Gauhati High Court
Page No.# 1/9 vs The Union Of India And 6 Ors on 15 May, 2025
Author: M. Nandi
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/9
GAHC010009402025
2025:GAU-AS:6038-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/305/2025
MUSSTT MORIOM @ MORIOM NESA
W/O- MD. ROSHID @ ABDUL RASHID,
VILL.- JAMUGURI,
P.S.- JURIA, DIST.- NAGAON,
ASSAM, PIN- 782142.
VERSUS
THE UNION OF INDIA AND 6 ORS
REPRESENTED BY THE SECRETARY,
HOME AFFAIRS, NEW DELHI,
DELHI-01.
2:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTION COMMISSION OF INDIA
NIRVACHAN ASHOKA ROAD
NEW DELHI.
3:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6.
4:THE SPECIAL COUNSEL OF NRC
GOVT. OF ASSAM.
5:THE SUPERINTENDENT OF POLICE
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BORDER
NAGAON
ASSAM
PIN- 782003.
6:THE OFFICER-IN-CHARGE
POLICE STATION
NAGAON
ASSAM. PIN- 781335.
7:THE DISTRICT COMMISSIONER
NAGAON
DISTRICT- NAGAON
ASSAM
PIN- 782003
Advocate for the Petitioner : MR S HUSSAIN, A JUBARIA,MR. H RAHMAN
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 : 15-05-2025
(M. Nandi, J)
Heard Mr. R.C. Das, learned counsel assisted by Mr. S. Hussain, learned
counsel for the petitioner. Also heard Mr. G. Sarma, learned Standing Counsel,
F.T.; Mr. M.R. Adhikari, learned CGC; Mr. M. Kalita, learned counsel appears on
behalf of Ms. P. Barua, learned Standing Counsel, ECI; and Mr. P. Sarmah,
learned Additional Senior Government Advocate, Assam.
2. By filing this application under Article 226 of the Constitution of India, the
petitioner has challenged the impugned order dated 28.02.2023, passed by the
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learned member, Foreigners Tribunal 4th, Nagaon, Juria, Assam in F.T. Case
No.130/2016 [corresponding to Police Reference "D" Case No.2990/98,
declaring the petitioner as foreigner].
3. The petitioner's case, in brief is that the petitioner is a citizen of India by
birth. The petitioner inadvertently did not append her own voter list before the
learned Tribunal but exhibited some other relevant documents to link her with
her projected parents. It is also the case of the petitioner that the name of her
father has been reflected in the voter lists of 1966 and 1970. Her elder brother
and sisters had also casted their votes in their respective constituency. Even
though the petitioner produced linked documents with her father like school
certificate, migration certificate and land documents but the learned Tribunal
without applying judicial mind declared the petitioner as a foreigner vide opinion
dated 28.02.2023. Hence, this writ petition.
4. On receipt of the notice from the Tribunal, the petitioner appeared and
contested the case by filing written statement. As per written statement, the
petitioner is the bonafide citizen of India and permanent resident of village -
Jamuguri, P.S- Juria, Mouza - Alitengni, District - Nagaon, Assam, The petitioner
was born and brought up in the village - Bherbheri, Mouza & P.S - Batadrava,
District- Nagaon, Assam. The name of the petitioner's parental grandfather was
Akadil Sheikh and name of grandmother is Sayed Jan. The name of the
petitioner's parents are Muslem Uddin and Majida Khatun.
5. It is also stated in the written statement that the petitioner got married to
one A. Rashid, s/o A. Hashen of village - Jamuguri, PS- Juria, district- Nagaon,
Assam. The name of petitioner's father has been recorded in the voter lists of
1966, 1970 from Bherbheri village under Dhing Police Station, Nagaon.
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6. The petitioner has adduced evidence as DW-1 and DW-2 is one Mainul
Hoque as projected brother of the petitioner. The petitioner also exhibited some
documents vide Ext.I - voter list of 1966, Ext.II - voter list of 1970, Ext.III -
Periodic Khiraj Patta in the name of Muslem Uddin, Ext.IV- Jamabandi, Ext.V-
Panchayat certificate and Ext.VI- Affidavit filed by the petitioner. The evidence
of DW-2 is nothing but a replica of the evidence of DW-1.
