Gauhati High Court
Page No.# 1/16 vs The Union Of India And 5 Ors on 19 September, 2025
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/16
GAHC010161682025
2025:GAU-AS:12928-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4406/2025
SUFIYA KHATUN @ SUFIYA BEGUM
D/O LATE ABDUL SUBAN, W/O SATTAR ALI MONDAL, P/R/O VILL-
GAMARAGURI, P.S.- BARPETA ROAD, DIST- BARPETA, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS.
REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS,
GOVERNMENT OF INDIA, SHASTRI BHAWAN, NEW DELHI-110001
2:THE STATE OF ASSAM
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-781006
3:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTION COMMISSIONER
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI-110001
4:THE COORDINATOR
STATE NATIONAL REGISTRATION OF CITIZENS
ASSAM
1ST FLOOR
ACHYUT PLAZA
G.S. ROAD
BHANGAGARH
GUWAHATI
ASSAM
PIN-781005
Page No.# 2/16
5:THE DISTRICT COMMISSIONER
BARPETA
P.O.- BARPETA
DIST- BARPETA
ASSAM
PIN-781301
6:THE SUPERINTENDENT OF POLICE (B)
BARPETA
P.O.- BARPETA
DIST- BARPETA
ASSAM
PIN-78130
Advocate for the Petitioner : MS N DEKA, MR A.K. HAJONG,MR. D K AGARWALA,MR. S. K.
CHAKMA,MR I CHAKMA
Advocate for the Respondent : DY.S.G.I., SC, NRC,SC, F.T,SC, ECI,GA, ASSAM
Date of hearing : 09.09.2025
Date of judgment : 19.09.2025
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
HONOURABLE MR. JUSTICE RAJESH MAZUMDAR
JUDGMENT AND ORDER (CAV)
(Rajesh Mazumdar, J)
Heard Ms. D. Ghosh, learned counsel for the petitioner and Shri. J.
Payeng, learned Standing counsel, FT. Also heard Shri. G. Sarma, learned
Standing counsel, NRC; Shri. HK Hazarika, learned Government Advocate,
Assam, Shri. B. Chakravarty, learned CGC and Shri. M. Islam, learned counsel
appearing on behalf of Shri. AI Ali, learned Standing counsel, ECI.
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2. By filing this writ petition under Article 226 of the Constitution of India,
the petitioner has assailed the impugned opinion dated 30.04.2022, passed by
the learned Member, Foreigners' Tribunal (10 th) - Barpeta, Assam in F. T. Case
no. 308/2017, arising out of IM(D)T Case no. 1279(A)/98, by which the
petitioner was declared as an illegal migrant.
3. The records from the Tribunal have been received and the matter is
taken up for final disposal.
Facts of the case:
4. On a reference made by the Electoral Registration Officer No. 40,
Sarbhog Legislative Assembly Constituency regarding the citizenship of the
petitioner herein, a verification was carried out through the Local Verification
Officer. On consideration of the report of the verification, the Electoral
Registration Officer (ERO) forwarded the matter to the Superintendent of
Police (B), Barpeta who submitted the case records of IM(D)T Case no.
1279(A)/98 before the then Illegal Migrants (Determination) Tribunal, Barpeta
for rendering the opinion. After the abolition of the Illegal Migrants
(Determination) Tribunal Act in the State of Assam, the reference case was
assigned to the Foreigners' Tribunal (10th) - Barpeta, Assam, for adjudication as
to whether the petitioner herein was a foreigner within the meaning of Section
2 (a) of the Foreigners Act, 1946.
5. Notice was issued to the petitioner herein on 28.03.2019, and on receipt
of the notice, the petitioner appeared before the Tribunal and prayed for time
to file written statement. The written statement was filed on 05.12.2019, and
the evidence on affidavit was filed on 19.02.2020. Another witness as DW-2
was examined on 08.02.2021 and 3rd witness as DW-3 for the petitioner was
examined on 11.01.2022. The learned Tribunal had recorded the refusal of the
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learned counsel for the petitioner to argue the matter.
