Gauhati High Court
Muslim Ali vs The Union Of India And 4 Ors on 12 June, 2024
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/23
GAHC010194102017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1591/2017
MUSLIM ALI
S/O. LT. BASIR UDDIN, R/O. VILL. SAHARON, P.O. JOYNAGAR, P.S.
MURJHAR, DIST. HOJAI ASSAM.
VERSUS
THE UNION OF INDIA and 4 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NEW DELHI.
2:THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY.-06.
3:THE DY. COMMISSIONER OF HOJAI
DIST. HOJAI ASSAM.
4:THE SUPERINTENDENT OF POLICE BORDER HOJAI
DIST. HOJAI ASSAM.
5:THE OFFICER-IN-CHARGE
HOJAI POLICE STATION
DIST. HOJAI
ASSAM
Advocate for the Petitioner : MR.A M ALAMAN
Page No.# 2/23
Advocate for the Respondent :
Linked Case : WP(C)/1578/2017
FIRUN NESSA
W/O. ABDUL RAJAK and D/O. BASIR UDDIN
VILL. NAHAR GAON
P.O. and P.S. DABOKA
DIST. HOJAI
ASSAM.
VERSUS
THE UNION OF INDIA and 4 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA
MINISTRY HOME AFFAIRS
NEW DELHI.
2:THE COMMISSIONER and SECY.
TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY.-06.
3:THE DY. COMMISSIONER
HOJAI
DIST. HOJAI
ASSAM.
4:THE SUPDT. OF POLICE B
HOJAI
DIST. HOJAI
ASSAM.
5:THE OFFICER IN CHARGE
HOJAI POLICE STATION
DIST. HOJAI
ASSAM.
------------
Advocate for : MR.A M ALAMAN
Advocate for : GA
ASSAM appearing for THE UNION OF INDIA and 4 ORS.
Page No.# 3/23
BEFORE
HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
JUDGMENT & ORDER (CAV)
Date : 12-06-2024
(S.P. Khaund, J)
Both the petitions are taken up together for disposal as the petitioner of WP(C) No.
1578/2017 Musstt. Firun Nessa and the petitioner of WP(C) No. 1591/2017 Md. Muslim Ali are
son and daughter, respectively, of Late Basir Uddin, a resident of village - Saharon, Post
Office -Joynagar, Police Station - Murajhar, District Hojai (Assam). The present address of the
petitioner of WP(C) No. 1578/2017, Musstt. Firun Nessa is shown as village - Nahar Gaon,
Post Office and Police Station - Daboka, District Hojai (Assam).
2. The petitioner Md. Muslim Ali is the elder brother of the petitioner Musstt. Firun Nessa.
Both the petitioners are aggrieved by the common opinion/order dated 31.10.2016 passed by
the Foreigners' Tribunal, Nagaon Court No. 10TH at Sankardev Nagar, Hojai in connection with
FT(D) Case No. 439/2015 and FT(D) Case No. 455/2015, respectively. On being aggrieved by
the common order dated 31.10.2016, the petitioners have filed their respective petitions
under Article 226 of the Constitution of India, seeking quashing of the impugned order. Both
the petitioners have submitted that they are legal heirs of the same ancestors and they have
relied upon the same set of documentary evidence and their cases were taken up together
for disposal by a common judgment, by the Tribunal.
3. It is contended that on receipt of the references from the Superintendent of Police
Page No.# 4/23
being SP's F.T. Case No. 616/2014 and SP's F.T. Case No. 644/2012, Case Nos.
FT/H/1929/2012 and FT/H/58/2012 were registered, respectively and notices were issued to
the petitioners, calling upon them to file their written replies/written statements (WS for
short), if any. Meanwhile, on creation of Foreigners' Tribunal No. 10 TH at Sankardev Nagar at
Hojai, erstwhile district Nagaon, the aforementioned cases were re-registered as FT(D) Case
No. 455/2015 and FT(D) Case No. 439/2015, respectively.
4. When notices were issued to the petitioners they appeared before the Tribunal and
submitted their WS claiming thereby that they are Indian citizens by birth. The petitioners
had adduced evidence of Muslim Ali and Musstt. Firun Nessa, jointly as DW.1, the evidence of
Salima Khatun as DW.2 and had exhibited several documents to substantiate their stance.
