Gauhati High Court
Page No.# 1/ vs The Union Of India And 6 Ors on 11 February, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/11
GAHC010090502018
2025:GAU-AS:1406
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2757/2018
ROMJAN ALI @ ROMJAN
S/O. LT. ECHOB ALI @ ECHOB, VILL. DURABANDHI BEEL, P.O.
SAGUNBAHI, P.S. MOIRABARI, DIST. MORIGAON, ASSAM
VERSUS
THE UNION OF INDIA AND 6 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NEW DELHI
2:THE STATE OF ASSAM
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY.
3:THE ELECTION COMMISSION OF INDIA
REP. BY THE CHIEF ELECTION COMMISSIONER
NIRVACHAN SADHAN
ASHOKA ROAD
NEW DELHI
4:THE STATE COORDINATOR
NATIONAL REGISTER OF CITIZENS (NRC)
ASSAM
ACHYUT PLAZA
BHANGAGARH
GUWAHATI
Page No.# 2/11
5:THE DY. COMMISSIONER
MORIGAON
P.O. AND P.S. MORIGAON
DIST. MORIGAON
ASSAM
6:THE SUPDT. OF POLICE (B)
MORIGAON
P.O. AND P.S. MOGIGAON
DIST. MORIGAON
ASSAM
7:THE OFFICER IN CHARGE
MOIRABARI POLICE STATION
P.O. AND P.S. MOIRABARI
DIST. MORIGAON
ASSA
Advocate for the Petitioner : MR. M K HUSSAIN, MS. K SHARMA,MRS. S Y AHMED
Advocate for the Respondent : ASSTT.S.G.I.,
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE MALASRI NANDI
JUDGMENT AND ORDER
11.02.2025
(K.R. Surana, J)
Heard Mr. M.K. Hussain, learned counsel for the petitioner. Also heard
Mr. G. Pegu, learned CGC; Mr. G. Sarma, learned standing counsel for the FT
matters; Mr. P. Sarmah, learned Additional Senior Govt. Advocate; and Mr. H.
Kuli, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing
counsel for ECI.
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2. By filing this writ petition under Article 226 of the Constitution of
India, the petitioner has assailed the opinion dated 29.05.2017, passed by the
learned Member, Foreigners Tribunal No.5 th, Morigaon in Case No. FT(D)
522/2016 (new) [corresponding to FT(D) 206/2011 (old)], arising out of D/N
Case No. 1070/98 dated 18.06.1998. By the impugned opinion, the petitioner
was declared to be a foreigner, who has entered into India (Assam) on or after
25.03.1971.
3. In brief, the case of the petitioner is that on receipt of summons from
the learned Tribunal, the petitioner had filed his written statement, inter alia,
stating that the investigation and enquiry was made on the basis of false
information. It was also stated that the petitioner was born and brought up at
village- Moirabari in the present district of Morigaon. His father, Isab Ali, son of
Ruson Ali, was enrolled as a voter in the voter lists of 1965 and 1970 under 84
No. Laharighat LAC. His own name was entered in the voters list of 1977. It was
also stated that the name of his parents, namely, Isab Ali and Nurjahan and
names of his brothers, namely, Habiz Uddin, Mofiz Uddin, Abdur Rohim and his
own name were listed in the voter list of 1989 and 1993. It was also stated that
his father's name was also recorded in the record of rights i.e. jamabandi of the
year 1952 and he has acquired the land as inheritance from his father. The
petitioner claims that he had shifted to village- Durabandi Beel in the year 1995-
96, which is under Mouza- Moirabari, where he is presently a permanent
resident. Accordingly, the petitioner has prayed that the proceeding against him
be dismissed.
