Gauhati High Court
Page No.# 1/9 vs The Union Of India And 4 Ors on 16 September, 2025
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/9
GAHC010192802017
2025:GAU-
AS:12761-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/696/2017
JAMAL UDDIN
S/O. JOHUR @ JOHUR UDDIN, VILL. SAHARIAPAM, P.S. MOIRABARI, DIST.
MORIGAON, ASSAM.
VERSUS
THE UNION OF INDIA and 4 ORS
TO BE REP. BY SECY. TO THE GOVT. OF INDIA, HOME DEPTT., NORTH
BLOCK, NEW DELHI.
2:STATE OF ASSAM
TO BE REP. BY COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GUWAHATI- 06.
3:ADDL. DIRECTOR GENERAL OF POLICE
ASSAM BORDER
BHANGAGARH
GUWAHATI- 05.
4:DEPUTY COMMISSIONER
MORIGAON
ASSAM.
5:SUPERINTENDENT OF POLICE BORDER
MORIGAON
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ASSAM
Advocate for the Petitioner : MR.N H MAZARBHUYAN, MR.K MIRA,MR.N ISLAM,MS.L
WAJEEDA
Advocate for the Respondent : , ASSTT.S.G.I.,GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
Date of Hearing : 22.07.2025.
Date of Judgment : 16.09.2025
JUDGMENT AND ORDER (CAV)
(S. P. Khaund, J)
1. Heard Ms. L. Wajeeda, learned counsel for the petitioner. Also heard
Mr. B. Deka, learned CGC, Mr. G. Sarma, learned standing counsel for the FT
matters and NRC, Mr. H. Kuli, learned counsel appearing on behalf of Mr. A. I.
Ali, learned standing counsel for the ECI and Mr. P. Sarmah, learned Additional
Senior Govt. Advocate for the State respondent.
2. The petitioner is aggrieved by the judgment and order dated
18.09.2013 passed by the learned member, Foreigners Tribunal (2 nd), Morigaon,
Assam in Case No. F.T. (D) 48/11, Police reference D/N Case No. 2818 dtd.
05.07.1998 and E.R.O reference No. 83/89/25 dtd. 17.10.1997. The petitioner
has been declared to be a foreigner who entered into Assam from a specified
territory after 25.03.1971, by the Tribunal.
3. It is submitted that the petitioner contested the proceeding and filed
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written statement substantiated by documents to prove his citizenship but the
learned Tribunal erroneously held him to be a foreign national.
4. The petitioner Jamal Uddin, has explained his delay in filing the writ
petition on the ground that he earns his livelihood as a daily rated labourer and
he has to work in remote villages. He was unable to meet the expenses to file
the writ petition against the impugned judgment and order. It is contended that
his father Johur @Johur Uddin, son of late Momruz was a permanent resident in
the District of Nagaon, house No.40, village- Udhantola under Rupahihat Police
Station. His father's name was recorded in the voters list of 1970, for 86, Dhing
LAC vide serial no.149 and his mother's name Sahar Banu was also recorded in
the said voters list at serial no. 150. Subsequently, owing to reorganization of
the District and Police Station, the petitioner's village came under the jurisdiction
of Laharighat Police Station at Morigaon District and the name of the petitioner
alongwith his wife's name was recorded in the voters list of 1985 under 83
Dhing LAC, Part No. 82, House No. 101, Serial No. 218 and 219. The petitioner
is at present residing in the aforementioned address.
5. It is contended that the Tribunal has not recorded the reasons while
declaring the petitioner to be a foreign national. It is submitted by the petitioner
that the notice by the Tribunal in continuation to the reference before the
Tribunal was invalid and legally untenable in law. It is contended that the
reference of the question to the Foreigners Tribunal, Morigaon by the
respondents in respect of the petitioner's citizenship was without any authority
and jurisdiction causing sheer abuse of the process of Law.
6. Per contra, learned Standing Council for FT matters, Mr. G. Sharma
laid stress in his argument that the petitioner has failed to produce any
documentary evidence to substantiate that he is an Indian citizen by birth.
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7. The Tribunal scrutinized the evidence adduced by the prosecution side
as well as by the petitioner. It was observed by the Tribunal that the verification
officer, Sri Mukul Moni Saikia, as PW, stated that he was engaged by the ERO
during his tenure in the year 1997, for verification and correction of the voters
list of 83 Dhing LAC. Then he visited the petitioner's residence with the village
headman and asked for supporting documents to affirm that he is an Indian
citizen. He asked for documents like NRC, voters list, land document, birth
certificate, etc., but the O.P./petitioner failed to produce any documents despite
the fact that he was granted more than 15 days time to produce the documents.
The verification officer, suspecting the petitioner to be an illegal migrant,
submitted his report.
8. This report was identified as Exhibit 1. The ERO's report and signature
was also identified by PW-1, as Exhibit 2, 2(1), whereas the signature of the SP,
Border Morigaon, was identified by PW-1 as Exhibit 3 (1) and 3 (2). It was also
observed by the Tribunal that the petitioner, as DW-1, tried to substantiate his
claim by stating that he was born at village Udhantola under Rupahihat P.S. and
later on after his marriage, he started residing at Saharia Pam. He admitted that
he had no landed property of his own and he is a peasant.