Decision of the learned Tribunal:
5. It was observed by the learned Tribunal that the evidence of OPs/DWs had not at all
affirmed their Indian citizenship. On a cumulative consideration of the allegation by the
referral authority as well as the evidence of the petitioners, it was held that the petitioners
failed to discharge their burden as per Section 9 of the Foreigners Act, 1946 (the Act of 1946,
for short). The set of documents relied upon by the petitioners were found to be laden with
discrepancies and inconsistencies, rendering the same untrustworthy and unreliable.
6. On comparing the cross examination of the petitioners' witnesses and the voters lists
of 1966 and 1970, the learned Tribunal held that their grandfather's name appears to be the
same as disclosed by them but their grandmother's name is different as reflected through the
documentary evidence vis-à-vis the cross examination. Their grandmother's name ought to
Page No.# 5/23
have been recorded as Jayanab Bibi instead of Habija Bibi or Safia Khatun. It was observed
by the Tribunal that the petitioners had never stated that their grandfather Mafij Ali had two
wives, namely Habija Bibi and Safia Khatun. It was also observed by the Tribunal that the
petitioners' uncle's (Bordeuta's) age i.e. the age of Ajijur Rahman appeared as 60 (Sixty)
years in the voters list of 1966 (Ext.-1) and 64 (Sixty Four) years in the voters list of 1970
(Ext.-2), whereas the age of the petitioners' grandmother Safia Khatun in Exhibit-1 is
reflected as 58 (Fifty Eight) years which goes to show that she is two years younger than her
son Ajijur Rahman. Similarly, the so called grandfather's age in the voters list of 1966 (Ext.-1)
is shown as 70 (Seventy) years whereas, in the same year itself the age of the petitioners'
uncle (Bordeuta) is shown as 60 (Sixty) years which is not possible moreso, when the
petitioners' paternal uncle is older than the petitioners' father.
7. It was further observed by the Tribunal that the certified copy of the voters' list of
1997 reflected the names of the petitioners' parents as residents of Dighaljaruni Forest
village, Police Station - Doboka of 90 No. Jamunamukh LAC whereas in cross examination,
the petitioners had stated that their father Basir Uddin had shifted to the Dighaljaruni village
only after 5 (Five) years of his marriage but the petitioners have not mentioned when their
parents got married through their evidence-in-affidavit or through their cross examination.
Their uncle Ajijur Rahman's name was also not recorded in Exhibit-3.
8. Exhibit-3 is the certified copy of the Voters list of 1997, in which, merely, the OP's
parents names are recorded being the residents of Dighaljarani Forest village, P.S: Doboka in
respect of 90 No. Jamunamukh L.A.C. It has been held by the learned Tribunal that as per the
statements in cross of the OPs/DWs their father namely, Basir Uddin had shifted to the
Page No.# 6/23
Dighaljarani village only after 5 (Five) years of his marriage, but the OPs or the DWs neither
in their evidence nor in their cross examination stated when the marriage of their parents
took place. Admittedly, the name of the elder brother of the OPs father (Ajijur Rahman) was
also not recorded in said Ext.3. The petitioners have also not stated whether their said uncle
Ajijur Rahman was alive at the relevant time or not.
9. There are other discrepancies relating to age which shall be discussed at the
appropriate stage. The discrepancies of the certified copies of the voters lists marked as
Exhibits - 4, 5 and 6 will be discussed at the appropriate stage. All in all, after considering the
WS and evidence, it was observed by the learned Tribunal that the petitioners have failed to
prove their linkage with their parents and they were declared as foreign nationals who
entered into the territory of India after 25.03.1971 without any valid documents.
Petitioners' case:
10. It is submitted on behalf of the petitioners through their petitions and subsequently
through their arguments that they have exhibited 14 (Fourteen) documents in support of
their linkage with their parents and grandparents, but surprisingly, the learned Tribunal
erroneously did not accept these evidence and passed the impugned order. It is contended
that the learned Tribunal erroneously pointed out some irrelevant discrepancies with respect
to age, name etc., and thus the impugned order/opinion dated 31.10.2016 in FT(D) Case No.
455/2015 and FT(D) Case No. 439/2015, is liable to be set aside. While evaluating Exhibits 1
and 2, the learned Tribunal failed to appreciate that the petitioners produced certified copies
of the documents to establish their linkage with their grandparents and parents. The learned
Tribunal has failed to verify the voters' lists of 1966 and 1970, but on the contrary has
Page No.# 7/23
pointed out some discrepancies relating to omission of the name of the petitioners'
grandmothers. The discrepancies relating to age which have surfaced through the
documentary evidence are common errors committed by the State authority while entering
the names and entries in the voters' lists. The learned Tribunal has in a mechanical manner
discarded the Exhibits 3 to 13.
