Gauhati High Court
Page No.# 1/ vs The Union Of India And 4 Ors on 13 June, 2025
Author: M. Nandi
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/11
GAHC010232542017
2025:GAU-AS:7836-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/683/2017
DASARATH CH. DAS and ANR.
S/O LT. GEDRU RAM DAS R/O VILL- BALADMARI, PITBARI P.S. and DIST.
GOALPARA, ASSAM.
2: KUSUM BALA DAS
W/O SRI DASARATH CH. DAS R/O VILL- BALADMARI
PITBARI P.S. and DIST. GOALPARA
ASSAM
VERSUS
THE UNION OF INDIA and 4 ORS.
REP. BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF
INDIA, NEW DELHI.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI- 781006.
3:THE DIRECTOR GENERAL OF POLICE ADMN
ASSAM
ULUBARI
GUWAHATI- 7.
4:THE DEPUTY COMMISSIONER
GOALPARA
P.O.
P.S. and DIST. GOALPARA
ASSAM.
Page No.# 2/11
5:THE SUPERINTENDENT OF POLICE
BORDER GOALPARA
P.O. and P.S. GOALPARA
ASSAM
Advocate for the Petitioner : MR.H DAS, MR.B C DEKA,MS.C KHAKHLARY
Advocate for the Respondent : MRS. A GAYAN, GA, ASSAM,ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE MALASRI NANDI
JUDGMENT & ORDER (CAV)
Date : 13-06-2025
(M. Nandi, J)
Heard Mr. H. Das, learned counsel for the petitioners. Also heard Mr. G.
Sarma, learned Standing Counsel, FT; Ms. B. Sarma, learned CGC; Mr. P.
Sarmah, learned Additional Senior Government Advocate; and Mr. M. Islam,
learned counsel appearing on behalf of Mr. A.I. Ali, learned Standing Counsel,
ECI.
2. By filing this writ petition under Article 226 of the Constitution of India, the
petitioners have challenged the order of the Tribunal dated 09.01.2017 in F.T.
Case No.3351/G/2011 and F.T. Case No.3350/G/2011 passed by the learned
Member, Foreigners Tribunal, Goalpara.
3. The case of the petitioners in brief is that both the petitioners are husband
and wife and a permanent resident of village - Baladmari in the district of
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Goalpara, Assam. Both the petitioners claimed that they are the citizens of India
by birth. Initially 2 (two) IM(D)T case bearing IM(D)T Case No.546/2022 and
IM(D)T Case No.547/2022 were registered against the petitioner no.1 and
petitioner no.2 respectively. Thereafter, the same were re-numbered as F.T. Case
No 3351/G/2011 and F.T. Case No.3350/G/2011.
4. On receipt of the notices from the Tribunal, both the petitioners filed their
respective written statements along with relevant documents wherein it is stated
that the name of the petitioner no.1 i.e. Dasarath Chandra Das was enrolled in
the Electoral Roll of 1971. His name is also appeared in the voter lists with his
wife i.e. petitioner no.2 in the year of 1985, 1997, 2009 and 2016. All such
documents were exhibited before the learned Foreigners Tribunal, Goalpara. In
spite of such relevant documents and other materials before the Tribunal, both
the petitioners were declared as illegal migrants.
5. Being highly aggrieved and dissatisfied with the said opinion dated
09.01.2017, the petitioners have preferred this writ petition.
6. The learned counsel for the petitioners has submitted that the petitioners
are Indian citizen prior to 1966 as their parents are also citizens of India by
birth. All the exhibits as produced by the petitioners are genuine and reliable but
the learned Member, Foreigners Tribunal, Goalpara has failed to properly
exercise judicial mind to appreciate such documents and wrongly presumed and
held that the petitioners are illegal migrants.
7. It is further submitted that being relevant documents of land and voter list
prior to 1966 or 1971, it is established fact that the petitioners are Indian
citizen. There being no failure on the part of the petitioners to discharge their
burden u/s 9 of the Foreigners Act, 1946 as they are not at all illegal migrants.
