[Cites 25, Cited by 0]
Gauhati High Court
Page No.# 1/22 vs The Union Of India And 5 Ors on 17 February, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/22
GAHC010016372026
2026:GAU-AS:2322-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/766/2026
AYATAN NESSA ALIAS AITON NESSA
D/O-LT. ABDUL KARIM. W/O- LT. ABDUL MAJID. VILL- JAMUGURI. P.S-
JURIA. DIST-NAGAON, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY ITS SECRETARY OF THE MINISTRY OF HOME AFFAIRS,
UNION OF INDIA, NEW DELHI.
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6.
3:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTION COMMISSIONER OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI.
4:THE STATE COORDINATOR OF NATIONAL REGISTER OF CITIZENS
ASSAM
1ST FLOOR
ACHYUT PLAZA
GUWAHATI SHILLONG ROAD
BHANGAGARH
GUWAHATI
ASSAM. PIN - 781005
Page No.# 2/22
5:THE DISTRICT COMMISSIONER OF NAGAON DISTRICT
AT NAGAON. P.S DIST- NAGAON
ASSAM.
6:THE SUPERINTENDENT OF POLICE (B)
OF NAGAON DISTRICT AT NAGAON
P.S AND DIST - NAGAON
ASSAM
Advocate for the Petitioner : S. HUSSAIN, MR. A S CHOUDHURY
Advocate for the Respondent : DY.S.G.I., GA, ASSAM,SC, NRC,SC, F.T,SC, ECI
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 17.02.2026
(K.R. Surana, J)
Heard Mr. A.S. Choudhury, learned counsel for the petitioner.
Also heard Mr. P.S. Lahkar, learned CGC for respondent no.1; Ms. S. Katakey,
learned standing counsel for respondent no.3; Mr. G. Sarma, learned standing
counsel for respondent nos. 2, 4 and 6; and Mr. H.K. Hazarika, learned Govt.
Advocate for respondent no.5.
2) By filing this writ petition under Article 226 of the Constitution
of India, the petitioner, namely, Ayatan Nessa @ Aiton Nessa, has assailed the
opinion dated 05.11.2019, passed by the learned Member, Foreigners Tribunal
(4th), Nagaon, at Juria (Assam), in F.T. Case No. 70/2017 (arising out of Police
Ref. 'D' Case No. 2946/98), by which the reference was answered in favour of
the State and against the petitioner by holding that the petitioner had failed to
discharge her burden of proof under Section 9 of the Foreigners Act, 1946 that
Page No.# 3/22
she is not a foreigner but a citizen of India.
3) On service of notice, the petitioner had appeared and filed her
written statement of defence, inter alia, stating that her grandfather is Late
Kemat Ali; her parents are Late Abdul Karim and Late Umme Kulsum; she was
born and brought up in village- Mahguri, P.S. Juria, Dist. Nagaon; her father has
six brothers, namely, Abdur Rouf, Late Abdul Karim, Abdur Rahim, Abdus Salam,
Abul Kalam, Abdus Sobahan, and four sisters, namely, Khudeja Khatun, Rumeja
Khatun, Hafija Khatun and Asmina Khatun. She had stated that including
herself, she has three sisters, namely, Ayatan Nessa, Asiya Begum and Sufia
Begum; she is married to Abdul Majid, son of Hasan Ali of village- Jamuguri, P.S.
Juria, Dist. Nagaon and has one daughter, namely, Majida Khatun and two sons,
namely, Mujammul Hoque, and Atabur Rahman. To show her link with her
parents, the petitioner had stated that she has a certificate each from the Gaon
Burah of Mahguri Village, Maguri Gaon Panchayat and Alitangani Osmania
Higher Secondary School, where she had read upto Class-VI. To show that her
father was a voter, the petitioner had referred to the voters list of 1965, 1970,
1975 and 1997 and to show that she had casted her vote in the year 1989, she
had referred to the voters list of 1989. She had stated that her grandfather had
sold a plot of land on 04.02.1931. The petitioner had stated that there were
discrepancies in the names of her grandfather, parents and in her own name.
She had stated that in the voters list of 1965, 1970 and 1997, against her
father's name, her grandfather's name was wrongly shown as "Malimuddin"
instead of "Kemat Ali" and in the voters list of 1989, her name has been wrongly
enlisted as "Abtan Nessa" instead of "Ayatan Nessa". Accordingly, the petitioner
had prayed to declare her as an Indian citizen.
4) In support of her defence, the petitioner had examined herself
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as DW-1 and she had also examined three other witnesses, namely, Md. Abdul
Kalam, projected uncle of the petitioner (DW-2); Sri Puran Chandra Bordoloi, the
Gaonburah (DW-3); and Dr. Fakar Uddin Ahmed, Headmaster of Alitangani
Osmania Higher Secondary School (DW-4).
5) The petitioner, as DW-1 had reiterated her statements made in
her written statement and she had exhibited 13 (thirteen documents, the details
of which are mentioned later on.
