Gauhati High Court
Page No.# 1/ vs The Union Of India And 6 Ors on 29 May, 2025
Author: M. Nandi
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/10
GAHC010042442025
2025:GAU-AS:6937-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1304/2025
SUKURJAN NESSA ALIAS SUKURON NESSA
D/O- LT. ARDASH BEPARI, W/O.- KURBAN ALI, RESIDENT OF VILLAGE-
BHOWLAGURI, P.S- BONGAIGAON, DIST- BONGAIGAON, ASSAM
VERSUS
THE UNION OF INDIA AND 6 ORS
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, HOME
DEPARTMENT, NEW DELHI-1.
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-06.
3:THE ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN
ASHOK ROAD
NEW DELHI
PIN- 110001.
4:THE STATE COORDINATOR
NATIONAL REGISTRATION OF CITIZEN
ASSAM
BHANGAGARH
GUWAHATI
PIN- 781005.
5:THE DISTRICT COMMISSIONER
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BONGAIGAON
DIST- BONGAIGAON
ASSAM PIN- 783380.
6:THE SUPERINTENDENT OF POLICE (BORDER)
BONGAIGAON
DIST- BONGAIGAON
ASSAM
PIN-783380.
7:THE OFFICER-IN-CHARGE
BONGAIGAON POLICE STATION
DIST- BONGAIGAON
ASSAM
PIN-783392
Advocate for the Petitioner : MR. M I HUSSAIN, MS. P AHMED,R KHA
Advocate for the Respondent : DY.S.G.I., SC, NRC,SC, F.T,GA, ASSAM,SC, ECI
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE MALASRI NANDI
JUDGMENT & ORDER (CAV)
Date : 29-05-2025
M. Nandi, J)
Heard Mr. M.I. Hussain, learned counsel for the petitioner. Also heard Mr.
U.K. Goswami, learned CGC; Ms. A. Verma, learned Standing Counsel, FT
matters; Ms. P. Barua, learned Standing Counsel, ECI and Mr. P. Sarmah, learned
Additional Senior Government Advocate.
2. By filing an application under Article 226 of the Constitution of India, the
petitioner has challenged the impugned order dated 02.09.2022, passed by the
learned Member, Foreigners Tribunal No.1, Bongaigaon in Case No. vide
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BNGN/FT/3230/09 [reference IM(D)T Case No.656/01], declaring the petitioner
to be a foreigner of post 25.03.1971.
3. On receipt of the notice, the petitioner appeared before the Tribunal and
submitted her written statement wherein she stated that she is a citizen of India
by birth. The name of the petitioner's father recorded in the voter lists of 1966
and 1970. The petitioner has purchased the plot of land in the year 1981
wherein the name of the petitioner's father has been reflected.
4. The written statement also disclosed that the petitioner got married to one
Kurban Ali in the year 1979. In the year 1983, she gave birth to a male child.
After one year of birth of a child, she became mentally retarded. During that
period, her husband did not take care of her and by that time he got married
another two wives and ultimately, due to her mental retardation, she left the
house of her husband. After long time, in the year 1998, she was found by her
husband at Bongaigaon while she was begging in the footpath. Thereafter, she
was brought back to the house of her husband.
5. It is also stated in the written statement that in the year 2002 and 2004,
the petitioner's son tried to enroll the name of the petitioner in the voter list but
he could not succeed. The petitioner also produced the Gaonburah certificate to
prove her link with her parents and the husband.
6. To prove her citizenship, the petitioner also adduced evidence as DW-1
and more or less she has stated the same thing whatever she stated in her
written statement and exhibited the following documents -
a) Ext.A - NRC details in the year 1951
b) Ext.B - Voter list of 1966
c) Ext.C - Voter list of 1970
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d) Ext.D - Sale deed
e) Ext.E - Gaonburah certificate
f) Ext. F - Family Identity Card
7. In her cross-examination, DW-1 replied that she could not remember her
date of birth and year, however she was born at Village - Fesertary. Her
grandfather's name was Moijuddin. Her father was Ardush Ali Bepari. Mother
name's was Haliman Nessa. She never casted her vote. She is the lone child of
her parents. Her parents expired in her childhood. There was a plot of land at
Fershatari which was sold by her father but she could not say to whom the land
was sold.
8. It is submitted by the learned counsel for the petitioner that the petitioner
was born and brought at village - Tarangapur, P.S - Lakhipur in the district of
Goalpara, Assam. The petitioner's father and forefathers were also born in the
same village. Her grandfather's name is Maju Sk.
