Alimuddin Ali vs The Union Of India And 5 Ors
2025 Latest Caselaw 7114 Gua

Gauhati High Court

Alimuddin Ali vs The Union Of India And 5 Ors on 9 September, 2025

Author: K.R. Surana

Bench: Kalyan Rai Surana

                                                                    Page No.# 1/14

GAHC010131722025




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                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/3597/2025

         ALIMUDDIN ALI
         S/O. LT. KARAM ALI, R/O. VILL.- MONDIRA NC, P/S. BOKO, DIST. KAMRUP
         (R), ASSAM, REP. BY HIS WIFE CHABIYA KHATUN, W/O. ALIMUDDIN
         ALI.ASSAM



         VERSUS

         THE UNION OF INDIA AND 5 ORS.
         REP. BY SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF
         INDIA, NEW DELHI-01.

         2:THE STATE OF ASSAM
          REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          HOME DEPARTMENT
          DISPUR
          GUWAHATI-6

         3:THE DISTRICT COMMISSIONER
          KAMRUP
          P/O. AND P/S. AMINGAON
          DIST. KAMRUP (R0
         ASSAM.

         4:SUPERINTENDENT OF POLICE (BORDER)
          KAMRUP
          P/O. AND P/S. AMINGAON
          DIST. KAMRUP (R)
         ASSAM
          PIN-781031

         5:THE ELECTION COMMISSION OF INDIA
          NIRVACHAN SADAN
                                                                          Page No.# 2/14

             ASHOKA RAOD
             NEW DELHI-01

            6:THE STATE CO-ORDINATOR NATIONAL REGISTER OF CITIZEN'S (NRC)
            ASSAM
             BHANGAGARH
             GUWAHATI-05

Advocate for the Petitioner   : MR M RANA, MR M.HOQUE,MR. D P CHALIHA

Advocate for the Respondent : DY.S.G.I., SC, F.T,SC, ECI,GA, ASSAM

BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

Date : 09-09-2025

JUDGMENT AND ORDER (CAV) (K.R. Surana, J)

Heard Mr. D.P. Chaliha, learned senior counsel, assisted by Mr. M. Rana, learned counsel for the petitioner. Also heard Ms. M. Das, learned counsel, appearing on behalf of Mr. S.K. Medhi, learned CGC for respondent no.1; Mr. G. Sarma, learned standing counsel for the FT, Border matters and NRC for respondent nos. 2, 4 and 6; Mr. H.K. Hazarika, learned Govt. Advocate for respondent no.3 and Ms. P. Baruah, learned standing counsel for respondent no.5. It may be stated that the names of respondent nos. 7 and 8 were struck off vide order dated 25.06.2025.

2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Alimuddin Ali, has assailed the opinion dated 30.09.2021, passed by the learned Member, Foreigners Tribunal No.2, Kamrup Page No.# 3/14

at Boko in B.F.T. Case No. 1989/2016 [arising out of F.T. Case No. 76/08], by which the reference was answered in favour of the State and against the petitioner, thereby declaring him to be a foreigner of post 25.03.1971 stream.

3) The hereinbefore referred case was registered upon reference made by the Superintendent of Police (Border), Kamrup (Rural), Boko [now Kamrup District]. Upon receipt of notice of the proceeding, the petitioner had submitted his written statement on 29.01.2020. His defence is that he and his father, Late Karam Ali were born and brought-up at Village- Kachumara NC, P.S. Kachumara in Kamrup District [now District Barpeta] and his mother is Late Kulson Nessa and grandfather is Late Piyar and Haidar Ali is his paternal uncle. His father had died in the year 1979 and his mother had died in the year 2016. He has 3 (three) brothers and 5 (five) sisters, namely, Chalimuddin, Surjyabhanu, Sahitan, Ambiya, Joynub, Alimuddin Ali (himself), Firoja and Kumuruddin and he has 2 (two) sons and 3 (three) daughters, namely, Hamida Begum, Hamela Khatun, Halima Khatun, Saddam Hussain and Saiful Islam. He had referred to the names appearing in the voters lists of 1966, 1970, 1989, 1997, 2005, 2010, 2013, 2018, EPIC of his mother and himself, PAN Card and Gaonburah's certificate.

