Gauhati High Court
Page No.# 1/14 vs The Union Of India And 5 Ors on 14 July, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/14
GAHC010175172024
2025:GAU-AS:9170-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4529/2024
MORJINA BEGUM @ MARJINA KHATUN
D/O- LATE ABDUL JALIL,
W/O- ABDUL MANNAN,
RESIDENT OF VILLAGE- DHARMAPUR,
P.S.- SORBHOG, DIST.- BARPETA,
ASSAM.
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE SECRETARY
GOVERNMENT OF INDIA
DEPARTMENT OF (HOME AFFAIRS),
NEW DELHI, INDIA.
2:THE STATE OF ASSAM
REPRESENTED BY THE SECRETARY
TO THE GOVERNMENT OF ASSAM
DEPARTMENT OF HOME
DISPUR
GUWAHATI-6.
3:THE ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN
ASHOK ROAD
NEW DELHI-110001.
Page No.# 2/14
4:THE STATE COORDINATOR OF NATIONAL REGISTRAR OF CITIZENSHIP
(NRC)
ASSAM
BHANGAGARH
GUWAHATI
DISTRICT- KAMRUP(M)
ASSAM
PIN- 781005.
5:THE DEPUTY COMMISSIONER
BARPETA
DISTRICT- BARPETA
ASSAM
PIN- 781301.
6:THE SUPERINTENDENT OF POLICE (B)
BARPETA
DISTRICT- BARPETA
ASSAM
PIN- 781301
Advocate for the Petitioner : MR. B K SEN, MR. J UDDIN,MR. A. HUSSAIN,MR A K
KHAN,MR F HAQUE
Advocate for the Respondent : DY.S.G.I., SC, ECI,SC, F.T,GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
JUDGMENT
Date : 14.07.2025
(K.R. Surana, J)
Heard Mr. B.K. Sen, learned counsel for the petitioner. Also
heard Ms. A. Gayan, learned CGC for the respondent no.1; Mr. G. Sarma,
standing counsel for FT matters, representing respondent nos. 2, 4 and 6; Ms.
P. Barua, learned standing counsel for the respondent no. 3; and Mr. P. Sarmah,
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learned Addl. Senior Govt. Advocate for respondent no. 5.
2) By filing this writ petition under Article 226 of the Constitution
of India, the petitioner has assailed the opinion dated 28.09.2022, passed by
the learned Member, Foreigners Tribunal No. 8 th, Barpeta in F.T. Case No.
287/15 [IM(D)T Case No. 1726/02], thereby holding the petitioner, namely,
Morjina Begum @ Marjina Khatun as a foreigner of post 25.03.1971 stream.
3) It may be mentioned that in the proceeding before the learned
Foreigners Tribunal, the name of the petitioner was spelt as Marjina Begum, but
she has entered appearance and contested the proceeding by her name spelt as
Morjina Begum @ Marjina Khatun.
4) In her written statement, the petitioner had stated that a false
case was made against the petitioner. She had stated that Abdul Goni, son of
Moneruddin and Moziron Nessa were her grandparents. Her father had two
wives and that Abdul Jalil, Falani Nessa and Laili Khatun were her parents, and
her mother, Falani Nessa died in the year 1989. She had disclosed the names of
her 13 (thirteen) brothers and sisters and stated that with Falani Nessa having 5
sons and 3 daughters and Laili Khatun having 3 sons and 3 daughters.
5) The petitioner had stated that (i) the name of her father
appeared in NRC details of 1951 at Sarbhog Town, Mouza- Titapani, District-
Barpeta, vide Legacy Data Code 120-0001-5645; (ii) the name of her
grandparents appeared in the voter list of 1966 at Village- (380) Chakla Part-II,
P.S. Abhayapuri in the District of Goalpara; (iii) her father's name appeared in
the voter list of 1966 at Village- Balapathar, Mouza- Titapani, District- Kamrup
(now Barpeta); (iv) the name of her parents appeared in the voter list of 1970
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at Village- (380) Chakla Part-II, P.S. Abhayapuri in the District of Goalpara (now
Bongaigaon); (v) the name of her father appeared with her grandparents in the
voter list of 1989 at Village- (94) Chakla Part-II, P.S. Abhayapuri in the District of
Goalpara (now Bongaigaon); (vi) the name of her father and step-mother Laili
Khatun appeared in the voter list of 1997 at Village- (94) Chakla Part-II, P.S.
