Gauhati High Court
Badrul Hoque vs The Union Of India And 7 Ors on 29 August, 2025
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
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GAHC010183402020
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/178/2021
BADRUL HOQUE
S/O LATE ABDUL KARIM
VILLAGE SIDDESWARPUR, PO HINDU BLOCK, PS DOBOKA, DIST HOJAI,
ASSAM, 782440
VERSUS
THE UNION OF INDIA AND 7 ORS
TO BE REPRESENTED BY THE SECRETRY TO THE GOVT. OF INDIA, HOME
DEPARTMENT, NORTH BLOCK, NEW DELHI
2:THE ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI 110001
3:THE STATE OF ASSAM.
TO BE REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR GUWAHATI 6
4:THE STATE CO ORDINATOR OF NRC
ASSAM
BHANGAGARH
GUWAHATI 05
5:THE ADDITIONAL DIRECTOR GENERAL OF POLICE (B)
BHANGAGARH
ASSAM 5
6:THE DEPUTY COMMISSIONER
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HOJAI
HOJAI
ASSAM
782435
7:THE SUPERINTENDENT OF POLICE (B)
HOJAI
ASSAM 782435
8:THE MEMBER
FORIEGNERS TRIBUNAL NO. 10 TH NAGAON AT SANKARDEVNAGAR
HOJAI
ASSAM 78243
Advocate for the Petitioner : MR. N H MAZARBHUIYAN,
MR. T K DEY,
MR. N ISLAM,
MS. L WAJEEDA
Advocate for the Respondent : ASSTT.S.G.I., SC, NRC,SC, F.T,SC, ECI
Date of hearing : 07.08.2025
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE RAJESH MAZUMDAR
JUDGMENT & ORDER (CAV)
Date : 29-08-2025
(Rajesh Mazumdar, J)
Heard Mr. T. K. Dey, learned counsel for the petitioner. Also heard Mr. G.
Sarma, learned Standing Counsel for the FT matters and NRC; Mr. H. Kuli,
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
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India, an opinion rendered on 07.11.2018 by the learned Foreigners Tribunal
No.10th, Nagaon at Sankardev Nagar, Hojai in F.T. Case No.399/2015 arising out
of SP's FT Case No. 514/2013 has been assailed, praying for interfering with the
said opinion and for appropriate writ directing the respondents not to deport the
petitioner from India. By the said opinion, the petitioner was declared to be a
foreigner who entered into the territory of India (specifically Assam) on or after
25th March, 1971 from the specified territory (i.e. Bangladesh) without any valid
document.
3. The brief facts leading to the institution of this writ petition is that, on the
basis of an enquiry conducted under his orders, the Superintendent of Police
(Border), Nagaon, Assam had forwarded the records of Case No. 514/2013
Barpeta, which related to the present petitioner, for an opinion as to whether
the proceedee/writ petitioner was an illegal migrant in the Country.
4. On receipt of the said reference from the Superintendent of Police (B),
Nagaon, Case No. FT/H/142/2014 was registered in the Foreigners' Tribunal,
Hojai, Sankardev Nagar, Assam and notices were issued to the proceedee/writ
petitioner herein requiring his appearance. The proceedee appeared on
31.03.2015 and filed his Written Statement without any documents. After a few
adjournments, the case was transferred to the Foreigners Tribunal (10 th),
Nagaon and registered as FT(D) Case No. 399/2015. When the proceedee did
not remain present before the learned Tribunal, the evidence of the proceedee
was closed on 05.12.2015 and final orders were passed on 29.01.2016,
declaring the proceedee to be foreigner of the post 25.03.2017 stream.
5. Aggrieved by the said order dated 29.01.2016, the proceedee filed WP(C)
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No. 1476/2018 before this Court and by the order dated 02.03.2018, the
following relief was granted:
"Having heard learned counsel for the parties and on due consideration,
we feel that notwithstanding the default of the petitioner, it would be in the
interest of justice if one more opportunity is granted to the petitioner to
adduce evidence, he having filed his written statement.