6) Md. Abdul Kalam (DW-2) had stated in his evidence-on-affidavit
filed on 05.10.2018, that the petitioner is the daughter of his brother and he
had reiterated the statements made by the petitioner as DW-1. He had also
stated that the father of the petitioner had solemnized three marriages, with
Late Umme Kulsum (mother of petitioner), Late Mabiya Khatoon and Rahima
Khatoon.
7) The DW-2 was also orally examined on 27.12.2018, wherein he
had stated that his father's name is Kemat Ali. Ayatan Nessa was his niece. Alfat
Ali, Kemat Ali, Kurshed Ali were the sons of Malim Uddin. He does not remember
the name of the daughter. He had stated that names of six sons and four
daughters of Kemat Ali. He had stated that Abdul Karim had 14 (fourteen)
children. His father had purchased land in 1931. At present they reside at
Singari and Mahguri and they had acquired land through inheritance. Kemat Ali
had casted vote in 1965. He had casted his vote with his father in 1997. Though
except Abdul Suban, they had enlisted their name along with their father, he
could not submit voters list. The name of Ayatan Nessa is not enlisted as voter
in her father's house. She got married with one Abdul Majid, son of Hasen Ali.
In place of his father, their names were mutated in respect of Patta No. 272 in
the year 2007 in the place of his father Kemat Ali. On 09.03.2014, his name was
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mutated in the jamabandi copy. He had stated that he had come with Ayatan
Nessa and it is not a fact that he had come with Ayatan Nessa to depose falsely.
8) The Gaon Burah, namely, Sri Puran Chandra Bordoloi (DW-3)
had stated in his evidence-on-affidavit filed on 05.10.2018 that he was a
permanent resident of his address and an Indian citizen by birth. He further
stated that he had been the Gaonburah since 2003; that the police had alleged
the petitioner to be a foreigner without any investigation; and that the petitioner
was born and brought up at village- Mahguri, P.S. Juria, District- Nagaon. He
had reiterated the statements made by the petitioner (DW-1) and DW-2 in their
evidence-on-affidavit and admitted issuing a Gaonburah certificate to the
petitioner on 22.02.2018. The DW-3 was orally examined by the learned
Tribunal on 02.04.2019, where he had admitted issuing certificate (Ext.1) to the
petitioner and exhibited his signature as Ext.1(1). He also stated that on
02.04.2019, he had issued another certificate, which was exhibited as Ext.13
and further stated that he had brought the record book of the certificate which
was issued on 23.11.2018.
9) For reasons not disclosed in this writ petition, the petitioner has
not annexed a copy of the evidence of Dr. Fakar Uddin Ahmed, the Headmaster
of Alitangani Osmania Higher Secondary School (DW-4). Therefore, in the
absence of any such document, the Court has no option but to refer to the
reference to the evidence of DW-4 from paragraph 5 of the impugned opinion.
As per the impugned opinion, the DW-4, who was the Headmaster of the
aforesaid school, stated that he had issued transfer certificate on 08.03.2018
(Ext.3) and he had exhibited his signature as Ext.3(1).
10) The learned Tribunal, upon considering the evidence, had
observed as follows:-
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i. That out of thirteen exhibited documents, only four documents
indicate relationship between the petitioner and Abdul Karim, being
Gaonburah's certificate (Ext.1) and (Ext.13). Out of the said two
certificates, Ext.1 was discarded due to improper use of the State
Emblem on the certificate, which a Gaonburah is not authorized to
issue. The second certificate (Ext.13) was also discarded on the ground
that DW-3 had committed misconduct by issuing two certificates
against one and the same person and thus, not genuine. The Gaon
Panchayat certificate (Ext.2) was discarded as it was a private
document and its author was required to be examined to prove the
certificate and its contents. In respect of Ext.3, i.e. the School Transfer
certificate issued on 08.03.2018, it was observed that according to the
school admission register, the date of birth of the petitioner was
19.06.1956 and she left the school on 31.12.1968 and thus, the
certificate was issued after 50 (fifty) years on 08.03.2018. Moreover,
the "doubtful voter' case was registered against the petitioner in the
year 1998 vide D Case No. 2946/98 and thus, the certificate (Ext.3)
was issued after 20 years of registration of such case. Thus, the said
certificate was disbelieved as DW-3 had stated that he did not know
the purpose for which the proceedee (i.e. petitioner) wanted the
certificate from their office.
ii. The learned Tribunal had further observed that in the voters list of
1965 (Ext.4), 1970 (Ext.5) and 1975 (Ext.6), the name of the father of
the petitioner is Aa. Karim, son of Malimuddin, but the petitioner, in her
written statement, has stated that the name of her father is Late Abdul
Karim, son of Late Kemat Ali. However, in the voter list of 1997 (Ext.8),
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the name of sole voter is Abdul Karim, son of Kemat Ali. The learned
Tribunal further observed that the sole voter in the voter list of 1989
(Ext.7) is Abtan Nessa, wife of Majid, age- 26 years and thus, referring
to the petitioner's date of birth in the school transfer certificate (Ext.3),
being 19.06.1956, it was held that the franchise right of the petitioner
would have been got in the year 1977, but her first voter list is in the
year 1989 at the age of 26 years. Accordingly, it was held that if Ext.
nos.1, 2, 3 and 13 are excluded, then none of the exhibits including
land deed (Ext.9), Annual Khiraj patta (Ext.10) and land revenue paid
receipt (Ext.12) help the petitioner.
iii. Accordingly, it was held that the petitioner had failed to discharge
the burden of proof under Section 9 of the Foreigners Act, 1946 to
prove that she is not a foreigner but an Indian. Resultantly, the
reference was answered in the affirmative in favour of the State and
against the petitioner.
