Gauhati High Court
Sakina Khatun @ Sokhila Khatun vs The Union Of India And 5 Ors on 26 August, 2025
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/12
GAHC010012712021
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/752/2021
SAKINA KHATUN @ SOKHILA KHATUN
W/O- AHIL UDDIN, R/O- VILL- BAGURIGURI, P.O. CHUKRUNGBARI, P.S.
SORBHOG, DIST.- BARPETA, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, SHASTRI BHAWAN, NEW DELHI-1
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-6
3:THE DY. COMMISSIONER
BARPETA
P.O. AND DIST.- BARPETA
ASSAM
PIN- 781301
4:THE SUPERINTENDENT OF POLICE (B)
BARPETA
P.O. AND DIST.- BARPETA
ASSAM
PIN- 781301
5:THE ELECTION COMMISSION OF INDIA
NEW DELHI
TO BE REP. BY CHIEF ELECTION COMMISSIONER OF INDIA
NEW DELHI-1
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6:THE STATE COORDINATOR OF NATIONAL REGISTRATION
ASSAM
BHANGAGARH
LACHIT NAGAR
GHY-
For the Petitioner : Mr. M. Hussain, Advocate.
For the Respondents : Mr. U. K. Goswami, CGC.
Mr. J. Payeng, SC, FT.
Mr. A. I. Ali, SC, ECI.
Mr. P. Sarmah, Addl. Sr. GA, Assam.
Date of hearing: 07.08.2025
Date of judgment : 26.08.2025
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE RAJESH MAZUMDAR
JUDGMENT & ORDER (CAV)
(RAJESH MAZUMDAR, J)
Heard Mr. M. Hussain, learned counsel for the petitioner. Also heard Mr. J.
Payeng, learned Standing Counsel for the FT matters and NRC; Mr. M. Islam,
learned counsel appearing on behalf of Mr. A. I. Ali, learned Standing Counsel
for the Election Commission of India, Mr. U. K. Goswami, learned Central Govt.
Counsel and Mr. P. Sarmah, learned Additional Senior Government Advocate,
Assam for the State respondents.
2. By preferring this writ petition under Article 226 of the Constitution of
India, an opinion rendered on 26.03.2017(sic)/ (26.03.2018) by the learned
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Foreigners Tribunal No.8th, Barpeta in F.T. Case No.340/2016 arising out of
IM(D)T Case No.5687(A)/98 has been assailed, praying for interfering with the
said opinion and for appropriate writ directing the respondents not to deport the
petitioner from India.
3. The brief facts leading to the institution of this writ petition is that the
Superintendent of Police (Border), Barpeta, Assam had forwarded the case
records of IM(D)T Case No.5687(A)/98 to the Chairman, IM(D)T, Barpeta, which
related to the present petitioner, for an opinion as to whether the
proceedee/writ petitioner was an illegal migrant in the Country. This reference
by the Superintendent of Police (B), Barpeta, Assam has arisen out of a referral
from the office of the Electoral Registration Officer for 40, Sorbhog Assembly
Constituency whereby the said Electoral Registration Officer expressed doubt
about the citizenship of the writ petitioner.
4. On receipt of the said reference from the Superintendent of Police (B),
Barpeta, F.T. Case No.340/2016 was registered in the Foreigners' Tribunal
No.8th, Barpeta, Assam and notices were issued to the proceedee/writ petitioner
herein requiring her to appear on 07.11.2016 on which date the proceedee
appeared through her counsel by filing vakalatnama. The written statement on
behalf of the proceedee was filed on 15.02.2017 and the evidence on affidavit
of the proceedee as DW-1 was submitted on 10.03.2017. The proceedee was
subjected to cross-examination on 10.04.2017. On the same day, notice was
issued to the Election Officer to verify the 1965 Voters List of Barpeta District.
5. While leave was taken by the proceedee on different dates praying for filing
of further evidence, on 13.06.2017, a petition under Order VI read with Section
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151 of the Code of Civil Procedure, 1908 was preferred before the learned
Tribunal by the proceedee praying to amend the "Written Statement and the
evidence on affidavit of DW-1". This was registered as Petition No.630/2017.
The same came to be allowed on the same day fixing 30.06.2017 for submitting
amended written statement and amended evidence on affidavit. The amended
written statement came to be submitted on 14.07.2017 and the amended
evidence on affidavit came to be submitted on 25.07.2017. On 29.08.2017, the
DW-1 (proceedee herself) was cross-examined. The evidence-in-chief of DW-2
was submitted on 21.10.2017 and he was cross-examined on 16.11.2017.