That being the position, we set aside the order dated 29.01.2016 and
direct the petitioner to appear before the Foreigners Tribunal, Nagaon Court
No.10th at Doboka in connection with FT(D) Case No.399/2015 (State Vs. Md.
Badrul Hoque) along with his written statement on 24.04.2018 at 10.30 a.m.
whereafter, Tribunal shall proceed with the reference in accordance with law
and conclude the same within a period of 60 days from the date of
appearance.
However, if there is any default on the part of the petitioner henceforth,
Tribunal would be at liberty to pass such order as may be deemed fit and
proper."
6. The proceedee thereafter appeared on 24.04.2018 before the learned
Tribunal and filed his written statement with photocopies of documents in
support thereof. The evidence in chief by way of affidavit was filed on
07.06.2018 and 10 following documents were exhibited:
EXHIBITS
1. Certified copy of voters list of 1966 ....... Ext. 1
2. Certified copy of voters list of 1970 ....... Ext. 2
3. Certified copy of voters list of 1971 ....... Ext. 3
4. Certified copy of voters list of 1989 ....... Ext. 4
5. Certified copy of voters list of 1993 ....... Ext. 5
6. Certified copy of voters list of 1997 ....... Ext. 6
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7. Certificate issued by Gaonburha of f Siddeswarpur ......Ext. 7
8. Certificate issued by President of 38 no Ashinagar GP ....Ext. 8
9. Special Family Identity Card ... Ext. 9
10. Jamabandi Copy ..... Ext. 10
7. The proceedee, as DW-1 and another witness claiming to be his brother
as DW-2 and who had filed his evidence by way of affidavit, were cross-
examined eventually. The final opinion rendered thereafter on 07.11.2018 is
under challenge in this writ petition.
8. In the impugned opinion, the learned Tribunal has held the certified
copies of voters lists and the Jamabandi exhibited to have not been proved in
accordance with the requirements of Section 65B of the Indian Evidence Act,
1872. The learned Tribunal has held that the certificate issued by Gaon Burha
and Gaon Panchayat to be not proved as their authors did not adduce
evidence. The special Family Card was rejected as it was not proved through
primary evidence and it was also observed that the same is not proof of
citizenship. The contradictions in age of the so-called brother of the proceedee
was also taken into consideration by the learned Tribunal to conclude that the
statement of the proceedee was not reliable. Finally, it was opined that the
proceedee had failed to discharge his obligation under the law to draw, prove
and establish his linkage with his projected parents and thus, he was declared
to be a foreigner of the post 25.03.1971 stream.
9. 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 constant stand of the
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proceedee had been that he was the son of Abdul Karim (since deceased) and
Rakibun Nessa and the grandson of Hazir Ali. The proceedee had established
that his father was a recorded voter for the year 1966 under the 93 No. Hojai
LAC in village Siddeswarpur and that his father's name also appeared in the
voter list of 1970 for the same LAC. His mother's name appeared against the
same House No. 56 in the same LAC as wife of Aa. Karim. The proceedee had
further explained his shifting in the year 1985 with his father and brothers in his
written statement to Urdhargaon and that his name appeared along with his
father in the voter list of 1989 for 90 no. Jamunamukh LAC at House No 132,
Part No.43 at village Urdhagaon, PS Doboka, Nagaon. The proceedee, it is
submitted by the learned Counsel for the petitioner, had also described his
presence in the voter list of 1993 under 90 no. Jamunamukh LAC at House No
132, Part No.43 at village Urdhagaon, PS Doboka, Nagaon. The learned counsel
also drew our attention to the statement made in the Written statement that in
the year 1995, the proceedee had shifted back to Sideswarpur and that though
both his projected father and himself were recorded in the voters list of 1997 for
the 91 No. LAC at village Sideswarpur, his name was reflected as "D" Voter. He
has also drawn our attention to the fact that the proceedee had also inherited a
plot of land in Siddeswarpur Village under Jugijan Mouza covered by DAG No 5,
Patta No. 32 alongwith his brothers and sisters after the death of his projected
father. The learned Counsel had also asserted that the variations in the name of
his father were minor discrepancies. The learned Counsel for the petitioner
asserted that duly certified copies of relevant voters' list were exhibited by the
proceedee and there could have been no occasion for the learned Tribunal to
have disbelieved them. He further submitted that the Jamabandi exhibited
during the proceedings was a linkage document to show that the proceedee
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was the son of A Karim, whose name appeared in the voters' list of 1966 and
who was the son of Hajir Ali. He further submitted that the testimony of both
DWs, which remained unshaken during cross-examination and rather fortified
the stand of the proceedee, should not have been disbelieved by the learned
Tribunal. He prayed that the writ petition deserves to be allowed and the
opinion rendered by the learned Tribunal deserves the interference of this Court.
