[Cites 17, Cited by 0]
Gauhati High Court
Page No.# 1/14 vs The Union Of India And 6 Ors on 8 April, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/14
GAHC010196602019
2026:GAU-AS:5290
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6172/2019
ANANTA KUMAR ROY @ ANANTA MANDAL
S/O- LT. HEMANTA KUMAR ROY, VILL. KAHIBARI, P.S. BOKO, DIST-
KAMRUP(R) (ASSAM).
VERSUS
THE UNION OF INDIA AND 6 ORS.
THROUGH HOME SECRETARY, MINISTRY OF HOME AFFAIRS, GOVT. OF
INDIA SHASTRI BHAWAN, NEW DELHI-
2:THE STATE OF ASSAM
REP. BY THE SECRETARY
DEPTT. OF HOME AFFAIRS
GOVT. OF ASSAM
DISPUR
GUWAHATI- 781006.
3:THE ELECTION COMMISSIONER
ASSAM
DISPUR
GUWAHATI-
4:THE STATE CO-ORDINATOR
NATIONAL REGISTRATION OF CITIZEN (NRC) BHANGAGARH
GUWAHATI-
5:THE DEPUTY COMMISSIONER
KAMRUP(R)
ASSAM.
6:THE SUPERINTENDENT OF POLICE (B)
KAMRUP(R).
Page No.# 2/14
7:THE OFFICER-IN-CHARGE
BOKO POLICE STATION
DIST.- KAMRUP(R)
ASSAM
Advocate for the Petitioner : MR. H A SARKAR,
Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, NRC,SC, ECI
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT AND ORDER
Date : 08.04.2026
(K.R. Surana, J)
Heard Mr. H.A. Sarkar, learned counsel for the petitioner. Also heard
Mr. B. Sharma, learned CGC for respondent no.1; Mr. J. Payeng, learned
standing counsel for the FT and Border matters, respondent nos.2, 4, 6 and 7;
and Mr. P. Sarmah, learned Govt. Advocate for the State respondent no.5.
2. It may be mentioned that although Mr. A.I. Ali, learned standing
counsel for the ECI is present and participated in the hearing. However, at the
time of dictating the order, it has been noticed that as per the cause title of the
writ petition, the Election Commissioner, Assam, Dispur, Guwahati, has been
arrayed as respondent no.3. There is nothing on record to show that an
advance copy of this writ petition was served on the learned standing counsel
for the State Election Commission, Assam, when this writ petition was listed at
the "motion" stage. The learned counsel for the petitioner has also not filed any
memorandum showing that after notice of motion was issued, extra copies of
the writ petition were served on the standing counsel for respondent no.3.
Under the circumstances, it is deemed appropriate that the name of respondent
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no.3 be struck off without altering the seriatim of the respondents.
3. By filing this writ petition under Article 226 of the Constitution of
India, the petitioner has assailed the impugned opinion dated 28.05.2019,
passed by the learned Member, Foreigners Tribunal 2 nd, Kamrup (Rural) at Boko,
in B.F.T. Case No. 1923/16, arising out of G.F.T. No. 1556/11, by which the
petitioner was declared as an illegal migrant of post 25.03.1971 stream.
4. After receipt of the notice of proceedings the petitioner appeared
before the learned Tribunal and filed his written statement on 08.11.2018. It
was stated in the written statement that he was born and brought up in village
Ahiyabari, Mouza- Defeli under Tamulpur P.S. in the district of Kamrup (presently
Baksa district), Assam, where his father was also born. It was stated that the
name of his father was enrolled in the voter list of 1970 and the legacy data of
voter details of 1970 contains the name of the father of the petitioner, Hemanta
Mandal, son of Nitahari. The name of his father was also enrolled in the voters
list of 1970 and 1985. The petitioner had also stated that in the year 1990, he
and other family members shifted from Ahiyabari to village- Neuldoba under
Boko Police Station in the district of Kamrup for better living and his name
appeared in the voters list of 1993, 1997, 2005, 2010, 2014 and 2017 of village-
Neuldoba. He has an Elector Photo Identity Card (EPIC for short) and he also
has an Income Tax PAN Card. The petitioner relies on a certificate issued by the
Govt. Gaonburah showing his link with his father. The petitioner had also relied
on an affidavit to explain the discrepancy in his name and his father's name.
Accordingly, the petitioner had stated that he was a citizen of India and not a
foreigner.
