WP(C)/8579/2018 of USAB ALI Vs THE UNION OF INDIA AND 5 ORS on 25 August 2026

ORDER

26.08.2026 (K.R. Surana, J) Heard Mr. U. Das, learned counsel for the petitioner. Also heard Mrs. A. Gayan, learned CGC; Mr. A.I Ali, learned standing counsel for the ECI; Mr. G. Sharma, learned standing counsel for the FT matters and NRC; and Mr. P. Sarmah, learned Additional Sr. Govt. Advocate for respondents.

2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned opinion dated 06.09.2018, passed by the learned Member, Foreigners’ Tribunal No. 5th, Goalpara, in F.T. Case No. F.T/5/191/MO/17, arising out of E.R.O Reference Case No.876-120/37, thereby declaring the petitioner to be a foreigner of post 25.03.1971 stream.

3. In view of the order of remand that this Court proposes to pass, the pleadings and the evidence have not been referred to.

4. It would suffice to mention that the Electoral Registration Officer, expressing doubt about the nationality of the petitioner, had the matter investigated through a Local Verification Officer and thereafter, made a reference to the Superintendent of Police, Goalpara, who is the authority competent to make such a reference. Accordingly, a reference was made, raising a doubt regarding the nationality of the petitioner.

5. The petitioner appeared before the learned Tribunal and filed his written statement wherein he has disclosed about his grandparents, parents and siblings. The petitioner had examined 4(four) witnesses being himself as DW-1; Sukjan @ Sukiran Nessa as DW-2; Ibrahim Ali as DW-3 and Jaynal Abeden as DW-4. DW-3 had exhibited 7(seven) documents, being voter list of 1966 (Ext.A), voter list of 1970 (Ext.B), voter list of 1971 (Ext.C), voter list of 1985 (Ext.D), voter list of 1989 (Ext.E), voter list of 1994 (Ext.F) and voter list of 1997 (Ext.G). The learned Tribunal had examined the voter lists and discarded the evidence of the petitioner on the ground that none of the exhibited documents disclosed his presence as a voter and accordingly, in the absence of any documentary proof, did not accept the evidence projecting that he is the son of one Shona Ullah and he was declared to be a foreigner of post 25.03.1971 stream.

6. The learned counsel for the petitioner has referred to Annexure-S to this writ petition, which is the opinion dated 24.07.2018, passed by the same learned Tribunal, i.e., learned Member, Foreigners’ Tribunal No. 5th, Goalpara, in F.T. Case No. F.T./5/193/MO/17, arising out of E.R.O. Reference Case No. 875-

120/37, whereby the proceedee therein, namely, Samiran Nessa, was declared not to be a foreigner but an Indian citizen.

7. The learned counsel for the petitioner has been able to demonstrate from the contents of paragraph 4 of the opinion dated 24.07.2018 and paragraph 4 of the opinion dated 06.09.2018, that the names disclosed in both the cases regarding the grandparents, parents, four brothers and two sisters are almost similar, save and except for some variance in the spelling of the names.

8. The learned counsel has also been able to demonstrate that the 7 (seven) documents which were exhibited in the present case were the same set of documents that were exhibited in connection with F.T. Case No. F.T./5/193/MO/17.

9. The learned Standing Counsel for the Border and F.T matters has vehemently objected to the Court taking cognizance of the opinion dated 24.07.2018, passed in the case of Samiran Nessa on the ground that, although the said opinion was passed on 24.07.2018, the said opinion was not exhibited in the present proceedings.

10. Be that as it may, this Court finds that the nature of the pleadings and evidence in both cases is quite similar, save and except the variance in the spelling of names. Hence, the Court is of the considered opinion that as the petitioner now projects that one of the siblings, being his sister, namely, Samiran Nessa has been declared to be an Indian citizen and not a foreigner, on that ground alone, the present writ petition would be maintainable. In this context, the Court is inclined to be guided by the decision of the Supreme Court of India in the case of Abdul Kuddus Vs. Union of India and Others, reported in (2019) 6 SCC 604.

11. Accordingly, the Court is of the opinion that the petitioner is entitled to be given one opportunity to bring on record of the opinion dated 24.07.2018 and to do the needful as the petitioner may be advised.

12. To facilitate the learned Tribunal to consider the opinion dated 24.07.2018, passed by the said learned Tribunal in F.T. Case No. F.T./5/193/MO/17, the Court is inclined to set aside the opinion dated 06.09.2018, passed by the learned Member, Foreigners Tribunal No. 5th, Goalpara, in F.T. Case No. F.T/5/191/MO/17, arising out of E.R.O Reference Case No.876-120/37. Consequently, the matter is remanded to the said Tribunal to afford one opportunity to the petitioner to bring on record the opinion dated 24.07.2018, referred to above, in such manner as the petitioner may be advised.

13. The petitioner, namely, Usab Ali, who is duly represented by his learned counsel, is directed to appear before the said learned Tribunal on or before the outer time limit of 29.09.2026, and by producing a certified copy of the order, await further orders to be passed by the said learned Tribunal. On the date of appearance, the petitioner shall take appropriate steps as he may be so advised. Thereafter, the learned Tribunal shall pass a fresh opinion in accordance with law as far as practicable, within the time limit prescribed under paragraph 17(14) of the Immigration and Foreigners Order, 2025.

14. It is made clear that if the petitioner does not appear and take steps in the case within the time allowed, it would be open to the learned Tribunal to treat the petitioner as absent on call and proceed to decide the matter in accordance with law.

15. The Registry shall send back the Tribunal records of both the proceedings expeditiously along with a copy of this order, to be made a part of the record.

16. The learned Standing Counsel for the Border and F.T Matters is permitted to send a download copy of this order to the Home and Political (B) Department for the record.

17. The writ petition stands allowed to the extent as indicated above, with the order of remand. There shall be no order as to cost. JUDGE JUDGE

Comparing Assistant