Abhayapuri in the District of Bongaigaon. It was stated that she was born in the
year 1986 and brought-up in Village Chakla Part-II and that she had studied in
Pub-Nowagaon Primary School and left the school after passing Class-IV in the
year 1997 and as per her school register, her age was 11 years as on
01.01.1996.
6) The petitioner had further stated that she was married to Abdul
Mannan, son of Miyaullah of Village- Dharmapur in the year 2000, when she
attained puberty. The Secretary, Namberpara Chakla Gaon Panchayat had issued
a certificate dated 06.04.2018, stating that Morjina Begum is the daughter of
Late Abdul Jalil of Village- Chakla Part-II, P.S. Abhayapuri in the District of
Bongaigaon. The petitioner has also stated that she has three daughters and
one son.
7) It may be stated that the petitioner has stated about the
discrepancy of age of her grandparents and parents in some of the voter lists
and regarding the discrepancy in the spelling of the name of her step-mother,
and in her own spelling in her daughter's birth certificate.
8) The petitioner, in support of her defence, has examined herself
as DW-1 and vide her evidence-on-affidavit, she had reiterated the statements
made in her written statement and she had exhibited the following documents,
viz., (i) voter list of 1966 containing the name of her projected father (Ext.A);
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(ii) voter list of 1970 (Ext.B); (iii) voter list of 1989 (Ext.C); (iv) voter list of 1997
(Ext.D); (v) school certificate (Ext.E); (vi) Certificate dated 06.04.2018 issued by
Secretary, Numberpara Chakla Gaon Panchayat (Ext.F); (vii) certificate dated
16.03.2018, issued by Secretary, Haldiya Gaon Panchayat (Ext.G); (viii) voter list
of 2017 (Ext.H); (ix) Elector Photo Identity Card issued by Election Commission
of India (Ext.I); (x) HSLC Certificate of petitioner's daughter (Ext.J); and (xi)
HSLC certificate of petitioner's daughter (Ext.K).
9) The petitioner has also examined 4 (four) other witnesses,
namely, Jalu Miya, son of Late Jalil Bepari @ Abdul Jalil (DW-2), Abdul Gafur,
Retired Headmaster of Pub Nowagaon L.P. School (DW-3); Abdul Malek Miya,
son of Late Jalil Bepari @ Abdul Jalil (DW-4); and Dalimon Nessa, President of
10) The learned counsel for the petitioner has submitted that the
learned Foreigners Tribunal had disregarded the substantive evidence of the
petitioner and her other four witnesses and due to certain minor discrepancies
in the spelling of the parents and grandparents of the petitioner, their age, etc.,
the witnesses were disbelieved.
11) The learned counsel for the petitioner has placed reliance on the
entries made in the jamabandi of the land owned by her father, where the name
of the petitioner and her siblings are recorded in the land revenue record.
Moreover, reliance is placed on certain un-exhibited documents, like the voter
list of 2005, 2015, 1997, 2007, 2014, 2017, and Panchayat certificate dated
03.07.2015, and it was submitted that the petitioner has other documents which
prove that the petitioner is not a foreigner.
12) Per contra, the learned standing counsel for the FT matters has
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made his submissions in support of the writ petition.
13) Considered the submissions and perused the Tribunal's records,
which were called for and received.
14) At the outset, it may be stated that as per the order dated
18.09.2024, passed in this writ petition, it has been recorded that the learned
counsel for the petitioner had submitted that Ext.E and Ext.F produced by the
petitioner were not considered by the learned Tribunal while passing the final
opinion, which was negated by this Court by holding that the learned Tribunal
had sufficiently dealt with those two exhibits. The above leaves the Court to
consider the remaining evidence and 9 (nine) remaining exhibited documents.
15) On a perusal of the written statement filed by the petitioner
before the learned Tribunal, it is seen that the petitioner has named her 13
siblings including herself as (1) Jarina Khatun, (2) Jalu Miya, (3) Malek Miya, (4)
Saiful Miya, (5) Mokibul Hussain, (6) Morzina Begum, (7) Mofida Begum, (8)
Jahangir Miya, (9) Hazrat Miya, (10) Mamtaz Miya, (11) Rofiqul Islam, (12)
Romesa Khatun, and (13) Robiul Islam. The petitioner has stated about the
names of only those projected family members, whose names appear in the
exhibited document. Thus, while Abdul Malek Miya had appeared as DW-4, but
in paragraph 6 of her written statement, the petitioner has named her sibling
no. 3 as Malek Miya and not Abdul Malek Miya. Thus, apart from disclosing the
name of her grand-parents, parents including step-mother, siblings, husband
and her own children, the petitioner has not disclosed about the existence of
any other relatives.