4) Thereafter, he had filed his evidence-on-affidavit as DW-1, and he had reiterated the statements made in the written statement. He had stated that he had married Sabiya Khatun. He had exhibited the following documents:-

i. Ext.A:certified copy of voter list of 1966 of village- Kachumara Nonke under 54 No. Chenga LAC, containing the names of Jalaluddin, JamiranBidhaba, SuryabhanNessa, Karam Ali and Kulson Nessa;

ii. Ext.B:certified copy of voter list of 1970 of village- Kachumara Nonke under 54 No. Chenga LAC, containing the names of Jalaluddin, JamiranNessa, SuryabhanNessa, Karam Ali and Kulson Nessa;

iii. Ext.C:certified copy of voter list of 1989 of Village- Mandira NC Page No.# 4/14

under 48 No. Boko (SC) LAC, containing the names of Alimuddin and KulsunNessa;

iv. Ext.D: certified copy of voter list of 1997 of Village- MandiraNC, under 48 No. Boko (SC) LAC, containing the names of KulsonBidhaba, Alimuddin, SabiyaKhatun and Kumuruddin;

v. Ext.E: certified copy of voter list of 2005 of Village- MandiraNC under 48 No. Boko (SC) LAC, containing the names of KulsonBidhaba, Alimuddin and SabiyaKhatun, and Kumuruddin;

vi. Ext.F: certified copy of voter list of 2010 of Village- MandiraNC, under 48 No. Boko (SC) LAC, containing the names of KulsomBidhaba, Alimuddin and SabiyaKhatun;

vii. Ext.G: certified copy of voter list of 2015 of Village- MandiraNC, under 48 No. Boko (SC) LAC, containing the names of KulsonBidhaba, Alimuddin, SabiyaKhatun, Kumuruddin and Momotaz Begum;

viii. Ext.H: Elector Photo Identity Card (EPIC for short) of KulsonBidhaba;

               ix.     Ext.I: EPIC of the petitioner;
                 x.     Ext.J: Income Tax PAN card of the petitioner;
               xi.     Ext.K: certificate by theGaonburah of Charge No.6, village-
         Kachumara N.C.;
              xii.     Ext.L: certificate by the Gaonburah of Mondira N.C.;
             xiii.     Ext.M: name correction affidavit.

5)               In his cross-examination, the petitioner (DW-1) had stated that

he, his father and grandfather were born in Kachumara Nonke. The names of his grandparents are Piyar and Moina and the name of his parents are Late Karam Ali and Kulchan Nessa. He does not know whether his grandfather had siblings or not. His father has one brother, Haider Ali. He has eight siblings, namely, Chalimuddin, Surjyabhanu, Sahitan, Ambiya, Joynub, Alimuddin (himself), Firoja and Kumuruddin. He had got married to Sabiya Khatun and has five children, namely, Hamida Begum, Hamela Khatun, Halima Khatun, Saddam Hussain and Saiful Islam. His father died in 1979 and his mother died in 2016. He does not know whether his grandfather had casted his vote or not but his father along with mother had casted vote from KachumaraNonke and Mandira NC since 1966. He had stated that due to river erosion his family members Page No.# 5/14

shifted from KachumaraNonke to Mandira NC in the year 1978. He does not have any permanent land in Assam and they are living in Govt. land. He had cast his vote in the year 1989 and after his father's death, he and his mother had cast vote from Mandira NC since 1989. He had submitted two documents given to him by the Gaonburah in support of his evidence. He had denied the suggestion that his statement and documents are false and fabricated.

6) The petitioner had examined Abdul Haias DW-2, the In-Charge Gaonburah of Kachumara NC and Kachumara K and Lot No.6, as DW-2. In his evidence-on-affidavit, he had stated that he had issued Ext.K, identifying the petitioner and Ext.K(1) was his signature. He had stated that the name of petitioner's father appears in the voters list of 1966 and 1970. He had also stated that he knows from reliable sources that (i) the petitionerand his family had shifted at Village- Mandira NC due to river erosion from Kachumara Nonke;

and the father of the petitioner had expired in the year 1979. The petitioner is a regular voter since 1989 and he has EPIC and PAN Card. In his cross- examination, DW-2 had stated that he is the In-Charge Gaonburah of Kachumara Nonke from 2017. He has collected all the information about the people of his village and maintained a population register. He did not have personal knowledge of the petitioner as he was born later to the petitioner and he is 25 years of age, but he knows that the father of the petitioner had cast his vote from his village. He had issued a Gaonburah's certificate depending on the voter ID card of the petitioner. He was carrying the counterfoil of his certificate and he does not know about the mother and wife of the petitioner. He had denied that his statement and documents are false and fabricated.

