Gauhati High Court
Page No.# 1/ vs The Union Of India And 4 Ors on 28 August, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/11
GAHC010017422017
2025:GAU-AS:11675-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1812/2017
MUSSTT. ASHIYA KHATUN @ ASIYA KHATUN
D/O LT. ASIR UDDIN SK @ ASIR UDDIN W/O MD. IDRIS ALI VILL-
TUPKARCHAR P.S. MERERCHAR DIST. BONGAIGAON, ASSAM
VERSUS
THE UNION OF INDIA and 4 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NEW DELHI-1.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI -6.
3:THE DEPUTY COMMISSIONER
BONGAIGAON
ASSAM
4:THE SUPERINTENDENT OF POLICE B
BONGAIGAON
DIST. BONGAIGAON
ASSAM
5:THE OFFICER-IN-CHARGE
MERERCHAR P.S. DIST. BONGAIGAON
ASSA
Advocate for the Petitioner : MD.S ISLAM, MR.A DAS,MR.M ALI,MR.M U MAHMUD,MR.S
Page No.# 2/11
HOQUE
Advocate for the Respondent : , ASSTT.S.G.I.,GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE RAJESH MAZUMDAR
ORDER
Date : 28.08.2025
(K.R. Surana, J)
Heard Mr. M.U. Mahmud, learned counsel for the petitioner. Also
heard Mr. B. Sarma, learned CGC; Ms. A. Verma, 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 ECI; and Mr. P. Sarmah, learned
Additional Senior Govt. Advocate for the State respondent.
2. By filing this writ petition under Article 226 of the Constitution
of India, the petitioner, namely Musstt. Ashiya Khatun @ Asiya Khatun has
assailed the impugned opinion dated 14.02.2017, passed by the learned
Member, Foreigners' Tribunal, Bongaigaon No.2, Abhayapuri, in BNGN/FT/CASE
NO. 2138/09, arising out of REF. IMDT 866/2004, by which the petitioner was
declared as illegal migrants of post 25.03.1971 stream, who has entered into
India illegally from Bangladesh.
3. Upon appearance pursuant to the notice served on her, the
petitioner submitted her written statement, inter alia, stating that there is no
cause of action for the case; the case against the petitioner is false and
baseless; and the proceeding is not maintainable. The petitioner claimed that
the case is not maintainable under the Foreigners Act, 1946 and the proceeding
Page No.# 3/11
was barred under the principles of waiver, acquiescence and estoppel and also
as it was collusive. She has stated that the name of her father was recorded in
the Electoral Roll of 1966 and 1970 as a regular voter of No.42 Abhayapuri (SC)
LAC and his name also appeared in the Electoral Roll of 1985 in the No.34
Abhayapuri North LAC and that her name is recorded in the Electoral Roll of
1997 as a regular voter of 34 Abhayapuri North LAC. The petitioner reserved her
right to file additional written statement, if circumstances so arises.
4. In support of her statement, the petitioner had submitted
evidence-on-affidavit, reiterating the statements made in the written statement
and exhibited the Electoral Roll of 1966 as Ext.1; Electoral Roll of 1970 as Ext.2
(wrongly written as Electoral Roll of 1966); Electoral Roll of 1985 as Ext.3;
Electoral Roll of 1997 as Ext.4; Electoral Roll of 2014 as Ext.5. She has also
obtained a Link Certificate from the office of the Secretary, Rangapani Gaon
Panchayat dated 26.06.2015, which is exhibited as Ext.6. She has also examined
her projected mother, namely, Musstt. Fulbhanu Bewa @ Fuljan Bibi as DW-2,
who had stated, inter alia, that she has filed the evidence-on-affidavit in support
of the defence of her daughter. She claimed to be an Indian national by birth
and has stated that her husband's name is recorded in the Electoral Roll of 1966
as a regular voter of No.42 Abhayapuri (SC) LAC (Ext.1); and that her name
appeared in the Electoral Roll of 1970 of 42 Abhayapuri (SC) LAC (Ext.2); and
that her name also appears in the Electoral Roll of 1985 as a regular voter of 34
Abhayapuri North LAC (Ext.3). She has also obtained an Electoral Photo Identity
Card (EPIC for short) in the name of "Fulbhanu Bewa" instead of her actual
name "Fuljan Bewa" (Ext.1). It is stated that her daughter, i.e. the petitioner
had got married with Md. Idris Ali of village- Tupkarchar, under Police Station-
Mererchar in the district of Bongaigaon and that her daughter did not exercise
Page No.# 4/11
her voting rights with them because before attaining her age of majority, she
was married. It is stated that she has 6 issues born out of her marital life.