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5. The statements made in his written statement were reiterated in his
evidence-on-affidavit filed by the petitioner as DW-1 on 28.11.2018. In support
of his defence he had exhibited the following documents, viz., (1) certified copy
of voter list of 1970 (Ext.A), (2) certified copy of voter list of 1979 (Ext.B), (3)
certified copy of voter list of 1985 (Ext.C), (4) certified copy of voter list of 1993
(Ext.D), (5) certified copy of voter list of 1997 (Ext.E), (6) certified copy of voter
list of 2005 (Ext.F), (7) certified copy of voter list of 2010 (Ext.G), (8) certified
copy of voter list of 2014 (Ext.H), (9) certified copy of voters list of 2017 (Ext.I),
(10) EPIC (Ext.J), (11) PAN Card (Ext.K), (12) Gaonburah's Certificate (Ext.L),
and (13) affidavit (Ext.M).
6. In his cross-examination as DW-1 on 04.01.2019, the petitioner had
stated that he has four brothers and sisters, namely, (1) Maduri Mandal, aged
about 60 years, (2) Ananta Mandal (petitioner), aged about 60 years, (3)
Saraswati Mandal, aged about 55 years, and (4) Shamala Mandal, aged about
50 years and he has three children, namely, (1) Ranjit Mandal, aged about 31
years, (2) Padumi Mandal, aged about 35 years, and (3) Anita Mandal, aged
about 26 years. He had also stated that the name of his mother is Priyabala
Mandal and his father had been casting his vote since 1970 and he does not
know why his mother's name had not been enrolled in the voters list of 1970,
1979 and 1985 along with his father. He had also stated that the name of his
father appeared in the voters list of 1985 (Ext. C) but at that time his name was
not enrolled as he was out of station and resided at different places for want of
job and at the age of 36 years he had casted his first vote in the year 1993 vide
Ext. D. His father had expired in the year 1986. He had stated that Dulali
Mandal is the wife of his elder brother and after the death of his elder brother
he got married with Dulali Mandal. Referring to voters list of 1997 (Ext. E), he
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had stated that Kamala Mandal is not his wife's name and after 1993 the name
of his wife is not mentioned in any voters list and he does not know the reason.
He had stated that in the voters list of 2010 (Ext.G), 2014 (Ext.H) and 2017
(Ext.I), his name appears along with his son. He had denied that he had given
false statement.
7. The petitioner had examined Nitya Gopal Mandal as DW-2. He was
the govt. Gaonburah of village Hawlitari/ Neuldoba, Charge No. 31. In his
evidence-on-affidavit filed on 28.11.2018, DW-2 had stated that he knows the
petitioner who was born and brought up in village Ahiyabari, Mouza- Defeli,
under Tamulpur Police Station in the district of Kamrup (presently Baksa district)
and came to Neuldoba in the year 1990. He also knew the father of the
petitioner, Hemanta Mandal, who was born in village Ahiyabari. He had issued
the certificate in the name of the petitioner after verification of the voter list of
1970 of his father and since 1993 of the petitioner. He claims to know the family
members of the petitioner and exhibited his certificate (Ext. L) and his signature
[Ext. L(i)]. In his cross-examination on 04.01.2019, DW-2 had stated that he
knows the petitioner for the last 30 years, who was not born in his lot. In his
population register book, the name of the petitioner was recorded and he had
issued the certificate after verifying the voters list in the name of the father of
the petitioner at Ahiyabari in the year 1970 and 1993. He had also stated that
he had not produced the original population register book but he had produced
the counterfoil of Ext. L. He had denied that he had adduced false evidence.
8. The learned counsel for the petitioner had submitted that the
petitioner has all the documents to link him with his projected father and
grandfather but due to discrepancies in the names and ages, the evidence of
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the petitioner and DW-2 were discarded. It was also submitted that there were
no good grounds before the learned Tribunal to reject the evidence of
Gaonburah (DW-2), who had stated that he knew the father of the petitioner.
Hence, it was submitted that the impugned opinion is not sustainable on facts
and in law and the same is liable to be set aside by declaring the petitioner to
be an Indian citizen. It was further submitted that an unreasonable and unfair
investigation was carried out against the petitioner. Thus, the reference was
made in total violation of the principles of natural justice. Moreover, Articles 5, 7,
9 and 10 of the Universal Declaration of Human Rights, to which the
Government of India was a signatory, were violated and the petitioner was
illegally harassed as a foreigner.
