The Gauhati High Court has imposed cost on an Election Commission official for making a reference against a retired army officer without application of mind. The Division bench of Justice Achintya Malla Bujor Barua and Justice Robin Phukan imposed Rs. 10,000 as cost for causing inconvenience to the petitioner without any reasonable cause and without any application of mind.

The Electoral Registration Officer (ERO) had made the order of reference against Jagat Chetri by on the spot local verification. The on the spot verification report was submitted by the local verification officer namely, Sri Prakash Borah, Assistant Geologist in the Directorate of Geology and Mining. The report stated that Chetri’s year of birth is 1937 and the place of birth is Dibrugarh.

The court noted that there was no material to show that Chetri migrated to the specified territory and thereafter re-entered the State of Assam subsequent to March 25, 1971. In view of this, the court held that the order of reference passed against Chetri “was an absolute non-application of mind on the part of the ERO of 52 Dispur Legislative Assembly Constituency”.

Additionally, the court pointed to the material that showed that Chetri served in the Indian Army between 1963 and 2001. Having rendered 38 years of service.

“It appears that the enquiring officer had not done its duty in the proper earnest and there can be no reason why the petitioner Jatat Bahadur Chetri would refuse to divulge the information that he was serving in Indian Army since 1963,” the court said in its order.

The court considered the manner in which the reference was made and upon perusing material that showed that Chetri was born in 1937 in Dibrugarh, and deemed that the order of reference is not maintainable in law.

The court, thus set aside the reference order against Chetri as well as the Kamrup (metro) Foreigners Tribunal order dated January 10, 2012 [in D.V Case No. 199/2011 [IM(D)T Case No. 1088/2000].

Further, “for causing inconvenience to the petitioner without any reasonable cause and without any application of mind,” the court imposed a cost of Rs. 10,000 on the ERO. The cost has been directed to be paid by the Election Commissioner, Assam and amount to be recovered from the ERO who had made the reference then. The court ordered that the amount shall be paid to the petitioner, Chetri.

“Having so declared, it is also provided that the petitioner shall be entitled to all the rights and privileges as a citizen of India as may be admissible under the law,” the order reads.

The complete order may be read here:

In 2019, a Kargil war veteran Mohammed Sanaullah found himself in a similar situation. However, the outcome for him was not as favorable as it has been for Chetri. Sanaullah was declared a foreigner by a Foreigners Tribunal and was detained at Goalpara Detention Centre but was granted interim bail by Gauhati High Court in June 2019. Eventually, when the final NRC list was released on August 31, 2019, his name was missing from it, thus becoming a part of the population of more than 19 lakh who were excluded from the list.

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