSIONER GOALPARA DIST- GOALPARA,ASSAM 4:THE SUPERINTENDENT OF POLICEB GOALPARA DIST- GOALPARA, ASSAM 5:THE OFFICER-IN-CHARGE AGIA POLICE STATION DIST- GOALPARA, ASSAM. ……Respondents. Page No.# 2/19 BEFORE HON’BLE THE CHIEF JUSTICE (ACTING) MR. N. KOTISWAR SINGH HON’BLE MRS. JUSTICE MALASRI NANDI For the Petitioner: Mr. M.U. Mahmud, Mr. M. Ali, Mr. S. Hoque, ……Advocate. For the Respondents : Asstt. S.G.I. Ms. L. Devi, Adv. Mr. J. Payeng, SC, FT. Ms. U. Das, GA, Assam. ……Advocates. Date of Hearing : 16.11.2021 Date of Judgment : 14.06.20229.04.020 JUDGMENT AND ORDER [N. Kotiswar Singh, Chief Justice (Acting)] Heard Mr. M.U. Mahmud, learned for the petitioner. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K. Dev Choudhury, learned CGC appearing for respondent No.1; Mr. J. Payeng, learned Special Counsel, F.T. appearing for respondent Nos. 2, 4 to 5; and Ms. U. Das, learned State Counsel, Assam, appearing for the respondent no.3. 2. The present petition has been filed challenging the opinion dated 09.11.2017 passed by the Foreigners Tribunal No.1, Goalpara in F.T. Case No.7390/G/2016 by which the Foreigners Tribunal held that the petitioner had failed to discharge his burden cast under Section 9 of the Foreigners Act, 1946 in proving that he is not an illegal immigrant and accordingly, returned Page No.# 3/19 the reference in favour of the State and against the petitioner by holding that the petitioner namely, Md. Hajarat Ali son of late Sagar Ali, Vill-Kalpani Chandamari, P.S. & Dist.-Goalpara is an illegal migrant of post 1971 stream and also cancelled the identity card No.o BYK9136996. 3. Upon an inquiry made, the proceeding was initiated against the petitioner in the above referred F.T. case. The petitioner after being duly served summon appeared before the Foreigners Tribunal and filed his written statement and also documents in support of his claim that he is an Indian. 4. The petitioner filed as many as 10 (ten) documents and exhibited the same before the Tribunal. The petitioner also examined himself and his brother in support of his claim. 5. The Tribunal, however, after hearing the parties and considering the evidences on record held that the petitioner had failed to discharge the burden cast upon him under Section 9 of the Foreigners Act that he is not an illegal migrant. 6. The petitioner has relied on the following documents to prove his case:- 1. Voters list of 1966 as Ext. A in which the name of the petitioner’s father is shown as Sagar Ali, son of Bhadu Mondal and his grandmother Sabiran Nessa and Akbar Munchi, uncle of the petitioner has been shown. The said voters list pertains to village Kachumara under Police Station Tarabari, Barpeta Sub- Division of the then Kamrup district under 58 No. Chenga LAC. 2. Voters list of 1970 where the name of the father of the petitioner Shagar Ali as son of Bhadu Mandal along with the grandmother Sabiran Nessa have been shown with the same village under 54 Chenga LAC. 3. Enumerator Slip relating to 1989 showing the name of the petitioner Hajarat Ali and his other members including Nur Jamal Sk, who is brother of the petitioner and DW2. According to the petitioner, the aforesaid enumerator list contains the name of the petitioner and his brother Nur Jamal Sk who had Page No.# 4/19 testified before the Tribunal as DW2. 4. Voters list of 1997 relating to 37 No. Goalpara East LAC in which the name of the petitioner appears along with his wife Sirvan Bibi. However, it has been submitted that in this voter list instead of Sagar Ali, the name of Sagar Rahman has been entered. 5. Voter Identity Card issued by the Election Commission of India in the name of Hajarat Ali showing the name of his father as Sagar Ali. 7. Learned counsel for the petitioner has drawn attention of this Court to the written statement filed by the petitioner in which the petitioner has clearly stated the name of his village as Kachumara in paragraph 6 thereof. 8. The petitioner also mentions in the written statement in paragraph 7 thereof the name of the paternal uncle as Akkabor Munchi, Son of Bhadu Sonaru as recorded in the voters list of 1985. 9. Learned counsel for the petitioner also submits that the name of the petitioner’s brother, Nur Jamal Sk has been also mentioned, though, as Nur Jamal Haque, son of late Sagar Rahman in the voters list of 2005 in the same village Kalapani under 37 Goalpara LAC where his name appeared along with his wife. 10. Thus, it has been submitted that the names of the petitioner and his family members including his brother (DW2) appeared in the said voters list of 2005, thus, clearly indicating that they are brothers. 