Evidence of DW-3 on affidavit was submitted on 13.12.2017 and he was cross-
examined on 24.01.2018. The Village Headman had appeared before the
Tribunal on 28.02.2018 and adduced evidence.
The following documents were marked as exhibits during the proceedings :
(Ext.B) 1965 voter list
(Ext. C) 1970 voter list
(Ext.D) Gaon Panchayat Certificate
(Ext.E and Ext. F) Gaonburha's Certificate.
(Ext. G) 2008 voter list.
(Ext. I) voter identity card.
Additionally, two annexures, namely, the NRC of 1951 and voter list of 1997
produced by the witnesses received the attention of the learned. Tribunal.
6. Arguments on behalf of the proceeded were thereafter heard by the
learned. Tribunal and the impugned opinion was delivered on 26.03.2017(sic)/
(26.03.2018). The learned. Tribunal, when rendering the opinion impugned in
this writ petition, had referred to the initial written statement filed by the
proceedee to note that the name of her husband differed when they appeared
at paragraph 8 and paragraph 14 respectively of the said document. Referring
to the NRC of 1951, which incidentally was not an exhibited document, the
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learned. Tribunal noted that the proceedee had failed to disclose why the name
of her father appeared with her maternal grandfather and not with the family of
her father and that the proceedee appeared to have made assumptions
regarding the age of her father as she could not submit any document to prove
his correct age. The learned. Tribunal thereafter discussed doubts arising in the
voters list of 1965 and 1970 and also in the evidence of DW 2, who was the
projected brother of the proceedee. Variations in the name of the projected
father of the proceedee and the projected father of her projected brother also
found reference in his discussion. Finally holding that the documents submitted
by the proceedee could not be relied upon, the learned Tribunal held that the
proceedee could not discharge her statutory burden under Section 9 of the
Foreigners Act, 1946. She was declaredto be foreigner within the meaning of
Section 2(a) of the Foreigners Act 1946, having illegally entered into India
(Assam) after 25.3.1971.
7. The learned counsel for the petitioner has submitted that the opinion
rendered by the learned Tribunal is unsustainable in law and on facts for several
reasons. By referring to the written statement filed by the proceedee, the
learned counsel for the petitioner has argued that the learned Tribunal had
committed a grave error while rejecting the linkage sought to be established by
the proceedee with her projected father, mother and her brothers. The learned
counsel has referred to different exhibits to urge that the voters lists of 1965
and 1970 (Ext-B) contained the names of the mother and the grandfather
(Maternal) of the proceedee. He urged that the Gaon Panchayat Certificate, the
Certificate issued by the Village Headman (Gaonburah) of Boguriguri and the
certificate issued by Village Headman of Poragaon were documents enough to
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show that the parents and the grandparents of the petitioner were Indian
citizens residing within the territory of India and thus the linkage having been
established, the opinion of the learned Tribunal deserves an urgent intervention.
8. The learned counsel for the petitioner has also referred to the evidence
adduced by the petitioner as DW-1; to the evidence adduced by the brother of
the petitioner, who was examined as DW-2; to the evidence adduced by
younger sister of the petitioner, who was examined as DW-3 as well as the
Court witnesses and has emphasized that the exhibits produced by them did not
face any objection from the State. He has further emphasized that the petitioner
in her written statement and in her evidence has satisfactorily explained the
minor variations in the age and names of her predecessors and he has also
urged that the petitioner had stated all relevant facts and led cogent and
material evidence to prove such facts to establish her citizenship of India. The
learned counsel has also urged that the failure of the learned Tribunal to discuss
the evidence of DW-1, DW-3 and CW-2 in the impugned opinion renders the
opinion liable to interfered with. The learned counsel has also made a challenge
to validity of the notice served upon the proceedee and has urged that since the
notice was not issued as per Clause-3 of the Foreigners (Tribunal) Order, 1964,
the entire proceeding would be vitiated.
