Gauhati High Court
Page No.# 1/9 vs The Union Of India And 3 Ors on 3 June, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/9
GAHC010121572017
2025:GAU-AS:7345-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/597/2017
FULMOTI NESSA
W/O- PORASH ALI, D/O SABU SK @ SABUN, VILL. PANI KAMRATARI, P.S.
LAKHIPUR, DIST- GOALPARA, ASSAM
VERSUS
THE UNION OF INDIA and 3 ORS.
REP. BY ITS SECY. OF THE MINISTRY OF HOME AFFAIRS, UNION OF INDIA,
NEW DELHI
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-6
3:THE DY. COMMISSIONER OF GOALPARA DISTRICT
GOALPARA
P.O.
P.S. and DIST- GOALPARA
ASSAM
4:THE SUPERINTENDENT OF POLICE B
GOALPARA
P.O.
P.S. and DIST- GOALPARA
ASSA
Advocate for the Petitioner : MR.R ISLAM, MR.K RAHMAN,MR.A T SARKAR
Advocate for the Respondent : , ASSTT.S.G.I.,GA, ASSAM
Page No.# 2/9
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE MALASRI NANDI
JUDGMENT
Date : 03.06.2025
(K.R. Surana, J)
Heard Mr. A.T. Sarkar, learned counsel for the petitioner. Also heard Ms. B.
Sarma, learned CGC; Mr. M. Islam, learned counsel appearing on behalf of Mr.
A.I. Ali, learned standing counsel for the ECI; Mr. G. Sharma, learned standing
counsel for the FT matters and NRC; and Mr. P. Sarmah, learned Additional
Senior Govt. Advocate for the State respondent.
2. By filing this writ petition under Article 226 of the Constitution of
India, the petitioner has assailed the impugned opinion dated 08.03.20216,
passed by the learned Member, Foreigner's Tribunal, No.1, Goalpara in FT Case
No.6449/G/2014, arising out of Reference No. 1365/98/D/GLP(B) and ERO Case
No. 15-6/39, by which the petitioner was declared as an illegal migrant of post
25.03.1971 stream.
3. Assailing the opinion, the learned counsel for the petitioner has
submitted that the learned Tribunal had failed to discuss the evidence of DW-2
and that none of the documents which were exhibited along with the evidence
of the petitioner as DW-1 were not discussed. Moreover, it is submitted that, the
written statement as well as the evidence submitted by the DW-1 and DW-2
lacked material particulars, the matter be remanded back to the learned
Tribunal for a fresh opinion by allowing the petitioner to submit additional
written statement and additional affidavit.
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4. Pursuant to the order passed earlier, the record of the Tribunal is
received and the same is perused and submission made by the learned counsel
for all sides have been considered.
5. From the record, it appears that upon receipt of notice, the petitioner
appeared before the learned Tribunal and she has submitted her written
statement on 20.10.2014, wherein she had projected that she is the daughter of
Shabu Sk and that the allegation that she has entered Assam from East Pakistan
or Bangladesh between 01.01.1966 and 25.03.1971 is absolutely false and
baseless. The petitioner has asserted that she is an Indian citizen by birth and
her parents are also bonafide citizens. She also projects that the name of her
grandfather is Putu Bujuruk Ali, son of Bigod Ali was an Indian citizen and that
her grandfather name appeared in the voter's list of 1966 at no.7 Kamnirbhita
village under police station Lakhipur in the District of Goalpara under no.44
West Goalpara LAC. The petitioner's claims that the name of her father is
recorded in the voter's list of 1989 as Shabu Sheikh, son of Kismot Ali of village-
Banchardhoba under no.39 Jaleswar LAC and she does not know why "D" mark
is made against her name.
6. On 18.02.2016, the petitioner had submitted her evidence-on-affidavit
as DW-1 as well as on affidavit by her projected father as DW-2. In her
evidence, she claims that her father's name is Sabun @ Sabu Sheikh, name of
her mother is Rup Bhanu @ Rupbhanu Nessa and the name of her grandfather
is Kismot Ali @ Kesmot @ Kesmot Ali, name of her grandmother is Bulujan
Nessa, name of her great grandfather is Putu Sheikh @ Putu Bujureek Ali son of
Late Binot Sheikh @ Bigod @ Bigod Ali and the name of her great grandmother
was Obiron Nessa and Kulshum Bibi and that her correct name is Fulmoti Nessa.
