Page No.# 1/15 vs The Union Of India And 6 Ors
2025 Latest Caselaw 7630 Gua

Gauhati High Court

Page No.# 1/15 vs The Union Of India And 6 Ors on 25 September, 2025

Author: Sanjay Kumar Medhi

Bench: Sanjay Kumar Medhi

                                                               Page No.# 1/15

GAHC010153322018




                                                          2025:GAU-AS:13400

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

                        Case No. : WP(C)/4849/2018

         ABIRAN BIBI @ ABURAN NESSA
         W/O SAMED ALI
         D/O APUR UDDIN SK.
          VILL- JHAGRARPAR PART-II
         P.S. AND DIST. DHUBRI, ASSAM,
         PIN - 783301.


         VERSUS

         THE UNION OF INDIA AND 6 ORS.
         REP. BY THE SECRETARY OF THE MINISTRY OF HOME AFFAIRS, GOVT.OF
         INDIA, NEW DELHI-1.

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

         3:THE ELECTION COMMISSION OF INDIA
          NEW DELHI-1.

         4:THE ASSAM STATE COORDINATOR OF NRC
          BHANGAGARH
          GUWAHATI-5.

         5:THE DEPUTY COMMISSIONER
          DHUBRI
          DIST. DHUBRI ASSAM
          PIN - 783301

         6:THE SUPERINTENDENT OF POLICE (B)
          DHUBRI ASSAM
          PIN - 783301.
                                                                       Page No.# 2/15


           7:THE OFFICER-IN-CHARGE
            DHUBRI POLICE STATION
            DIST. DHUBRI
           ASSAM
            PIN - 783301

For the Petitioner          : Mr. M.U. Mahmud, Advocate

For the Respondents          : Mr. G. Sarma, SC, FT & NRC.
                               Mr. H. K. Hazarika, Govt. Advocate
                               Mr. M. Das, CGC.
                               Mr. H. Kuli, Advocate
Date of hearing              : 10.09.2025

Date of judgment             : 25.09.2025


                                     BEFORE
              HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
                  HON'BLE MR. JUSTICE RAJESH MAZUMDAR
                        JUDGMENT & ORDER (CAV)

(Rajesh Mazumdar, J)

     Heard Shri M.U. Mahmud, learned counsel for the petitioner and Shri G.
Sarma, learned Standing Counsel, FT & NRC. Also heard Shri H.K. Hazarika,
learned State Counsel, Assam; Ms. M. Das, learned counsel appearing on
instructions of Shri SK Medhi, learned CGC and Shri H. Kuli, learned counsel
appearing on behalf of Shri A I Ali, learned Standing Counsel, ECI.
2.       The writ petitioner has preferred the present petition under Article 226
of the Constitution of India assailing the opinion dated 13.06.2018, rendered by
the Foreigners Tribunal, Dhubri, Assam in FT case no. 2020/D/2010
(corresponding to Reference Case no. IM (D) T/R/458/1998.
                                                                      Page No.# 3/15

3.       Notice was issued on the writ petition on 26.07.2018 and the petitioner
was given an interim relief not to be arrested or deported until further orders of
the Court. The Trial Court records, as requisitioned by the said order, have also
been received and the respondent no. 6 has also filed affidavit-in-opposition to
the writ petition.

Facts of the case:

4. The brief facts of the case are that pursuant to a request from the Electoral Registration Officer, 23 Dhubri Assembly Constituency, a Local Verification Officer of Dhubri had submitted a Report to the Electoral Registration Officer for 23 Dhubri Assembly Constituency with regard to the writ petitioner by describing her as Abiran Bibi of Adabari Pt-II, her husband as Samed Ali, and her place of birth as Adabari Pt-II. The local verification officer had noted that documents were not produced before him. Upon receipt of the said report, the Electoral Registration Officer expressed his doubt on the citizenship of the petitioner and forwarded the matter to the Superintendent of Police, Dhubri, who was the competent authority under the IM(D)T Act/Foreigners Act, 1946 for deciding the question as to whether the petitioner was a citizen of India or not. The Superintendent of Police, Dhubri had thereafter, forwarded a reference in the name of Abiran Bibi, wife of Samed Ali, aged about 24 years stating that the ground for having reasonable doubt that the person concerned is an illegal immigrant was because documents were not produced by the petitioner. Accordingly, reference Case No. IM(D)T/R/458/98 was forwarded. Later, the reference was transferred to the Foreigners' Tribunal No. 1, Dhubri, Assam for an opinion as per the provisions of the Foreigners Act, 1946.