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8. By relying on the judgment of Moslem Mondal and Ors Vs. Union of India ,
reported in (2013) 1 GLT 809, the learned counsel for the petitioners has pointed
out that in the said case, it was held by this Court that the principle of legal
jurisprudence is justice should not only be done but it should also appear to
have been done. At the same time, the Hon'ble Supreme Court also held that
even if the party losses his/her case for their own default, at least one chance
should be given to the party to place their case in the original court vide (2008)
4 SCC 701. Accordingly, the alternative submission of learned counsel for the
petitioners is to remand the matters to the Tribunal for fresh adjudication.
9. Per contra, learned counsel for the F.T matters, G. Sharma submits that
though the petitioners claimed that they have submitted sufficient documents to
prove their citizenship but the documents relied on by them are not trustworthy.
As such, learned Tribunal did not accept such documents to prove their
citizenship. The burden of the petitioners is to prove that their parents,
grandparents were the citizens of India prior to 1966, however, in both the
cases, from the evidence and documents available in the record are not
sufficient to prove the fact that they are the citizen of India by birth. As such,
they have failed to discharge their burden u/s 9 of the Foreigners Act, 1946.
Hence, learned Standing Counsel Mr. Sarma has submitted that this is not a
case to remand the matter for fresh adjudication.
10. Having heard the learned counsel for the parties and on perusal of the
records of the Tribunal vide F.T. Case No 3351/G/2011 and F.T. Case
No.3350/G/2011, it reveals that both the petitioners submitted their written
statement before the Tribunal.
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11. In his written statement, the petitioner no.1 i.e. Dasarath Chandra Das
stated that he was born and brought up at village - Bhoralipara, Lengtisinga
under the then North Salamara PS (Now P.S- Abhayapuri) in the district of
Goalpara, but presently the said village is under Bongaigaon district. In the year
1990, the petitioner no.1 shifted to Pitbari, in the district of Goalpara. After
staying there for few years, the petitioner no.1 again shifted to Kalyanpur
village, P.S - Agia under Goalpara district. But the petitioner no.1 has been
casting his vote at Pitbari, Goalpara.
12. It is further stated in the written statement that the name of the parents
of the petitioner no.1 is Gederu Ram Das @ Gedru Das @ Gedru Vash and
Fuleswari Bala Das and their names had been enlisted in the NRC and 1970
voter list. The name of the petitioner no.1 has been also appeared in the voter
lists of 1985, 1997, 2009 and 2016.
13. Similarly, the petitioner no.2 i.e. Kusum Bala Das, W/o petitioner no.1 i.e.
Dasarath Chandra Das also submitted her written statement wherein she
disclosed that she was born and brought at village-Simlabari, Sonaikola under
Bijni P.S, the then Goalpara district but presently, the said village is under BTAD.
After her marriage with petitioner no.1, the petitioner no.2 shifted to village -
Pitbari and subsequently, they again shifted to Kalyanpur village but the
petitioner no.2 also has been casting her vote at Pitbari.
14. It is also stated in her written statement that the name of the parents of
the petitioner no.2 is Konaram Koibotra @ Konaram Das and Doyamoni Das and
their names have been enlisted in the NRC and voter lists of 1966, 1970, 1979
and 1989 from Bijni LAC. The name of the petitioner no.2 has been enlisted in
the voter lists of 1985, 1997, 2009 and 2016 along with her husband.
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15. Both the petitioners also adduced their evidence-on-affidavit and more or
less, they have stated the same thing whatever they have disclosed in their
written statements. Though both the petitioners deposed in their evidence that
they have relied on the voter lists of 1966, 1970, 1975, 1979, 1985, 1989, 1997,
2009 and 2016 but the said documents have not been exhibited before the
Tribunal.
16. However, the learned Tribunal in the opinion stated that on examination of
the exhibits of F.T. Case No 3351/G/2011, it is found that Ext.A is land revenue
receipt in the name of Gederu Ram Das which was issued on 30.12.1965. Ext.
A1 is the copy of Kecha Patta in the name of Gederu Ram Das which was issued
on 14.09.1984.