4. In course of the proceeding, the petitioner had examined himself as
DW-1 and he has also examined one Ruhul Amin, Govt. Gaonburah as DW-2,
who had exhibited a certificate under Sl. No. 1053/15 dated 15.08.16 as Ext.A,
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which was issued by him and his signature as Ext.A-1 and he was examined by
the Court. The petitioner has also examined one Hazarat Ali, cultivator by
profession and projected uncle of the petitioner as DW-3. The said witness has
also exhibited the following documents, viz., (1) Certified copy of voters list of
1965 containing the name of Isab Ali, whom O.P. has projected as his father as
Ext.B; (2) Certified copy of voters list of 1970 containing the name of Isab Ali,
whom O.P. has projected as his father as Ext.C; (3) Certified copy of voters list
of 1977 containing the name of O.P. Ramjan Ali as Ext.D; (4) Certified copy of
voters list of 1985 containing the names of Isab Ali, Nurjan and the name of
O.P. Ramjan Ali along with O.P's purported brother Habez Ali and Anuwara, wife
of Ramjan whom O.P. has projected as his father as Ext.E; (5) Certified copy of
voters list of 1993 containing the name of Esab Ali, Noorjan, Habijudin,
Mofijuddin and Abdul Rahim as voter of Vill- Pachim Moirabari as Ext.F; and (6)
Copy of computer jamabandi for Vill- Moirabari wherein the name of Ramjan Ali
S/O- Esab Ali is seen as Ext.G.
5. The learned Tribunal, upon appreciating the materials available on
record, discarded the evidence of voters list of 1965 (Ext.B) and voters list of
1970 (Ext.C) by disbelieving the evidence of the petitioner because as per his
projected age, the petitioner ought to have got his voting rights in the year
1972 and moreover, the voters list of the year 1977 (Ext.D) contained only one
standalone entry of the petitioner without any other projected family members.
The learned Tribunal had also disbelieved the entries in the voters list of 1985
(Ext.E) because as per entries made therein, the age of Nurjan, the projected
mother of the petitioner was 40 (forty) years for which her year of birth would
be 1945 and therefore, it is impossible that she would give birth to the
petitioner in the year 1951, when her age was only 6 (six) years. The evidence
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of DW-3 was also discarded because his evidence did not establish the case of
the petitioner. The DW-3, in his reply to the query of the learned Tribunal had
stated that the name of the mother of DW-3 is Hajera, whereas, the petitioner
had projected that his mother was Nurjan. Accordingly, it was disbelieved that
Isab Ali, whose name appears in the voters list of 1965 and 1970 and whose
wife's name appear in the voters list of 1985 as Nurjan, was the father of the
petitioner. Thus, the learned Tribunal had also disbelieved the entries made in
the jamabandi (Ext.G). Accordingly, it was held that the petitioner was a
foreigner who has entered India illegally after 25.03.1971.
6. The learned counsel for the petitioner has submitted that the Electoral
Registration Officer was not competent to make any enquiry and to make a
reference to the Superintendent of Police (Border), Morigaon. Moreover, it has
been submitted that the enquiry was not conducted in a proper manner.
Moreover, it was submitted that the learned Tribunal, by referring to the
discrepancy in the age of the petitioner and his projected mother, had
disbelieved and discarded the entire evidence, which has been deprecated by
the Supreme Court of India in the case of Md. Rahim Ali @ Abdur Rahim v. The
State of Assam & Ors., AIR 2024 SC 3551. The learned counsel for the petitioner
has also referred to the case of Motior Rahman v. Union of India & Ors., 2020
(1) GLT 330, and Haidar Ali v. Union of India & Ors., 2021 (3) GLT 85 .
7. To support his submissions that the genuineness of the documents
exhibited by the petitioner was not challenged and no rebuttal evidence was
tendered, it is a fit case to remand the matter back to the Tribunal, the learned
counsel for the petitioner has cited the case of Abdul Matali @ Mataleb (Md.) v.
Union of India & Ors., 2015 (2) GLT 617.
8. It was further submitted that the exhibited documents were not
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appreciated correctly and were rejected mechanically without any application of
judicial mind and therefore, it is prayed that the impugned opinion be set aside.
9. Per contra, the learned standing counsel for the FT matters has
submitted that the case of Abdul Matali @ Mataleb (supra) has been
distinguished in the case of Basiron Bibi v. Union of India & Ors., 2018 (1) GLT
372. Moreover, submissions were advanced to support the opinion impugned in
this writ petition. It was submitted that the Electoral Registration Officer had the
competence to make reference to the competent authority as the said officer
had expressed his doubt regarding the citizenship and the reference was made
to the Superintendent of Police (Border), Morigaon under the erstwhile IM(D)T
Act, 1983, the Foreigners Act, 1946 and Rules thereunder for deciding whether
the petitioner was a citizen of India or not. It is also submitted that it is only by
virtue of the directions contained in the case of Sarbananda Sonowal v. Union of
India, (2005) 5 SCC 665, all pending references before the IM(D)T were
transferred to the Foreigners Tribunals constituted under the Foreigners
(Tribunals) Order, 1964 after setting aside the IM((D)T Act, 1983 and IM(D)T
Rules, 1984 as ultra vires the Constitution of India.