10. Per contra, G. Sarma, 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. Sharma has argued that the written statement of the proceedee
was grossly inadequate in disclosing material particulars and he has also argued
that the documents relied upon by the proceedee are insufficient to establish
linkage with his projected ancestors. The learned counsel for FT matters has
argued that the certificate issued by the Gaonburah was not proved as required
in law and moreover, due to the use of the State emblem, the same lost all
credibility. It was also argued that the projected brother of the proceedee was
not introduced in the written statement and therefore, his sudden appearance
to adduce evidence in faovur of the proceedee cannot be taken to be valid. He
further argued that the judgment of this Court passed in Aziz Miya vs Union
of India, reported in 2023 (4) GLT 246 apply to the present case and
therefore it deserves a dismissal. The learned Counsel also relies upon the
judgment of this Court passed in Bijoy Das vs Union of India and others,
reported in 2018 (3) GLT 118 to emphasize that mere filing of written
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statement and oral testimony in a proceeding of this nature would not be
enough and the facts in issue would have to be proved by adducing
documentary evidence. The learned counsel has also sought to argue that there
is a lack of continuity with regard to the presence of the proceedee and/or his
projected ancestors in the territory of India and even in that view of the matter,
the opinion of the learned Tribunal deserves to be upheld by this Court. He
accordingly prays for dismissal of the writ petition.
11. 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.
12. In State of Assam and Ors. -Vs- Moslem Mondal and Ors.., reported
in 2013 (1) GLT 809, it has been held as follows:
"Article 226 of the Constitution confers on the High Court power to issue appropriate
writ to any person or authority within its territorial jurisdiction. The Tribunal
constituted under the 1946 Act read with the 1964 Order, as noticed above, is
required to discharge the quasi-judicial function. The High Court, therefore, has the
power under Article 226 of the Constitution to issue writ of certiorari quashing the
decision of the Tribunal in an appropriate case. The scope of interference with the
Tribunal's order, in exercise of the jurisdiction under Article 226, however, is limited.
The writ of certiorari can be issued for correcting errors of jurisdiction, as and when
the inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to
exercise it or if such Court or Tribunal acts illegally in exercise of its undoubted
jurisdiction, or when it decides without giving an opportunity to the parties to be
heard or violates the principles of natural justice. The certiorari jurisdiction of the writ
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Court being supervisory and not appellate jurisdiction, the Court cannot review the
findings of facts reached by the inferior Court or Tribunal. There is, however, an
exception to the said general proposition, in as much as, the writ of certiorari can be
issued and the decision of a Tribunal on a finding of fact can be interfered with, if in
recording such a finding the Tribunal has acted on evidence which is legally
inadmissible or has refused to admit admissible evidence or if the finding is not
supported by any evidence at all, because in such cases such error would amount to
an error of law apparent on the face of the record. The other errors of fact, however
grave it may be, cannot be corrected by a writ Court. As noticed above, the judicial
review of the order passed by the inferior Court or the Tribunal, in exercise of the
jurisdiction under Article 226 of the Constitution, is limited to correction of errors
apparent on the face of the record, which also takes within its fold a case where a
statutory authority exercising its discretionary jurisdiction did not take into
consideration a relevant fact or renders its decision on wholly irrelevant factors.