11. It has been submitted that in the Voter Identity Card issued in favour of the petitioner bearing No.BYK9136996 of village Kalapani under 37 Goalpara East, Hajarat Ali has been shown as son of Sagar Ali. Page No.# 5/19 12. According to the petitioner, Sagar Ali has been shown as Sagar Rahman in the voters list of 1997, which would clearly show that Hajarat Ali, son of Sagar Ali is same and also the Sagar Ali and Sagar Rahman are the names of the same person. As regards the difference of age of the petitioner and father, the petitioner has explained the same in the written statement in paragraph 16, 17, 18 and 19. 13. It is the case of the petitioner that though the petitioner was initially born in Kachumara to Sagar Ali, which is indicated in the voters list of 1966, the petitioner and his family members subsequently shifted to Islampur, PS- Dalgaon, District-Darrang for better livelihood by engaging in cultivation in agricultural land. Thereafter, from Islampur, he subsequently shifted to Shampur Chapori under the same police station and district for a better livelihood. It has been also submitted that shifting of village from Kachumara to Islampur and thereafter to Shampur has been properly documented and referred in the written statement. 14. The petitioner also stated that since the parents of the petitioner died before the proceeding, they could not adduce evidence in favour of the petitioner. 15. Learned counsel for the petitioner has referred to the evidence of DW2 Nurzamal Hoque @ Nurzamal Sk, son of late Sagar Ali @ Sagar Rahman @ Sagar who was examined before the Tribunal. 16. Learned counsel for the petitioner submits that shifting of the petitioner and his family members including his brother from Islampur to Shampur Chapori and subsequently to village Kalapani is clearly mentioned in the evidence of DW2 in paragraphs 6 to 8 which corroborates the stand of the petitioner that he had shifted his village from his original village Kalapani to Page No.# 6/19 Islampur and then to Shampur Chapori and lastly to Kalapani. 17. Learned counsel for the petitioner further submits that the aforesaid evidence of DW2 was never questioned inasmuch as he was not subjected to cross-examination by the State and accordingly, it will be deemed that the evidence of DW2 has remained unimpeached. 18. Learned counsel for the petitioner submits that however in spite of such evidence on record, the Tribunal did not believe the said contention of the petitioner regarding shifting of village from Kachumara. 19. Learned counsel for the petitioner also submits that though the petitioner had exhibited Enumerator Slip as Ext. C, the same was not believed as authentic as there was no signature of any person engaged for enumeration by the State Government. As such, the Tribunal held that it has no evidentiary value and was liable to be rejected. 20. Learned counsel for the petitioner submits that this is a public document and if the Tribunal did not believe the said document, it should have been referred to the competent authority for verification. 21. Learned counsel for the petitioner also submits that the observation by the Tribunal that no independent witness was examined cannot be said to be a correct approach inasmuch as this is not a criminal proceeding but akin to a civil proceeding. Accordingly, it has been submitted that the finding of the Tribunal is perverse in law and not in accordance with the evidence produced before the Tribunal. 22. Learned counsel for the petitioner has relied upon the decision of Hon’ble Supreme Court in Sirajul Hoque v. State of Assam, (2019) 5 SCC 534 wherein it has been held that merely because of certain discrepancy in the name would not render a person to be Page No.# 7/19 liable to be declared as a foreigner. Para 3 and 4 of the aforesaid case Sirajul Hoque (supra) reads as follows. “3.There is no doubt that the great grandfather's name Amtullah appears as Amtullah throughout the document. Equally, there is no doubt about the father's name which appears as Hakim Ali throughout. The only discrepancy found is that in some of the documents Kefatullah later becomes Kematullah. However, what is important to note is that his father's name Amtullah continues as Amtullah and the other family members associated continued as such. Also produced are NRC Registration details of the year 1971 of the grandfather who is noted to be Kefatullah in this document. Other voters lists are then produced where the letter F becomes the letter M with other family names remaining the same. In fact, the appellant has himself produced a document of 1981 from the Income Tax Department giving his Permanent Account Number. Apart from these documents, certain other later documents have also been produced including photo identity cards issued by the Election Commission of India and identity cards issued to his brother including voters lists in which the appellant's name appears. 