Misreading material evidence warrants setting aside a Foreigners Tribunal opinion and remand for fresh adjudication.

The petitioner challenged the judgment and opinion dated 22 August 2019 of the Foreigners Tribunal No. 2, Kamrup (Rural), Boko, in BFT Case No. 4053/2016, which declared him a foreigner who had entered India after 25 March 1971.

The proceeding had originally been instituted under the IM(DT) Act and was subsequently re-registered before the Foreigners Tribunal after the Act was struck down.

The petitioner claimed to be the son of Hakim Ali @ Abdul Hakim, who allegedly appeared in land records dating from 1957–1964 and in electoral rolls of 1966 and 1970.

He relied on land records, electoral rolls from 1966 to 2017, a voter identity card, a school certificate, a Gaonburah certificate and an affidavit.

He examined himself, his alleged sister, the local Gaonburah and a co-villager as defence witnesses.

The Tribunal rejected the petitioner’s evidence, particularly the school certificate issued by Borakhat Girls’ M.E. Madrassa, observing that the petitioner could not have studied in a girls’ school and treating the certificate as fraudulent.

The Tribunal also found that the petitioner had failed to establish the required linkage with his projected father and had attempted to prove citizenship through fraudulent documents.

Before the High Court, the petitioner contended that Borakhat L.P. School, where he had studied, had subsequently been amalgamated with the Girls’ M.E. Madrassa, which later issued the certificate.

1. Whether the Foreigners Tribunal erred in law and fact by discarding the petitioner’s school certificate as fraudulent without properly considering his explanation regarding the amalgamation of the schools?

2. Whether the Tribunal misread or failed to properly appreciate the land records and electoral rolls relied upon to establish the petitioner’s linkage with his alleged father, Abdul Hakim @ Hakim Ali, whose presence in India before 25 March 1971 was asserted?

3. Whether the High Court, in exercise of its certiorari jurisdiction under Article 226 of the Constitution, should set aside the Tribunal’s opinion and remand the matter for fresh adjudication?

The High Court applied its supervisory and certiorari jurisdiction under Article 226 of the Constitution of India, under which an adjudicatory decision may be quashed where there is a material error of law, misreading of evidence or failure to consider relevant evidence.

The Court also applied the evidentiary principles governing proceedings before Foreigners Tribunals, particularly the need to assess both legacy evidence—documents showing the presence of a projected ancestor in India before 25 March 1971—and linkage evidence connecting the proceedee with that ancestor.

The remanded proceeding was directed to be reconsidered in accordance with the principles under Section 3(14) of the Foreigners (Tribunals) Order, 1964, as referred to by the Court.

The High Court found that the Tribunal had improperly rejected the school certificate solely because it was issued by a girls’ madrassa.

The petitioner had consistently stated in his written statement and evidence that he had studied at Borakhat L.P. School and that the school was later amalgamated with the Girls’ M.E. Madrassa; this explanation remained substantially intact during cross-examination.

The Court also found that the Tribunal had misread the documentary evidence.

The 1966 and 1970 electoral rolls showed Abdul Hakim, son of Khalek, along with Ujala Khatun and Bahaton Nessa, while subsequent electoral rolls consistently showed Omar Bepari or Omar Ali as the son of Abdul Hakim.

The variations between Hakim Ali and Abdul Hakim, and between Omar Bepari and Omar Ali, were capable of explanation on the evidence and could not justify wholesale rejection of the petitioner’s case without proper evaluation.

Although the oral evidence, viewed independently, might not conclusively establish citizenship, it constituted corroborative linkage evidence when read with the land records and electoral rolls.

These errors constituted overlooking of relevant evidence and misreading of material evidence, warranting interference under Article 226.

It therefore set aside the Tribunal’s judgment and opinion dated 22 August 2019 in BFT Case No. 4053/2016 and remanded the matter for fresh adjudication and proper appreciation of the evidence.

The Tribunal was directed to proceed expeditiously in accordance with the applicable principles under the Foreigners (Tribunals) Order, 1964.

Until fresh adjudication, no coercive action by way of detention or deportation was to be taken against the petitioner.

The writ petition was accordingly disposed of, and the original records were directed to be returned to the Tribunal.