She has further projected that the name of her father, grandfather,
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grandmother, great grandfather and great grandmother were enrolled in the
NRC of 1951 in village-Mashaneralga under Bilasipara police station and after
the death of her grandparents, her great grandfather along with her minor
father shifted from village-Mashaneralga to village-Kaminer Bhita and the name
of her grandparents entered in the voter's list of 1966. The petitioner has also
stated that the name of her grandparents was enrolled in the voter's list of 1970
and after death of her great grandparents his parents shifted from village-
Kaminer Bhita to village-Banchardhoba and the names were entered in the
voter's list of 1985 and she was born and brought up in the said village about
37 years ago. It is further stated that due to river erosion, petitioner's parents
shifted from village-Banchardhoba to village-Panikamrartari, the names were
entered in the voters list of 1997 in the said village. The petitioner also claims
that after her marriage with Porosh Ali, her name was recorded in the voter's list
of 1997 along with her husband in village-Panikamrartari under Lakhipur police
station in the District of Goalpara and she does not know "D" mark is their
against her without name any cause and she also relies on a linkage certificate
issued by the Secretary of Tarangapur Gaon Panchayat which is counter-signed
by the BDO (Block Development Officer) of Jaleswar Development Block. In
support of her evidence, the petitioner has exhibited 3(three) documents being
certified copy of NRC 1951 (Ext. A), certified copy of voter's list of 1966 (Ext.B)
and original linkage copy (Ext.C). Be it mention that along with the evidence-on-
affidavit, the petitioner had enclosed the following un-exhibited documents, as
being extract copy of voter's list of 1970 (Annexure-1), extract copy of voter's
list of 1985 (Annexure-2), extract copy of voter's list of 1989 (Annexure-3),
extract copy of voter's list of 1997 (Annexure-4), extract copy of voter's list of
1997 (Annexure-5).
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7. In her cross-examination, DW-1, amongst others have stated that her
mother gave birth to 1(one) son and 3(three) daughters, they are- Abdul Malek,
herself, Sakiron Nessa and Sarifa khatun and she also stated claims that after
1997 she was casting vote till date and that she was marked with letter "D" in
1997 and she has been issued a electoral photo identity card by the Election
Commission of India (ECI).
8. In his evidence, the DW-2 has only stated that she is a citizen of India
by birth having permanent residence of the locality mentioned in the said
affidavit. He also claims to be the father of the petitioner and that his name is
recorded in the NRC of 1951, 1985, 1989 and 1997 which has been submitted
with the evidence of DW-1. In his cross-examination, DW-2 has stated that his
grandmother gave birth to 1 (one) son and daughter they were- Late Kismot Ali
(father) and Mojiran Nessa. He also stated that his father left 2(two) sons and
1(one) daughter, they are- Sabu Sk, Jamina Khatun and Sofizuddin.
9. Thus, while the petitioner (DW-1) has stated in her cross-examination
that her mother gave birth to 1 (one) son and 3(three) daughters. They are-
Abdul Malek, herself, Sakiron Nessa, Sanifa Khatun and whereas Sabu Sk (DW-
2) has stated in his cross-examination that his father left 2(two) sons and
1(one) daughter. They are- Sofizuddin, himself, Jamina Khatun. However, there
is a mismatch as regard the family of the projected father of the petitioner and
that of the father of the projected brother of the petitioner.
10. On her appreciation of the documentary evidence, although we find
that the NRC of 1951 which was exhibited as Ext.A is not admissible in evidence
on the ground that the said document is a certified true copy of the NRC of
1951 issued by the Inspector of Police (Border), but the said authority did not
exhibit the original document. In this regard the Court is of the Considered
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opinion that the said "certified true copy of the NRC" cannot partake the
character of a "certified copy", not issued in accordance with the requirement of
Section 76 read with Section 77 of the Evidence Act. Accordingly, presumption
as to genuineness of certified copies cannot be drawn as per the Section 79 of
the Evidence Act. Nonetheless, in the said NRC, the first entry is of Putu Sk
whose father's name is shown as Binod Sk. However, in the written statement,
the petitioner has stated that her grandfather name is Putu Bujuruk Ali, son of
Bigod Ali, which does not match with the Entry No.1 in the said NRC of 1951.
Although, the petitioner has made an attempt to show from the Electoral Roll of
1966 (Ext.B) that Putu Bujuruk Ali, son of Late Bigod Ali is her grandfather, but
there is not voter list of the projected father along with the projected
grandfather in any of the exhibited electoral rolls/ voter lists.