4. Having gone through these documents, we are of the view that it is not possible to state that Kematullah is not the same despite being named Kefatullah in some of the documents. This being so, the grandfather's identity, father's identity, etc. has been established successfully by the appellant. Further, the mere fact that the father may later have gone to another village is no reason to doubt this document.” Learned counsel for the petitioner has relied upon the decision of this Court in Abdul Matali Vs. Union of India and Ors., 2015 (2) GLT 516 wherein it has been held that merely because of certain discrepancy in the name and age in the voters list, this would not render a person to be liable to be declared as a foreigner. 23. Learned counsel for the petitioner also submits that once the petitioner has been able to adduce certain documents, the Tribunal ought to consider the same and if the same is doubted, the onus shifts on the opposite party to lead proper evidence or disprove the said evidence on record. Learned counsel for the petitioner has relied upon the decision of Sita Ram Bhau Patil Vs. Ramchandra Nago Patil and others, [(1977) 2 SCC 49 (para 23)]. 24. Learned counsel for the petitioner, relying on the decision of this Court in Abdul Page No.# 8/19 Khalique (Md) Vs. Union of India and others, [WP(C) No.4611/2007] [(2013) 1 GLT 941] has submitted that if the opposite party does not deny or contest the correctness of the evidence adduced, the evidence so adduced by the parties should be treated as acceptable and cannot be ignored. Since the correctness or otherwise of the documents exhibited had not been questioned by the State, these could not have been ignored and disbelieved by the Tribunal. 25. Learned counsel for the petitioner submits that in the present case, no proper enquiry was conducted and the petitioner was not called upon to explain or produce documents in support of his claim that he is an Indian. Thus, in the absence of proper enquiry, if an opportunity of being heard before the enquiry officer is not given, the enquiry officer could not give any finding. In other words, the finding arrived at by the enquiry officer that the petitioner is suspected to be a foreigner is sham and, as such, such enquiry is illegal inasmuch as no proper enquiry had been conducted before the reference was made. In this regard, learned counsel for the petitioner has relied upon the decision of the Full Bench of this Court in State of Assam Vs. Moslem Mondal, [2013(1) GLT 809], wherein in paragraph 96 to 99 the importance of conducting impartial, proper and fair investigation before a reference is made is highlighted as mentioned in paragraphs No.96 to 99 which has not been done in the present case. 26. Learned counsel for the petitioner submits that to avoid such improper enquiry, necessary direction be issued to the concerned enquiring authority to visit the house of the proceedee along with two local witnesses and to take their signatures which should be included in the enquiry report which will obviate any case of improper enquiry which has happened in the present case. Page No.# 9/19 27. Mr. Payeng, learned counsel for the State, submits that what is of importance is to show as to whether the petitioner and his parents were in the State of Assam before 1971 and the linkage between the petitioner and his claimed father. Once the aforesaid linkage and settlement is established that would decide the issue of the citizenship and therefore, it has to be seen whether the petitioner has been able to show any document as to whether they are living in the State of Assam prior to 1971 and whether he has been able to establish his linkage between himself and projected father who he claims to have been residing in Assam before 1971. 28. It has been submitted that in the present case, that has not been done, and therefore, there is no illegality in the opinion of the Tribunal. 29. Learned counsel for the State also has submitted relying on the decision of the Sarbananda Sonowal (II) Vs. Union of India, (2008) 1 SCC 174, in paragraph 26 that in order to able to establish his citizenship, one should provide the following information, i.e. date of birth, place of birth, date of birth of the parents and wherever necessary, details of the grandparents to prove his claim as a citizen. 