16) However, in her evidence-on-affidavit, the petitioner is found to
have disclosed the names of her projected two uncles and one uncle's wife,
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which were not introduced in the petitioner's written statement. Though the
petitioner did not plead in her written statement regarding shifting of members
of the family of her grandparents' family, but the DW-2 had stated in his
evidence-on-affidavit, that he had shifted with his family after purchasing land
in village- Nowagaon.
17) On appreciating the evidence of DWs, it is seen that the school
certificate (Ext.E); Certificate dated 06.04.2018 issued by Secretary,
Numberpara Chakla Gaon Panchayat (Ext.F); and (vii) certificate dated
16.03.2018, issued by Secretary, Haldiya Gaon Panchayat (Ext.G) contain the
State Emblem of Lion Pillar of Asoka affixed on the said documents, which has
rendered the said exhibits as inadmissible. In this regard, if one needs an
authority on the point, the case of Afuja Begum @ Afruja Begum v. Union of
India & Ors., W.P.(C) 7340/ 2016, decided by the Division Bench of this Court on
19.04.2018, may be referred to. Moreover, in the case of Monowara Bewa @
Manora Bewa v. Union of India & Ors., W.P.(C) 2634/2016 , decided 28.02.2017,
the Secretary, Gaon Panchayat, had mentioned that the said certificate was
issued on the basis of evidence placed before him and accordingly, it was held
that such a certificate has got no statutory sanction, rather such a certificate
would be contrary to the mandate of the Assam Panchayat Act, 1994 and
Citizenship (Registration of Citizens and Issue of National Identity Card) Rules,
2003, besides opposed to national interest. It was also held that such a
certificate would be a private document in which event the author of the
document would have to come and testify to prove the truthfulness of the
contents of the said document. In this case, the authors of the said Ext.E. Ext.F
and Ext.G did not bring any record to prove the contents of their respective
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certificates. Nonetheless, it is reiterated that as those exhibits contain the State
Emblem affixed thereon, the said exhibits have been rendered as inadmissible in
evidence. In the said regard, the Division Bench of this Court, in the case of
Sajeda Khatun v. Union of India & Ors., 2018 (4) GLT 696 , has held that the
author of the relevant certificate was not authorized to use under Rule 10(2) of
the State Emblem of India (Regulation use) Rules, 2007 framed under State
Emblem of India (Prohibition of Improper Use) Act, 2005, further holding that
such unauthorized use of State Emblem has rendered the certificate wholly
inadmissible in evidence.
18) Thus, if these three documents, viz., the school certificate
(Ext.E); Certificate dated 06.04.2018 issued by Secretary, Numberpara Chakla
Gaon Panchayat (Ext.F); and (vii) certificate dated 16.03.2018, issued by
Secretary, Haldiya Gaon Panchayat (Ext.G) are excluded, no other document
exhibited by the petitioner is found to be sufficient to prove the link that the
petitioner is the daughter of a person, who is a citizen of India prior to
25.03.1971 stream.
19) The NRC of 1951 has not been exhibited by the petitioner.
Moreover, the said document is not an admissible evidence of the person being
a citizen of India. In the case of Abdul Mojid @ Mojid Ali v. UoI, 2019 (2) GLT
45, the Division Bench of this Court, while approving the earlier decision
rendered in the case of Bhanbhasa Seikh v. UoI, 1970 Assam LR 206, had held
that the NRC extract produced to prove domicile in India is inadmissible in
evidence.
20) In respect of the voter list of 1966 (Ext.A), the said exhibit
contains a single entry of A. Jalil, name of father is A. Gani and the name of the
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said voter is in Village- Balapathar, Mouza- Titapani, Sub-Division- Barpeta and
he is a voter of 51, Jania LAC. No explanation is tendered by the petitioner as to
why the names of other family members are not available in the said voter list.