Hence, the failure of taking into account the relevant facts or consideration of
irrelevant factors, which has a bearing on the decision of the inferior Court or the
Tribunal, can be a ground for interference of the Court or Tribunal's decision in
exercise of the writ jurisdiction by the High Court.
13. As has been observed herein above, it is reflected in the records that the
proceedee had filed written statement and had adduced evidence and exhibited
documents in support of the statements made in the written statement. We are
constrained to notice that in the case of Bijoy Das vs Union of India and
others (supra) relied upon by the counsel for the respondents, the proceedee
therein did not exhibit any document and only photocopies of two documents
were filed with the written statement and even such documents were not
proved in accordance with law. In the present case, the proceedee has exhibited
certified copies of voters' lists and land documents in support of his written
statement. Thus, we find that the reliance by the learned counsel for
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respondents on Bijoy Das vs Union of India and others (supra) in the
present case is misplaced. Insofar as the reliance placed by the learned counsel
for the respondents on Aziz Miya vs Union of India and others is concerned, it is
to be noted that in the present case, the proceedee has referred to and relied
upon voters' list containing the name of his projected father and he has relied
upon certified copies of voters' list and Jamabandi to establish his linkage to the
said projected father. Thus, it cannot be said that there are no
material/materials to substantiate the claim that the person who is reflected in
the voters' list relied upon is the father of the proceedee who makes the claim.
Whether such material is acceptable in law and is what is required to be
examined now. The examination of the sufficiency of such evidence, if found
admissible, has to be left to the trial court to decide.
14. We propose to examine the evidence led by the proceedee as DW1 and
the evidence led by his projected brother as DW2 and the documents exhibited
during the proceedings in the Tribunal only with the intent to see as to whether
the learned Tribunal did not take into consideration a relevant fact or evidence
and whether it has refused to admit admissible evidence and if it had done so,
to what extent would the writ court exercise its interference.
15. It has already been recorded that the proceedee had exhibited certified
copies of the voters' list of the years 1966, 1970, 1971, 1989, 1993 and 1997
containing the physical and inked signatures of the person who made the copy
and the person who compared the copy and the person who was the official
custodian of the original record also certified them as true. We have verified the
above from the records received from the Tribunal. The learned Tribunal has
rejected the said voters' lists exhibited as Exhibit 1 to Exhibit 6 by holding that
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the said exhibits were not proved in accordance with the provisions of Clause 4
of Section 65B of the Indian Evidence Act, 1872 and that they were also not
proved by comparing with originals through testimony of the lawful guardian of
the primary evidence. In our considered opinion, the learned Tribunal committed
an error when it rejected the said exhibits on the grounds that they were
required to be proved in the manner laid down in Clause 4 of Section 65B of the
Indian Evidence Act, 1872.
16. In Borhan Ali @ Barhan Ali -Vs. Union Of India, reported in 2018
(4) GLT 392, it Court has held thus:
21.3. Ordinarily, a document has to be proved by primary evidence (please see Section
64). But in certain cases enumerated in Section 65 of the Evidence Act, secondary evidence
may be given of the existence, condition or contents of a document when the original is a
public document within the meaning of Section 74 [Section 65(e)]; when the original is in
possession or power of any person legally bound to produce it but despite notice under
Section 66, such person does not produce it [Section 65(a)]; when the original is a document
of which a certified copy is permitted by the Evidence Act or by any other law in force to be
given in evidence [Section 65(f)]:, etc. This Section itself mentions that when the original is a
public document within the meaning of Section 74 or when the original document is a
document of which a certified copy is permitted by law to be given in evidence i.e., clauses
(e) and (f), a certified copy of the document but no other kind of secondary evidence is
admissible.
21.4. As noticed above, Section 66 requires giving of notice to the party in possession
of the document to produce the same before the Court.