9. Per contra, the learned standing counsel for the FT and Border
matters has submitted that as per the PAN Card (Ext. K), the petitioner was
born on 01.01.1958, but there is no pleading to that effect in his written
statement. Accordingly, it was submitted that as per the petitioner's date of
birth, he had become eligible to vote in the year 1979, but his first voter list is
of the year 1993 (Ext. D), when he was 36 years of age and that too in a village
different from the name of the village appearing in the voter list of 1970 (Ext.A),
1979 (Ext.B) and 1985 (Ext.C). It was further submitted that the petitioner had
not disclosed the name of his siblings, his wife or children in his written
statement and in his evidence-on-affidavit. Moreover, it was submitted that DW-
2 was not the Gaonburah of village- Ahiyabari, therefore, DW-2 could not have
verified any entry in the voter list of 1970 to issue certificate (Ext.L).
Accordingly, it was submitted that the petitioner could not establish a link with
his projected father or grandfather. Accordingly, it was submitted that the
impugned opinion does not suffer from any infirmity in the appreciation of the
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pleadings and evidence on record.
10. Perused the writ petition and examined the Tribunal's record that was
called for. Also considered the submissions made at the Bar. It may be stated
that both sides had not cited any case law in support of their respective
submissions.
11. The petitioner, in his written statement had only disclosed that the
name of his father is Hemanta Mandal, son of Nityahari, whose name appears in
the voters' list of 1970 (Ext.A), 1979 (Ext.B) and 1985 (Ext.C). These three
voters list contain a single name of Hemanta Mandal, and disclose that the said
voter is from village- Ahiyabari. As per the contents of the Income Tax PAN Card
(Ext.K), the date of birth of the petitioner is 01.01.1958. Therefore, he had
attained the age of 21 years, when he would have acquired the right of
franchise, in the year 1979. But his name was first recorded as a voter in the
voter list of 1985 (Ext.C) in village- Ahiyabari. The voters list of 1985 (Ext.C)
contains the name of a single voter, Hemanta Mandal, son of Nityahari. The
voters' list of 1993 (Ext.D) contains the name of two voters, (i) Ananta Mandal,
son of Hemanta Mandal, and (ii) Dilali Mandal, wife of Madhusudan. However,
the petitioner has not pleaded in his written statement about those two voters.
The petitioner has not pleaded about the year and place of death of his father,
but in his evidence-on-affidavit, the petitioner had stated that his father had
died in the year 1986, without disclosing the place where he had died. The voter
list of 1997 (Ext.E), contains the names of two voters, (i) Ananta Mandal, son of
Nitai and Kamala Mandal, wife of Ananta. However, the petitioner claims that his
name is wrongly written as "Ananta Mandal" and the name of his grandfather is
"Nitai", which is wrongly written instead of the name of "Hemanta Mandal". The
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name of the sole voter in the voter list of 2005 (Ext.F) is Ananta Mandal, son of
Hemanta Mandal. However, the petitioner claims that his name is wrongly
written as "Ananta Mandal". The names of two voters in the voters list of 2010
(Ext.G) are (i) Ananta Mandal, son of Hemanta, and (ii) Rajit, son of Ananta.
The voters list of 2014 (Ext.H) contains the names of two voters, namely, (i)
Ananta Mandal, son of Hemanta, and (ii) Ranjit, son of Ananta. The names of
two voters in the voters list of 2017 (Ext.I) are (i) Ananta Mandal, son of
Hemanta, and (ii) Ranjit Mandal, son of Ananta. However, in connection with
Ext.G, Ext.H and Ext.I, the petitioner claims that his name is wrongly written as
"Ananta Mandal". It may be mentioned that in his written statement and
evidence-on-affidavit, the petitioner has not disclosed the name of his wife or
son.
12. It is too well settled that merely by producing the voter list, the link
between the petitioner and his projected father cannot be established. In this
case, there is no exhibited voters list where the name of the petitioner and his
projected father are together as voters. Moreover, as mentioned in the foregoing
paragraphs, the petitioner has tried to portray that his name and the name of
his projected father are written wrongly in the voter list of 1997 (Ext.E), 2005
(Ext.F), 2010 (Ext.G), 2014 (Ext.H) and 2017 (Ext.I), which the petitioner has
attempted to explain by exhibiting his own declaratory affidavit Ext.M.
