Gauhati High Court
Sayed Ali @Sahed Ali vs The Union Of India And 5 Ors on 7 August, 2025
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/7
GAHC010045772025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1681/2025
SAYED ALI @SAHED ALI
S/O- LATE KAJIMUDDIN @ KAJIM UDDIN, VILL.- DIGJANI, P.O. SHOWPUR,
P.S. KALGACHIA, DIST. BARPETA, ASSAM, PIN-781319.
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA,
MINISTRY OF HOME AFFAIRS, NEW DELHI-110001.
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-781006.
3:THE DISTRICT COMMISSIONER
BARPETA
DIST. BARPETA
ASSAM
PIN- 782105.
4:THE SUPERINTENDENT OF POLICE (BORDER)
BARPETA
DIST. BARPETA
ASSAM
PIN- 782105.
5:THE ELECTION COMMISSION OF INDIA
NEW DELHI
PIN- 110001.
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6:THE STATE COORDINATOR
NATIONAL REGISTER OF CITIZENS (NRC)
ASSAM
PIN- 783380
Advocate for the Petitioner : MR A A DEWAN, S.D. AHMED,MR H A RASHID
Advocate for the Respondent : DY.S.G.I., SC, NRC,SC, ECI,SC, F.T,GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE RAJESH MAZUMDAR
JUDGMENT & ORDER (CAV)
Date : 07-08-2025
(Rajesh Mazumdar, J)
Heard Mr. A.A. Dewan, learned counsel appearing for the petitioner. Also heard Mr.
M.R. Adhikari, learned CGC; Ms. N. Bedi, learned counsel appearing on behalf of Ms. P.
Baruah, learned standing counsel for the ECI; Mr. J. Payeng, learned standing counsel for
the FT matters and NRC and Mr. H.K. Hazarika, learned Govt. Advocate for the
respondents.
2. By filing this writ petition under Article 226 of the Constitution of India, the
petitioner has assailed the opinion dated 15-06-2023 rendered by the learned Member,
Foreigners Tribunal (5th), Barpeta, Assam in Case No. 219/2016 arising out of Reference
IMDT Case No. 4849(A) declaring the petitioner as foreigner who had entered India
illegally after 25-03-1971. The petitioner had been taken into custody on 20-12-2024 and
at the time of instituting the present proceeding he was lodged in the Transit Camp at
Matia, Goalpara. While issuing notice on 26-03-2025, the records of the proceedings
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before the Tribunal were called for, keeping the consideration of the prayer for bail to be
considered on receipt of the records from the Tribunal. The petitioner was protected from
deportation in the interim.
3. The Trial Courts Records have been received and perused. As per records, the
proceeding against the writ petitioner had arisen out of the IMDT Case No. 4849(A) on a
reference made by the Superintendent of Police (Border), Barpeta under the Illegal
Migrants (Determination by Tribunals) Act, 1983 suspecting the writ petitioner to be an
illegal immigrant. Upon the IMDT Act, 1983 being declared unconstitutional by the
Hon'ble Apex Court in Sarbananda Sonowal Vs. UoI reported in (2005) 5 SCC 665,
the matter stood transferred under the Foreigners Act, 1946 read with the provisions of
Foreigners Tribunal Orders, 1964 to the Foreigners Tribunal (5 th), Barpeta, Assam and
came to be registered as Case No. FT (5th) No. 219/2016.
4. On receipt of notice, the writ petitioner appeared before the Tribunal and filed his
written statement and also filed his evidence on affidavit and exhibited the following
documents relied upon by him to support his contention that he was a bonafide citizen of
India by birth.
"1. Exhibit No. A - Certified copy of Jamabandi
2. Exhibit No. B - Certified copy of Electoral Roll of 1971
3. Exhibit No. C - Land revenue receipt.
4. Exhibit No. D - School certificate
5. Exhibit No. E - Gaonburah certificate
6. Exhibit No. F - Certified copy of Electoral Roll of 1997
7. Exhibit No. G - Photocopy of Elector Photo Identity Card
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8. Exhibit No. H - Certified copy of Electoral Roll of 1985
9. Exhibit No. I - Certified copy of Electoral Roll of 1989"
5. The petitioner examined himself as DW-1 and adduced another witness as DW-2.
The DW-2 in his evidence claimed to be the brother of the petitioner and adduced
evidence in favour of the petitioner. The tribunal had taken into account the evidence
adduced by the writ petitioner and had come to a conclusion that careful perusal of the
exhibits relied upon by the petitioner did not support the case of the petitioner and in
fact, if taken on their face value, lead to self contradictory and misleading presumptions.
6. The Tribunal thereafter returned an opinion that the proceedee/writ petitioner had
failed to prove his linkage with his projected parents and had also failed to discharge his
burden to prove that he was an Indian by birth. The Tribunal further opined that the
petitioner appeared to be a foreigner of post 1971 stream and hence, the reference was
answered in the affirmative and in favour of the State.
7. Mr. Dewan, learned counsel appearing for the petitioner has referred to the
evidence on affidavit filed by the petitioner and the exhibits made by him during the
proceeding to emphasize that the learned Tribunal had failed to appreciate any
documents other than comparing the age depicted in the affidavit filed in evidence and
the age depicted in the certificate issued by the school marked as "Exhibit-D". The learned
counsel has further emphasized that the certified copy of Jamabandi, the land revenue
receipt, certified copy of Electoral Roll of 1971, 1997, 1985 and 1989 were not given due
weightage by the Tribunal. He, therefore, prayed that the impugned order be set aside to
grant relief to the petitioner who is presently aged about 78 years.