6. The petitioner herein had produced 5 (five) Exhibits before the learned
Tribunal namely, "Exhibit-A" which was the photocopy of the certified copy of
the sale deed dated 08.02.1971, "Exhibit-B" was the photocopy of the
Jamabandi of land, "Exhibit-C" was the photocopy of the certified copy of the
Voter list of 1985, "Exhibit-D" was the photocopy of the certified copy of the
Voter list of 1989, "Exhibit-E" was the photocopy of the certificate dated
07.11.2019 issued by the Gaonbura of Dhakaliapara village. The sixth exhibit
i.e. "Exhibit-F" was the photocopy of the Elector Photo Identity card of Maynal
Haque, who had deposed as DW-2.
7. The learned Tribunal after appreciating the contents of the written
statement, the evidence filed on affidavit and the different exhibits as well as
the cross examination of the witnesses came to a finding that the petitioner
herein was not able to establish a link with her projected parents and family.
An observation was also made that the evidence in favour of the petitioner
were not reliable and/or were inadmissible. The learned Tribunal on that count
held the opinion that the petitioner miserably failed to discharge her burden to
prove that she is an Indian citizen. Accordingly, it was declared that she was a
foreigner of the post 1971 stream.
Submissions made on behalf of the petitioner:
8. Ms. D. Ghosh, learned counsel appearing for the petitioner has submitted
that the opinion rendered by the learned Tribunal suffers from several
discrepancies and contradictions, and, therefore, the said opinion deserves
interference of this Court. The learned counsel for the petitioner has submitted
that the petitioner had filed the written statement on 05.12.2019, wherein she
had specified that her father, late Abdul Suban had expired in the year 1986
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and also that her great grandfather, late Amzad Ali had expired a long time
back. The learned counsel thereafter submits that the petitioner had named
her sole brother and had also identified her 3 (three) sisters. The learned
counsel for the petitioner has submitted that "Exhibit-A" which is the sale deed
executed on 08.02.1971 in favour of the father of the petitioner namely late
Abdul Suban, is evidence enough to show that the projected father of the
petitioner had bought/acquired land in the State of Assam prior to 25.03.1971.
The learned counsel further submits that the copy of the Jamabandi exhibited
as Exhibit 'B' before the learned Tribunal had recorded that the name of the
petitioner along with the other legal heirs of late Abdul Suban had been
mutated against the said piece of land, and, therefore, these 2(two)
documents namely, the sale deed and the mutation in favour of the petitioner
along with other legal heirs were sufficient evidence to establish the fact that
the father of the petitioner was present in India prior to the cut-off date, and,
it was also sufficient to prove the linkage of the present petitioner and her
projected father.
9. The learned counsel for the petitioner thereafter referred to the format
for verification of Officer's report based on which the entire proceedings were
initiated, to argue that most of the columns of the said Verification report had
been kept totally blank except noting the name of the petitioner and her
address at Gamariguri. The learned counsel submitted that such an empty
formality by the Local Verification Officer could not have been made the basis
for proceeding against the petitioner.
10. The learned counsel for the petitioner, thereafter referred to the certified
copy of the Voter list 1985 which was labeled as "Exhibit-C" before the learned
Tribunal to submit that the projected father Abdul Suban, son of Amzad Ali,
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aged about 34 years and the projected mother namely Moyna Khatun aged
about 26 years were recorded as voters in the list. The learned counsel for the
petitioner, thereafter referred to the Electoral roll of 1989 which is "Exhibit-D",
where the name of the projected mother of the petitioner namely Moyna
Khatun appeared at Serial No. 316. The learned counsel thereafter drew
reference from the certificate dated 07.11.2019 issued by the Gaonbura of
Dhakaliapara village which was exhibited as "Exhibit-E" to stress that the said
certificate also proved that the petitioner, then aged about 39 years, was the
daughter of Abdul Suban, whose name was registered in the electoral roll of
1985 at against House No. 154.