11. The petitioners have emphasized and stressed that they are Indian citizens by birth
and they will be greatly prejudiced if the impugned order is not set aside and quashed and
they have nowhere to go.
12. It is further contended that the learned Tribunal has failed to appreciate the fact that
the petitioners' grandfather Mofij Ali, after performing Hajj earned the title of Haji, and this is
the reason why his name was reflected after Hajj, as Haji Mofij Ali.
13. In connection with WP(C) No. 1591/2017, an additional affidavit was filed on behalf of
the petitioner Md. Muslim Ali to incorporate certain facts left out in the main petition. The
affidavit was filed by Kabir Ahmed, son of Md. Muslim Ali of village Dighaljarani under Doboka
Police Station of Hojai district. Through the affidavit it is submitted that certain facts and
records which were inadvertently left out at the time of filing the written statement and writ
petition has been included. It is submitted that the petitioner could not submit some relevant
documents which would have linked the facts of place of original residence of the petitioner
and his present place of residence. The petitioner's son who has submitted the affidavit has
stated that as the petitioner was in the detention camp he (petitioner's son) had to deal with
the case in this Court and he was unaware of the documents submitted by his father before
the learned Tribunal at Hojai. The petitioner's son i.e. the deponent of the affidavit was
Page No.# 8/23
unable to provide all the documents to the engaged counsel initially.
Submissions for the Respondents:
14. Per contra, the Election Officer, Sri Dhrubajyoti Nath filed an affidavit in compliance to
the order dated 19.03.2019 passed by this Court. It has been submitted by the Election
Officer that there are no records and/or any reasoned order available in the office of the
District Election Officer, Hojai, showing how the name of Basir Ali was included in the voters
list of 1985 in the village - Dighaljar. The Office of the District Election Officer is in possession
of authenticated printed copy of the Electoral Rolls for the year 1985 in respect of the 90
Jamunamukh LAC in question. The procedure adopted for inclusion of the name of a person
in the Electoral Roll has been stipulated in the Representation of People Act, 1950 read with
the Registration of Electors Rules, 1960. The Election Commission of India, from time to time
in, in consonance with the said Act and Rules, issues instructions in the form of Hand Book in
electronic form. The inclusion, shifting, modification or deletion in the Electoral Roll is done by
submitting Electoral Registration Forms. Applications can be filed by eligible voters online
through the portal, mobile applications, SMS, National Call Centre or by submitting the filled
in forms to the ERO/ AERO/BLO of his or her constituency in paper or through electronic
submission using NVSP portal. The process being clearly stipulated in the Hand Book is
submitted and marked as Annexure-A along with the affidavit filed by the Election Officer.
15. Ms. A. Verma, learned counsel for the Home Department of Government of Assam laid
stress in her argument that the voters' list of 1985 was not proved. The Jamabandi copy
relied upon by the petitioners is a document from after 1971, which is not relevant to this
case. The Circle Officer's report on the second page of the Jamabandi reveals that the land
Page No.# 9/23
was purchased and the petitioners' father's name was reflected in the Jamabandi in 1998,
and thus the said Jamabandi annexed along with the petition cannot be relied upon.
Decision and Conclusion:
16. We have given our thoughtful consideration to the submissions at the bar.
17. The petitioner has relied on the decision of Hon'ble the Supreme Court in Sirajul
Hoque Vs. State of Assam reported in (2019) 5 SCC 534.
18. The respondents have relied on the following decision of this Court:
i) Rashminara Begum Vs. Union of India & others, reported in 2017(4)GLT 346.
19. As both the cases FT(D) Case No. 439/2015 and FT(D) Case No. 455/2015 were
amalgamated vide order dated 19.02.2016 by the Tribunal, the evidence-in-affidavit in both
the cases were jointly filed. Both the petitioners have adduced their evidence-in-chief jointly
as DW.1. They have also adduced the evidence of their projected mother Salima Khatun as
DW.2 and further exhibited several documents. Through their WS and their evidence-in-chief,
the petitioners have stated that they were born in village - Dighaljaruni. Their father used to
reside at village - Saharon under Murajhar Police Station but about 30/32 years ago, their
father Basir Uddin came to the village - Dighaljaruni under Doboka Police Station for better
livelihood and stayed in Dighaljaruni till his death.
