[Cites 3, Cited by 0]
Gauhati High Court
Page No.# 1/ vs The Union Of India And 6 Ors on 9 December, 2025
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/10
GAHC010030152019
2025:GAU-AS:17145
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1034/2019
SALEHA KHATUN
W/O- MD. ABDUL HEKIM, VILL- NALBARI, P.S. DALGAON, DIST-
DARRANG, ASSAM, PIN- 784116
VERSUS
THE UNION OF INDIA AND 6 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NEW DELHI-1
2:THE ELECTION COMMISSIONER OF INDIA
NEW DELHI-1
3:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-6
4:THE STATE CO-ORDINATOR OF NRC
BHANGAGARH
ASSAM
GHY-5
5:THE DY. COMMISSIONER
DARRANG
ASSAM
PIN- 784116
6:THE SUPERINTENDENT OF POLICE (B)
DARRANG
ASSAM
Page No.# 2/10
PIN- 784116
7:THE OFFICER-IN-CHARGE
DALGAON P.S.
DIST- DARRANG
ASSAM
PIN- 78411
Advocate for the Petitioner : MR. M U MAHMUD, MR S ISLAM,MS. R AHMED,MS. C
KALITA
Advocate for the Respondent : ASSTT.S.G.I., SC, ELECTION COMMISSION.,SC, NRC,SC, F.T
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
Advocates for the petitioner : Mr. M.U. Mahmud.
Advocate for the respondents : Mr. A.K. Dutta, CGC
Mr. G. Sarma,
Standing Counsel, FT matters
Mr. A.I. Ali,
Standing Counsel, ECI
Mr. H.K. Hazarika,
Junior Govt. Advocate
Date on which judgment is reserved : 24.11.2025
Date of pronouncement of judgment : 09.12.2025
Whether the pronouncement is of
the operative part of the judgment :
Whether the full judgment has been
pronounced : Yes
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JUDGMENT AND ORDER (CAV)
(S.P. Khaund, J)
Heard Shri M.U. Mahmud, learned counsel for the petitioner. Also heard Shri C.K.S.
Baruah, learned CGC, Shri G. Sarma, learned Standing Counsel for the Home Department &
NRC; Shri A.I. Ali, learned Standing Counsel for the Election Commission of India and Shri
H.K. Hazarika, learned Junior Government Advocate.
Factual Matrix :-
2. The petitioner is aggrieved by the impugned opinion dated 25.09.2018 passed by the
learned Foreigners' Tribunal (5th), Darrang, Mangaldoi in Case No. FT(V)2737/2017 whereby
the petitioner has been declared as a foreigner of post 1971 stream.
Arguments for the petitioner :-
3. It is contended by the learned counsel for the petitioner that this is a fit case to be
remanded back as the evidence of DW-2 was not elaborately discussed by the learned
Tribunal to the prejudice of the petitioner. The learned Tribunal has erred in law as well as in
facts as the Tribunal did not accept Exhibit-6, acknowledgment receipt from NRC Seva Kendra
as it was observed that the document was a computer generated document and cannot be
accepted as evidence.
4. It is further submitted that in the NRC of 1966, the petitioner's father's name is reflected
and the petitioner could establish her linkage with her father with the help of the certificate
issued by the Gaon Panchayat Secretary. It is further submitted that although the petitioner
was identified as D voter, the petitioner is a citizen of India by birth.
5. It is submitted that the Gaon Panchayat Secretary's certificate is a reliable certificate as
the certificate was issued by verifying the voters' list of 1966, reflecting the petitioner's
father's name at House No. 31 and Sl. No. 165. It is contended that only on minor
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discrepancies relating to age, date of birth and shifting of residence, the petitioner was
erroneously held to be a foreigner.
On this aspect, learned counsel for the petitioner has relied on the decision of this Court in
Abdul Matali-versus-Union of India reported in 2015 (2) GLT 617.
6. To substantiate that discrepancies in age and particulars of parents and grandparents
may not thwart the evidence, the learned counsel for the petitioner has relied on the decision
of this Court in Motior Rahman-Versus-Union of India and Ors. represented by Secretary to
Govt. of India, Ministry of Home Affairs, reported in 2020 (1) GLT 330.