11. The learned counsel for the petitioner has referred to the decision
rendered by this Court in Haider Ali Versus Union of India reported in
2021 (3) GLT 85, to buttress her submission that the State respondent never
questioned the authenticity or the genuineness of the Voter list produced by
the petitioner and thus, these documents, which remained un-rebutted, should
have been considered by the learned Tribunal in proper light. She submitted
that the non-explanation of relationship of the petitioner with other persons
mentioned in the list could not be a ground for disbelieving the correctness of
the entry of the names, when such correctness remained unquestioned by the
State respondent. She further submits that the fact in issue before the Tribunal
was as to whether the petitioner could trace her ancestry to a projected parent
and mere failure by the petitioner to disclose the names of all the members of
the family cannot weaken the case and render her evidence unreliable, when
there were other corroborating evidences supporting her claim.
12. The learned counsel for the petitioner thereafter referred to the
judgment rendered by this Court in the case of Anjana Biswas Vs. Union of
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India reported in 2023 (2) GLT 1102, to buttress her submission that if no
proper reference was made, the proceedee cannot be faulted and if there is no
proper enquiry, reference could not have been made. She submitted that the
importance of fair and proper enquiry has been highlighted by this Court in
Indira Newar & Ors Vs. UOI reported in 2020 (1) GLT 413 and in Sona
Kha Vs. Union of India reported in 2021 (3) GLT 85.
The learned counsel submitted that it is a settled position of law that
before any reference is made, there must be a proper investigation, though
such investigation may not be a detailed and extensive one. The reference by
the referring authority cannot also be mechanical and the authority has to
apply his mind on the materials collected by the Investigating Officer during
the investigation and make the reference only if it is satisfied that there are
grounds for making such reference.
By referring to the judgment of the Hon'ble Apex Court rendered in the
case of Md. Rahim Ali @ Abdur Rahim Vs. The State of Assam & Ors
reported in 2024 SCC Online SC 1695 , the learned counsel for the
petitioner has submitted that in the absence of the basic/primary material, it
cannot be left to the untrammeled or arbitrary discretion of the authorities to
initiate proceedings, which have life-altering and very serious consequences for
the person, on the basis of hearsay or bald and vague allegation(s).The
learned counsel has submitted that the blank format submitted by the
verification officer is evidence enough that no enquiry, let alone proper enquiry,
had been conducted prior to the proceedings being initiated. She also relied
upon the said judgement to assert that minor variations in the names of the
documents exhibited by the petitioner cannot be made the basis of a rejection
of her claim to citizenship, more so because there were no attempt by the
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appellant to get official records prepared meticulously without any discrepancy.
The conduct of an illegal migrant would not be so casual.
By again referring to the judgment rendered in Haider Ali Vs. Union of
India and Ors reported in 2021 (3) GLT 85, the learned counsel has
submitted that there is no bar in introducing new facts at a later stage during
the proceeding before the Tribunal since the issue involved is a grave one and
the proceedee should be allowed an opportunity to defend her case. She has
submitted that as the onus is on the proceedee, she must be afforded all the
opportunities to put forth her evidence. Therefore, if certain facts are
introduced subsequently, which does not contradict her statement or stand
taken in her written statement, introduction of such fact subsequently cannot
cause any prejudice to the proceedee. In fact, a proceedee must be afforded
all the opportunities to prove her case and no hyper technical view should be
taken to deny introducing new facts or document, so long as these are relevant
and bolster the case of the proceedee.
By referring to the judgment rendered in Motior Rahman Vs. Union of
India & Ors reported in 2020 (1) GLT 330, the learned counsel for the
petitioner has submitted that minor discrepancies in age and the failure to
mention the second marriage of the father may not be factual to dispose the
case of the petitioner.