9. The learned Tribunal also scrutinized the evidence of DW-2, Md.
Ismat Ali, a peasant who exhibited some documents like voters list etc. The
voters list of 1965 Ext. "Ka" was exhibited by DW-2 which reflects the name of
Jaharuddin. He exhibited the voters list of 1970 as Ext. "Kha", which reflects the
name of Jaharuddin. Petitioner's projected father is Jaharuddin. The petitioner's
name appears in the voters list of 1985 exhibited as Ext. "GA". He has also
exhibited a certificate by ic President of Gaonpanchayat of Lengribori Gaon as
Ext- "Gha". It was held by the Tribunal that the Ext- "Gha" was issued on
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11.02.2013, after the institution of the proceeding. Learned Tribunal did not
accept Ext- "Gha" as evidence as the authority who issued the certificate was
not examined as a witness nor was there any official issue number to be found
on Ext-"Gha". The learned Tribunal also did not accept the certificate issued by
the village headman marked as Ext- 'Unga' as the village headman was not
examined as a witness. It was also held by the learned Tribunal that the draft
Chittha Ext- Cha is not a final document. The learned Standing Counsel for FT
matters has submitted that Ext- 'Cha" is not a draft Chittha but a copy of
jamabandi.
10. We have given our thoughtful consideration to the submissions at the
Bar and the decision of the learned Tribunal. After scrutinizing the evidence of
the petitioner and the judgment and order impugned by the petitioner, we
record our concurrence to the decision of the learned Tribunal. It has been
correctly held by the learned Tribunal, that the petitioner has failed to establish
any linkage with his projected parents with the help of the documents exhibited
by him. The certificate of the Gaonburah and the village headman, were not
proved by the petitioner by producing the authorities issuing the certificates
as witnesses. Moreover, the learned Tribunal correctly dismissed the certificate,
Exhibit- "Unga" as the certificate was issued based on the voters list of
1985.The petitioner has failed to link the voters list of 1985 to the voters list of
1965 as well as the voters list of 1970. In the voters list of 1985, the petitioner's
projected father's name appears as Johur and not Johoruddin. It cannot be
ignored that the written reply/written statement was very vague. The petitioner
did not mention names of any of his siblings, nor names of other relatives apart
from his parents and grandparents names.
11. The copy of the Jamabandi marked as Exhibit- "Cha", also cannot be
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considered to be a linking document to any of the voters list submitted by the
petitioner. The petitioner's projected father's name was mutated on 18.4.1996.
Apart from the petitioner's grandparents' names appearing in the voters list
of 1965 and 1970, there are no documents to establish the lineage of the
petitioner with his parents.
12. The petitioner's name figures in the voters list of 1985. This voters list
cannot be stretched backward to 1970 to establish petitioner's lineage with his
father Jaharuddin without any linking documents after 1970. Although the
petitioner has projected his grandfather's name as Jaharuddin whose name
figures in the voters list of 1970, the petitioner's father's name is shown as
Johur in the voters list of 1985.
13. As per Section 9 of the Foreigners Act, 1946, the burden of proof lies
on the petitioner. It was the duty cast upon the petitioner by virtue of Section 9
of the Foreigners Act to prove that he is not a foreign national but an Indian
Citizen. The petitioner has failed to discharge his burden. He has produced
voters list which consist of names of only 2 (two) family members. The voters
list of 1965 is reproduced hereinbelow:-
ভ ট ৰ ত ল ক 1965 চন
অসম ব ধ নসভ বন চন সমব ৰ নমৰ, ন ম -86 ল
ভভ ট গহণ ভ নৰ নমৰ, ন ম- 72
পদ শ- অ ব ল - নগ ও খণ ন#-72 মহকম
ভম% - আবলট ঙন( খ ন - ৰ)পহ(হ ট গ ও- উধ নদ, দ-ল
Page No.# 7/9
কবম ন# ঘৰ ন# ভভ ট ৰৰ সম)ণ বপ, স ম(ৰ ন ম বল#গ য়স
নম
164 41 হৰ উব4ন মমদৰ ম 32
165 41 সহৰ ন5 6 হৰ ব, 24
The voters list of 1970 is as follows:-
Name of Constituency:- 86 Dhing LAC, State:- Assam, Dist:- Nagaon, Part No.
72, Mouza : Alitangoni, P.S:- Rupahihat, Vill:-Udhantola
Sl No. H/No. Name of Father/Husband Male/Female Age
Citizen Name
Uddin
Banu
The voters list of 1985 is as follows:-
Name of Constituency:- 83 No. Dhing LAC, State:- Assam, Dist:- Nagaon, Part
No. 82, Mouza: Moirabari, P.S:- Laharighat, Vill:-Saharia Pam
Page No.# 8/9
SL H/No. Name of Father/Husband Male/ Age
No. Citizen Name Female
Uddin
Khatun
The petitioner has refrained from mentioning the names of his siblings. It is
unfathomable that the petitioner is the only son of Johur Uddin @ Johur and
Sahar Banu. Again the voters list of 1965 includes only 2 (two) names i.e., the
names of the grandparents of the petitioner. With such vague and incomplete
evidence the petitioner failed to establish any linkage with his projected parents
as well as his grandparents.
14. In the wake of the forgoing discussions, it is thereby held that the
petitioner has failed to establish his lineage with his projected parents and
grandparents whose names are reflected in the voters list of 1965 and 1970. In
addition, the petitioner has failed to show sufficient grounds for the inexplicable
delay in preferring this petition which was filed after a gap of more than 3
(three) years.
15. The challenge to the impugned opinion fails and resultantly, this writ
petition is dismissed. Accordingly, the consequences of the impugned opinion
dated 18.09.2013 passed by the learned member, Foreigners Tribunal (2 nd),
Morigaon, Assam in Case No. F.T. (D) 48/11, Police reference D/N Case No.
2818 dtd. 05.07.1998 and E.R.O reference No. 83/89/25 dtd. 17.10.1997,
thereby holding the petitioner abovenamed as a foreigner of post 25.03.1971
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stream, shall follow.
16. There shall be no order to cost.
17. The Registry shall send back the Tribunal's record along with a copy of
this judgment and order, to be made a part of the record by the learned
Tribunal for future reference.
JUDGE JUDGE
Comparing Assistant
