Gauhati High Court
Page No.# 1/14 vs The Union Of India And 6 Ors on 21 May, 2025
Author: M. Nandi
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/14
GAHC010206962024
2025:GAU-AS:6356-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5398/2024
SUFIYA KHATUN
W/O- ABUL HUSSAIN,
D/O- LT. MAHAMMAD ALI,
R/O- KALJAR,
P.O.- BARBALA,
P.S.- HOWLY,
DIST.- BARPETA, ASSAM,
PIN- 781316.
VERSUS
THE UNION OF INDIA AND 6 ORS
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA,
MINISTRY OF HOME AFFAIRS,
NEW DELHI-1.
2:THE ELECTION COMMISSION OF INDIA
NEW DELHI-1.
3:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6.
4:THE STATE CO-ORDINATOR OF NRC
BHANGAGARH
ASSAM
GUWAHATI-05.
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5:THE DEPUTY COMMISSIONER
BARPETA
ASSAM
PIN- 781301.
6:THE SUPERINTENDENT OF POLICE (B)
BARPETA
ASSAM
PIN- 781301.
7:THE OFFICER-IN-CHARGE
BARPETA POLICE STATION
DISTRICT- BARPETA
ASSAM
PIN- 781301
Advocate for the Petitioner : MR. M U MAHMUD, MS. B CHETIA,MS. D BORA,MR S
ISLAM,MRS. M SAIKIA,MR S H MAHMUD
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 MALASRI NANDI
JUDGMENT & ORDER (CAV)
Date : 21-05-2025
(M. Nandi, J)
Heard Mr. M.U. Mahmud, learned counsel for the petitioner. Also heard
Mr. P. Sarmah, learned Additional Senior Government Advocate; Mr. P.S.
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Lahkar, learned CGC; Mr. M. Islam, learned counsel appearing on behalf of
Mr. A.I. Ali, learned Standing Counsel, ECI; and Mr. G. Sarma, learned
Standing Counsel, FT matters.
2. The petitioner has preferred this writ petition under Article 226 of the
Constitution of India, challenging the order dated 06.06.2018, passed by the
learned Foreigners' Tribunal No.10th, Barpeta in F.T Case No.35/2017, whereby
the petitioner has been declared as a foreigner of post 1971.
3. On receipt of the notice, the petitioner put her appearance before the
Tribunal and contested the case by filing written statement wherein she stated
that she is a bonafide and genuine citizen of India by birth. She was born and
brought up at Village - Bhulukabari in Barpeta district. One Mahammad Ali is
the father of the petitioner whose name has been appeared in the voter lists of
1965 and 1970 from village - Bhulukabari under 53 No. Sarukhetri LAC.
4. The name of the petitioner has been appeared in the voter's lists of 1985
and 1989 from village - Kaljhar along with her husband. It is also stated in the
written statement that the name of the petitioner's father has been appeared in
a registered sale deed of land vide Deed No.55, covered by Patta No.92, Dag
No.172 dated 04.01.1966 of village - Bhulukabari. Written statement has also
disclosed that the petitioner has produced two gaonburah certificate for
residential status and linkage purpose which were issued by gaonburah of
village - Bhulukabari and Kaljhar.
5. In support of her written statement, the petitioner also examined herself
as DW-1, her projected brother Julhas Ali as DW-2 and DW-3- Gaonburah of
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Village - Bhulukabari. The petitioner has exhibited some documents vide Ext.A -
voter list of 1965, Ext.B - Registered sale deed of land, Ext.C - Voter list of 1970,
Ext.D - voter list of 1989, Ext.E and Ext.F - Certificates of gaonburah.
6. In her cross-examination, DW-1 replied that her date of birth is 05.05.1960
but she has no birth certificate. She was born in village - Bhulukabari. Her
father late Mahammad Ali expired three years back at Bhulukabari. The name of
her mother is late Sajitan Nessa and she expired about four years back at
Bhulukabari. The name of her parents were enlisted in the voter lists of 1965
and 1970. The name of her grandfather is late Gopal Sarkar but she did not
know the name of her grandmother. She could not recollect when they died.
The petitioner got married to one Abul Hussain of Kaljhar in the year 1981.
7. Similarly, DW-2, projected brother of the petitioner also supported the
statement of the petitioner as above. According to him, his name has been
appeared in the voter list of 1997 along with other family members from village
- Bhulukabari vide Ext.G. He has also exhibited his Elector Photo Identity Card
(EPIC) vide Ext.H.