Submissions made on behalf of the respondents:
13. Contesting the above submissions, Shri. J. Payeng, learned Standing
counsel, FT matters has opposed the writ petition. The learned Standing
counsel submits that in exercise of powers conferred under Article 226 of the
Constitution of India, this Court would refrain from looking into the sufficiency
of the evidence led by the proceedee before the Tribunal, rather, the
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procedural lapses, if any, requires to be examined by this Court. Shri. Payeng,
learned Standing counsel had submitted that there is no procedural lapse or
impropriety in the proceedings before the Tribunal, and, therefore, there is no
merit in the writ petition.
14. On merits, Shri. Payeng, learned Standing counsel, FT matters submits
that the petitioner had refrained not only from divulging her age in the written
statement, but she also refrained from divulging the date/year of her marriage
and also the alleged date of the order by which her name had been mutated in
place of her father in the land records. He further submits that the written
statement of the petitioner varies materially with the evidence led by her on
affidavit and her evidence again varies with the evidence led by the DW-2.
The learned Standing counsel for the FT matters has submitted that even
if the buyer of the land referred to in the sale deed exhibited by the petitioner
is, for the sake of argument, assumed to be the projected father of the
petitioner, there is no explanation as to why there was a long gap of 15 years
till 1985, when the projected father was named for the first time in a electoral
roll. The learned Standing counsel also drew reference to the projected mother
of the petitioner, namely Moyna Khatun, who is shown to be connected to one
Kudus Suban in the electoral roll of 1985 and not to the projected father of the
petitioner. The learned Standing counsel for the FT matters has submitted that
since the petitioner claims to be 39 years of age in the year 2019, she would
have been eligible to cast her vote atleast in the year 1999, but no electoral
roll containing her name has been exhibited nor the absence of her name from
the electoral roll has been explained in the written statement. In view of the
discrepancies aforesaid, the learned counsel has prayed for dismissal of the
writ petition.
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Discussions on the submissions and records:
15. The submissions made by the learned counsel appearing for the parties
have been considered. The records including the original records received from
the Tribunal have been perused.
16. The first issue taken up for discussion is the argument of the learned
counsel for the petitioner that in the absence of a proper and detailed enquiry,
no reference can be made to determine the citizenship of a suspect. The
records reveal that in the format of verification of the Officer's report, the
Gaonbura had put his seal and signature on the verification report on 22-10-
1997 where the Local Verification Officer had noted that the petitioner did not
submit any documents during the verification process.
17. Before proceeding further, a brief history on the process of verification
carried out in the year 1997 of electors enrolled would be necessary. The
Election Commission of India had issued instruction to the Chief Electoral
Officer, Assam vide communications dated 07.10.1996, 04.02.1997 and
17.07.1997 for intensive revision of electoral rolls in Assam with reference to
01.01.1997 as the qualifying date. As per the said instruction, if the Electoral
Registration Officer doubted citizenship of any elector, he would get the matter
verified through Local Verification Officer. On receipt of the report, if he had
any reasonable doubt about the citizenship status of such person, such person
should be marked as doubtful (D) voter and their cases would be forwarded to
the Illegal Migrants (Determination) Tribunals constituted under the IMDT Act
or the Foreigners Tribunals constituted under the Foreigners Act, 1946. The
letter 'D' indicated that citizenship status of such person was doubtful/disputed
and they were not allowed to cast their vote until determination of their
citizenship status by the concerned Tribunal.
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This procedure came to be challenged before this Court and a Division
Bench of this Court observed that communications of the Election Commission
of India as alluded to herein-above provided for reasonable opportunity to the
affected persons and was in consonance with the rule of law and the
constitutional scheme. Such communications could not be held as arbitrary or
vitiated by mala fide or partiality. Therefore, the writ petitions were dismissed
and the challenge rejected. (see State of Assam VS Jamait-E-Ulema-E-
Hind, reported in 2018 (4) GauLT 264).