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8. Per-contra, Mr. J. Payeng, learned standing counsel, FT matters has supported the
findings of the Tribunal. Mr. Payeng has argued that the documents which were exhibited
during the proceeding before the Tribunal do not, in any manner, support the case of the
petitioner. The voters list exhibited were of 1997, 1985 and 1989 and have no bearing to
the issue before the learned Tribunal. The certified copy of the Electoral Roll of 1971
contained reference to Kajim Uddin and Sahed Ali where Sahed Ali was shown to be aged
about 27 years, but even then, no evidence had been lead by the petitioner to assert that
he was the said Sahed Ali. By referring to the opinion of the Tribunal regarding the
discrepancy brought forth by the "Exhibit- D" (school certificate) and "Exhibit-B" (voter
certified copy of the year 1971) regarding the age of the petitioner, Mr. Payeng has
asserted that the calculation made by the Tribunal are correct and therefore, it is implicit
that the proceedee had attempted to mislead the Tribunal. The learned standing counsel
for the FT matters has supported the view that the certificate issued by the village
Headman does not bear any credibility. The learned standing counsel, therefore, prays for
dismissal of the writ petition.
9. We have gone through the records of the learned Tribunal and we have also
perused the documents annexed with the writ petition. The finding of the learned
Tribunal, which form the bone of contention are extracted below for ready reference:-
"9. On a Careful perusal of Exhibits-D which is claimed to be a school
certificate issued by Head Master of 414 no. Digzani Prathomic Vidiyalaya. It is
discernible that the proceedee was of around 9 (nine) years 2 two months in the
year 1962, whereas while considering the evidence-in-chief of the proceedee and
exhibit- B (voter certified copy of the year 1971) the age of the same appears to
be of 72 years on the day of his deposition i.e. 25/11/2016. A person to have
attained the age of 72 in the year 2016, has to take birth in the year 1944. Coming
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back to the aforementioned School certificate i.e. ext.-D, the age of the proceedee
herein appears to be around of 9 years i.e. a class three (3) student. But, if the
proceedee's deposition on oath is considered to be genuine then he should have
attained 18 years in the year 1962, which is quite unnatural and unreasonable.
This discrepancy cannot be overlooked ignored. Hence, the averments, depositions
and documents on record are self contradictory and misleading. By producing the
aforementioned school certificate (Exhibit-D), the proceedee has attempted to
mislead the Tribunal which reflects lack of bonafide intention on the part of the
same. This anomaly has created serious doubts regarding the genuineness and
integrity of the proceedee. Hence, not admissible as per law.
Exhibit-E is a certificate issued by Gaonburah Md. Lokman Hussain. This
certificate bear no credibility and probative value, since this suffers from a major
default i.e. the unauthorized use of State Emblem of India. This has been
established firmly vide WP(C) NO. 5852/2016, wherein it is stated that an
unauthorized use of State Emblem of India would render the document
inadmissible in evidence. Hence, of no relevance.
10. From the above discussion of exhibits on record, it can reasonably be
concluded that the proceedee has failed to establish linkage with one Kajimuddin
@ Kajim Uddin whom he claims to be his father and an inhabitant of Assam prior
to the cutoff date i.e. 25.03.1971."
10. A perusal of the evidence-in-chief on affidavit filed by the writ petitioner in the
proceeding before the Tribunal reveal that the petitioner had asserted that he had passed
Class-III in the year 1962 when he was around 09 years of age. The petitioner had stated
his age to be about 72 years in the year 2016 and during his cross-examination in the
year 2019, he stated his age to be 75 years.
11. Thus, going by the stand of the petitioner that he was 09 (nine) years in the year
1962, he has to be born on or around 1953. However, going by the stand that he was 72
years old in the year 2016, his year of birth would recede to 1944. Therefore, there
appears to a huge discrepancy of 10 years going by the exhibits relied upon by the
petitioner himself, which by any stretch of imagination, cannot be said to be a minor
difference.
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12. We have also noticed that though the petitioner claimed that his name appears in
the land records of the year 1958-1965 in the "Exhibit-A" we cannot resist to notice that
the said documents does not contain any reference to the DW-2, viz. Abed Ali who
claimed to be the younger brother of the petitioner. Abed Ali was 59 years of age on 18-
11-2017, therefore, born in the year 1958. "Exhibit-A", in our view, does not come to the
rescue of the petitioner. It is also noted that there was no reference to DW-2 as the living
brother of the petitioner in his evidence-in-chief on affidavit or in his written statement
and the evidence of DW-2 claiming to be his younger brother cannot be, therefore, relied
upon.
13. Accordingly, we do not find any ground to interfere with the opinion dated 15-06-
2023 passed by the FT(5th), Barpeta, Assam in Case No. FT(5 th) 219/2016 in exercise of
powers conferred by Article 226 of the Constitution of India and consequently the
challenge to the said order fails. Resultantly the writ petition stands dismissed.
14. The consequence of the opinion rendered by the learned Tribunal shall follow.
The Registry shall send back the Tribunal's record along with a true copy of this
order to be made a part of the record.
JUDGE JUDGE
Comparing Assistant