7. Learned counsel for the petitioner has argued that the petitioner is a lady,
being 50 years of age, is originally hailing from village - Bherbheri, P.S-
Batadrava under Nagaon district. And the marriage of the petitioner was
solemnized with one Abdul Rashid on 01.01.1996. It is also submitted that the
name of the petitioner's father has appeared in the voter list of 1966 and 1970.
8. Further submission of the learned counsel for the petitioner is that the
name of the petitioner's parents and elder brother's name have been enlisted in
the voter list of 1989 under the same Dhing constituency. And the name of the
petitioner's mother and the elder brother has appeared in the voter lists of 1997
and 2011.
9. It is also submitted that the Secretary of Dhupaguri Gaon Panchayat,
Nagaon has issued certificate regarding permanent resident of the petitioner
and the land documents also shows the name of the petitioner along with her
family members being the owner of the said land. The learned counsel for the
petitioner also contended that the petitioner studied in Dhupaguri Kalani Basti
M.E School and the Headmaster also issued a certificate in favour of the
petitioner showing her date of birth in the document.
10. According to learned counsel for the petitioner, in spite of producing
several documents to prove the citizenship of the petitioner, but the Tribunal did
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not consider such documents and declared the petitioner to be a foreigner.
Under such backdrop, the petitioner was compelled to file this writ petition with
a prayer to set aside the order of the Tribunal as above. The alternative
submission of the learned counsel for the petitioner is to remand the matter to
the Tribunal giving another opportunity to the petitioner to produce some
documents to prove her citizenship.
11. In response, learned counsel Mr. G. Sarma has submitted that the
petitioner has not come with clean hands. The petitioner exhibited only 6 (six)
documents before the Tribunal as above which are not sufficient to prove her
citizenship. It is further submitted that the petitioner has failed to prove the fact
that she is the daughter of Muslem Uddin. It is also stated that the written
statement is totally silent when the petitioner had casted vote in the Indian soil.
As the petitioner has failed to discharge his burden under Section 9 of
Foreigners Act, 1946, as such, there is no scope of this Court to interfere with
the opinion rendered by the Tribunal.
12. Mr. G. Sarma also submits that even after certain documents have been
filed, it is the onus of the proceedee to prove the same and if the proceedee
fails to do so, it would render such documents not admissible in law. In other
words, irrespective of whether objection is raised to any document or not, it is
the bounden duty of the proceedee to discharge the obligation by proving the
same as held by this Court in the case of Rukia Begum Vs. Union of India,
reported in (2018) 4 GLT 763.
13. Having heard the learned counsel for the parties and on perusal of the
records received from the Tribunal, it reveals that though the petitioner has
submitted that her mother, elder brothers have casted vote in the year 1989,
1997 and 2011 but the said voter lists were not exhibited before the Tribunal.
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According to the petitioner, Headmaster of Dhupaguri Kalani Basti M.E School
also issued certificate showing her date of birth as 2 nd February, 1970 but all
such documents were not proved before the Tribunal. As such, this Court in
exercising the jurisdiction of writ of certiorari is not in a position to consider
such documents with a liberty to exhibit the same for fresh adjudication.
14. Coming to the documents vide Ext. I and Ext. II i.e. 1966 and 1970 voter
lists showing the name of one Muslem Uddin, S/o Akdil. Though the petitioner
claimed that she is the daughter of Muslem Uddin and Majida Khatun but no
any documents are available in the record connecting the petitioner with her
projected parents Muslem Uddin and Majida Khatun.
15. 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 a daughter of Muslem Uddin.
16. As per judgment of Nur Begum Vs. Union of India and Ors., reported in
(2020) 3 GLT 347, the fact in issue has to be proved by the proceedee by
adducing documentary evidence which are admissible and relevant and the oral
testimony alone does not prove the citizenship of a person.