17. The learned Tribunal did not consider the NRC document which was found
to be illegible and also not exhibited. Ext.C is the voter list of 1970 from Village
- Bharalipara Part II, where name of Gederu Ram Das, S/o Badan Chandra Das
and Felai Bala, W/o Gederu Ram Das has appeared. Ext.D is the voter list of
1985 from Village - Bharalipara Part II, where name of Dasarath Das, S/o Late
Gedru, and Kusum Das, W/o Dasarath were enrolled. Ext.E is the voter list of
1997 from village - Baladmari where names of Dasarath Chandra Das, S/o
Gederu Ram Das and Kusum Bala Das, W/o Dasarath Chandra Das have
appeared.
18. The 1975 voter list shows the name of Gedru Ram and Felai Bala along
with Dasarath Das from Village - Bharalipara under Abhayapuri South LAC. In
2009 and 2016 voter lists, the name of Dasarath Das and his wife Kusum Bala
Das have appeared from Goalpara town under Goalpara East LAC.
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19. On the basis of the aforesaid documents submitted by the petitioner no.1,
the Tribunal held that though the petitioner no.1 submitted Ext.A - a revenue
receipt but failed to prove that the name mentioned in Ext.A is his father. On the
other hand, voter list of 1975 shows the enrollment of petitioner no.1 Dasarath
Das along with his father which gives rise to the fact that Dasarath Das was at
Bharalipara Part II in the year 1975. To decide the allegation, base year is taken
as 1966 or prior to that but the petitioner no.1 failed to submit any convincing
documents to show that his father/grandfather resided at Bharalipara Part II
prior to 1966.
20. Though the petitioner no.1 disclosed in his written statement as well as in
his evidence that the name of his parents are Gedru Ram Das or Gedru Das and
Fuleswari Bala Das and their names have been enlisted in the voter list of 1970.
But 1970 voter list discloses the name of Gedru Ram Das, S/o Bodan Chandra
Das and Felai Bala, W/o Gedru Ram Das. It transpires that the petitioner no.1
himself contradicted the name of his mother from Fuleswari Bala Das to Felai
Bala. It is interesting to note that the petitioner no.1 in his cross-examination
stated that the name of his mother is Felani Bala Das. It is really shocking that
the petitioner no.1 did not know the actual name of his mother. The petitioner
no.1 neither in his written statement nor in his evidence stated the name of his
grandfather or grandmother. However, in his cross-examination, the petitioner
no.1 discloses the name of his grandfather as Badan Chandra Das.
21. The petitioner no.1 did not specifically mention in respect of possessing of
land by his father in the written statement. However, in his evidence-on-
affidavit, he stated that he submitted original land revenue receipts in the name
of his father which was acquired during his lifetime but the said plot of land
subsequently sold to his elder brother, now it has been recorded in the name of
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his elder brother.
22. First of all, the petitioner no.1 did not disclose the name of his elder
brother either in his written statement or in his evidence. The land revenue
receipts show the name of one Badan and subsequently, Kecha patta in the
name of Gederu Ram Das, S/o Badan Chandra. But it cannot be ascertained
where the land is located. The petitioner no.1 is also silent that the land
revenue was paid in connection with which plot of land. Under such backdrop,
the land revenue receipts cannot be accepted for considering the citizenship of
the petitioner no.1.
23. As per evidence of petitioner no.1, his name has been appeared in the
voter lists of 1975, 1985, 1997, 2009 and 2016. The 1975 voter list is not
available in the record. The 1985 voter list shows the name of one Dasharath
Das, S/o late Gedru, aged about 35 years and Kusum Das, W/o Dasharath, aged
about 23 years. Though the petitioner no.1 stated in his written statement and
evidence-on-affidavit that he was born and brought up at village - Bhoralipara
but did not disclose the date of his birth.
24. At the time of filing the writ petition in the year 2017, the petitioner no.1
stated his age as 66 years. It transpires that he was born in and around in the
year 1951 and he was eligible for casting vote in the year 1969. But as per
record, the petitioner no.1 casted his vote for the first time in the year 1985.