13. As regards, plea of mistake in voters list, this Court in the case of
Basiron Bibi v. Union of India & Ors., 2018 (1) GLT 372 , this Court had held that
after voters list is proved in evidence by petitioner, she then cannot insist that
only that portion of voter list which favours her be read and portions which go
against her be over-looked. This is not how a piece of evidence is to be
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examined.
14. As regards the evidentiary value of the self-declaratory affidavit
(Ext.M), it may be appropriate to refer to the decision of this Court in the case
of Jan Nessa v. Union of India, 2018 (5) GLT 499: (2018) 0 Supreme(Gau) 1589 ,
the Division Bench of this Court, by referring to the decision of the Supreme
Court of India, in the case of Sudha Devi v. M.P. Narayanan, (1988) 3 SCC 366 ,
had held that "affidavit" filed by a party suo motu and not under the direction of
the Court cannot be termed as evidence, further holding that an affidavit is not
included as evidence unless law specifically permits as affidavit is not included in
the definition of 'evidence' in Section 3 of the Evidence Act, 1872 and can be
used as evidence only if for sufficient reason Court passes an order under Order
19, Rules 1 or 2 of the Code of Civil Procedure. Thus, the said self-declaratory
affidavit (Ext.M) does not help the petitioner to prove anything.
15. The petitioner had exhibited his EPIC (Ext.J) and Income Tax PAN
Card (Ext.K). In the said context, it would be relevant to refer to the decision of
this Court in the case of Md. Babul Islam v. Union of India & Ors., W.P.(C)
3547/2016, decided on 09.05.2018, had held that EPIC and PAN Card are not a
valid piece of evidence in the absence of supporting evidence. In this case, the
EPIC (Ext.J) and PAN Card (Ext.K) were post-reference document, because the
reference was made in the year 2011, as is evident from paragraph 1 of the
impugned opinion. Moreover, it was held in the case of Babul Islam (supra) that
if the date of birth is known to the petitioner, it should have been mentioned in
the written statement. Even in this case, the petitioner had not disclosed the
date of his birth in his written statement.
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16. The petitioner had exhibited the Gaonburah's certificate (Ext.L), but
the said document is inadmissible in evidence because of the use of State
Emblem of the Pillar of Asoka, which a Gaonburah is not authorized to use. In
this regard, we may refer to the decision of this Court in the case of Sajeda
Khatun v. Union of India & Ors., 2018 (4) GLT 696 , has held that Gaonburah's
certificate contains the State Emblem, which he is not authorized to use under
Rule 10(2) of the State Emblem of India (Regulation of use) Rules, 2007 framed
under the State Emblem of India (Prohibition of Improper Use) Act, 2005 and
such unauthorized use of the State Emblem has rendered the certificate wholly
inadmissible in evidence. Moreover, the DW-2, Sri Nitya Gopal Mandal had
deposed that he is the Gaonburah of village- Neuldoba and not of Ahiyabari
village and he has not proved how he got access to the voter list of Ahiyabari of
the year 1970, containing the name of Hemanta Mandal, based on which the
contents of the said certificate (Ext.L) were written. Be that as it may, the said
Gaonburah's certificate (Ext.L) has been rendered inadmissible in evidence
owing to the unauthorised use of the State Emblem.
17. Thus, the petitioner has not been able to discharge his burden to
prove that Hemanta Mandal, whose name appears in the voters list of 1970
(Ext.A), 1979 (Ext.B) and 1985 (Ext.C) of village- Ahiyabari is the father of the
petitioner, namely, Ananta Mandal, whose name appears in the voters list of
1993 (Ext.D), 1997 (Ext.E), 2005 (Ext.F), 2010 (Ext.H), 2014 (Ext.H) and 2017
(Ext.I) of village- Ahiyabari, albeit, with the name of father changing to
Hemanta Mandal in Ext.D; to Sri Nitai in Ext.E; to Hemanta in Ext.F, Ext.G,
Ext.H, and Ext.I. Thus, there are no other family members whose names appear
in all the exhibited voters' lists. If the names of a few voters in the exhibited
voters' lists remain same, then it may be an arguable point on behalf of the
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petitioner that there is age discrepancy in the name of one or two voters, which
can be disregarded. In this regard, it may be appropriate to refer to the decision
of the Supreme Court of India in the case of Sirajul Hoque v. State of Assam &
Ors., (2019) 5 SCC 534, wherein it had been held to the effect that when
identity of all members of the family is established including the appellant, he
cannot be declared a foreigner just because there is a discrepancy in the name
of his grandfather in some documents. Moreover, there was no reason for the
petitioner not to disclose the name of his son in his written statement and
evidence-on-affidavit, though the name of his purported son appears in the
voters list of 2010 (Ext.G), 2014 (Ext.H), 2017 (Ext.I). Moreover, the name of
his wife is also not pleaded in the petitioner's written statement or stated in his
evidence-on-affidavit.