18. In the present case, the village headman had signed the report of the
local verification officer on 22.10.1997 while it was still unfilled, except that it
contained the name and village of the petitioner as well as the comment
"document not supplied". This report was forwarded to the Electoral
Registration Officer, 40 Sorbhog Constituency, who in turn forwarded it to the
competent authority under the IM(D)T Act, 1983/Foreigners Act, 1946 for
deciding the question whether the petitioner is a citizen of India or not.
In our considered view, once the report was received from the local
verification officer that the person being investigated upon has not submitted
any documents, it was only fair, rather, it was incumbent upon the Electoral
Registration Officer to refer the case to the competent authority under the law
for an opinion regarding the citizenship of that person. The only other options
would be to either give up all doubts regarding the citizenship and allow the
person to continue in the electoral rolls or, in the alternative, to hold that the
person is not a citizen and remove him from the electoral rolls.
In choosing either of the two options, the Electoral Registration Officer
would have to act without any valid documents being presented to him, which
would not be, as it cannot be, a rational and judicious approach. Therefore, it
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had lawfully to be referred to the concerned IM(D)T for an opinion since it was
only before the Tribunal that the doubtful voter could take the opportunity to
prove her claim to citizenship of India. Upon the abolition of the IM(D)
Tribunals, all pending matters were required to have been taken up by the
Foreigners' Tribunal and that has happened in the present case as well. We,
therefore, are of the opinion that there was no error on the part of the
Electoral Registration Officer in making the reference to the authority
competent in law.
19. In the case of Anjana Biswas (supra) relied upon by the petitioner,
there was a recording in the enquiry report that the petitioner's father resided
in Calcutta and petitioner was born and brought up in West Bengal. There was
no indication in the enquiry report that the suspect had come from the
Specified Territory which is necessary for initiating the proceeding under the
Foreigners (Tribunals) Order, 1964. The facts in the present case are not
similar, inasmuch as, the report of the LVO in the present case records that
documents were not produced. This Court in Anjana Biswas (supra)
observed that on the face of a clear recording in the verification process, there
could have been no occasion for doubting the citizenship, whereas in the
present case, in the absence of documents being provided by the petitioner,
there could have been no other way for the authorities but to afford her the
opportunity to prove her citizenship before the Tribunal.
In the case of Indira Newar (supra) relied upon by the petitioner, the
facts again were different from the facts of the present case. In that case, the
verification reports with regard to the petitioners had specified their place of
birth to be in Assam and the mother tongue of the petitioner were reported to
be "Nepali". The Court in such circumstances held that "for the purpose of
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initiating proceeding against a Nepali speaking person, for examination as to
whether she is a foreigner or not, in respect of references made under sub-
section (3) of Section 6-A of the Citizenship Act, 1955 to a Tribunal constituted
under the Foreigners (Tribunals) Order, 1964 having jurisdiction over a district
or part thereof in the State of Assam, in terms of Rule 21 of the Citizenship
Rules, 2009, the primary and necessary ingredient or the condition precedent is
that reference can only be in respect of persons who have come to Assam from
the 'specified territory', meaning the territories included in Bangladesh
immediately before the commencement of the Citizenship (Amendment) Act,
1985, and also having regard to the cut-off date of migration into Assam as
prescribed under the aforesaid Section 6-A of the Citizenship Act, 1955"
(quoted from Indira Newar(supra)).
The facts involved in the case of Sona Kha (supra) relied upon by the
petitioner are again not similar to the present case. In Sona Kha (supra), the
Superintendent of Police (B), Baksa had mentioned that an enquiry had been
conducted and on scrutiny of the enquiry report, it was found that the opposite
party/petitioner therein seems not be an illegal immigrant. Still the
Superintendent of Police(B), Baksa, proceeded to refer the case to the
Foreigners Tribunal for favour of opinion. Such are not the facts in the present
case and therefore, the reliance placed on the judgment rendered in Sona Kha
(supra) is misplaced and not applicable to the facts of the present case.