20. The name of the petitioners' father along with the names of his family members have
been enlisted in the voters' lists of 1966 and 1970 of village Saharon under No. 93 Hojai LAC
at Sl. Nos. 163, 164, 165, 167. Their house No. is shown as 54 of Part No. 103.
Page No.# 10/23
20.1. The petitioners' father was a voter in the years 1985, 1989, 1997, 2005 and 2010.
20.2. In the meantime, the petitioner Firun Nessa's marriage was solemnized with Md. Abdul
Rezak, son of Late Rois Ali of village Nahargaon under Sutargaon GP of No. 90 Jamunamukh
LAC.
20.3. The petitioner Md. Muslim Ali had exercised his right to franchise as an Indian citizen.
20.4. It is further submitted that the petitioner Musstt. Firun Nessa could not cast her vote
as her name was entered in the voters list as D-Voter. At the time of hearing she could not
appear before the Verification Officer as she was ailing and thus her name was entered as a
'D-Voter'.
21. It is submitted that both the petitioners have compelling evidence to prove their
linkage with their parents and grandparents to establish that they are Indian citizens and not
foreign nationals.
22. As a ready reckoner, the Voters' List of 1966 is reflected hereinbelow:-
Voters' List 1966
Assam Legislative Assembly Constituency Name & No. 93 Hojai
State-Assam, District-Nagaon, Part No. 103,
Sub-Division-Mouza- Namati, P.S.-Morajhar, Village-Saharan
Page No.# 11/23
Sl. No. House No. Voters' Names Name of related person Sex Age
163 54 Hazi Mofij Ali F-Hussain Ali M 70
164 -do- Habija Bibi H-Mofij Ali F 29
165 -do- Safia Khatun H-Mofij Ali F 58
166 -do- Azizur Rahman F-Mofij Ali M 60
167 -do- Basir Uddin F-Mofij Ali M 26
23. The Voters' List of 1970 is reflected hereinbelow:-
Voters' List 1970
Assam Legislative Assembly Constituency Name & No. 93 Hojai
State-Assam, District-Nagaon, Part No. 109,
Sub-Division-Mouza- Namati, P.S.-Morajhar, Village-Saharan
Sl. No. House No. Voters' Names Name of related person Sex Age
163 54 Hazi Mofij Ali F-Hussain Ali M 74
165 -do- Safia Khatun H-Mofij Ali F 62
166 -do- Azizur Rahman F-Mofij Ali M 64
167 -do- Basir Uddin F-Mofij Ali M 30
24. The Voters' List of 1997 is reflected hereinbelow:-
Voters' List 1997
Page No.# 12/23
Assam Legislative Assembly Constituency Name & No. 90 Jamunamukh
Polling Station Name & No. 42, Forest Village L P School
State-Assam, District- Nagaon, Part No. 42, Sub-Division-Hojai,
Mouza- Namati, P.S.-Daboka, Village-Dighaljaroni Forest Village
Sl. No. House No. Voters' Names Name of related Sex Age
person
315 94 (A) Basir Uddin F-Hazi Mofij Ali M 50
316 -do- Salima Khatun H-Basir Uddin F 40
25. The Voters' List of 2005 is reflected hereinbelow:-
Voters' List 2005
Assam Legislative Assembly Constituency Name & No. 90 Jamunamukh
Polling Station Name & No. 60, Forest Village L P School (East Part)
State-Assam, District- Nagaon, Part No. 60, Sub-Division-Hojai,
P.S.-Daboka, Village-Dighaljari
Sl. No. House No. Voters' Names Name of related person Sex Age
404 89(A) Basir Uddin F-Hazi Mofij Ali M 65
405 -do- Salima Khatun H-Basir Uddin F 45
406 -do- Muslim Ali F- Basir Uddin M 35
407 -do- Usman Ali F- Basir Uddin M 32
408 -do- Morom Ali F- Basir Uddin M 20
409 -do- Tazmina Begum F- Basir Uddin F 25
Page No.# 13/23
26. The Voters' Lists post-2005 are not discussed as the Voters' Lists of 2010 and 2014,
which have been exhibited by the petitioners while adducing their evidence will not help to
establish the petitioners' linkage with their parents and their grandparents.