30. Learned counsel for the State has also submitted that though the petitioner has categorically stated in paragraph-4 of the written statement that he was born and brought up at Kachumara in the year 1970 he has not shown any document or voter list of the existence of his father after 1970. In fact, the petitioner though had mentioned in paragraph-7 that the name of the respondents have been recorded in the voters list of 1985, no such voters list has been produced before the Tribunal. Further, it has nowhere mentioned as to when the father of the respondent expired. Silence of the petitioner as to the time, period when the Page No.# 10/19 petitioner’s father had expired is significant as otherwise, the petitioner is not able to show any linkage with himself and his father by any documentary evidence. 31. Learned counsel for the State further submits that even if the voters lists of 1966 and 1970 which record the names of his father and grandmother as well as the grandfather and uncle, namely, Sabiran Nessa and Nurjamal Sk be reliable, yet, in the document namely enumerator’s slip which has been relied upon by the petitioner to show his linkage with his brother Nurjamal Sk, the name of the said Nurjamal Sk does not appear in any of the voters lists of 1966 and 1970. For that matter, none of aforesaid persons mentioned in the said slip is to be found in any other voters lists. Further the said list is a private document and as such it has no evidentiary value. Further, the name of the village mentioned in the enumerator slip is shown as Shampur Chapori which does not tally with the voters lists of 1966 and 1970 and as such this enumerator slip of 1989 is not at all relevant and not proved. 32. Mr. Payeng further submits that the name of the petitioner appears for the first time in the voters list of 1997 where the name of the village is recorded as 61 No. Kalapani which finds no mention in any of the other documents including the written statement. Further in the said voters list of 1997, the name of the father has been recorded as Sagar Rahman but the voters list of 1966 and 1970 which have been relied upon by the petitioner would show his claimed father as Sagar Ali and not Sagar Rahman. Therefore, the petitioner has not been able to show that Sagar Ali mentioned in the voters lists of 1966 and 1970 is the person who has been recorded as Sagar Rahman in the voters list of 1997. If the petitioner had been able to show that the said Sagar Raham whose name is shown in 1997 voters list as son of Bhadu as mentioned in voters lists of 1966 and 1970 refer to the same person, the matter could have been accepted, but there is nothing on record to show as such. Therefore, it cannot be Page No.# 11/19 said that Sagar Rahman, the father of the petitioner is the same person as Sagar Ali whom the petitioner claims to be his father as mentioned in voters lists of 1966 and 1970. Further the age of the Sagar Rahman and Sagar Ali are also different. In addition, as motioned above, in the voters list of 1966, the village shown is Kachumara whereas in the voters list of 1997, the name of the village is Kalapani and it was nowhere pleaded that the petitioner at any point of time had shifted to 61 No. Kalapani Gaon. 33. Learned counsel for the State has also submitted that DW2 whom the petitioner claims to be his brother is not found in any voters list except in the enumerator’s list which is also not proved. Nowhere, it is mentioned in the written statement as to why his brother DW2’s name was not mentioned in the voters list. 34. Learned counsel for the State has also submitted that though DW2 filed his evidence- in-chief, he never appeared before the Tribunal for cross-examination and, as such, his evidence cannot be admitted. 35. Learned counsel for the State further submits that the evidence of DW2 is mere oral evidence without being corroborated by any documentary evidence and the documentary evidence produced, namely, enumerator’s list of 1981 is also not admissible as it is a private document and not a certified document. Thus the evidence of DW2 is mere oral evidence which cannot be relied upon as held by this Court in 1. Jabeda Khatoon Vs. Union of India (WP(C) No.5046/2019) decided on 18.09.2021; 2. Asia Khatoon Vs. Union of India (WP(C) No.4020/2017) decided on 21.09.2019; 3. Nur Begum Vs. Union of India (WP(C) No.1900/2019) decided on Page No.