8. In his cross-examination, DW-2 stated that he was born in the year 1972
but he could not recollect his date of birth and he was born at village -
Bhulukabari under Barpeta P.S. His father is late Md. Ali and he has expired in
the year 1985. His mother's name is Sajiran Nessa and she was expired about
seven years back at Bhulukabari. The petitioner is his elder sister. The petitioner
was born in the year 1961. She got married to one Abul Hussain of Village -
Kaljhar in the year 1984.
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9. Though the petitioner has projected DW-2 as her brother but from his
deposition, it reveals that he has contradicted the statement of his sister i.e. the
petitioner. According to the petitioner, she was born in the year 1960 but the
DW-2 stated that her sister was born in the year 1961. As per statement
of DW-2, their father Mahammad Ali expired in the year 1985. However, the
petitioner in her cross-examination stated that her father expired about three
years back from the date when she was cross-examined. As per record of the
Tribunal, the petitioner was cross-examined on 16.08.2017. It transpires that the
father of the petitioner expired in the year 2014 i.e. three years prior to
recording her cross-examination.
10. The petitioner also examined DW-3, gaonburah of Village- Bhulukabari.
According to DW-3, he knew the petitioner since her early stage. She was the
daughter of Mahammad Ali and she was born and brought up at Village -
Bhulukabari. The name of the father of the petitioner appeared in the voter list
of 1970.
11. DW-3 exhibited her Identity Card vide Ext.J. But DW-3 while in his cross-
examination stated something different that he did not know when the
certificate was issued in favour of the petitioner. Though he maintained a record
but he had not brought any original records before the Tribunal. DW-3 further
stated that he did not know when the petitioner was born. He also did not know
when the petitioner got married. The petitioner has exhibited the voters lists of
1965/1966 of her father but he did not maintain any record regarding birth and
death of any person of his village.
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12. From deposition of DW-3, it is also disclosed that though he exhibited
Identity Card vide Ext.J issued by the Circle Officer of Barpeta Revenue Circle on
19.01.2017 but he failed to produce the same before the Tribunal when he was
examined. He produced a different identity card where no sign or seal of the
Issuing Authority is affixed.
13. Learned counsel for the petitioner has submitted that though the name of
the petitioner's grandfather and parents have been recorded in the voters lists
of 1965 and 1970 along with the other family members but the learned Tribunal
did not consider the said voter lists due to discrepancy in their names and age.
14. It is further submitted that after marriage of the petitioner with one Abul
Hussain, S/o Elim Uddin, in the year 1981, the name of the etitioner has been
recorded along with her husband in the voter list of 1989 onwards. In the voter
list of 2011, the name of the petitioner's one brother Julhas Ali has been
recorded who was examined as DW-2 to support the case of the petitioner.
15. It is further contended that the father of the petitioner possessed a plot of
land measuring 42 Bighas 3 Lechas covered by Patta No.42, Dag No.175
situated at Village - Bhulukabari in the district of Barpeta. On 16.09.2024 by the
order of Circle Officer, Barpeta Revenue Circle, the said land has been mutated
in the name of the petitioner along with her other brothers and sisters by virtue
of inheritance.
16. The further contention of learned counsel for the petitioner is that the
petitioner was a student of 393 Bhulukabari Lower Primary School and she was
a student of class IV in the year 1971. Though the petitioner has obtained the
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certificate issued by the Headmaster of the said school but which was not
exhibited before the Tribunal.
17. By referring the judgment of Shyam Lal @ Kuldeep Vs. Sanjeev Kumar &
Ors., reported in (2009) 12 SCC 454, the learned counsel for the petitioner has
argued that the School certificate is admissible even without examining
Headmaster or the Issuing Authority or the other authorized person.
18. Learned counsel for the petitioner also stated that gaonburah certificate is
valid as he is a statutory authority within the meaning of Article 12 vide
judgment of (2010) 1 GLJ 536 (Kynremri Lyngdoh Vs. State of Meghalaya).
19. Learned counsel for the petitioner also contended that anomalies in the
names and ages does not make a man foreigner by relying on the following
judgments -
a) Sirajul Hoque Vs. Union of India and Ors, reported
in (2019) 5 SCC 534
b) Abdul Salam Vs. Union of India and Ors, reported
in (2021) 5 GLT 734
c) Motior Rahman Union of India and Ors, reported in
(2020) 1 GLT 330
20. Learned counsel for the petitioner has further submitted that a burden of
proof in F.T. cases is on preponderance of probabilities which is duly proved by
cogent evidence in the instant case as referred to in the case of Mahar Uddin
Ali, reported in (2021) 2 GLT 1021.