27. The petitioner, Md. Muslim Ali was cross-examined in extenso. Through their evidence,
both documentary as well as oral, the petitioners have stated that their father's name is
Basiruddin, their grandfather's name is Mofij Ali and grandmother's name is Jayanab Bibi.
Their grandparents are from the village Saharon under Murajhar Police Station. Thus, the
petitioners have reiterated their written statement through their evidence. However, there
was a departure from their pleadings when the petitioners exhibited a copy of mutation of
land to prove the ownership of the petitioner's father over a plot of land at Mouza-Namati,
Village-Saharon.
28. It has been rightly held by the Tribunal that the Voters' Lists of 1966 and 1970 depicts
that the petitioner's father's name is Basir Uddin, whereas two different names appear as
petitioners' grandmother. In the Voters' List of 1966, Habija Bibi and Safia Khatun are shown
as the grandmothers of the petitioners, whereas Safia Khatun is shown as the grandmother
of the petitioners in the Voters' List of 1970. Surprisingly, the Voters' List of 1985 was not
exhibited before the Tribunal, which is marked as Annexure-4 in both the writ petitions
captioned above. Annexure-4 was not exhibited before the Tribunal. Now, there is no
explanation relating to the inclusion of Habija Bibi and Safia Khatun's names in the said
Voters Lists and exclusion of Jayanab Bibi's name, whom the petitioners have claimed to be
Page No.# 14/23
their grandmother. The petitioners' father Basir Uddin's age is given as 36 years in the year
1985 and the petitioners' mother Salima Khatun's age is shown as 39 years in the year 1985.
29. The petitioners' mother has also supported the evidence and the pleadings, stating as
DW-2 that they had shifted from Saharon Village to Dighaljaruni Village, under Daboka for
their livelihood, about 32/33 years ago. The petitioners' mother/DW-2 has submitted her
evidence in affidavit on 19.02.2016, wherein she has given her age as 65 years. Even if the
Voters' List of 1985 is relied upon, a discrepancy in the age emerges, because Salima
Khatun's age ought to have been 68 years in 2016, when she adduced her evidence as DW-2.
When the petitioners have not exhibited the Voters' List of 1985 before the Tribunal, this
Voters' List cannot be taken into consideration, while deciding both the writ petitions. It is
also apt to mention that the petitioners' father's name appears as Basir Ali instead of Basir
Uddin in the Voters' List of 1985.
30. It was observed by the learned Tribunal that the Voters' List of 1985 was marked as
Exhibit-3, but no such Voters' List was available in the record.
31. Although the names of the petitioners' uncles and aunts have not been mentioned in
the written statement, the petitioners have mentioned in their pleadings/written reply/WS
that the names of the petitioners' father and family members are reflected at Sl. Nos. 163,
164, 165, 166 and 167 in the Voters' List of 1966 and 1970. Several contradictions could be
elicited through the cross-examination of the petitioner Muslim Ali as DW-1. It is true that in
the Voters' List of 1966, the age of the petitioner's uncle, who is older to the petitioners'
father Basir Uddin, is shown as 60 years and the petitioners' grandmother Safia Khatun's age
is shown as 58 years. Although the Voters' List of 1966 and 1970 are certified copies, yet the
Page No.# 15/23
discrepancies in the age of the mother and son casts a shadow of doubt over the authenticity
of the Voters' Lists.
32. It cannot be ignored that in the Voters' List of 1966 the petitioners' grandfather's age
appears to be only 10 (Ten) years more than the petitioners' uncle's Ajijur Rahman's age.
How can a father be only 10 (Ten) years older than his son and a mother be 2 (Two) years
younger than her son. It has stemmed from the pleadings and the evidences that the
petitioners have given 3 (Three) names as their grandmother without attributing any reasons
why they have stated that Jayanab Bibi is their grandmother whereas the Voters' Lists depict
the names of 2 (Two) grandmothers. In the Voters' List of 1970, the petitioners' father's age
is shown as 30 (Thirty) years, so in 1997 his age ought to have been 57 (Fifty) years and in
2005, 68 (Sixty Eight) years but the Voters' List of 1997 reflects the petitioner's father's age
as 50 (Fifty) years and the Voters' List of 2005 reveals the petitioner's father's age as 65
(Sixty Five) years instead of 68 (Sixty Eight) years. All these discrepancies relating to the age
and names are incomprehensible.