# 12/19 18.02.2020. 36. Mr. Payeng further submits that the discrepancy in the present case is substantial and the decision relied upon of the Hon’ble Supreme Court in Sirajul Haque (supra) will not be applicable in the present case. In the aforesaid case, the discrepancy is only in the name Kefatullah which was recorded as Kematullah which the Hon’ble Supreme Court did not find any significance and as such it was held that it could be ignored. 37. In the present case, firstly, apart from the similarity in the name of Sagar Ali, there is no similarity with respect to other areas. In the 1966 and 1970 voters lists the name of the father has been shown as Sagar Ali, whereas in the 1997 voters list, it has been shown as Sagar Rahman. Therefore, there is a clear discrepancy as Ali has been replaced by Ahmed which cannot be said to be a minor discrepancy. Further, there is a difference as regards the name of the village. Further, it has been submitted that in the present case, the name of the grandmother was not reflected in the voters list of 1997. Therefore, the discrepancies are too significant to be ignored by the Tribunal. 38. Learned counsel for the State also submits that the petitioner cannot pick and choose the only favourable part of the voters list of 1997. The said voters list has also to be accepted in to-to. In other words, all the contents have to be accepted. It has also been submitted that the petitioner has to accept that the father as recorded in 1997 voters list is Sagar Rahman and cannot claim to be Sagar Ali. In this regard, learned counsel has relied upon para 30 of a decision of this Court in Basiran Bibi Vs. Union of India, (2018) 1 GauLT 372. 39. Mr. Payeng submits that the most crucial document relied upon by the petitioner, i.e., Page No.# 13/19 voters list of 1997 does not correctly mention the name of his father or his village as they are different from what is mentioned in 1966 and 1970 voters lists which has been relied upon by the petitioner as the particulars of his parents. 40. Accordingly, it has been submitted that since there is no error apparent on the face of the record nor any finding beyond the jurisdiction, the opinion of the Tribunal does not warrant any interference by this Court. 41. In response, Mr. Mahmud has submitted that what is important is the quality of evidence rather than the number of evidences and as such merely because the petitioner did not produce a number of documents does not render his evidence already adduced unreliable. Secondly, it has also been mentioned that it is not correct to say that the village Kalapani mentioned in 1997 voters list does not have the reference in the record. In fact, it has been submitted in the written statement at paragraph-3 and in the evidence of DW2 in paragraph 8 in their affidavit-in-chief that he along with his youngest brother Hajarat Ali, petitioner herein, and other members of the family had shifted from Shampur Chapori to village Kalapani in the Goalpara district. Similarly, the petitioner in his deposition before the Tribunal by way of evidence-in-chief had mentioned in paragraph 14 that the petitioner along with his brother had shifted from village Shampur Chapori to village Kalapani and as such it cannot be said that the name of the village Kalapani mentioned in the 1997 voters list has come up for the first time without any previous reference. 42. Learned counsel for the petitioner submits that though DW2 had clearly mentioned about these facts in his affidavit-in-chief the Tribunal declined to cross-examine him as clearly Page No.# 14/19 mentioned in paragraph 14 of the opinion of the Tribunal. 43. It has been further submitted by Mr. Mahmud that after marriage, the petitioner stayed separately from the other family members and, as such, the name of the other family members may not be reflected in the same voter list along with the petitioner. 44. Moreover, whenever any application is made, only the particulars of the applicants are reflected and, as such, non-reflection of the name of the family members would not be relevant. 45. As far as the alleged discrepancy is concerned, the same has been clearly mentioned in the written statement and as well as the evidence-in-chief and, as such, there should not be any reason to doubt the clarification made by the learned counsel for the petitioner. It is not uncommon to have this kind of discrepancy in the voters list. As far as the decisions cited by the learned counsel for the State, it has been submitted that these cannot stand, in view of the decision of the Full Bench in Moslem Mondal (supra) as well as in the light of the decision of the Hon’ble Supreme Court referred to above. 