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21. Further submission of learned counsel for the petitioner is that the
relationship established by land documents cannot be disbelieved as observed in
the case of Banes Ali, reported in (2023) 2 GLT 1033.
22. In response, learned counsel for the F.T. matters has submitted that the
written statement submitted by the petitioner is incomplete. As the brother of
the petitioner was not introduced in her written statement who was examined
as DW-2 before the Tribunal, as such, his evidence cannot be taken into
consideration to prove her link with DW-2 as S/o Mahammad Ali.
23. Mr. Sarma has also submitted that though the learned counsel for the
petitioner relied on the school certificate wherein the petitioner studied up to
class VII but the certificate was not exhibited before the Tribunal which is also
not acceptable in considering her citizenship at this stage.
24. Mr. Sarma further contended that except the school certificate as stated
by the petitioner, no any document is available in the record to show that the
petitioner is the daughter of Mahammad Ali.
25. By relying on the judgment of Bijay Das Vs. Union of India and Ors.,
reported in (2018) 3 GLT 118, Mr. Sarma has contended that mere filing of
written statement and the oral testimony are not sufficient to prove the
citizenship of a person, as necessary documentary evidence is required to be
proved in support of the oral evidence. In the present case, apart from oral
evidence, no other documentary evidence has been relied on or proved to show
that the present petitioner is the daughter of Late Mahammad Ali.
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26. Mr. Sarma also pointed out that the DW-3 i.e. gaonburah of Bhulukabari
village did not support the case of the petitioner by stating that he has no
knowledge when the petitioner was born and when she got married. Hence, the
gaonburah certificate has not proved the fact that the petitioner is continuously
residing in the village - Bhulukabari since her birth or she got married to Abul
Hussain of Kaljhar where from she has casted her vote along with her husband
since 1989. Therefore, Mr. Sarma stated that the learned Tribunal has rightly
passed the order declaring the petitioner to be a foreigner of post 1971 due to
such discrepancy observed in the documents. And the Court by exercising the
jurisdiction under Article 226 of Constitution of India has no such power to
interfere with the said order which is required to be dismissed.
27. Proceeding to the documents vide Ext.A and Ext.C - Voters lists of 1965
and 1970 which reveals the name of one Mahammad Ali, S/o Golap Sarkar of
village - Bhulukabari and Sajitan Nessa, W/o Mahammad Ali. As per statement
of the petitioner, she was born in the year 1960 but vide Ext.D, she produced
the 1989 voter list wherein the name of the petitioner has been appeared along
with one Abdul Hussain. Apparently, she was eligible for casting vote in the
year 1978 but the petitioner has failed to produce any such document like voter
list prior to 1989.
28. Though the petitioner stated that Mahammad Ali is her father and Sajitan
Nessa is her mother but submission of voter list downloaded from any website is
not enough to prove the fact that the petitioner is the daughter of Mahammad
Ali and Sajitan Nessa.
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29. Vide Ext.B - sale deed, as per order of Circle Officer dated 16.09.2024, the
name of the petitioner along with Samsul Hoque, S/o late Mahammad Ali, Sabia
Khatun, D/o late Mahammad Ali, Rupbhanu, D/o late Mahammad Ali, Ramesa
Begum, D/o late Mahammad Ali, Halemon Nessa, D/o late Mahammad Ali and
Hajera Khatun, D/o late Mahammad Ali were mutated in place of Mahammad
Ali.
30. According to DW-2, her father expired in the year 1985. It is not
acceptable why the name of the petitioner along with her brothers and sisters
were mutated by right of inheritance after 40 years. Death certificate of
Mahammad Ali is not available in the record. It is not clarified who filed the
petition for mutating the name of the petitioner along with her brothers and
sisters before the concerned authority.
31. It is pertinent to say here that the written statement as well as the
evidence of the petitioner is totally silent that the petitioner has brothers and
sisters. The petitioner specifically stated in his evidence that her father has
landed property measuring 10 bighas situated at Bhulukabari which was
purchased by her deceased father and the landed property was maintained by
her two brothers i.e. Samsul Ali and Julhas.
32. It is not clarified why the names of Samsul Hoque, Sabiya Khatun,
Rupbhanu, Ramesa Begum, Halemon Nessa and Hajera Khatun have appeared
as heirs of late Mahammad Ali. It transpires that the projected father of the
petitioner Mahammad Ali and Mahammad Ali Mia as per Ext.B is not one and
the same person.