Page No.# 4/15

5. On receipt of the notice from the Tribunal, the petitioner herein filed her written statement on 05.02.2018, and an additional written statement was filed on 07.04.2018. The petitioner filed her evidence on affidavit on 07.04.2018 along with her written statement and she was cross-examined on 07.05.2018. One Mojibor Rahman claiming to be the brother of the petitioner filed his evidence on affidavit on 17.05.2018 and he was cross-examined on 23.05.2018. It may be noted here that the prayer of the petitioner to file the additional written statement was allowed by the Tribunal by the petition made by her on

the 7th day of April, 2018 itself. 10 (ten) documents were exhibited by the petitioner in support of her claim of being a citizen of India and to prove her linkage with her projected parents and family. Having considered the evidence adduced, the learned Tribunal by opinion rendered on 13.06.2018 declared the petitioner to be a foreigner of the post 1971 stream. This opinion is under challenge in this writ petition.

Submissions made on behalf of the petitioner:

6. Mr. M. U. Mahmud, learned counsel appearing for the petitioner has submitted that the petitioner had filed her written statement before the Learned Tribunal wherein she had not only named her projected parents but had also identified her brothers and sisters. In the written statement, the petitioner had also referred to her step-mother and her step-sister. The learned counsel submits that relevant Voter List of the year 1966 has recorded the name of her father and grandmother along with other family members as voters. He further submitted that the relevant Voter List of the year 1977 which was produced as Exhibit-'2' also contained the name of her father and her grandmother and that she had explained that the name of her grandfather had been wrongly reflected Page No.# 5/15

as Moyatullah instead of Khoyatullah. To show the continued presence of the father of the petitioner, the learned counsel submitted that the petitioner had exhibited the relevant portion of the Voter List of 1997 where her father and brother were shown as voters.

7. The learned counsel further submitted that the petitioner had also stated that the name of her projected father did not appear after his demise in the year 2016. However, her brothers along with other family members continued to be recorded as regular and registered voters. It was further submitted that the petitioner got married with one Somed Ali and, thereafter, her name was recorded to be included in the Electoral Roll of 1997, but, unfortunately, she was marked as doubtful voter in the same year.

8. The learned counsel further submitted that the petitioner had studied in Ambia Memorial High School in the year 1987 in class V and a Transfer/School Leaving Certificate was also issued by the Headmaster of the said school on 30.07.2017. He submitted that although in the certificate the petitioner's name was reflected as Aburan Nessa, she was actually Abiran Bibi and that both the persons were one and the same. The learned counsel further referred to the written statement to contend that the petitioner had also stated before the Tribunal that her father along with others had landed property at village - Jhagra Part-II under Khatian No. 40, Dhubri. The learned counsel further submitted that on receipt of further documents after filing of the written statement, the petitioner filed her additional written statement on a liberty granted by the Tribunal and therein, the petitioner had brought on record the relevant Electoral Roll of the year 1989 where she contended that her name and her husband's name were reflected as voters along with the name of her father Page No.# 6/15

and her mother. Regarding her presence along with her husband in the Electoral Roll altogether with her father, the learned counsel submitted that it was explained that for a temporary period the petitioner and her husband stayed at her father's house and that is why their names came to be recorded along with her father. In the additional written statement, the petitioner had also referred to a Periodic Kheraj Patta No. 206, to indicate that her projected father had landed property at village - Jhagra Part-II under Khatian No. 40, Dhubri.