9. It is further submitted that the petitioner's father Ardash Bepari was the
only child of her grandfather. The petitioner has no siblings and she is the only
child of her parents and after her birth, her parents died. Her grandparents,
parents and other family members are Indian citizens by birth. Their citizenships
were never questioned by any authority at any point of time.
10. According to learned counsel for the petitioner, even after having all the
aforesaid documents in support of Indian nationality, her citizenship was
doubted and the case was referred to the learned Foreigners Tribunal.
11. By referring the judgment of State of Assam Vs. Moslem Mandal, reported
in (2013) 1 GLT 809, learned counsel for the petitioner has submitted that before
submitting enquiry report, the Enquiry Officer never visited her house and met
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her. Before sending the reference also, the Border Police neither visited the
house of the petitioner nor interrogated her. The notice was also sent to her
without mentioning any grounds of doubt.
12. Learned counsel for the petitioner also relied on another case law vide
(2015) 2 GLT 617, wherein it was held that due to the anomalies in the names
and ages, the citizenship of a person cannot be taken away as the person
concerned is not the writer of those documents.
13. Learned counsel for the petitioner also stated that in so far as discrepancy
in the name of petitioner's father is concerned, it is a common phenomenon in
rural areas, more particularly among people of Muslim community, to have more
than one name or there be variations in the name such as in the name of the
petitioner's father. The discrepancy in the name as noticed Samed Ali, Abdul
Samed and Samed is not so great as to draw adverse inference regarding the
citizenship of the petitioner. On the ground of there being such discrepancy in
the name of petitioner's father, petitioner could not have been declared as
foreigner as held by this Court vide Kalu Miya Vs. Union of India & Ors., reported
in (2022) O Supreme (Gau) 439.
14. It is further contended that the Hon'ble Supreme Court also has passed an
order declaring the petitioner as Indian citizen vide order dated 14.02.2019 in
SLP(Crl.) No.4500/2018, though there are anomalies regarding the father's
name of the petitioner. The Hon'ble Apex Court in latest judgment passed in Md.
Rahim Ali @ Abdur Rahim Vs. State of Assam and Ors., reported in 2024 (4) GLT
97 has also been pleased to ignore all such anomalies in names. In view of the
above, learned counsel for the petitioner has submitted that the impugned order
passed by the learned Tribunal is perverse and is liable to be set aside.
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15. The learned Tribunal came to the conclusion that the petitioner had failed
to establish her linkage with her Indian parents relatable to a period prior to
25.03.1951 as such she has failed to discharge her statutory burden u/s 9 of
Foreigner's Act, 1946 and declared the petitioner to be a foreigner of post 1971.
16. The aforesaid decision of learned Tribunal has been supported by Ms. A.
Verma, Standing Counsel, FT matters and submits that perusal of the opinion of
the Tribunal would indicate that what has been sought to be proved is the
identity of the petitioner's parents in connection with a number of documents
exhibited like ration card, voter list of her parents, land document etc.
17. Ms. Verma further submits that what is important to show if there is any
document to link her with her projected parents which is not forthcoming and
whatever documents she has produced i.e. certificate issued by the Gaon
Panchayat, ration card etc, these had not proved in accordance with law.
18. It is further submitted that the petitioner nowhere mentioned the name of
her parents either in written statement or in her evidence and it has been
correctly pointed out by the Tribunal. It is further pointed out by learned counsel
for the State that the petitioner never casted her vote. In the absence of any
documentary evidence to show her linkage with her projected parents, the
Tribunal committed no error in coming to the conclusion that it is the most
crucial part in establishing citizenship that she must establish her linkage with
her projected parents who are stated to be an Indian.
19. Therefore, in the present case, even if all the documents exhibited in the
name of her father Ardash Bepari are treated to be genuine, it does not serve
the purpose of the petitioner in as much as in none of the documents, the name
of the petitioner appears along with her father to show her linkage with her
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father. As such, it is not a fit case to consider the prayer of the petitioner by
setting aside the order of the Tribunal.
20. In support of her case, the petitioner examined two witnesses that is DW-
2 - Gaonburah and DW-3 - Inspector of Food and Civil Supplies, Bongaigaon.
According to DW-2, he is the gaonburah of Revenue Circle Village - Dambari.
Ext.E was issued by him in favour of Sukurjan Nessa. He knew Sukurjan Nessa
personally from her childhood because they are from nearby village. The
father's name of Sukurjan Nessa is Ardash Ali.
21. In his cross-examination, DW-2 replied that he did not bring any
document on the basis of which Ext.E was issued as because all the documents
were damaged from his house due to flood. There is no office for gaonburah.