46. Before we consider the rival contentions of the learned counsel for the parties, it may be apposite to refer to the reasons and conclusion arrived at by the learned Tribunal by which the petitioner was held to be a foreigner. 47. In para No.9 of the impugned order, the learned Tribunal gave a categorical finding that the names of the petitioner’s father and grandmother were enrolled in the voters lists of 1966 and 1970 from village Kachumari and the names of his parents were again enrolled in the voters lists of 1985 from village Islampur under 68 Dalgaon LAC and the petitioner’s name was proposed for enrolment in the voters list of 1989 from village Sampur Sapori, under 68 Page No.# 15/19 Dalgaon LAC. The petitioner’s name was enrolled in the voters lists of 1997, 2005, 2010 and 2017 from village Kalpani under 37, Goalpara East LAC. Though the petitioner had stated the reasons for shifting from village Kachumara to village Islampur and then from Islampur to Sampur Sapori, the learned Tribunal held that it was hard to believe and there is no reasonable explanation. The learned Tribunal went to say that the failure to give reasonable explanation for such shifting, gives rise to the inference that the petitioner is an illegal migrant and to save himself from police, he frequently shifted from one place to another. Para No.9 of the aforesaid impugned order reads as follows, “9. After going through the evidence of the respondent Md. Hajarat Ali, it is found that he claimed himself as citizen of India, by birth and was born at village Kachumara, P.S. Tarabari, his parent is Sagor Ali and Alson Nessa and grandparent is late Bhadu Mondal and Sobiron Nessa, name of his father and grandmother were enrolled in the voter list of voter list of 1966, 1970 from village Kachumara, name of his parents was enrolled in the voter list of 1985, from village Islampur, his name was proposed for enrolment in the voter list of 1989 from village Sampur Sapori, Dalgaon and his name was enrolled along with his wife in the voter list of 2005, 2010, 2017 from village Kalpani. On careful perusal of the above evidence, it is found that name of respondent’s father and grandmother was enrolled in the voter list of 1966, 1970 from village Kachumari of the then Kamrup Dist. Under Chenga LAC, name of his parent was enrolled in the voter list of 1985 from village Islampur, under 68, Dalgaon LAC, respondent’s name was proposed for enrolment in the voter list of 1989 from village Sampur Sapori under 68, Dalgaon LAC and his name was enrolled in the voter list of 1997, 2005, 2010, 2017 from village Kalpani under 37, Goalpara East LAC. Respondent stated that due to better livelihood, his parent shifted to Islampur, P.S. Dolgaon from village Kachumara and then to village Sampur Sapori under Dolgaon P.S. and due to erosion shifted to village Kalpani, P.S. now Agia from Sampur Sapori. Reason of better livelihood for shifting in such a long way, i.e. from village Kachumari of the then Kamrup district to village Islampur of Darrang district, then from Islampur to village Sampur Sapori of same district and from Sampur Sapori to village Kalpani of Goalpara district, is hard to believe and cannot be a reasonable explanation. Failure to give reasonable explanation of such shifting, gives rise the fact that respondent is an illegal migrant Page No.# 16/19 and to save himself from Police, he frequently shifted from one place to another.” 48. We are unable to understand the logic and reasoning adopted by the learned Tribunal. If the learned Tribunal held that on perusal of the evidence, it is found that the names of the petitioner’s parents were recorded in the voters lists of 1966 and 1970 from the village Kachumara of the then Kamrup district under 54 Chenga LAC and in the voters list of 1985, from village Islampur and even though the petitioner had explained the same for shifting of village, we fail to understand how the learned Tribunal held that the same does not amount to a reasonable explanation. 49. We also fail to understand as to how the learned Tribunal could have come to a conclusion that the petitioner is an illegal migrant and to save himself from police, he frequently shifted from one place to another when it was not the case of the State. Neither it was suggested to the petitioner in course of the proceeding or cross-examination of the witnesses. In our view, the aforesaid conclusion arrived at by the learned Tribunal de hors the evidence and contrary to the evidence. 