9. Mr. J. Payeng, learned Standing Counsel for the FT matters has vehemently
opposed the aforesaid contentions and the prayer made in the writ petition. The
learned counsel for the respondents has argued that the learned Tribunal had
taken into consideration each and every aspect of the written statement and the
evidence adduced by and on behalf of the proceedee and there is no flaw in the
decision making process resorted to by the learned Tribunal. Mr. Payeng has
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also argued that the documents relied upon by the proceedee are in themselves
self-contradictory and therefore, none of them would suffice to support the case
of the proceedee/writ petitioner. Mr. Payeng has also made strenuous efforts in
referring to the Annexures in the writ petition, some which were exhibits before
the learned Tribunal, to bring to light discrepancies, which, according to him,
would be fatal to the projected case of the writ petitioner. Mr. Payeng has also
referred to the evidence-in-chief on affidavit of the DWs and their cross-
examination to urge this Court to disbelieve the projection of the writ petitioner
and he therefore, prays for dismissal of the writ petition.
CASE LAWS RELIED UPON BY THE PARTIES :
Case laws cited by the Petitioner :-
1. Abdul Khalique (MD.) Vs. Union of India and others [2013(1) GLT 941]
2. Motior Rahman Vs. Union of India and others [2020(1) GLT 330]
3. Anjana Biswas Vs. Union of India and others [2023 (2) GLT 1102]
4. Md. Rahim Ali @ Abdur Rahim Vs. State of Assam and others [2024 0
Supreme(SC) 575]
5. Habiza Khatun Vs. Union of India and others [WP(C) No.6587/2024, decided
on 05.03.2025]
6. Rafika Bibi @ Rafika Khatun Vs. Union of India & others [WP(C)
No.3330/2020, decided on 26.05.2025]
Case laws cited by the Respondents :-
1. Abdul Mojid vs State of Assam (2019) 2 GLT 45
10. We have heard the learned counsel for the parties, perused the Trial Court
records received on requisition and we have also applied our anxious mind to
the judgments referred to by the learned counsel for the parties. Being
conscious of the extent of jurisdiction which a writ court ought to exercise with
regard to a challenge to orders passed by the Foreigners Tribunal, we have
closely scrutinized the records. The records indeed reflect a sorry state of
affairs.
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11. As has been observed herein above, it is reflected in the records that the
writ petitioner had filed her written statement on 15.02.2017 and had adduced
evidence on 27.02.2017. The petitioner had also faced cross-examination on the
basis of her written statement and the evidence on 10.04.2017. It is also seen
that the petition which was filed on 13.6.2017 under the provisions of Order VI
read with Section 151 of the CPC was allowed without assigning any reasons
whatsoever and without specifying the extent to which the amendments were
allowed.
12. Insofar as amendment of the written statement is concerned, it is seen
that through the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002),
the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code,
which reads as under:
"Provided that no application for amendment shall be allowed after
the trial has commenced, unless the court comes to the conclusion
that, in spite of due diligence, the party could not have raised the
matter before the commencement of trial."
In Salem Advocate Bar Association Vs. Union of India, (2005) 6 SCC
344, the Hon'ble Apex Court has held that Order VI Rule 17 of the Code, which
was deleted in 1999, had been restored by Amendment Act 22 of 2002 but with
an added proviso to prevent application for amendment being allowed after the
trial has commenced, unless court comes to the conclusion that in spite of due
diligence, the party could not have raised the matter before the commencement
of trial. The proviso, to some extent, curtails absolute discretion to allow
amendment at any stage. Now, if application is filed after commencement of
trial, it has to be shown that in spite of due diligence, such amendment could
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not have been sought earlier. The object is to prevent frivolous applications
which are filed to delay the trial.
In Vidyabai and others vs Padmalatha and another, reported in
2009(2) SCC 409, the Hon'ble Apex Court has held that this proviso is
couched in a mandatory form. The court's jurisdiction to allow such an
application is taken away unless the conditions precedent therefor are satisfied,
viz., it must come to a conclusion that, in spite of due diligence, the parties
could not have raised the matter before the commencement of the trial. It was
further held that it is the primal duty of the Court to decide as to whether such
amendment is necessary to decide the real dispute between the parties and
only if such a condition is fulfilled, the amendment is to be allowed.
In Kailash v. Nanhku [(2005) 4 SCC 480], the Apex Court held that in a
civil suit, the trial begins when issues are framed and the case is set down
for recording of evidence. All the proceedings before that stage are treated
as proceedings preliminary to trial or for making the case ready for trial.