10. The case of Abdul Matali @ Mataleb (supra) has been distinguished in
the case of Basiron Bibi v. Union of India & Ors., 2018 (1) GLT 372 . In this
regard, the relevant paragraphs of the case of Basiron Bibi (supra), is quoted
below:-
"29. Reliance placed in the case of Abdul Matali @ Mataleb (Md.) (supra), can
be of no assistance to the petitioner inasmuch, as it has already been clarified
by this Court in previous decisions that the said decision did not lay down any
law and was a decision confined to the facts and circumstances of that case.
Regarding discrepancies in the voters' lists which the petitioner contended were
not her creation being entered into by officials of Election Commission and
therefore should not be used adversely against the petitioner, such contention is
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without any substance. The voters' lists were adduced as evidence by the
petitioner herself to prove her case that she was not a foreigner but a citizen of
India. Petitioner cannot insist that only that portions of the voters' lists which
are in her favour should be accepted and those portions going against her
should be over-looked. This is not how a document put forward as a piece of
evidence should be examined. The document has to be appreciated as a
whole."
11. On a careful perusal of the records received from the learned Tribunal,
it is seen that the reference by the Electoral Registration Officer was made on
17.10.1997 in the appropriate format, referred to as Annexure-"A" and
Annexure-"B". On receipt of such request from the Electoral Registration Officer,
the Superintendent of Police (Border), Morigaon had made the reference before
the jurisdictional Foreigners Tribunal, bearing D/N Case No. 1070/98 dated
18.06.1998. Thus, the reference is found to be made to the Chairman, Illegal
Migrants (Determination) Tribunal [hereinafter referred to as "IM(D)T" for
short], Morigaon. At that time, the IM(D)T Act, 1983 was in force. A reference
made in the manner prescribed, cannot be said to be illegal because under the
then IM(D)T Act, 1983, the IM(D)T was required to give an opinion as to
whether or not the proceedee, whose name appear in the voters list, was a
citizen of India or not. In respect of those voters against whom reference were
made, they were marked as "D" Voter. All those pending references were
transferred before the Foreigners Tribunal by virtue of the orders passed by the
Supreme Court of India. Therefore, the Court is inclined to hold that the
reference made against the petitioner by the Superintendent of Police (Border),
Morigaon, upon receipt of reference under Annexure-A and B from the Electoral
Registration Officer. The said reference was proper and sustainable in the eye of
law as the Superintendent of Police (Border), Morigaon had the competence to
make the reference before the IM(D)T. This was not a case where the
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investigation was done by the personnel of Border Police of the State and
therefore, procedure in making a reference by the Superintendent of Police
(Border) after investigation under his authority and references made by
Electoral Registration Officer and sent through the Superintendent of Police
(Border) stand on two different footing due to two separate procedures
prescribed.
12. In this case, although the petitioner has examined himself as DW-1, he
did not exhibit any documents. Therefore, there was no necessity for any cross-
examination by the State. Similarly, in the absence of any document exhibited
by DW-1, there was also no necessity for the learned Member, Foreigners'
Tribunal to put questions to DW-1. The documentary evidence, being Ext.B to
Ext.G, which are referred hereinbefore, were exhibited by DW-3 and Ext-A was
exhibited by DW-2. In his written statement, the petitioner has not disclosed
that one Hazarat Ali is his uncle. In his reply to the query of the learned
Tribunal, DW-3 has stated that he is the uncle of the petitioner. However, he had
categorically answered to the learned Tribunal's query that the name of the
petitioner's mother is Hajera and that she had died about 3/4 years back. The
said DW-3 was examined on 12.05.2017 and he was examined by the learned
Tribunal on 19.05.2017. Therefore, if the evidence of DW-3 is to be believed, the
mother of the petitioner must have died during 2013-14. However, neither the
petitioner nor the DW-3 had proved any particular entry in any of the exhibited
voters list to show the existence of Hajera, the projected mother of the
petitioner. It is too well settled that marking of a document as exhibit and
proving the contents of a document are two different aspects. If one needs any
authority on the point, the case of Narbada Devi Gupta v. Birendra Kumar
Jaiswal, (2003) 8 SCC 745, may be referred to. Therefore, the oral evidence of
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DW-3, in form his examination by the learned Tribunal has demolished and/or
negated the correctness of the entries made in the voters list of 1985 (Ext.E). It
may be mentioned that in the voter list of 1993 (Ext.F), the name of wife of
Isab Ali is Nur Jahan. However, the discrepancy in the name of Nurjan (in voter
list of 1985) and Nur Jahan (in voter list of 1993) can be ignored on the ground
that the same is a minor discrepancy. Nonetheless, the petitioner has miserably
failed to prove that Nurjan and/or Nur Jahan, whose name are disclosed in the
voters list of 1985 and 1993 respectively, was his mother. Accordingly, the
petitioner has failed to establish his link with Isab Ali, his projected father,
whose name appears in the voters list of 1985 (Ext.E) with Nurjan, wife of Isab
Ali as well as with Isab Ali, whose name appears with Nur Jahan as his wife in
the voter list of 1993 (Ext.F). Therefore, the petitioner is also grossly
unsuccessful in demonstrating that Inus Ali, whose name appears in the voters
list of 1965 and 1970, is the projected father of the petitioner.