50. Similarly, the learned Tribunal appeared to have doubted the voters list of 1966. The learned Tribunal also on the basis of the discrepancy in the name of the petitioner’s grandfather which was recorded as Bhadu Mondal in the voters list of 1966, which was recorded as Bhadur Somar in the voters list of 1985, appeared to have taken the view that they are not the same person as no independent witness was examined to support such a view nor any document was exhibited. 51. However, if we examine the voters list of 1966, we find that the names of one Akbar Munchi, the brother of the present petitioner’s father as the son of Bhadu Mondal and Page No.# 17/19 another Sobiran Nessa as the wife of Bhadu Mondal appear. The name of the said Akbar Munchi along with the petitioner’s father appeared in the voters list of 1985 wherein the said Akbar Munchi is also shown to be son of Bhadu Somaru. Thus, in our view, these are minor discrepancies in the name of the petitioner’s grandfather i.e. Bhadul Mondal which has been shown as Bhadu Somaru. 52. As regards Ext.C which is an enumeration slip for enrolment in the voters list of 1989 wherein the name of the petitioner appeared with others, it was ignored by the learned Tribunal holding that it has no evidentiary value as it does not bear the signature of any person engaged in the enumeration process. In our view, even if the said Ext.C was rejected by the learned Tribunal, the other documents adduced by the petitioner could have been considered by the learned Tribunal. 53. The learned Tribunal though mentioned about the evidence of the elder brother of the petitioner, Nurjamal Hoque who was examined as DW2, who had given the testimony giving the detail account of the family of the petitioner, the learned Tribunal did not consider it at the time of appreciation of evidence. 54. We have also observed that though the elder brother of the petitioner, the said Nurjamal Hoque was examined, the State decided not to contest the evidence of DW2, Nurjamal Hoque and as such, we fail to understand why the said evidence was not taken into consideration by the learned Tribunal while appreciating the evidence. It was not case where the said DW2 refused to offer himself for cross-examination. It was a case where the State declined to cross-examine. Neither the Tribunal also asked any question. Page No.# 18/19 Therefore, in our view, the said uncontested evidence of DW2 could not have been ignored, which otherwise, corroborates the testimony of the petitioner to show that the petitioner is an Indian and not a foreigner. 55. Accordingly, we are of the view that the learned Tribunal had erroneously appreciated the evidences on record as discussed above and did not taken into consideration a vital and relevant evidence in the form of the testimony of the elder brother of the petitioner, which is the evidence of Nurjamal Hoque @ Nurjamal Sk. 56. Accordingly, we are of the opinion that the impugned opinion of the learned Tribunal is vitiated for the reasons discussed above. 57. Accordingly, without going into the merit of the matter as regards the other grounds raised in this petition in challenging the impugned order and the rival submissions advanced, we are of the view that the aforesaid illegalities would be sufficient to vitiate the impugned order and accordingly, the same is held unsustainable in law. 58. For the reasons discussed above, we allow this petition by setting aside the impugned order dated 09.11.2017 Passed by the learned Foreigners Tribunal No.1, Goalpara in F.T. Case No.7390/G/2016 [Reference Case No. GLP/B/42/2000/2272] and remand the matter to the learned Foreigners Tribunal No.1, Goalpara for a re-consideration and to pass a fresh opinion as regards the citizenship status of the petitioner by appreciating the evidences on record in accordance with law and in terms of the observation by us as above. 59. The petitioner will accordingly, appear before the learned Tribunal within a period of one month from the date of receipt of a certified copy of this order. 60. Petitioner will continue to remain on bail on similar terms and conditions as directed by Page No.# 19/19 this Court vide order dated 01.12.2017 till a fresh opinion is rendered by the learned Foreigners Tribunal No.1, Goalpara as regards the citizenship status of the petitioner. 61. The present petition is, accordingly, disposed of. 62. LCR be remitted forthwith to the concerned Foreigners Tribunal. JUDGE CHIEF JUSTICE (ACTING) Comparing Assistant "