However, in the voter list of 1970 (Ext.B), it contains 9 (nine) names, but they
are voters of 42, Abhayapuri (S.C.) LAC, who are voters at Village- (380) Chakla
Part-II, Sub- Division and District- Goalpara. There is no pleading about shifting
of the voter in the voter list of 1966. Thus, the petitioner has failed to prove
that the voter in Ext.A is the same person whose name appears as A. Jalil
Sheikh, son of A. Goni in the voter list of 1970 (Ext.B). The name of first voter is
Abdul Goni, son of Late Mogan Khan, aged 40 years. The age discrepancy of the
said voter in the two voter list and discrepancy in spelling of the name of the
said voter is ignored for the time-being.
21) The voters list of 1989 (Ext.C) contains 6 names. In the said
voter list, the name of first voter is A. Goni Miya, son of Monoruddin, aged 102
years. The name of third voter is A. Zalil Miya, son of A. Goni Miya, aged 66
years. Thus, there is an apparent mismatch of the name of first voter in the
voter list of 1970 (Ext.B) with the name of first voter is the voters list of 1989
(Ext.C). The age discrepancy of the first and third voter in the voters list of 1989
(Ext.C) and discrepancy in spelling of the name of the said two voters is ignored
for the time-being. The 4th, 5th and 6th voters in the said voters list are (i) Laili
Khatun, wife of A. Zalil Miya, aged 25 years; (ii) Jalu Miya, son of A. Zalil Miya,
aged 25 years; (iii) Kalu Miya, son of A. Jalu Miya, aged 22 years. In paragraph
5 of the written statement, the petitioner has specifically pleaded that her
mother, namely, Falani Bibi had died in the year 1989. In the voters list of 1997
(Ext.D) name of three voters appears, they are (i) Abdul Jalil, son of A. Goni,
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aged 55 years; (ii) Laial Begum, wife of A. Jalil, aged 38 years; and (iii) Saiful
Miah, son of A. Jalil, aged 20 years. There are no other family members in the
said voter list.
22) The voters list of 2017 (Ext.H) contains the name of the
petitioner and her husband. Moreover, the HSLC certificate of Shajeda Khatun
(Ext.J) and HSLC certificate of Majeda Khatun (Ext.K). However, the said Ext.H.
Ext.J and Ext.K are not relevant for the purpose of establishing the link of the
petitioner with her projected father.
23) The DW-2, namely, Jalu Miya, had exhibited voter list of 1997
(Ext.M), the name of the first voter is Jalu Miah, son of Jalil Miah, aged 30
years, of Village- 93- Nowagaon, Dist. Bongaigaon. In the said voters list there
are four names, but from the entries contained in the said voter list, it cannot
be established that Jalu Miya, son of A. Zalil Miya, aged 25 years, whose name
appears in the voters list of 1989 (Ext.C) is the same person whose name
appears in the voter list of 1997. In paragraph 5 of his evidence-on- affidavit,
the DW-2 is found to have contradicted the pleadings of the petitioner by
stating that Falani Nessa had died in the year 2017, whereas, as per the written
statement, Falani Nessa had died in 1989. In paragraph 4 of his evidence-on-
affidavit, DW-4 has stated that his mother Falani Nessa died on the year 1989.
Thus, the evidence of DW-2 being contradictory to the evidence of DW-1 and
DW-4, is not found to help the petitioner in any manner.
24) Abdul Gafur, who had deposed as DW-3 is the Retired
Headmaster of Pub Nowagaon L.P. School. He had retired on 31.12.2013. He
had issued school certificate (Ext.E). As discussed hereinbefore, the said
certificate contains State Emblem, which makes the said document inadmissible
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in evidence. Be that as it may, though DW-3 had brought the counterfoil of
Ext.E, purportedly after making application before the current Headmaster, but
he is not the custodian of the School record and he had not proved any
document by which the Headmaster of the said School had handed over the
certificate counterfoil to the DW-3. The said witness has admitted that the said
certificate was a duplicate certificate issued on 21.10.2011, but the record of
the originally issued certificate was not produced or proved. Moreover, in reply
to the Tribunal's query, he had replied that he had not brought the admission
register. He had also stated that he had written the date of birth of the
petitioner after calculating himself and he does not know when the petitioner
got admission and he also does not know when the original certificate was
issued. In this regard, we may refer to the decision of the Supreme Court of
India in the case of Birad Mal Singhvi v. Anand Purohit, 1988 (Supp.) SCC 604 ,
wherein it has been held that the date of birth recorded in school certificate or
school register would have no evidentiary value unless the person who
furnished the information regarding the date of birth or parents are examined.