9. The learned counsel submitted that the relevant portion of the Electoral Roll for the year 1966 where the names of her projected father and projected grandmother appear with other family members was exhibited as Exhibit -'1'; the Electoral Roll for the year 1977 was exhibited as Exhibit- '2', the Electoral Roll for the year 1997 was exhibited as Exhibit- '3', a copy of the voters list of the Electoral Roll for the year 1989 was exhibited as Exhibit- '4', the voters list of the year 2010 and 2014 were exhibited as Exhibit - '5' and Exhibit - '6', respectively, the copy of the certificate issued by the Headmaster of Ambia Memorial High School was exhibited as Exhibit - '7', the copy of the Khatian of land and land Periodic Khiraji Patta, depicted landed property in the name of the father of the petitioner, were exhibited as Exhibit - '8' and Exhibit - '9', respectively and the voters list of the year 1970 was exhibited as Exhibit -'10'.

10. The learned counsel further submitted that the DW-2, i.e., the projected brother of the petitioner had supported her claim in the evidence on affidavit filed by him. The learned counsel submitted that in view of such overwhelming evidence, there could have been no occasion for the Tribunal to have answered the reference in the affirmative in favour of the State and against the writ petitioner. The learned counsel submitted that the learned Tribunal committed Page No.# 7/15

grave error when the evidence led by her was not appreciated in the correct light.

11. The learned counsel, by referring to the records submitted that it would be apparent from the format for verification of the Officers' Report that no reasons were given by the Local Verification Officer to raise an allegation against the petitioner, and even the reference made by the Electoral Registration Officer and the Superintendent of Police, Dhubri does not reveal any reasons for making reference for an opinion regarding the citizenship of the petitioner.

12. The learned counsel for the petitioner has referred to the judgment rendered by this Court in the case of Sona Kha Vs. Union of India and Ors reported in 2021 (3) GLT 12 to stress that the investigation or reference regarding the citizenship of an individual cannot be mechanical.

He further referred to the case of Md. Sujab Ali Vs. Union of India and Ors reported in 2021 (4) GLT 664 to emphasize that there are three essential ingredients to Section 50 of the Evidence Act namely, (1) there must be a case where the court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship. The learned counsel emphasized that the Tribunal had to come to a judicious finding on the basis of proper evaluation and appreciation of the evidence presented before the Tribunal while deciding the issue as to whether the suspected person was a foreigner.

Page No.# 8/15

The learned counsel, thereafter, referred to the case of Hafiz Uddin & Ors Vs. Union of India & Ors reported in 2021 (5) GLT 320 to submit that the Tribunal is to give an opinion only on the basis of the reference made. He has argued that when the report of the Local Verification officer and the referring authority did not specify the period under which the petitioner was doubted to have entered illegally into India, the Tribunal could not have proceeded with the reference. He submitted that when confronted with similar situation on earlier occasions, this court, in Santosh Das v. Union of India, (2017) 2 GLT 1065 and Sonakha @ Sona Khan v. Union of India, WP(C) No. 1293/2021, (decided on 24.3.2021), held that it would not be permissible for the Tribunal to give its opinion beyond the reference made.

13. The learned counsel submitted that the impugned opinion of the Tribunal in the present case deserves the interference of this Court to the extent of being set aside and the petitioner deserves to be declared as an Indian citizen on the basis of the evidence led by her before the Tribunal.

Submission made by the learned Standing Counsel, FT matter:

14. Mr. G. Sarma, learned Standing Counsel for the FT matter has submitted that the writ petition is premised on misconception and therefore, does not deserve any consideration from this Court. The learned counsel submits that in the present case, the reference was initially made under the IMDT Act, pursuant to the verification initiated by the Electoral Registration Officer due to the Intensive Revision of Electoral Roll ordered by the Election Commission of India. He submits that such a reference had to be transferred to the Foreigners Tribunal No. 1 following the judgment rendered by the Hon'ble Apex Court in the case of Sarbananda Sonowal 1 and that is how the matter came to be Page No.# 9/15

placed before the Foreigners Tribunal No. 1 (A), Dhubri. The learned Standing counsel submitted that the petitioner did not make any complaint before the Tribunal that she had not been furnished with the main grounds on which the matter was referred for an opinion on her citizenship. It was submitted that such a complaint in fact could not have been made since the petitioner understood that the reason for such a reference was that she had failed to produce any documents before the local verification officer. He submits that the report of the verification officer is not a final finding regarding the doubt raised on the citizenship of the petitioner.