Accordingly, it is stated that being her daughter, the petitioner is an Indian
citizen.
5. At this juncture, it may be mentioned that along with her
evidence-on-affidavit, which was filed on 12.02.2016, only 6 (six) documents
referred above were exhibited by the petitioner, which were marked as ext.1 to
Ext.6. The DW-2 had filed her evidence-on-affidavit on 28.03.2016, where she
had exhibited 3 (three) documents referred above, which were marked as Ext.1
to Ext.3. The DW-2 was examined by the Tribunal on 29.04.2016. As per the
TCR, by filing a firisti on 11.07.2016, 2 (two) additional documents were
submitted being the PAN Card of the petitioner (Ext.7) and Bank Passbook
(Ext.8). However, the said two documents were not supported by any evidence-
on-affidavit and there is no order of the learned Tribunal, accepting the said
documents. As per order dated 11.07.2016, the petitioner had filed additional
documents. However, the Presiding Officer was on leave. No steps was taken on
that day and the matter was fixed on 06.09.2016 for argument. The order
sheets show that the arguments were heard on 06.09.2016 and thereafter, the
matter was fixed on 21.11.2016 and 14.02.2017, when the petitioner was
absent and thereafter, the opinion was rendered on 14.02.2017. Thus, there is
no order of accepting the said 2 (two) additional documents as evidence.
Nonetheless, both the additional documents are found to have been considered
by the learned Tribunal in the impugned opinion. It would suffice to say that on
consideration of the documentary evidence, pleadings and the evidence-on-
affidavit, the Ext.6 was discarded as the issuing authority was not examined.
The additional documents like PAN Card and Bank Passbook were discarded as
Page No.# 5/11
those were not sufficient to establish link with the projected father. It was held
that on the basis of the other exhibited documents, the petitioner has not been
able to prove her link with her projected father. By discussing the evidence of
DW-2, it was held that the petitioner could not prove that he is the person
whose name appears at Ext. Nos. 1, 2 and 3 as Fuljan Bibi @ Fuljan Nessa. The
evidence of DW-2 was not found reliable to determine the nationality of the
petitioner because she did not know the name of her son-in-law, i.e. the
husband of the petitioner. Accordingly, it was held that the petitioner has failed
to discharge her burden to prove that she was born to genuine Indian parents
and acquired citizenship by birth. Accordingly, the opinion was rendered in
favour of the State and against the petitioner, holding her to be illegal migrant
of post 25.03.1971 stream.
6. The learned counsel for the petitioner has submitted that the
documents exhibited by the petitioner establishes the link of the petitioner with
Asir Uddin Sheikh, the projected father of the petitioner without any iota of
doubt and therefore, minor discrepancies in the name and age in the voter list
should not be considered as a ground to deny the petitioner of citizenship right.
It is submitted that the petitioner has produced a copy of jamabandi relating to
a land covered by dag no.77 of patta no.10 measuring 1 bigha 1 katha 11 lecha,
which shows that the said land was mutated in the name of the petitioner,
petitioner's projected mother and other siblings. Accordingly, it is submitted that
in the event the Court is dissatisfied with the nature of evidence led by the
petitioner, the matter be remanded so as enable the petitioner to prove
additional documents like the copy of the jamabandi filed along with the writ
petition.
Page No.# 6/11
7. Per contra, the learned standing counsel for the FT matters has
submitted that the written statement does not disclose the entire facts or the
names of the family members and not even the name of the projected mother
of the petitioner. Accordingly, it is submitted that in exercise of writ of certiorari,
the Court would not appreciate the evidence as an appellate Court, but the
purpose is only to see that the opinion is not vitiated by misleading of pleadings
and evidence or non-consideration of any materials before the Tribunal. In
support of his submission, the learned standing counsel for the FT matters has
placed reliance on the following cases: Rashminara Begum v. Union of India &
Ors., 2017 (4) GLT 346; Jehirul Islam v. Union of India & Ors., (2017) 5 GLR
670; Nur Begum v. Union of India & Ors., 2020 (3) GLT 347; Smt. Savitramma
v. Cicil Narohna & Ors., AIR 1988 SC 1987; A.K.K. Nambiar v. Union of India &
Ors., AIR 1970 SC 652; and Central Council for Research in Ayurvedic Sciences
& Anr. v. Bikartan Das & Ors., 2023 INSC 733: (2023) 0 Supreme (SC) 763.