18. Thus, in the light of the discussions above, the Court is inclined to
hold that the petitioner has failed to discharge his burden of proof under Section
9 of the Foreigners Act, 1946 to prove that he is an Indian citizen and not a
foreigner.
19. The learned counsel for the petitioner had urged that the
investigation was not proper. In this regard, it may be stated that the Tribunal's
record reveals that vide Enquiry No. 4/96 dated 21.11.1996, the Superintendent
of Police (Border), Kamrup, Guwahati, had directed the Sub-Inspector of Police
(Border), Boko Police Station to enquire about the petitioner, who was a
suspected illegal migrant. Accordingly, on investigation being made, reference
was made before the erstwhile Illegal Migrants (Determination) Tribunal,
Kamrup, Guwahati, vide Memo No. KP(B)/IM(D)T/27(A)/87-97/4298 dated
16.08.1997, which was a Tribunal set up under the erstwhile Illegal Migrants
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(Determination by Tribunals) Act, 1983. Accordingly, IM(D)T (Nul) 65/97 was
registered. The proceeding continued till 16.10.2001. Thereafter, the reference
was forwarded to the Foreigners Tribunal, where it was re-registered as G.F.T.
No. 1556/11 and then as B.F.T. Case No. 1923/2016.
20. In the aforesaid context, it may be mentioned herein that by virtue of
the judgment and order passed by the Supreme Court of India in the case of
Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665 , all the proceedings
that were then pending before the erstwhile IM(D)Ts, were transferred to the
Foreigners Tribunal having jurisdiction. The transferred reference was received
by the jurisdictional Tribunal at Guwahati, where it was registered as G.F.T Case
No. 1556/2011, and then registered as B.F.T. Case No. 1923/2016 by the
learned Member, Foreigners Tribunal, 2nd, Kamrup (Rural) at Boko,. Therefore,
as evident from the decision of the Supreme Court of India, in the case of
Sarbananda Sonowal (supra), that the matter was transferred from IM(D)T by
the Supreme Court of India. Therefore, no further determination can be made
by this Court regarding the making of and/or registration of the reference. The
learned counsel for the petitioner has not been able to show that the petitioner
had made any attempt to establish before the Foreigners Tribunal that the
investigation was not proper. Thus, the plea that the investigation was not
proper is not available to be raised for the first time before this Court.
21. Moreover, in this case, the learned counsel for the petitioner has
failed to show that the impugned opinion is vitiated on any grounds whatsoever.
The said opinion cannot be held to be erroneous or perverse on account of
misreading of pleadings and evidence or said to be vitiated by considering
extraneous matters or for failure of the learned Tribunal to consider any
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pleadings or evidence in its correct perspective.
22. In the context of the two foregoing paragraphs, it may be mentioned
that in this case, the Court is not exercising appellate or revisional jurisdiction.
The petitioner has failed to show that the impugned opinion is vitiated by any
error apparent on the face of the record. Accordingly, 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
the opinion of the learned Foreigners Tribunal, which is not found to be vitiated
by 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
Ayurvedic 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. Veerappa Pillai 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 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."
23. Therefore, on all counts, as urged by the learned counsel for the
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petitioner, this challenge to the impugned opinion dated 28.05.2019, passed by
the learned Member, Foreigners Tribunal 2 nd, Kamrup (Rural) at Boko, in B.F.T.
Case No. 1923/16, arising out of G.F.T. No. 1556/11 fails. Consequently, this writ
petition is dismissed. Bail granted to the petitioner by order dated 01.10.2020,
passed in this writ petition stands vacated.
24. The consequences of the opinion shall follow.
25. The Registry shall return back the Tribunal's records along with a
copy of this judgment and order, to be made a part of the record by the said
learned Tribunal for future reference.
26. Under the circumstances, there shall be no order as to cost.
JUDGE JUDGE
Munna Digitally signed
by Munna Kumar
Kumar 15:36:37 +05'30'
Date: 2026.04.08
Comparing Assistant Private Secretary