11. In a proceedings under the Foreigners Act, read with the Foreigners
(Tribunals) Order, 1964, the burden is upon the petitioner to show that she is a
daughter of legitimate Indian citizens whose ordinary residence is in India
before or from 1st day of 1966, as envisaged under Section 6-A (2) of the
Citizenship Act, 1955. Therefore, the entries made in the Electoral Roll of 1966
is not sufficient to link the petitioner to her projected parents or grandparents or
for the purpose of showing that they were ordinary residents of India before or
after 01.01.1966 as per the requirement of Section 6-A(2) of the Citizenship Act,
1955. Therefore, a mere statement by the petitioner of referring the name of
her projected grandfather and, connecting her with her projected father with
oral statement that her father had several aliases, do not substitute as proof
that Putu Sk, projected as the grandfather of the petitioner was same person as
Putu Bujuruk Sk or with Putu Bujuruk Ali, whose name appeared in the electoral
roll of 1966.
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12. In so far as the link certificate is concerned which is marked as Ext.C, is
the same is not found to be an admissible piece of evidence because of the fact
that the said Gaon Panchayat certificate contains the State Emblem " Lion
Capital "of Asoka. Be that as it may, even the entries made in the said Gaon
Panchayat Secretary certificate would only show that the petitioner whose
husband is Porosh Ali had shifted from the said Gaon Panchayat area by virtue
of her marriage and accordingly, the said certificate would not be sufficient to
prove the parentage of the petitioner or to link the petitioner with someone who
is a bonafide Indian citizen or an ordinary resident in the Country as per the
prescription of Section 6-A(2) of the Citizenship Act.
13. It may also to mentioned that under the Representation of People Act,
1951, Election Officer has the power to undertake extensive revision of the
electoral roll and the verification of the names contained therein and it is in the
said context that the Electoral Registration Officer had called for a local
verification in respect of the petitioner on which the Local Verification Officer
conducted a verification and a report dated 05.09.1997 was submitted to
Electoral Registration Officer, No.39 Jaleswar LAC Accordingly, the Electoral
Registration Officer had submitted format for reference to the competent
authority. Accordingly, Superintendent of Police (Border) made reference before
the learned Tribunal. In this regard it has been mentioned in paragraph no.1 of
the impugned opinion that on an order from Election Commission of India (ECI),
intensive revision of the draft electoral roll was to be published based on door to
door enumeration, taking 01.01.0997 to the qualifying date and the ERO
detected that the name of the petitioner was entered in the draft Electoral Roll
having no base on 01.01.1997 and accordingly, the ERO, having doubt of the
nationality or citizenship of the petitioner called for a verification report, leading
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to the reference by the Superintendent of Police (Border), Goalpara.
14. In view of the above and in the absence of any Electoral Roll and/ or
voter list containing the name of the petitioner after 1997, no presumption can
be drawn that the petitioner was valid voter in the year 1997 and that she had
casted her vote thereafter, which is claimed by the petitioner in her cross-
examination.
15. In view of the above, the Court does find any infirmity with the opinion
expressed by the learned Tribunal. The documentary evidence exhibited by the
petitioner does not connect her to her projected parents or grandparents or to
establish her claim of being a citizen of India, claiming through her parents and
grandparents. The said plea fails as the petitioner has failed to prove that either
her parents or her grandparents were ordinary residents of the Country as
envisaged under Sections 6-A(2) of the Citizenship Act, 1955. Accordingly, this
writ petition is found devoid of any merit and accordingly, stands dismissed.
16. The learned counsel for the petitioner had stated that matter may be
remanded back to the learned Tribunal for a fresh opinion by giving an
opportunity to the petitioner to submit additional written statement as well as
additional affidavit. The said prayer cannot be considered to because in exercise
of certiorari jurisdiction, the Court can only examine the correctness of the
decision or decision making process of the learned Tribunal. In the absence of
any positive statement by the petitioner that the written statement or the
evidence of affidavit by the DW-1 and DW-2 lacked appropriate pleading or
lacked in material particulars, it is not for the Court to substitute its view and to
issue a direction to the petitioner to file a additional written statement or
additional evidence, which is not a basic prayer before this Court.
17. Accordingly, the said prayer cannot be considered by this Court.
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18. Accordingly, the writ petition stands dismissed.
19. Let the records be returned back along with the true copy of this order
for making it a part of the record by the learned Tribunal.
20. The consequences of the opinion shall follow.
21. The bail granted by order dated 07.02.2017 stands recalled and
vacated.
JUDGE JUDGE
Comparing Assistant