Similarly, the reliance by the petitioner on the judgment of rendered in
Md. Rahim Ali @ Abdur Rahim (supra) does not aid the case of the
petitioner since the reference in the present case was made only when the
petitioner had failed to cooperate with the local verification officer and did not
produce any documents which could positively indicate towards her claim to
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citizenship. The reference was initiated at the request of the Electoral Office
when during the reverification of Electoral Rolls, a doubt had evolved regarding
the citizenship of the petitioner herein. It is thus not a case where the
reference suffered from the vice of "the untrammeled or arbitrary discretion of
the authorities to initiate proceedings".
20. There can be no second opinion that adequate care should be taken to
see that no genuine citizen of India is thrown out of the country. A person who
claims himself to be a citizen of India in terms of the Constitution of India or the
Citizenship Act is entitled to all safeguards both substantive and procedural
provided for therein to show that he is a citizen. (see Sarbananda Sonowal
VS Union Of India, 2007 1 SCC 174). Keeping in mind the above spirit and
also to answer the remaining contentions of the petitioner, it is necessary to
make an overview of the case projected before the Learned Tribunal.
21. The petitioner claimed to be the daughter of one Abdul Suban whom she
projected to be her father. She exhibited a sale deed allegedly executed in
favour of her projected father in the year 1971. She projected her mother to be
one Moyna Khatun. She projected that she had one brother and three sisters.
She claimed that upon the death of her father, her name along with her
brothers and sisters and mother were mutated in the jamabandi. However, in
her cross examination, she admitted that Moyna Khatun was her step mother.
This fact was not disclosed in the written statement or in her evidence in chief.
It was not disclosed in the written statement that she had a step brother and/or
step sisters or that her father also had step brother and sisters. The reason for
having the names of legal heirs recorded in the Jamabandi after a period of 33
years of the death of her projected father and that too after receipt of notice of
the proceedings before the Tribunal were not explained. In the Electoral roll of
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1985 exhibited by her, the name of her projected mother namely Moyna Khatun
was shown as related to one Kuddus Suban. The details of age, house no etc.
of the other voters in the two voters lists of 1985 and 1989 vary materially and
cannot be said to be minor by any stretch of reasoning.
22. We find that the reliance of the petitioner on the case of Haider Ali
(supra) again does not aid her. This is not a case where the name of the
petitioner appeared in the Electoral Rolls relied upon by her and she had
omitted to explain her relationship with the other electors appearing with her. It
is also not a case where the petitioner has sought to introduce new facts or
relations, rather it is a case where the projected case of the petitioner in her
written statement and the facts divulged during cross examination vary to a
large extent. The relationship sought to be projected by the petitioner with
Moyna Khatun varied in her written statement and in her cross examination and
in the version of the DW2. DW2 sought to project himself as the brother of
petitioner, therefore he ought to have been described as the son of Abdul
Suban. However, in his voters identity card, he has been described as son of
Suban Ali.
In the case of Motior Rahman (supra) relied upon by the petitioner, it is
noticed that in that case, the petitioner therein had exhibited electoral rolls and
other documents to demonstrate his linkage with his projected parents. In the
present case, however, the petitioner has not brought on documents to
demonstrate her linkage with her projected parents and even the linkage to her
projected mother was not consistent. Therefore, the petitioner cannot draw any
support from the said case.
23. Having given our anxious consideration to the contentions raised in the
writ petition and also having considered our limitations regarding re-evaluation
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of the records of the case and keeping in view of the extent of interference
which this Court can exercise under Article 226 of the Constitution of India, we
do not find any merit in this writ petition and therefore, this writ petition is
dismissed. Accordingly, the consequences of such dismissal shall follow.
24. The original records received on requisition from the learned Tribunal be
expeditiously returned back along with a copy of this order to be made a part of
the record.
25. No costs.
JUDGE JUDGE
Comparing Assistant