17. Proceeding to Ext.III - periodic khiraj patta no.98 in the name of Muslem
Uddin, S/o Akdil issued by the Deputy Commissioner, Nagaon in the year 1998
granting lease of 30 years. Vide Ext.IV, as per order of Circle Officer dated
20.04.2002, vide Dag No.446, the land was mutated in the name of Mainul
Hoque, Inul Hoque, Mariam Nessa, Ajufa, Aafia Khatun in place of late Muslem
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Ali. It is not reflected in the order of Circle Officer, whether the name of the
petitioner along with the aforesaid persons were entered in the jamabandi by
right of inheritance or purchase.
18. It is also not known whether Muslem Ali and Muslem Uddin is one and the
same person. In 1966 and 1970 voter lists, the name of one Muslem Uddin has
appeared, S/o Akdil. The Tribunal has rightly held in the opinion which is
reproduced as follows -
"......Therefore, it is crystal clear that OP's name are mutated
in land after the year 25.03.1971 and in this regard, Gauhati
High Court observed that it is no longer res integra that
entries made in the revenue records is not a document of a
title. Thus, in the absence of any proof tendered to show a
sale deed or order of settlement of land in favour of the
projected father of the proceedee and in the absence of proof
of payment of land revenue ETC, entry made in jamabandi
cannot be treated as a proof of existence of any relationship
between the proceedee and the projected father, as such,
jamabandi cannot be accepted as a valid linkage between the
proceedee and the projected father...."
19. Regarding Gaon Panchayat certificate issued to the petitioner vide Ext.V
which reveals that the petitioner is the daughter of late Mulem Uddin of village
- Dhupaguri/ Bherbheri Gaon Panchayat under Dhing Revenue Circle of Nagaon
district, who is aged about 38 years and got married to A. Rashid on
01.01.1996, resident of village - Jamuguri, Ward - 6 under Nagaon Revenue
Circle.
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20. It is seen that Ext.V was issued by Secretary, Dhupaguri Gaon Panchayat
and countersigned by the Block Development Officer, Batadrava Development
Block, Dhing, Nagaon, which is nothing but certifying the residence of the
petitioner and her marriage with one A. Rashid.
21. In the WP(C) 2634/2016 (Manowara Bewa Vs. Union of India and Ors.),
this Court held that no reliance can be placed on a certificate of residence and
relationship issued by the Secretary Gaon Panchayat and countersigned by Block
development officer and/or a Village Headman (Gaonburah) as such certificate
has no statutory sanctity being beyond the mandate of Assam Panchayat Act,
1994 and the rules laying there under, besides being contrary mandate of
citizenship (Registration of Citizens and Issue of National Identity Cards) Rules,
2003 and would not be in national interest. At the most, it would be a private
document as per Section 74 and 75 of Indian Evidence Act, 1872. And being a
private document, the author of the certificate would have to take full
responsibility as to the contents of the certificate. This is also applicable in case
of school certificate vide Ext.VII, as the headmaster of Dhupaguri Kalani Basti
M.E School who issued the school certificate, was not examined before the
Tribunal.
22. In the case of Rupjan Begum Vs. Union of India, reported in (2018) 1 SCC
578, the Hon'ble Supreme Court has made it clear that a certificate issued by
Gaon Panchayat Secretary, by no means establishes the claim of citizenship. It is
only a link of document which has to be supported by other evidence. Such a
certificate has to be verified at two stages namely, authenticity of the document
itself and secondly authenticity of the contents which is bound to be an
exhaustive process. Otherwise no reliance can be placed on the same.
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23. We have also appreciated other documents and exhibits as discussed
above wherein the petitioner has also failed to establish her link along with her
projected parents. The version of the petitioner suffers from multiple material
contradictions rendering the same highly improbable. Under such backdrop, it
cannot be said that the petitioner has discharged her burden as required under
Section 9 of the Foreigners Act, 1946.
24. In view of the above, the Court does not find any merit to interfere with
the opinion as rendered by the Tribunal. Hence, the writ petition is dismissed.
There shall be no order as to costs.
25. Transmit the case records to the Tribunal.
JUDGE JUDGE
Comparing Assistant