The learned Standing Counsel for the FT matters has thereafter submitted that it has been held in the case of Aziz Miya Vs. Union of India reported in 2023 (4) GLT 246 that the report of the Inquiring Authority on its own cannot be viewed to be conclusive in nature regarding the citizenship of a person and once a reference is made it would be incumbent upon the said person to prove his case before the Tribunal that he is not a foreigner. It was thereafter submitted by the Learned Counsel that the different documents exhibited by the petitioner, even if taken on their face value, would not suffice to establish a link between the petitioner and her projected parents whom she claimed to be Indian citizens. He submitted that oral evidence placed before the learned Tribunal is required to be supported by documentary evidence also and in the present case, the evidence of the petitioner is not supported by documentary evidence.

The learned Standing Counsel thereafter, referred to the case of Basiron Bibi Vs. Union of India reported in 2018 (1) GLT 372, to submit that each of the documents exhibited in the proceeding have to be appreciated as a whole Page No.# 10/15

and not in parts. He submitted that the petitioner cannot insist that only those portions of the exhibits which are in her favour should be accepted and those which are against her should be overlooked. He submitted that though minor discrepancies in the description of voters in different Electoral Roll or documents exhibited by the petitioner should not be made the basis for disbelieving the claims made by the petitioner, however, the variations in the different documents presented by the petitioner before the Tribunal were not minor variations and, therefore, the Tribunal did not commit any error in rejecting the claim of the petitioner to citizenship of India and in answering the reference in the affirmative in favour of the State.

15. The records received from the Tribunal have been perused and the submissions made by the learned counsel for the parties have been duly considered.

Discussions and decision:

16. Let us first address the issue as to whether there was any illegality in the reference made to the learned Tribunal and whether the reference could have been taken up for rendering an opinion.

The thrust of the argument of the learned counsel for the petitioner in this regard is that the verification officer and the referring authority did not specify as to the period during which it is doubted that the petitioner had entered India illegally. The records reveal that the petitioner did not produce any documents before the local verification officer when he conducted the enquiry at the request of the Electoral Registration Officer. In our considered view, once the report was received from the local verification officer that the person being Page No.# 11/15

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 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 and the Learned Tribunal had committed no error in taking up the reference to render its opinion.

17. We, however, notice that the Learned Tribunal, while rendering its opinion had committed certain errors in appreciating the exhibits and therefore, in exercise of the powers conferred by the provisions of Article 226 of the Constitution of India, this Court is required to look into the nature and the impact of the errors which have been noticed.

18. It is a matter of record that the petitioner had exhibited the relevant Page No.# 12/15

portions of different electoral rolls of the years which have been enumerated in the earlier part of this order. Exhibit 2 was the electoral roll for the year 1977, where the petitioner claimed that the name of her projected father and her projected grandmother appeared, however with a slight variation in the name of her projected grandfather. She had further claimed that the electoral roll of 1997 i.e. Exhibit 3 contained the name of her projected father and the name of one of her projected brother namely Fojibur Rahman, then shown aged about 21 years, who was however, as per records, not the other projected brother, namely Mojibiur Rahman who had deposed as DW-2. Said Mojibur Rahman had exhibited an identity card as Exhibit 11 while adducing his evidence.

19. The Learned Tribunal in the impugned opinion has recorded as follows:

"Apart from that, in the Voter list of 1970, the age of O.P's father was shown as 69 years whereas in the Voters list of 1989 the age has been written as 40 years. In the voters list of 1977 age of O.P's father has been written as 51 years and the age of D.W.2 Mojibar Rahman

S/O Apuruddin Sheikh has been written as 21 years.1 But as per voter Photo Identity Card the age of D.W.2 is 36 years which should be 62 years now as per age of shown in the voter

list of 1977.2 The age of O.P.'s father has been shown in the voters list of 1970 as 69 years.