He used to work from his own house. He did not submit any report regarding
damage of documents to the DC office. He is not authorized person to use the
National Emblem on the certificate.
22. Ext.E shows the National Emblem was used when the certificate was
issued to the petitioner wherein the name of the petitioner has been shown as
Sukuron Nessa, D/o late Ardash Bepari of village - Fesertary, P.S - Lakhipur,
District - Goalpara.
23. It has been rightly recorded by the learned Tribunal that State Emblem of
India was embossed in the top of the certificate issued by the gaonburah. Under
Schedule 1 of the State Emblem of India (Regulation of Use), Rules, 2007
framed u/s 11 of the State Emblem of India (Prohibition of Improper Use) Act,
2005, a gaonburah is not an authorized authority to use the State Emblem in a
certificate issued by him. Accordingly, Ext.E has no value in the eye of law.
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24. The petitioner has examined DW-3, Inspector of Food and Civil Supplies,
Bongaigaon to prove the ration card vide Ext.F. DW-3 deposed in his evidence
that Ext.F (ration card) was issued from their office. A selection list is prepared
by the Block. BDO is the chairman. After preparation of the list of beneficiaries,
the same sent to the DC office for approval. After approval, the said list was
sent to their office. Then they entered the name of beneficiaries and upload into
their departmental computer in the RCMS portal. But the name of Sukuran
Nessa is not found in the beneficiary list as the software was changed and
upgraded.
25. In her cross-examination, DW-3 replied that the father's name of the
petitioner is not recorded in the computer generated copy as well in the
beneficiary list. There is no mention of the address of Haliman Nessa.
26. Be that as it may, from the evidence of DW-3, it discloses that the name
of the petitioner is not found in the beneficiary list showing the name of her
father. From Ext.F, it reveals that the name of head of the family is one Joshna
Bibi, W/o Ajgor Ali of village - Bhawlaguri, District- Bongaigaon. Hence, the
petitioner has failed to prove her link with her projected parents through Ext.F.
27. Coming to the documents vide Ext.B and Ext.C i.e. voter lists of 1966 and
1970 wherein the name of Ardash Bepari, S/o Maju Sk and Haliman Nessa, W/o
Ardash Bepari have appeared. Though the petitioner in her evidence-in-affidavit
did not disclose the name of her parents, however in her cross-examination she
replied that the name of her father was Ardush Ali Bepari and mother's name
was Haliman Nessa. Except her statement, the petitioner has failed to prove her
link along with her projected parents.
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28. As observed by this Court in (2018) 3 GLT 118, Bijay Das Vs. Union of India
and Ors., 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 Ardush Ali
Bepari.
29. Regarding discrepancy in the names as raised by learned counsel for the
petitioner which is substantial and the decision relied upon of the Hon'ble
Supreme Court in Md. Rahim Ali @ Abdur Rahim (supra) will not be applicable in
the present case. In the aforesaid cases, the discrepancy is only in the name of
a particular person which the Hon'ble Supreme Court did not find any
significance and as such, it was held that it could be ignored.
30. In the present case, the petitioner mainly has relied on the document like
ration card and Gaon Panchayat certificate which cannot be taken into
consideration as discussed above. The petitioner is now 63 years of age and she
never casted vote in the Indian soil.
31. The grounds shown by the petitioner in her written statement as well as
in the evidence that as she became mentally unsound during such period after
birth of her child but she did not submit any medical documents to show her
mental retardation. Hence, the reason which has been shown by the petitioner
for her inability to enter her name in the voter list is not acceptable in the eye of
law.
32. In view of the above discussion, since there is no error apparent on the
face of the record nor any finding beyond the jurisdiction, the opinion of the
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Tribunal does not warrant any interference by this Court.
33. It is pertinent to mention here that the scope of interference under Article
226 of the Constitution of India to a decision of the Tribunal is limited to
correcting errors of jurisdiction or when decision is made by the Tribunal without
giving opportunity of hearing or when judgment is rendered in violation of
principles of natural justice or where there appears to be an error apparent on
the face of the record. None of the above grounds exist in the present case. To
reiterate, sufficient opportunities have been given to the petitioner to discharge
the burden of proving that she is not a foreigner which she utterly failed to
discharge. On this ground alone, the writ court would refrain from interfering
with the impugned opinion.
34. Accordingly, the writ petition stands dismissed and the order/opinion of
the Tribunal is affirmed. There shall be no order as to costs.
35. Transmit the case records to the Tribunal.
JUDGE JUDGE
Comparing Assistant