33. Thus, this case is distinguishable from the decision relied upon by the learned counsel
for the petitioners in Sirajul Hoque (supra) wherein it has been held as:
"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
Page No.# 16/23
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.
5. We, therefore, set aside the judgment of the High Court as well as the Foreigner's
Tribunal and allow the appeal. As a result thereof, the appellant is liable to be set free at
once."
34. In the case of Sirajul Hoque (supra), the appellant had produced documents before the
Tribunal and was successful to establish his linkage with his grandfather and parents. There
was only a minor discrepancy relating to an alphabet or a letter in the name of appellant's
grandfather, Kematullah which was shown as Kefatullah. There were no discrepancies in the
names of the appellant's great grandfather or father, which had appeared as Amutullah and
Hakim Ali throughout the proceeding.
35. In the case at hand, there are not only discrepancies relating to age, but the
discrepancies which have surfaced from the documentary evidence are incomprehensible and
unbelievable. Moreover, the Voters' List of 1985 ought to have been exhibited but the
petitioners have refrained from exhibiting the document. Even if the Voters' List of 1985 is
taken into consideration, the same will not be able to establish the linkage between the
petitioners with their father and grandfather.
36. Relating to the document not exhibited in the Court, the learned Standing Counsel for
the Home Department of Government of Assam, Ms. A. Verma has relied on the decision of
this Court in the case of Rashminara Begum Vs. Union of India and others in WP(C) No.
7102/2016 wherein it has been held and observed that:
Page No.# 17/23
"31. Law on this aspect is very clear. In Narbada Devi Gupta vs Birendra Kumar
Jaiswal, (2003) 8 SCC 745, Supreme Court reiterated the legal position that marking of
documents as exhibits and their proof are two different legal concepts. Mere production
and marking of a document as exhibit cannot be held to be due proof of its contents. Its
execution has to be proved by admissible evidence i.e., by the evidence of those persons
who can vouchsafe for the truth of the facts in issue.
32. This proposition was again re-stated by the Supreme Court in L.I.C. vs Ram Pal
Singh Bisen, (2010) 4 SCC 491, wherein it has been held that mere admission of a
document in evidence does not amount to its proof; in other words, mere marking of
exhibit on a document does not dispense with its proof which is required to be done in
accordance with law. Under the law of evidence, it is necessary that contents of
documents are required to be proved either by primary or by secondary evidence. At the
most, admission of documents may amount to admission of contents but not its truth.
Contents of the document cannot be proved by merely filing in a court. Such a document
cannot be relied upon."
********
"43..... In the writ petition, in addition to the above documents, a number of other
documents have been filed; some more documents have been filed by way of additional
affidavit by one Zakir Hussain. The documents which have been annexed to the writ
petition were obtained on 04.11.2016 after the reference was decided by the Tribunal on
31.10.2016. In other words these are post decision documents. In any case, documents
not exhibited or atleast not filed before the Tribunal cannot be gone into in a writ
proceeding to judge correctness of the decision of the Tribunal......"
37. In the instant case, the Voters' List of 1985 marked as Annexure-4 cannot be taken
into consideration at this juncture more so, when the electoral roll of 1985 has not been
annexed along with the Voters' List of 1985, which was also not exhibited before the Tribunal.
38. Through the additional affidavit filed by Kabir Ahmed, (petitioner Muslim Ali's son), it is
stated that:
39. In the year 1967 the deponent's great-grandfather, Late Basir Uddin solemnized his
marriage with Salima Khatun, daughter of Late Ibrahim Ali and Anuwara Begum of village
-Dighaljaruni and he stayed in his father-in-law's house permanently, as his in-laws had no
son.
Page No.# 18/23
40. Basir Uddin and Salima Khatun Begum were blessed with seven children namely:
(i) Muslim Ali (petitioner in this case),
(ii) Usman Ali,
(iii) Maram Ali,
(iv) Ustar Ali,
(v) Hazira Begum,
(vi) Manora Begum and
(vii) Firun Nessa (petitioner in this case).
41. The deponent had further submitted that the descendent of his great-grandfather Late
Haji Mofiz Ali and their children are still residing in Saharan village under Murajhar Police
Station but the uncles of the petitioner had passed away. Ayan Uddin, son of Late Moin Uddin
of village - Saharan under Murajhar Police Station and also cousin of the petitioner had
executed an affidavit declaring the petitioner as his first cousin. The affidavit is marked as
Annexure-12.