7) The petitioner had examined Subhas Das as DW-3. He was the In-Charge Gaonburah of village- Mandira NC. He knows that the petitioner was Page No.# 6/14

born and brought up at village- Kachumara Nonke. He had issued the Gaonburha's certificate (Ext.L), identifying the petitioner and his signature is Ext.L(1). The rest of his evidence is a replica of the evidence of DW-2. In his cross-examination, DW-3 had stated that he is the In-Charge Gaonburah of Malibari Satra since 1992 and also the Gaonburahof Mandira NC from 2018 to 2020. During his tenure, he knows most of the family. He knows that the petitioner is the son of Late Karam Ali and he has heard from other villagers that he and his father belongs to Kachumara Nonke. He had issued a certificate depending on the voter ID card of the petitioner and voter list of 1993 and he had casted his first vote in the year 1989. He had denied that his statement and documents are false and fabricated.

8) The learned Tribunal, upon appreciation of the pleadings and evidence on record, it was held that in Ext.A and Ext.B, the names of the projected father and mother appears alongwith others, having the same house number, but some names are not mentioned in any documents submitted by the petitioner or disclosure of having any relation in the written statement or evidence, which makes those documents doubtful. It was observed that the petitioner had pleaded that due to river erosion, he and his family had shifted from Kachumara to Mandira NC in the year 1978, and his father expired in the year 1979, but the petitioner could not produce the voter list of 1977 and also not mentioned any reason for non-submission. It was observed that Ext.C, contains two names, Alimuddin and KulsumNessa, aged 27 years and 54 years respectively, but on comparing the voter list of 1966, her age should have been 49 years. EPIC (Ext.I) and PAN Card (Ext.J) were discarded as not being trustworthy documents to prove citizenship in light of the decision in the case of (1) Md. Babul Islam v. Union of India, W.P.(C) 3547/2016 , for EPIC and (2) Page No.# 7/14

Musstt. Rabiya Khatun v. Union of India, W.P.(C) 4986/2016 for PAN Card.The learned Tribunal, after examining the date of birth appearing in the Income Tax PAN Card as 01.01.1964, observed that if the petitioner was having his date of birth, why his date of birth was reflected as 10.09.1974 in the Income Tax PAN Card. Thus, the said exihibits were discarded. The Gaonburah's certificates (Ext.K and Ext.L) were discarded because those were based on hearsay evidence. Moreover, the name correction affidavit (Ext.M) was discarded as not a valid piece of evidence under Section 1 and 3 of the Evidence Act read with Order XIX, Rule 1 of the CPC. Thus, the learned Tribunal had arrived at a conclusion that the petitioner has not been able to prove his linkage with Indian parents and it was held that the petitioner is a foreigner of post 25.03.1971.

9) The learned senior counsel for the petitioner has made his submissions in support of the challenge to the impugned opinion and he has cited the following cases, viz., (i) Ram Autar Singh Yadav v. The State of U.P., Civil Appeal No. 13806 of 2024, decided by Supreme Court of India on 04.12.2024, and (ii) Smt. Shanti Devi v. State of U.P., W.A. 12917 of 2024, decided by Allahabad High Court on 21.02.2025.

10) Per contra, the learned standing counsel for the FT and Border matters and NRC has submitted in support of the impugned opinion.

11) On examination of the pleadings and evidence available in the Tribunal's records (hereinafter referred to as 'TR' for short), it is seen that in the petitioner has merely exhibited the voter's lists but has not proved any of the entries contained thereon. The voters list of 1966 (Ext.A) and 1970 (Ext.B) of Village- Kachumara Nonke contains five names, referred hereinbefore, but the petitioner has not given any evidence as to who were Jalaluddin, JamiranBidhaba and SuryabhanNessa, who are in the same house. The Page No.# 8/14

petitioner has not led any evidence as to why he had not exhibited the voter list of 1977 of village- Kachumara Nonke, though he has projected that his family had shifted in the year 1979 from Kachumara Nonke village. Thus, for the period between 1970 and 1989, there is no evidence of the continuous stay of the petitioner and his projected parents in India, which is required under Section 6A(2) or 6-A(3)(b) of the Citizenship Act, 1946.