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33. In view of the above, the purported land document vide Ext.B is not
trustworthy and cannot be relied upon and the said document is of no help to
the petitioner to prove her case that she is not a foreigner. As noticed above,
the five names which appeared in the land document vide Ext.B and the name
of their father shown as Mahammad Ali and while the petitioner's name
appeared in the land document vide Ext.B who are the other persons have not
been explained.
34. Learned Tribunal while discussing Ext.B vide land document has observed
which is reproduced as follows -
"DW-2 also states that his father had a plot of land measuring
10/12 bighas covered by Dag No.172 of Patta No.92 but
interestingly, the total area of said Dag No.172 is only 4 Bigha
15 Lechas, out of which 1 Bigha of land was purchased by said
Mahammad Ali Miya as reflected in the Schedule of the land
(Ext.B)".
35. According to the petitioner and DW-2, the name of their father is
Mahammad Ali. It is nowhere stated either in the written statement or in the
evidence of the petitioner and DW-2 that Mahammad Ali and Mahammad Ali
Miya is one and the same person. Under such backdrop, it cannot be said that
the petitioner is the daughter of said Mahammad Ali Miya who purchased the
land and the original owner of the land vide Ext.B. Moreover, no subsequent
documents were exhibited to show petitioner's father paying land revenue or
such other related document of post 25.03.1971.
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36. Though the learned counsel for the petitioner has submitted that school
certificate is admissible even without examining Headmaster or the issuing
authority or other authorized person, however, the case law submitted by the
learned counsel for the petitioner vide Shyam Lal (supra) is distinguishable as
the case relates to paternity of child. Therefore, proving of the document by the
author by way of evidence is essential which was not done in this case.
37. We are in agreement with the case law vide Rampal Singh Bisen (supra)
cited by the Tribunal wherein the Hon'ble Supreme Court held that mere
admission of a document in evidence does not amount to its proof, in other
words, mere making of exhibit on a document does not dispense with its proof,
which is required to be done in accordance with law. Contents of document are
required to be proved either by primary or by secondary evidence. At the most,
admission of documents may amount to admission of contents but not its truth.
38. Therefore, on a cumulative analysis of the evidence adduced by the
petitioner, what comes to the fore is a bundle of confusing and contradictory
statements making the contention of the petitioner of being an Indian citizen
totally unreliable. Thus, it can be concluded that the petitioner has failed to
discharge her burden as per mandate of Section 9 of the Foreigners Act, 1946.
The decisions cited at the Bar by the learned counsel for the petitioner have
been perused but on due consideration, those are found to be not at all relevant
to the case.
39. As extracted above, Tribunal had minutely examined the evidence on
record and thereafter, came to the conclusion that the version of the petitioner
was untrustworthy and could not believe. Therefore, Tribunal recorded the
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finding that the petitioner was a foreigner who had illegally entered into India
(Assam) after 25.03.1971. This finding of fact was returned by the Tribunal on
appreciation of evidence on record.
40. In State of Assam Vs. Moslem Mondal reported in (2013) 1 GLT 809, a Full
Bench of this Court had examined various aspects relating to the law and
procedure to be adopted on a proceeding before a Foreigners Tribunal under a
Foreigners Tribunal Act, 1946 and the Foreigners (Tribunal) Orders, 1964.
Amongst other aspects, the Full Bench noted that though High Court in exercise
of its writ jurisdiction under Article 226 of the constitution of India certainly has
the power to interfere with an order passed by the Foreigners Tribunal, the
width of such jurisdiction would be limited as certiorari jurisdiction of the writ
court being supervisory and not appellate, writ court would not review findings
of fact reached by the Foreigners Tribunal, the exception being when a finding is
reached on evidence which is legally inadmissible or where Foreigners Tribunal
had refused to admit admissible evidence or if the finding is not supported by
any evidence at all because in such a case it would amount to an error of law
apparent on the face of the record. The other errors of fact howsoever grave
those may be, would not be corrected by a writ court.
41. Notwithstanding the above, we have embarked upon an independent
assessment of the evidence on record to satisfy ourselves about the correctness
or otherwise of the decision of the Tribunal. On a thorough consideration of the
matter, we find no error or infirmity in the view taken by the Tribunal, which we
hereby affirm.
42. Writ petition being devoid of merit and is accordingly dismissed.
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43. It is pertinent to say here that in pursuance of the order of the Tribunal
dated 06.06.2018, the petitioner was arrested and has been detained in Matia
Transit Camp, Golapara. As the petitioner has failed to discharge her burden
that she is the citizen of India by birth, she is not entitled for bail.
44. Transmit the case records to the Tribunal.
JUDGE JUDGE
Comparing Assistant