13. Insofar as the issue of allowing amendment of affidavits is concerned, it is
clear from the definition given in sub-cl. (3) of S. 3 of the General Clauses Act,
1897 and the judgment of the Apex Court in M. Veerabhadra Rao Vs. Tek
Chand, AIR 1985 SC 28 that affidavit is a sworn statement in writing made
especially under oath or on affirmation before an authorised Magistrate or
officer. It is not a pleading within the definition of Order VI Rule I CPC even if
wider meaning is given to such pleading. Therefore, the power under Order VI
Rule 17 C.P.C. cannot be exercised to grant leave to the applicant to amend the
affidavit, which is a statement on solemn affirmation. The question of exercising
power under Order VI Rule 17 C.P.C to grant leave to amend the affidavit does
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not arise. This is also the view of the High Court of Andhra Pradesh in Mohd.
Nayeem Vs Sale Sayeed, reported in 2017(5) ALD 395, which we find
persuasive. The High Court in that case had considered the cases of Pannalal
vs State of Tripura (1991)2 GLR 231 and Nandakumar Shabnkar
Mhatre vs Dayanand Mahadev Mhatre 1989 Cri LJ 715 (Bom) to hold
that leave to amend affidavit cannot be granted.
14. In the present case, the petition before the learned. Tribunal, seeking
amendment of both the written statement and the affidavit, was filed after the
trial had started. In the application seeking amendment of the first written
statement and the first evidence-on-affidavit, there is no statement that in spite
of due diligence, the party could not have raised the matter before
commencement of trial. The application did not specify the proposed
amendments. As such, there could have been no occasion for the learned.
Tribunal to apply mind as to whether such amendments would be permissible or
not. Indeed, the order dated 13.6.2017 passed by the learned. Tribunal does
not reflect that it had made any assessment of any of the pre-requisite
conditions as was necessary and as was mandated by the proviso to Order VI
Rule 17. We therefore cannot approve the course adopted by the learned.
Tribunal in allowing the petitioner to file amended written statement and
amended evidence in chief, that too at a stage when the proceedee had already
been "cross-examined' on the evidence filed by her. The order dated 13.6.2017
is accordingly set aside.
15. Turning our attention to another aspect of the proceedings conducted by
the learned. Tribunal, we are pained to see that the Cross-examination of all the
DWs were conducted "through Court". We have gone through the order sheets
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of the relevant dates viz. 10.4.2017 (1 stcross of DW-1) 29.8.2017, (2nd cross of
DW-1), 16.11.2017 (cross of DW-2) and 24.1.2018 (cross of DW-3). The
presence of the Govt. Pleader/Assistant Government Pleader is not disclosed in
the said orders. The impugned order dated 26.3.2017 does not record the
presence of the Govt. Pleader/Assistant Government Pleader. In very similar
circumstances, a co-ordinate Bench of this Court, by order dated 05.3.2025 in
WP(C) 6587/2024, held that the only plausible view would be that the learned.
Tribunal had embarked on the cross-examination of the DWs and that such
practice was held impermissible for a quasi judicial authority.
16. Having given our anxious attention to the proceedings conducted by the
learned Tribunal, we are left with no option but to hold that the proceedings in
FT Case No. 340/2016 suffers from procedural illegalities and the manner in
which the proceedings were conducted do not inspire the confidence of the
Court that the proceedee had faced a fair and impartial adjudication by the
learned. Tribunal. In such view of the matter, the present writ petition is
disposed of by setting aside the order dated 13.6.2017, which had allowed
amendments to the WS and the affidavit filed as evidence in chief of DW-1 and
also by setting aside the opinion rendered by the learned. Tribunal on 26.3.2018
(wrongly typed in the order as 26-3-2017). The matter is remanded
back to the learned. Tribunal to render a fresh opinion in accordance with law
and by taking into account the relevant pleadings and exhibits already available
on record but by ignoring the amended written statement and amended
evidence- on-affidavit filed by the DW-1. The cross examination of the DWs
which was already conducted, having been found to be faulty, opportunity of
cross examination shall be granted to the State, if so prayed for.
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17. The petitioner shall appear before the learned Tribunal along with the
certified copy of this order within 20 (twenty) days from the date of this order
without requirement of any further notice.
18. We expect the learned Tribunal to expeditiously render its opinion on the
basis of materials available on record preferably within a period of 2 (two)
months from the date of receipt of the records or date of appearance of the
proceedee, whichever is earlier. Registry is directed to send back the records to
the learned Tribunal immediately along with a copy of this order.
19. Since the matter has been remanded back, we have refrained from
considering the merits of the other arguments made by the learned Counsel for
the parties.
20. There will be no order as to cost.
21. The writ petition is allowed to the extent as indicated above.
JUDGE JUDGE
T U Choudhury/SrPS
Comparing Assistant