In the voters list of 1977 the age of O.P's father has been written as 51 years 3 and in the voter list of 1989, the age of O.P's father has been written as 40 years which was decreased 18 years in the voter list of 1971 and again decreased 11 years in the voter list of 1989. After 1989 the O.P. has not produced any of the voter list of her father where her upto 2016. Her father expired in the year 2016 as per their statement.

The O.P. neither produce any death certificate of her father nor produced any voter list of her father after 1989. The D.W.2 i.e. brother of the O.P. there is vast age discrepancy as like as the father of the O.P. Hence, the nationality of D.W.2 is doubtful and as such the evidence of

D.W.2 is not take into consideration.4"

Page No.# 13/15

20. The above discrepancies noted by the Learned Tribunal, which have been marked with superscripts from 1-4 by us for the sake of convenient identification, played a major role in its arriving at the opinion rendered against the petitioner. But we notice a basic flaw in the said findings. The electoral roll of 1977 does not record the age of the projected father of the petitioner to be 51 years as held by the learned Tribunal, rather it records the age as 33 years. In such circumstances, if the first age shown of the projected father in the electoral roll of 1966 is taken to be 21 years, then the age of the projected father would be 32 years in the year 1977 (shown as 33 years in the electoral roll of 1977), 44 years in 1989 (though shown as 40 years in the electoral roll of 1989) and 52 years in 1997 (though shown as 51 years in the electoral roll of 1997). Insofar as the age of the projected father of the petitioner is shown as 69 years in the electoral roll of 1970, we notice the only other elector in the same roll is also shown to be aged 69 years. However, in the electoral roll of 1977, under the same house number i.e. 113 in the same part no i.e. 10, the two electors with the same name are shown to be aged 33 years and 76 years, respectively. The probability of error creeping in the electoral roll of 1970 in recording the ages of the voters therein cannot be therefore rejected outrightly.

Further, the electoral roll of 1977 does not contain either the name of the DW2 or his age and therefore, the observations relating to discrepancies in the age of DW2, which formed the basis of disbelieving the evidence of DW2, also do not appear to be correct. No other reason for disbelieving the evidence of the said witness is discernible from the opinion impugned.

21. This Court is conscious of the extent of scrutiny which is permissible in Page No.# 14/15

law when it is exercising writ jurisdiction over the findings/opinion of a quasi- judicial body such as the Foreigners' Tribunal. In the present case, it is seen that the Learned Tribunal committed error in appreciating the contents of the documents exhibited by the petitioner, namely, by confusing the contents of electoral roll of 1997 to be contents of the electoral roll of 1977, which led to perverse findings regarding the age of the projected father and projected brother of the petitioner. This anomaly led to the erroneous rejection of the evidence of the DW2 also. The above incorrect findings, in our opinion, materially affected the outcome of the reference. From the records of the Learned Tribunal and our observation hereinabove we find that relevant documents exhibited by the petitioner did not receive proper and due attention of the learned Tribunal. This, in our opinion, will vitiate the decision arrived at by the learned Tribunal and therefore, we are inclined to interfere with the impugned opinion.

22. Resultantly, the writ petition stands allowed to the extent of setting aside of the impugned opinion rendered by the learned Foreigners' Tribunal no. 1, Dhubri on 13.06.2018 in F.T. Case No. 2020/D/2010 (Reference Case no IM(D)T/R/458/98). We remand the matter back to the Learned Tribunal to render a fresh opinion by taking into consideration all relevant pleadings and exhibits already available on record.

23. The petitioner shall appear before the Learned Tribunal along with the

certified copy of this order on or before 17 th of October 2025 without requirement of any further notice. We make it clear that even in the event that the petitioner fails to appear as directed hereinabove, the Tribunal shall be at liberty to proceed with the matter in accordance with law.

Page No.# 15/15

24. Registry to forthwith return the original records to the Tribunal along with a copy of this order. We expect the Learned Tribunal to expeditiously render its opinion, preferably within a period of 2 (two) months from the date of receipt of the records.

                                         JUDGE                            JUDGE




Comparing Assistant