12) It would be appropriate to quote the observations made by the Supreme Court of India in paragraphs 26 and 32 of the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665, which are quoted below:-

26. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv)their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary.

If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

* * *

32. Section 9 of the Foreigners Act regarding burden of proof is basically on the same lines as the corresponding provision is in UK and some other Western nations and is based upon sound legal principle that the facts which are peculiarly within the knowledge of a person should prove it and not the party who avers the negative.

13) The petitioner (DW-1) has a PAN Card (Ext.J), but he has not led any evidence of paying Income Tax. Hence, the EPIC of the petitioner's projected mother (Ext.H) and his own EPIC (Ext.I) is of no help to the petitioner.

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The two cases cited in the impugned opinion is a well settled pronouncement on the point of law that EPIC and PAN Card is not a valid piece of evidence to prove citizenship as its contents are based on self-declaration by the applicant. As stated hereinbefore, the two Gaonburah's certificate (Ext.K and Ext.L) are not admissible as it is not based on documentary record, but are based hearsay materials because both the Gaonburahs have not exhibited any official record to prove their statements.

14) Therefore, though the petitioner had not able to show that the impugned opinion is vitiated by erroneous appreciation of the pleadings and evidence or that based on any extraneous materials, the impugned opinion was rendered. The Court is of the considered opinion that in exercise of certiorari jurisdiction under Article 226 of the Constitution of India, the High Court ought not to substitute its view over opinion of the learned Foreigners Tribunal, which is not found to be vitiated for any error whatsoever. If one needs any authority on the point, the decision of the Supreme Court of India in the case of Central Council for Research in Auyrvedic Sciences v. Bikartan Das, 2023 INSC 733:

(2023) 0 Supreme(SC) 763, may be referred to. Paragraph 77 thereof is quoted below:-

"77. The purpose of certiorari, as we understand, is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non- exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law committed by them in the exercise of powers vested in them under the statute. The accepted rule is that where a Court has jurisdiction it has a right to decide every question which crops up in the case and whether its decision is correct or otherwise, it is bound to stand until reversed by a competent Court. This Court in G. VeerappaPillai v. Messrs Raman and Raman Ltd. Kumbakonam, Tanjore District and Others, (1952) 1 SCC 334 observed:

"26. Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate Page No.# 10/14

tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made."

15) Thus, the Court does not find that the impugned opinion rendered by the learned Tribunal is vitiated by any jurisdictional error or that there was any failure of giving opportunity of hearing to the petitioner. Therefore, as the Court is exercising supervisory jurisdiction and not appellate jurisdiction, no case is made out for substituting the opinion rendered by the learned Tribunal with the view of the Court. This is not a case where the learned Tribunal had refused to admit admissible evidence or that findings by the learned Tribunal are dehors the evidence on record.

16) Moreover, the impugned opinion was rendered on 30.09.2021, whereby the petitioner has been held to be a foreigner of post 25.03.1971, who has illegally entered into India, yet the present writ petition was filed on 16.06.2025 i.e. after more than 4 years. Therefore, keeping open the issue of maintainability of the present writ petition on ground of delay and laches, notice was issued vide order dated 25.06.2025. In support of the submissions that the writ petition would be maintainable, the learned senior counsel for the petitioner had cited the case of Ram Autar Singh Yadav (supra), and Smt. Shanti Devi (supra).

17) In the case of Ram Autar Singh Yadav (supra), the case of the petitioner was that he had displayed exemplary valour while a group of armed Page No.# 11/14

dacoits, on 13.03.1986, had ambushed a bus carrying passengers to loot it and in a daring encounter, the petitioner, who was travelling in the same bus, a dreaded dacoit was shot dead and on 03.08.1989, the name of the petitioner was recommended for President's Gallantry Police Medal, but nothing happened. The petitioner moved the State authorities, and also appealed before the President of India. Then he moved the Public Service Tribunal, where his claim was rejected. Then he moved the High Court, where his writ petition was rejected. Thereafter, SLP was filed before the Supreme Court of India. Under those circumstances, the Supreme Court of India had directed the State of Uttar Pradesh to sanction an additional amount of Rs.4,00,000/- in addition to Rs.1,00,000/- already sanctioned to acknowledge the valour of the petitioner and be paid to the petitioner with all dignity and honour before 26.01.2025. The observations of the Supreme Court of India in paragraph 22 thereof is quoted below:-