7. It is admitted that the Gaon Panchayat Secretary was not examined as a witness.
Evidence stricto sensu is not required, but a case relating to nationality of a citizen can be
proved on preponderance of probabilities.
Arguments for the respondents :-
8. Per contra, learned Standing Counsel for FT and NRC matters Mr. G. Sarma laid stress in
his argument that the written statement is contradictory to the evidence. It is stated in the
written statement that the petitioner's brother's name is Abdul Jalil and her sister's name is
Alekjan Bibi, whereas in her cross-examination, the petitioner Saleha Khatun has deposed
that she has no brother. Even the petitioner's sister, Alekjan Bibi has deposed that the
petitioner is her younger sister and they are only two sisters in their family.
9. It is further contended that the petitioner has failed to establish any lineage with her
father whose name figures in the voters list of 1966 as well as 1970. The Gaonburah's
certificate cannot be accepted as a linking document as the State emblem was embossed
over the certificate. Thus, there is no infirmity in the decision of the Tribunal by not accepting
the Gaonburah's certificate marked as Exhibit-4. In this context, the learned Standing Counsel
for the Home Department and NRC has relied on the decision of this Court in Khudeja
Khatoon Vs. Union of India & 4 Ors . in connection with WPC no. 7756/2016 decided on
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26.04.2018.
10. It is averred that the written statement is vague, and the evidence cannot go beyond
pleadings. As the Gaonburah and the Gaon Panchayat Secretaries were not examined as
witnesses, and their certificates were not proved in accordance with law, the petitioner has
failed to discharge her burden as mandated under Section 9 of the Foreigners Act, 1946.
Analysis, Reasons and Decision :-
11. We have given our thoughtful consideration to the submissions at the Bar.
12. This Court cannot be oblivious of the fact that the written statement/written reply was
vague. The written reply succinctly indicates that the petitioner has stated that her father
Ahsan Ali's name and her mother's name Karfuljan, figures in the voters' list of 1966. Her
parents' names also figure in the voters' list of 1970.
13. The written statement reflects that the petitioner's marriage was solemnized with Abdul
Hekim and the Gaonburah of Nalbari village had issued a certificate identifying the petitioner.
Her marriage was solemnized with Abdul Hekim on 13.05.1967 from village Nalbari, Mouza
Hialmari. The NRC Legacy Data Code No. 270-4022-6917 in the name of the petitioner's
father in the year 1966 has been mentioned in the written statement. It is also mentioned in
the written statement that the petitioner has one younger brother and one younger sister and
their names are Abdul Jalil and Alekjan Bibi, respectively.
14. This has however been contradicted by the petitioner when she adduced her evidence
as DW-1 as she testified before the Tribunal that she has no brother. She has also denied to
have stated that her brother predeceased her father.
15. Contrary to the written statement, the petitioner's sister Alekjan has stated that the
petitioner is her younger sister whereas in the written statement it is mentioned that Alekjan
is younger to the petitioner. Alekjan as a witness has also deposed before the Tribunal that
she has no brother. Alekjan in her deposition before the Tribunal has stated that their family
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is of two sisters and their mother is Late Karpuljan. There is no hint of any voters' list after
1970. In view of the aforesaid discussion made by the learned Tribunal, the argument of the
learned counsel for the petitioner that the evidence of DW-2, Alekjan was not considered,
cannot be countenanced.
16. It is true that it has been mentioned in the written statement that as the petitioner was
declared to be a D voter, the petitioner's name did not appear in any voters' list after her
marriage.
17. We find substance in the argument of the learned Standing counsel for the Home
Department that the written statement is vague as the petitioner has mentioned only the
names of her parents and the name of her sister in the written statement. Apart from her
sister, it appears that the petitioner may not have any sibling. It is left to be presumed, if the
petitioner has more siblings. The NRC data cannot be accepted as evidence. The date of birth
and the place of birth of the petitioner, has not been mentioned either in the written
statement or in her evidence. As the Gaon Panchayat Secretary was not examined as a
witness, the certificate of the Gaon Panchayat Secretary, marked as Exhibit-4, cannot be said
to be proved in accordance with law.
18. Another certificate purporting to be a linking document is the certificate issued by
Gaonburah, which is marked as Exhibit-5. The Gaonburah was also not examined as a
witness and thus, the certificate cannot be accepted as evidence. Thus, there is no evidence
linking the petitioner to her parents, whose voters' lists have been proved as Exhibit- 1 and 2.