There is no explanation from the side of the petitioner no.1 why he has failed to
produce any document like voter list etc. prior to 1985. The subsequent voter
list i.e. 1997 shows the name of the petitioner no.1 from village - Baladmari.
However, the petitioner no.1 did not make any whisper regarding his shifting
from village - Bharalipara to Baladmari.
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25. Regarding citizenship of petitioner no.2 i.e. Kusum Bala Das, W/o
petitioner no.1 i.e. Dasarath Das, the petitioner no.2 has also relied on some
documents like voter lists of 1966, 1970 and 1979, wherein the names of her
projected parents have been enlisted i.e. Konaram Das and Doyamoni Das. 1966
and 1970 voter lists disclose the name of one Shamo Bala Das, W/o Fulu Das,
Konaram Das, S/o Fulu Das and Doyamoni Das, W/o Kona Das. The subsequent
voter list i.e. 1979 shows the name of one Sonaram Das, S/o Fulu, Doyamoyee
Das, W/o Kona Ram and Jugen Das, S/o Konaram. In 1989 voter list, the age of
Konaram Das appears as 101 years. As per 1966 voter list, the age of Konaram
Das appears as 40 years. Except the statement of the petitioner no.2, there is
no other document submitted by the petitioner that she is the daughter of Kona
Ram Das and Doyamoni Das.
26. The petitioner no.2 enclosed one certificate of Circle Officer issued by Bijni
Revenue Circle, wherein the Circle Officer made a declaration that Smt. Kusum
Bala Das is the Daughter of late Kana Kaiborta and Doyamoni Kaiborta of village
- Dhupuri under Bijni Revenue Circle of Chirang district. There is no document
available in the record that Kana Kaiborta and Kona Ram Das is one and the
same person. Moreover, the petitioner no.2 categorically stated that she was
born and brought up at Village - Simlabari under Bijni P.S. But the Circle Officer,
Bijni Revenue Circle issued the certificate against the daughter of Kana Kaiborta
of village - Dhupuri.
27. In the case of Sarbananda Sonowal Vs. Union of India, reported in (2008) 1
SCC 174, it was held that in order to able to establish his citizenship, one should
provide the following information i.e. date of birth, place of birth, date of birth
of the parents and wherever necessary, details of the grandparents to prove his
claim as a citizen which is missing in the instant case.
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28. The writ petitioners have miserably failed to establish their citizenship of
India and that they are not illegal migrants of India. The finding of facts arrived
at by the Tribunal cannot be interfered in lightly in absence of any convincing
materials. The petitioners to prove their citizenship of India have not been able
to furnish any documents. The documents annexed to the writ petitions
purportedly pertaining to the father of the petitioner no.1 and parents of
petitioner no.2 do not inspire confidence of this Court.
29. The petitioners could not produce valid documents to prove their
citizenship of India either before the authority who verified the matter or before
the Tribunal. Now coming to the writ court, with the aforesaid revelations, they
have tried to develop their respective cases by furnishing the documents which
on the face of it do not help the case of the petitioners. In any case, the finding
of facts arrived at by the said authorities, cannot be questioned by producing
the documents issued after closure of the said proceedings. Even the said
documents, taken into consideration, do not establish the citizenship of India
which the petitioners claimed by birth.
30. As has been observed by the Apex Court in the Sarbananda Sonowal
(Supra), the general rule in leading democracies of the world is that where a
person claims to be a citizen of a particular Country, the burden is upon him to
prove that he is a citizen of that Country. In the instant case, both the
petitioners even in this writ proceedings, have failed to establish their citizenship
of India by birth, as has been claimed by them.
31. In view of the above, the Court is unable to hold that the opinion of the
Tribunal in respect of petitioner no.1 and petitioner no.2 is perverse and liable to
be set aside.
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32. All the above factors lead to the irresistible conclusion that the petitioners
are not entitled to any relief and their writ petitions are liable to be dismissed.
Accordingly, the writ petition is dismissed. There shall be no order as to costs.
33. With the above observation, the writ petition is disposed of.
34. Transmit the case records to the Tribunal.
JUDGE JUDGE
Comparing Assistant