8. We have examined the TCR and also considered the
submissions made at the bar as well as the cases cited.
9. On examination of the materials available on record, it is seen
that in the written statement, the petitioner has not disclosed the name of her
projected father or projected mother. She has not given the names of any other
family members or siblings and thus, disclosure of the names of grand-parents,
parents and siblings are not there in the written statement. The petitioner has
also not disclosed the approximate date or year of her marriage or the name of
her husband in her written statement. In her evidence-on-affidavit, which was
filed on 12.02.2016, the petitioner has also not disclosed the name of her
grand-parents, parents or other siblings. She has only stated that the name of
Page No.# 7/11
her parents is recorded in the voter lists of 1966, 1970 and 1985 and disclosed
that she has married with Md. Idris Ali and the year of their marriage is left
blank. She has stated that her name was recorded in the Electoral Rolls of 1997
and 2014.
10. Thus, in the absence of disclosure of the names of the projected
parents of the petitioner, the Court is constrained to hold that though the
petitioner has exhibited the Electoral Roll of 1966 (Ext.1), Electoral Roll of 1970
(Ext.2), and Electoral Roll of 1985 (Ext.3), but none of the entries contained
therein has been proved, specially to show her link with her projected parents.
Her name appearing in the voter list of 1997 makes it a post 25.03.1971
document and in this case, the petitioner is required to show that either her
grand-parents or parents were in the Country before 01.01.1966. It may also be
stated that nowhere in the written statement or in the evidence-on-affidavit, the
petitioner has stated where she was born.
11. Though the petitioner has produced her projected mother as
DW-2, but in recording her name before the learned Tribunal, when she was
examined on 29.04.2016, she has disclosed her name as Fulbhanu Bewa. She
could not say when did her husband or she had casted her vote. She could not
say the name of persons which appear in the voter list of 1966 or her relation
with Soliman Bibi, whose name appears in the said voter list. She had stated
that the name of Koddus Ali appearing in the voter list of 1966 was her son, but
had died. She had disclosed the name of her son as Siddique Ali. She had
admitted that her daughter did not vote earlier and she could not say the name
of the husband of the petitioner. In paragraph-9 of her evidence-on-affidavit,
the DW-2 had disclosed that she has 6 (six) children.
Page No.# 8/11
12. On perusal of the land records, i.e. copy of jamabandi, which is
filed by the petitioner as Annexure-6 to the writ petition, we find it strange that
in the Assamese copy of the jamabandi, the names of 9 (nine) legal heirs of
Asiruddin is mutated pursuant to order dated 29.09.2016, passed by the Circle
Officer in the concerned mutation case referred therein. However, in the English
translation thereof, for reasons best known to the learned counsel for the
petitioner, only the names of 8 (eight) legal heirs have been disclosed. The 1
(one) name left out is of Sabiran Nessa, whose names appeared at Sl. No. 7 of
the Assamese version of the jamabandi. Therefore, even during mutation, which
was done vide order dated 29.09.2016, the existence of Fulbhanu Nessa is not
there in the land records and therefore, it is difficult for the Court, while
exercising certiorari jurisdiction, to presume that Fulbhanu Bewa has an alias of
Fuljan Bibi. The evidence of DW-2 is not found to inspire any confidence of the
Court, because in paragraph-9 of her evidence-on-affidavit, she has disclosed
having 6 (six) children, whereas in the land records ( jamabandi), there is
existence of 8 (eight) children of the deceased Asiruddin. The evidence of the
petitioner, is found wholly inconsistent with the documents on record.
13. The PAN Card and the Bank Passbook, though not exhibited by
the petitioner, are not the documents which can prove citizenship of a person.
The petitioner has not made any effort to prove that those are pre-reference
documents or documents that existed prior to the cut-off date of 25.03.1971.
The petitioner has obtained the same by giving a self-declaration. Moreover, the
petitioner has not shown that she is an Income Tax assessee, paying any
income tax.