19. The voters' list of 1966 marked as Exhibit-1, reflects the name of the petitioner's father
along with her mother, in connection with Nagabandha Gaon and the petitioner's father's age
is shown as 35 years and mother's age is shown as 24 years. In the voters' list of 1970 of the
same constituency, the petitioner's father's age is shown as 43 years, after a span of 4 (Four)
years and mother's age is shown as 39 years. These documents are not sufficient to prove
the lineage of the petitioner by connecting the certificate of the Gaon Panchayat Secretaries
as well as the certificate issued by the Gaonburah.
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20. The petitioner's name surfaces in the voters' list of 1985 and her age is shown as 21
years and as she was identified as D voter, this voters' list has not been exhibited or proved.
Another certificate issued by the Secretary of Nagabandha Gaon Panchayat has been marked
as Exhibit - 8 and this certificate was issued for the petitioner's sister Alekjan, and is not
relevant to this case.
21. Now, as the Secretaries of the Gaon Panchayat and Gaonburah, have not been
examined as witnesses, the petitioner has failed to prove the certificates issued by the
Secretaries of Gaon Panchayat and the Gaonburah.
22. It has been held in Khudeja Khatoon (supra) that :-
"15. Ext. D is a certificate dated 15.06.2015 issued by the Secretary, Goriabori Gaon Panchayat
certifying that Khudeja Khatoon was the daughter of Jonab Ali. At the top of this certificate,
"Government of Assam" was prominently printed. It was also mentioned in the certificate that the
same was issued on the basis of the evidence placed before the Secretary.
15.1. Firstly, this document does not appear to be a genuine document inasmuch as a Gaon
Panchayat is not a department of the Govt. of Assam. Therefore, Gaon Panchayat is not authorised
to use a letter head with "Govt. of Assam" printed therein. Secondly, the Secretary of the Gaon
Panchayat did not testify before the Tribunal alongwith the evidence on the basis of which Ext. D
certificate was issued to prove the certificate as well as the contents thereof. Therefore, this
certificate was not proved. Thirdly, Supreme Court has clarified in Rupjan Begum Vs Union of India
reported in (2018) 1 SCC 579, that such a certificate of the Gaon Panchayat Secretary is by no
means proof of citizenship. Such a certificate has to be verified at two stages. At the first stage,
authenticity of the certificate itself is required to be verified to find out as to whether it is genuine or
not. The second stage of verification relates to verification of the contents. There is nothing on
record to show that Ext. D had undergone any such verification exercise. Therefore, Ext. D cannot be
accepted as a valid piece of evidence."
23. Reverting back to this case, it is held that both the Secretaries of the Gaon Panchayat
as well as the Gaonburah, were not examined as witnesses. There was no contemporaneous
record to prove the validity of the certificates issued by the Gaonburah as well as the
Secretaries of the Gaon Panchayats. It is thereby held that Saleha Khatun, with the help of
certificates marked Exhibits- 4, 5 and 8, has failed to establish her lineage with her parents,
whose names figure in the voters' lists of 1966 and 1970.
24. The Legacy Data Code of the NRC has also been proved as Exhibit-3, but this Legacy
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Data Code, which dates back to 1966, which is not even a piece of valid evidence, has not
been linked by the petitioner with any valid document to establish her lineage with her father.
Thus, the petitioner has failed to discharge the onus as per Section 9 of the Foreigners Act,
1946.
25. It has been observed by the Tribunal that the petitioner has given her age as 60 years
and her date of birth would be in the year 1958. Exhibit-4 depicts that the petitioner got
married to Abdul Hekim on 13.05.1967 and it is not plausible that she would get married at
the age of 9 (Nine) years as per her written statement, the petitioner may have been only 9
(Nine) years at the time of her marriage.