It was further held that besides, the author of the certificate would have to
prove the certificate on the basis of school register. Thus, the school certificate
(Ext.E) has not been proved in accordance with law. The said document, thus,
has not been proved on the basis of school register.
25) DW-4, namely, Abdul Malek Miah (Kalu Miya) had reiterated the
statement of DW-1. He had exhibited his Electoral Photo Identity Card as Ext.N.
In paragraph 4 of his evidence-on-affidavit, DW-4 has stated that his mother
Falani Nessa died on the year 1989. He has stated that that he had separated
from his family and his name appears in the voter list of 1997 in Village-
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Nowagaon. Thus, the evidence of DW-4 is also not found to help the petitioner.
26) The evidence of DW-5, namely, Dalimon Nessa also does not
help the petitioner. She is the former President of 54 No. Haldiya Gaon
Panchayat, who had issued Panchayat Certificate (Ext.G). She had deposed that
at the time of issuing Ext.G, she had verified the voter identity card of the
petitioner and except the voter identity card, she had not verified any other
document. She had come to the Tribunal without any record. In the case of
Monowara Bewa @ Manora Bewa v. Union of India & Ors., W.P.(C) 2634/2016 ,
decided on 28.02.2017, the Secretary, Gaon Panchayat, had mentioned that the
said certificate was issued on the basis of evidence placed before him. In light
of such evidence, it was held that such a certificate has got no statutory
sanction, rather such a certificate would be contrary to the mandate of the
Assam Panchayat Act, 1994 and Citizenship (Registration of Citizens and Issue
of National Identity Card) Rules, 2003, besides opposed to national interest. It
was further held that such a certificate would be a private document in which
event the author of the document would have to come and testify to prove the
truthfulness of the contents of the said document. Thus, the evidence of DW-5
is not found to help the petitioner in any manner.
27) Therefore, even if the discrepancies in the name and age of the
voters in the exhibited documents are ignored, the petitioner has failed to
establish her link with projected parents who are Indian citizens. Therefore, in
the considered opinion of the Court, the petitioner has failed to demonstrate
that the opinion rendered by the learned Tribunal is perverse or is vitiated by
any reason whatsoever.
28) Though the learned counsel for the petitioner had referred to
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land revenue record, but as the said document was not an exhibited document,
the Court, while exercising certiorari jurisdiction, is not sitting in appeal over the
opinion impugned in this writ petition and therefore, no material, which had
hitherto not been exhibited before the learned Tribunal can be looked into and
examined and appreciated by this Court.
29) In her written statement, the petitioner had not disclosed the
names of all family members of her projected grand-parents. The petitioner has
not pleaded about purported shifting of her parental family and shifting of DW-4
out of her parental home. Though the Court has ignored the discrepancies in
the name and age of voters in the exhibited voters lists, but it would not be out
of place to refer to the decision of the Division Bench of this Court in the case of
Basiron Bibi v. Union of India & Ors., 2018 (1) GLT 372 , where it has been held
that when a voter list proved in evidence by petitioner, she then cannot insist
that only that portion of voter list which favours her be read and portions which
go against her be over-looked. This is not how a piece of evidence is to be
examined. In that aspect, the previous decision in the case of Abdul Matali @
Matleb v. Union of India, 2015 (1) GLT 617, was distinguished. The said decision
in the case of Basiron Bibi (supra), is binding on this coordinate Bench and
accordingly, it is held that discrepancy in the way the name is spelt and
discrepancy in the age recorded in the voter list has to be explained by some
other contemporaneous record, which has not been done by the petitioner.
30) It may be mentioned that in this case, on 03.12.2003, the
reference against the petitioner was made by the Superintendent of Police
(Border), Barpeta before the then Illegal Migrants (Determination) Tribunal.
Pursuant to the orders passed by the Supreme Court of India, in the case of
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Sarbananda Sonowal v. The Union of India , (2005) 5 SCC 665, the proceedings
before the Illegal Migrants (Determination) Tribunal were transferred before the
Foreigners Tribunals for disposal.
31) Accordingly, the challenge to the impugned opinion dated
28.09.2022, passed by the learned Member, Foreigners Tribunal No. 8 th, Barpeta
in F.T. Case No. 287/15 [IM(D)T Case No. 1726/02] fails and resultantly, the writ
petition is dismissed.
32) The consequences of the said opinion shall follow.
33) The Registry shall send back the Tribunal's record along with a
true copy of this order to be made a part of the record.
JUDGE JUDGE
Comparing Assistant