21.5. That brings us to Section 76 of the Evidence Act. Every Public Officer having
custody of a public document which any person has a right to inspect shall give that person
on demand a copy of it on payment of the legal fees therefor together with a certificate
written at the foot of such a copy that it is a true copy of such document or part thereof, as
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the case may be, and such certificate shall be dated and subscribed by such officer with his
name and his official title and shall be sealed whenever such officer is authorised by law to
make use of a seal; and such copies so certified shall be called certified copies.
21.6. As per Section 77 of the Evidence Act, such certified copies may be produced in
proof of contents of the public document or part thereof.
21.7. Therefore, if a proceedee relies on a voters list, only a certified copy of such
voters list or extract thereof would be admissible in evidence. Filing of an unsigned or
unauthenticated or uncertified copy of voters list sought to be relied upon as proof of
citizenship would not be admissible in evidence.
17. In the instant case, the Exhibit-1 to Exhibit 6 i.e. voters list of 1966, 1970,
1971, 1989, 1993 and 1997 are certified copies of the extracts of the voters list
and contain physical signatures of the persons who copied the data and the
person who compared the data from the voters' lists and they also contain the
physical signatures of the in-charge Election Officer, Hojai Sankardev Nagar, who
certify the documents to be true. Official seals are also available on the
documents. It being so, the only requirement for us now would be to arrive at a
conclusion as to whether in the light of such certification, the learned Tribunal
was correct in rejecting the said voters' lists in the manner it was done by
referring to provisions of Clause 4 of Section 65B of the Indian Evidence Act,
1872. In this regard, we are of the view that the documents referred to herein
above were not required the qualify the mandates of provisions of Clause 4 of
Section 65B of the Indian Evidence Act, 1872, rather they would be governed by
the provisions of section 76 and section 77 of the Indian Evidence Act, 1872.
18. In the case of Jamiran Bibi -vs- Union of India & Others, reported in
(2018) 4 GLR 684; 2018(4) GLT 242, this Court had held that it is trite that
Special Family Identity Card or ration card cannot be construed as a proof of
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citizenship. Therefore, the rejection of the special family identity card (Ext-9),
cannot be held to be bad in law.
19. The voters list of 1966, 1097, 1971, 1989, 1993 and 1997, i.e. the Exhibits
1 to Exhibit 6 being certified copies of public documents, in our view, would be
admissible in the proceedings in issue. The caveat expressed by the Court in the
case of Borhan Ali (supra) in respect of proof of contents of the documents shall
also have to be taken into consideration while finally deciding the issue by the
learned Tribunal.
20. We have also noticed that the petitioner herein had failed to participate in
the earlier round before the learned Tribunal since he was outside the Country
rendering his services in UAE and on his return, he had approached this Court to
be afforded an opportunity to defend himself in accordance with law and this
Court had granted him such an opportunity. He had accordingly participated in
the proceedings, however, on this occasion, we find that the documents
presented by him were rejected on grounds which were not in accordance with
law. This court, being a court of records and a court of equity, deems it fit that
the issue regarding citizenship of a proceedee requires to be heard and decided
in accordance with law after allowing the proceedee to avail opportunities to
defend himself.
21. In view of the aforesaid conclusion, the order dated 07.11.2018 by the
learned Foreigners Tribunal No.10th, Nagaon at Sankardev Nagar, Hojai in F.T.
Case No.399/2015 arising out of SP's FT Case No. 514/2013 is set aside and the
matter is remanded back to the Tribunal for a fresh adjudication by taking into
account the evidentiary value of the Exhibit No. 1, 2, 3, 4, 5 and 6 i.e. the
voters list of 1966, 1097, 1971, 1989, 1993 and 1997 respectively as well as
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other evidence in accordance with law and thereafter render its opinion.
22. The petitioner shall appear before the Tribunal on 19-9-2025 along with
the certified copy of this order without requirement of any further notice.
23. 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.
24. 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.
25. There will be no order as to cost.
26. The writ petition is allowed to the extent as indicated above.
27. The original records received on requisition from the learned Tribunal be
expeditiously returned back along with a copy of this order to be made a part of
the record.
JUDGE JUDGE
Comparing Assistant