"22. In the present case, neither is there accrual of any parallel right of a third party nor could grant of relief cause confusion and public inconvenience. There has also been no occasion for the State authorities to claim that they are in any manner handicapped to defend their action. On the contrary, this is a case where the appellant sought to explain the belated approach by referring to his repeated unyielding persuasions, which the High Court brushed aside mechanically, without appreciating that the appellant had invoked its writ jurisdiction for enforcement of his Fundamental Rights under Articles 14 and 21 of the Constitution. When a litigant approaches a high court invoking its high prerogative writ jurisdiction with a petition under Article 226 of the Constitution alleging that the impugned State action is in breach of his Fundamental Right and claims that the breach be bridged by issuing appropriate writ/order/direction as distinguished from a claim for enforcement of a statutory right, it partakes the character of a duty on the part of such high court to enforce the right breached as the guardian of the Constitution. Law is well-settled that there is no loss of a Fundamental Right for non-exercise thereof and also that there cannot be waiver of a Fundamental Right. Hence, no argument can commend acceptance that a litigant seeking enforcement of his Fundamental Right should be declined relief in all cases of a belated approach.

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Notwithstanding delay, which might not have been explained to the full satisfaction of a high court, we hold that in cases where a high court finds that facts, as they have been presented, are not seriously disputed, no further investigation into facts is required to be made, the relief claimed in the petition was otherwise due to the writ petitioner and the same would have followed as a matter of course and been granted had he approached the high court without delay, it would be iniquitous and inappropriate to deny relief for no better reason than that the relief has been belatedly claimed."

18) In this case, the petitioner is assailing the opinion rendered by the Foreigners Tribunal and thus, the petitioner is invoking certiorari jurisdiction of the Court. The petitioner has not been able to show that any of his fundamental right has been infringed. Therefore, the case of Ram Autar Singh Yadav (supra) does not help the petitioner in any manner.

19) In the case of Smt. Shanti Devi (supra), the petitioner claimed her entitlement to family pension on death of her husband, who was serving under the respondent- company and had retired in the year 1997 and died in the year 2013. Under the said facts, it was observed by the Allahabad High Court that the factors which have been laid down by the Apex Court are (a) whether there has been any accrual of a parallel right in favour of a third party

(b) whether grant of relief in a belated claim is likely to cause confusion and public inconvenience like unsettling matters which have long been settled (c) whether the official respondents are hopelessly inconvenienced in defending their action for lack of the relevant records and to establish their defense to the full satisfaction of the Court. Therefore, the said case also does not help the petitioner in any manner.

20) In this case, the opinion of the learned Tribunal was rendered on 30.09.2021. The learned senior counsel for the petitioner has not been able to show that the aggrieved party can assail the Tribunal's opinion even after a Page No.# 13/14

lapse of over 4 (four) years. To explain the delay, the petitioner has stated in paragraphs 21 and 22 of the writ petition to the effect that the petitioner had engaged the conducting counsel to assail the opinion dated 30.09.2021 before the High Court, and his learned advocate assured the petitioner that appeal would be filed and accepted his professional fees paid from time to time. But on 27.05.2025, the police personnel apprehended the petitioner on 27.05.2025, and took him to the Superintendent of Police (Border). Only thereafter, on the engaged advocate being asked, the family members of the petitioner came to know that the opinion has not been challenged. In this regard, the Court is of the considered opinion that whatever transpired between the petitioner and his learned counsel, cannot be the subject matter of enquiry by this Court as there is a statutory authority to enquire into the misconduct, if any, by an advocate. The admitted fact is that the opinion has been challenged only after a lapse of four years. The petitioner has not stated that he had come to the Court or before any Notary Public to swear affidavit in support of the writ petition, or that he had signed the vakalatnama to file the writ petition. In this case, the certified copy of the impugned opinion was issued on 02.06.2025 and there is no pleading that any certified copy was obtained previously and handed over to the engaged counsel. Therefore, the delay and laches is not found to be explained.

21) Hence, this writ petition fails on merit and also on the ground of delay and laches in assailing the impugned opinion. Therefore, this writ petition is dismissed, leaving the parties to bear their own cost.

22) Let the Tribunal's records be returned along with a copy of this order, to be made a part of the records of the learned Tribunal for future reference.

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JUDGE JUDGE

Comparing Assistant