14. The full disclosure of material facts in the written statement is
Page No.# 9/11
most essential and in the absence of a full disclosure of the names and place of
birth of grand-parents, parents and siblings would entitle the Court to draw an
adverse inference against the petitioner. Only if there are appropriate pleadings,
the same can be proved by the proceedee by leading cogent, reliable and
admissible evidence. If one requires an authority on the point, the case of
Rashminara Begum (supra) and Jehirul Islam (supra), cited by the learned
standing counsel for the FT and Border matters, may be referred to.
15. One of the submissions by the learned counsel for the petitioner
was that if the Court does not find the evidence tendered by the petitioner is
sufficient, the matter may be remanded back to the learned Foreigners Tribunal
by giving an opportunity to the petitioner to establish her case. In the said
regard, the Court is of the considered opinion that in the case of Central Council
for Research in Ayurvedic Sciences (supra), cited by the learned standing
counsel for the FT matters the Supreme Court of India has laid down the
principles for exercise of the power to issue writ of certiorari, which does not
permit the Court to substitute its wisdom over the decision arrived at by the
learned Foreigners Tribunal. The matter cannot be remanded back to the
learned Tribunal by giving an opportunity to the petitioner to plug the
deficiencies, if any in her evidence because evidence can only be led on the
basis of written statement filed by the petitioner and the learned counsel for the
petitioner has not made any effort to demonstrate which part of the pleadings
of the petitioner remained to be proved by the petitioner. Therefore, the said
prayer, made without any basis, deserves to be and is accordingly, rejected. The
relevant observations are as follows:-
17. In Central Council for Research in Ayurvedic Sciences and Anr. Vs. Bikartan Das
and ors, reported in (2023) SCCOnline SC 996, wherein the Apex Court has
Page No.# 10/11
expounded the principles on which a writ Court can exercise the writ of certiorari.
The Apex Court in this Judgment after examining the precedents in this regard
held that there are two cardinal principles of law governing exercise of
extraordinary jurisdiction under Article 226 of the Constitution more particularly
when it comes to issue of writ of certiorari.
The first cardinal principle is that when it comes to the issue of a writ of certiorari
a writ, the High Court does not exercise the powers of Appellate Tribunal. It does
not review or reweigh the evidence upon which the determination of the inferior
tribunal purports to be based. It demolishes the order which it considers to be
without jurisdiction or palpably erroneous but does not substitute its own views for
those of the inferior tribunal. The writ of certiorari can be issued if an error of law
is apparent on the face of the record. It is not be issued on mere asking.
The second cardinal principle of exercise of extraordinary jurisdiction under Article
226 of the Constitution is that even if some action or order challenged in the writ
petition is found to be illegal and invalid, the High Court while exercising its
extraordinary jurisdiction can refuse to upset it with a view to doing substantial
justice between the parties. Article 226 of the Constitution grants an extraordinary
remedy, which is essentially discretionary, although founded on legal injury. The
Apex Court held that so far as the errors of law are concerned, a writ of certiorari
could be issued if an error of law is apparent on the face of the record. A mere
error of law is not sufficient to attract the writ of certiorari. It must be one which is
manifest or patent on the face of the record. Mere formal or technical errors, even
of law, are not sufficient, so as to attract a writ of certiorari.
Coming to the facts on the present case, in view of the discussions above, we do
not find any error of law or lack of jurisdiction of the Tribunal while issuing the
impugned order.
16. Coming to the facts of this present case, in light of the
discussions above, the Court does not find that the learned Foreigners Tribunal
has committed any error of facts and/or law. This is not a case where the
pleadings or evidence has been misread of misconstrued or that the learned
Tribunal has considered extraneous materials. The learned Tribunal does not
lack jurisdiction while passing the impugned order.
17. Thus, this writ petition fails and the same is dismissed. Interim
order passed on 29.03.2017, thereby allowing the petitioner, namely, Musst.
Page No.# 11/11
Ashiya Begum @ Asiya Khatun to remain on bail, stands vacated. Resultantly,
the bail bond, if any, stands discharged. The consequences of the impugned
opinion shall follow.
18. The Registry shall return the records back to the concerned
learned Tribunal along with a copy of this order so as to make it a part of the
record.
JUDGE JUDGE
Comparing Assistant