26. On the discrepancy relating to the petitioner's age elicited through the evidence and her
parents' age, appearing in the voters' lists of 1966 and 1970, the learned counsel for the
petitioner has relied on the decision of this Court in Motior Rahman (supra) wherein it has
been held that :-
"10. In so far as the change in the village the petitioner, he has mentioned the circumstances under
which he had to live to Aolatoli and later on return back.In paragraph 5 of the written statement, the
petitioner has mentioned that after the demise of his father, Jorimon Nessa had to come to Aoatoli so as
to reside with the petitioner and his brother. The veracity of the said statements has also not been
questioned by the respondents at any point of time. If that be so, we are of the view that there is
sufficient explanation as to why village Aolatoli was shown as the native place of Jorimon Nessa @
and therefore, the reason for inclusion of her name in the electoral roll of 1985. Mr. Ahmed has
submitted that the step mother Jorimon Nessa @ Jamiron Baidhawa had also expired sometime in the
year 1985 and that is the reason why her name does not find place in the subsequent electoral rolls.
From the materials available on record, we do not find any justifiable ground to reject the said plea of
Mr. Ahmed.
11. We also find from the record that the learned Tribunal has declared the petitioner as a foreigner
based on some minor discrepancies in recording of age and also for non-mentioning of the date of
second marriage of the father of the petitioner. However, such discrepancies, in our opinion, are minor
in nature and hence, even if found correct, would not have any material bearing in the outcome of this
writ petition. Moreover, in the decision of the Hon'ble Supreme Court rendered in the case of Sirajul
Hoque Vs. The State of Assam and others in connection with Criminal Appeal No. 267/2019 arising out
of SLP(Crl) No. 4500/2018 it has been held that minor discrepancies in recording of names, age and
address of the family members of the proceedee cannot be ground to doubt his case."
27. This case at hand is not only fraught with discrepancies relating to the age of the
petitioner's parents and the petitioner's age at the time of her marriage, but discrepancy in
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the evidence surfaced when the petitioner and her sister stated that they have no brother,
contrary to the written statement where it is stated that the petitioner has a brother and a
sister as siblings. The ratio of Motior Rahman's case (supra) is not applicable to this case.
28. It has been held by the Apex Court in Sarbananda Sonowal-Versus-Union of India and
Another reported in (2005) 5 SCC 665 that:-
"26. There is good and sound reason for placing the burden of proof upon the person concerned who
asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may
be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their
place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant
like under Section 6-A(1)(d) of the Citizenship Act. All these facts would be necessarily be within the
personal knowledge of the person concerned and not of the authorities of the State. After he has given
evidence on these points, the State authorities can verify the facts and can then lead evidence in
rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert
that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence
on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence
Act which says that when any fact is especially within the knowledge of any person, the burden of
proving that fact is upon him."
29. In this case, the petitioner has failed to trace back her lineage with her parents with
any valid documentary evidence, leave alone oral evidence. To discharge the onus under
Section 9 of the Foreigners Act, 1946, evidence has to be cogent, reliable and admissible,
whereas, in the instant case, the evidence is scant and devoid of any linking document,
tracing back the petitioner's lineage to her parents, whose names appear in the voters' lists of
1966 and 1970.
30. The petitioner has not disclosed her date of birth, her year of birth and also the names
of her siblings. The evidence appears to be evasive. The glaring contradictions relating to the
siblings cannot be ignored.
31. In the case at hand, the petitioner has failed to discharge the burden of proof as
mandated under Section 9 of the Foreigners Act, 1946. Thereby, the decision relied upon by
the petitioner in Abdul Matali's case (supra) to substantiate her prayer to remand back this
case is not applicable to this case. Although, it has been strenuously submitted by the
petitioner that the evidence of DW-2 has not been taken into consideration by the Tribunal, a
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careful scrutiny of the evidence reveals that the evidence of DW-2 was indeed taken into
consideration.
32. In view of the foregoing discussions, it is thereby held that no infirmity could be
detected in the decision of the learned Tribunal.
33. Writ petition is hereby dismissed as the petition is bereft of merits.
ORDER
34. The challenge to the impugned opinion fails and resultantly, this writ petition is
dismissed. Accordingly, the consequences of the impugned opinion dated 25.09.2018, passed
by the learned Foreigners' Tribunal (5 th), Darrang, Mangaldoi in Case No. FT(V)2737/2017,
thereby holding the petitioner above-named as a foreigner of post 25.03.1971 stream, shall
follow. Interim order stands vacated.
35. There shall be no order as to costs.
36. The Registry shall send back the Tribunal's record along with a copy of this judgment
and order, to be made a part of the record by the learned Tribunal for future reference.
JUDGE JUDGE
Comparing Assistant