42. The deponent has also annexed certain certificates issued by the Government
Gaonburah of village - Saharan and village - Dighaljaruni marked as Annexure-13-14.
43. The Gaonburah's certificates certifying that the petitioners have earlier resided at
Saharan village and thereafter shifted their base to Dighaljaruni cannot be accepted at this
stage. Moreover, through their pleadings and evidences, the petitioners have never
Page No.# 19/23
mentioned the names of their uncles except the name of Ajijur Rahman. In a tacit manner
the petitioners were very silent about the names of their uncles or even the names of their
siblings. These documents Annexures-12, 13 and 14 cannot be considered at this stage.
44. It has also been held in the case of Rashminara Begum (supra) that the documents
which were annexed with the writ petition filed by the petitioner, Rashminara Begum, were
obtained on 04.11.2016, after the reference was decided by the Tribunal on 31.10.2016, and
documents which were not exhibited or at least not filed before the Tribunal, cannot be gone
into a writ proceeding to judge correctness of the decision of the Tribunal. Similarly,
Annexures-12, 13 and 14 of the additional affidavit submitted by the deponent which are of
28.02.2019, 23.02.2019 and 24.02.2019, cannot be accepted at this stage since these
documents were sworn and issued and submitted after the impugned order/opinion of the
Tribunal dated 31.10.2016.
45. In the Voters' List of 1997 of Jamunamukh LAC [Annexure-5 in WP(C) No. 1578/2017],
the petitioner Firun Nessa's name appears as wife of Abdul Razzaque at Serial No. 346. This
cannot be considered as a link document with her projected father "Basir Uddin". Moreover,
said Annexure-5 is not a certified copy of the Voters List and it was also not exhibited before
the Tribunal.
46. The Voters' List of 1997 of Jamunamukh Constituency of No. 42 Polling Centre of
Namati Mouza under Daboka PS of Dighaljaroni Forest Village was exhibited before the
Tribunal as Exhibit-3. Here, the name of the petitioners' father is shown at Sl. No. 315 at
House No. 19 (Ka). In this Voters' List, now the petitioners' grandfather's name appears as
"Hazi Mofiz", instead of "Hazi Mofiz Ali". Even in the Voters List of 2005 (Exhibit-4), the
Page No.# 20/23
petitioners' grandfather's name appears as "Hazi Mofiz". Here, the petitioners have given an
explanation that after observing Haj, the petitioners' grandfather had earned the title of Hazi.
It is also apt to mention that the Voters' List of 2005 is of Village-"Dighaljari" and not of
village "Dighaljaroni". Similarly, the Voters Lists of 2010 and 2014 (Exhibits - 5 and 6) are of
"Dighaljari" and not "Dighaljaroni". It is apparent that the petitioners' projected grandfather
has been referred as "Hazi Mofij" in the Voters List of 1997 from village - "Dighaljaroni Forest
Village" relating to 90 Jamunamukh LAC (Ext.-3), instead of "Hazi Mufij Ali" as reflected in the
Voters' Lists of 1966 and 1970 from Village - Saharon relating to 93 Hojai LAC (Exts. - 1 and
2). It can thus be concluded that the evidence is fraught with discrepancies.
47. Moreover, discrepancies have emerged in the age of the petitioners' projected father.
In the Voters' List of 1966 the age of Basir Uddin is shown as 26 (Twenty Six) years and the
residential address is shown as village - Saharan. Similarly, in the Voters' List of 1970, the age
of Basir Uddin is shown as 30 (Thirty) years and his place of residence is shown as village -
Saharan. After 27 (Twenty Seven) years in the Voters list of 1997 (Ext.-3) relied by the
petitioners, their father shifted base and his place of residence is shown as "Dighaljaroni
Forest village" relating to 90 Jamunamukh LAC, which is a different village. The Voters' List
after a gap of 27 (Twenty Seven) years i.e. the Voters' List of 1997 reflects Basir Uddin's age
as 50 (Fifty) years instead of 57 (Fifty Seven) years from Dighaljaroni Forest village. Again the
petitioners' father's age is reflected in the Voters' List of 2005 as 65 (Sixty Five) years (Ext.4)
instead of 68 (Sixty Eight) years showing him to be a resident of village - Dighaljari, which is
altogether a different village. The discrepancies in the age and residence of the petitioners'
projected father as reflected in the Voters' Lists of 1966, 1970 vis-à-vis 1997 and 2005 is
incomprehensible. There is also no proof of residence of Basir Uddin in India after 1970 up-to
Page No.# 21/23
1997. Suddenly, after a gap of 27 (Twenty Seven) years, the petitioners' father's name
appears in the Voters' List of 1997 in a different village under a different LAC. Through their
pleadings and their evidence the petitioners have failed to ascribe adequate reasons and
discharge their onus to prove that Basir Uddin whose name appears in the Voters' List of
1997 and 2005, resident of village - Dighaljaroni Forest village and village - Dighaljari
respectively is the same person whose name has appeared in the Voters' List of 1966 and
1970 as a resident of village - Saharan.