13. The certificate issued by the DW-2, which was exhibited as Ext.A, is an
inadmissible document as it contains the State Emblem (Lion Pillar of Asoka). In
this regard, if any authority is required, one may refer to the case of Afuja
Begum @ Afruja Begum v. Union of India & Ors., W.P.(C) 7340/2016, decided
by the coordinate Bench of this Court on 19.04.2018 , wherein this Court has
held that Gaonburah is not a person authorized to use the State Emblem and
that the existence of State Emblem in any document by an unauthorized user
would make the document inadmissible evidence.
14. DW-3 had exhibited the jamabandi of a plot of land as Ext.G. The entry
in the remark column, by which the name of he petitioner is stated to be
mutated has not been exhibited. The said entry mentions that pursuant to field
mutation order passed by the Circle Officer on 26.02.2014, the name of the
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petitioner was mutated along with the name of several other persons. On a
specific query by the Court, the learned counsel for the petitioner could not
show that the name of Isab Ali, the projected father of the petitioner was one of
the patta holder. Therefore, the petitioner has not been able to prove the
allegation made in his written statement that the name of his father is entered
in the land records since the year 1956. The said plea remains "not proved".
Therefore, entry of the petitioner's name in the record of rights by order dated
26.02.2014 (as per Ext.G), does not establish that the petitioner's father had
lawfully entered into India (Assam) before the cut-off date of 25.03.1971. In
light of the evidence of DW-3, the reliability of Ext.G is liable to be disbelieved.
15. Under the facts and circumstances as stated above, the case of Md.
Rahim Ali @ Abdur Rahim (supra) cited by the learned counsel for the petitioner
does not help the petitioner in any manner because the petitioner claims to be
the son of Isab Ali and Nurjan and/or Nur Jahan, whereas as per the statement
of DW-3, who had exhibited all the documents from Ext.B to Ext.G, the name of
mother of the petitioner is Hajera. It is in that context that if we examine the
age of Nurjan in the voters list of 1985, where she is shown to be 40 years, the
learned Tribunal is not found to have committed any error in estimating the year
of birth of Nurjan only to find out that if Nurjan is the projected mother of the
petitioner, then she was born in 1945 and gave birth to the petitioner in 1951,
when she was 6 (six) years of age. Therefore, this is not a case of minor
discrepancy in age or spelling of name which can be overlooked as per the ratio
laid down in the case of Md. Rahim Ali @ Abdur Rahim (supra) , but this is a
case where DW-3 has given a categorical statement during his examination by
the Court that the name of mother of the petitioner was Hajera. For the said
reasons, the case of Haidar Ali (supra) cited by the learned counsel for the
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petitioner also does not help the petitioner in any manner.
16. Accordingly, there is no material before the Court to hold that the
learned Tribunal had committed any perversity in appreciation of the pleadings
or evidence, which led to perverse finding in the impugned opinion. Therefore,
this is not found to be a fit case for interference with the impugned opinion.
Accordingly, this writ petition stands dismissed.
17. Bail granted to the petitioner by order dated 07.05.2018 is hereby
recalled and revoked.
18. Resultantly, there would be no impediment for the respondent
authorities to act in terms of the opinion impugned in this writ petition.
19. Registry shall send back the Tribunal records.
JUDGE JUDGE
Comparing Assistant