48. It would be apt to reiterate that the Voters' List of 1985 was annexed in WP(C) No.
1578/2017 to establish the linkage of the petitioners' father Basir Uddin with his grandparents
but as the petitioners did not exhibit these documents, they have failed to prove their linkage
with Basir Uddin and his projected parents whose names are reflected in the Voters' Lists of
1966 and 1970.
49. Relating to the linkage purported to be established through the Gaonburha's and
Panchayat certificates, it is held that those exhibited certificates marked as Exhibits-7, 8, 9,
10, 11 and 12, have not been proved by the Gaonburha and the authorities in the concerned
Panchayat, who had issued those certificates.
50. It is also apparent from Exhibit-14 that pursuant to an order dated 22.01.1998, passed
by the Land Revenue Authority, the name of Basir Uddin was recorded as one of the
Pattadars along with seven of the Pattadars, who are not at all related to Basir Uddin or any
of his family members in any manner. The land document also cannot be accepted as a
linkage document to prove the legacy of the petitioners with their father and grandfather.
Page No.# 22/23
51. Petitioner Muslim Ali by exhibiting Voters list of 2005 relating to village - Dighaljari
(Ext.4) of 90 Jamunamukh LAC placed before the Tribunal showing his father Basir Uddin
about whom it had already been discussed above. Petitioner's name for the first time figured
as a voter in the said Voters List of 2005 from village - Dighaljari at the age of 35 (Thirty
Five) years though he was eligible to vote on completion of age of 18 (Eighteen) years since
1989. Said Muslim Ali did not state about his continuous existence in India since his date of
birth in 1970 till 2005 accepting his age 35 years reflected in the Voters List of 2005.
52. In the wake of the foregoing discussions, it is thus held that the petitioners have failed
to discharge their burden under Section 9 of the Act of 1946 with cogent, reliable and
acceptable evidence.
53. It has been observed by this Court in Jainal Uddin Vs. The Union of India and others in
WP(C) No. 3071/2016 decided on 03.04.2018 that:
"This Court has held in several decision that when the citizenship status of a proceedee is
questioned, that too by the State, it is the bounden duty of the proceedee to disclose all
material facts in his possession at the first instant itself; in this case, in the written statement.
Failure to disclose material facts in the written statement by itself may lead to drawal of
adverse presumption against the proceedee. However, mere pleading of material facts in the
written statement is not enough. If material facts are disclosed, those would then have to be
proved by adducing cogent, reliable and admissible evidence."
54. In the instant case, both the written statements submitted by the petitioners were very
cryptic. They have not disclosed the names of their uncles, their grandmother as well as their
siblings through their written statements. It is thus held that the petitioners have failed to
establish any link with the Voters' Lists of 1966 and 1967 along with the Voters' List of 1997
and the subsequent Voters' Lists.
Page No.# 23/23
55. In view of the foregoing discussions, it is thereby held that the petitioners have failed
to prove their linkage with their projected parents and grandparents. We thus record our
concurrence to the common decision of the learned Tribunal dated 31.10.2016 in both the
cases, FT(D) Case No. 439/2015 and FT(D) Case No. 455/2015.
56. Both the writ petitions are dismissed as they are devoid of merits.
57. Interim orders passed earlier on 20.03.2017 in WP(C) No. 1578/2017 and WP(C) No.
1591/2017 are vacated/recalled.
58. Registry to send back the original records of the FT(D) Case No. 439/2015 and FT(D)
Case No. 455/2015 to the learned Foreigners' Tribunal, Nagaon Court No. 10 TH at Sankardev
Nagaon, Hojai along with a copy of this order forthwith and shall also inform the concerned
Superintendent of Police (B), Hojai and the Deputy Commissioner, Hojai about this order for
their needful.
JUDGE JUDGE
Comparing Assistant