11) The present writ petition to assail the impugned opinion dated
05.11.2019, has been filed on 29.01.2026, after about 6 years, 2 months, 24
days (i.e. 2,277 days). Therefore, apart from making submissions on merit, the
learned counsel for the petitioner was asked to address the Court on the huge
and inordinate delay and laches in not assailing the impugned opinion.
12) The learned counsel for the petitioner, by referring to the
statements made in the writ petition, has submitted that the petitioner is a poor
and illiterate lady aged about 69 years. Therefore, being not aware of the legal
procedures and due to financial hardship, the petitioner had failed to file the
writ petition on time.
Page No.# 8/22
13) It has been submitted that the reference was not properly made
and the grounds of suspecting the petitioner to be a foreigner were not served
on her and therefore, the petitioner was prejudiced in the manner the matter
was heard. Moreover, it was submitted that the petitioner was held to be a
foreigner only because of certain discrepancies in the name of her grandfather,
father and her own name and in this regard, reliance has been placed on the
case of Abdul Matali @ Mataleb v. Union of India & Ors., 2015 (2) GLT 617. It
was submitted that the petitioner was not the writer of the particulars in the
voters list and thus, cannot be punished for errors of names appearing in the
voters list. It was also submitted that the father and grandfather of the
petitioner were born in India before the year 1950 and she was born in 1956,
the petitioner was a citizen of India by birth as provided under Section 3(1)(c)(i)
of the Citizenship Act, 1955. It has also been submitted that the petitioner has
all the relevant documents to prove that she is a citizen of India and therefore,
the petitioner may be given an opportunity by remanding the matter back to the
learned Tribunal for being allowed to lead further evidence and to be heard on
merit. It was submitted that if no opportunity is granted to the petitioner, she
would be deprived of principles of natural justice and shall suffer great injustice
and her valuable citizenship right would be irreversibly lost forever. It has also
been submitted that the petitioner has no other efficacious remedy.
14) Per contra, the learned standing counsel for the FT, Border
matters and NRC had opposed this writ petition on ground of delay and laches.
15) In this case, the opinion was rendered on 05.11.2019. However,
this writ petition has been filed on 29.01.2026, after about 6 years, 2 months,
24 days (i.e. 2,277 days).
16) It appears that in this writ petition as well as in the proceeding
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before the learned Foreigners' Tribunal, the petitioner has not made a clear
statement regarding her age and/or date of birth. The petitioner had relied on
her school certificate while filing her written statement and therefore, the
petitioner is fully aware that the date of her birth is available and it is
19.06.1956. The petitioner, in her evidence-on-affidavit, had disclosed her age
as 62 years on 03.10.2018, when she had sworn the same, which was filed on
05.10.2018. However, in paragraph 15 of this writ petition, the petitioner has
stated that her year of birth was 1970. As per voters list of 1989, the petitioner
is 26 years, which would mean that the year of her birth would be 1963. Thus,
the age of the petitioner keeps on changing in various documents.
17) On a careful perusal of the evidence tendered by the petitioner,
it is seen that though the petitioner has exhibited 13 (thirteen) documents, but
none of the relevant entries in any of the documents have been proved. It is by
now well settled that exhibiting a document is one thing, but proving the
contents is another. In the case where citizenship of the petitioner is doubted, it
was necessary for the petitioner to exhibit and prove the relevant entries. Be
that as it may, the petitioner's side had exhibited the documents referred to
hereinbelow and moreover, the various names which have been entered in the
exhibited voters list are also mentioned hereinafter. The exhibited documents
are:
i. Certificate by Gaon Burah dated 22.02.2018 (Ext.1).
ii. Certificate by Gaon Panchayat dated 22.06.2015 (Ext.2).
iii. School Transfer certificate dated 08.03.2018 (Ext.3), disclosing that the
petitioner had read upto Class-VI and that the date of birth of the petitioner
is 19.06.1956.
iv. Voters list of 1965 (Ext.4), containing the names of (i) Aa. Karim, son of
Malimuddin, male, age- 30, (ii) Aa. Rahim, son of Malimuddin, male, age-
24, (iii) Musstt. Norimam, wife of Malimuddin, female, age- 50.
v. Voters list of 1970 (Ext.5), containing single name of Aa. Karim, son of
Page No.# 10/22
Malimuddin, male, age- 35.
vi. Voters list of 1975 (Ext.6), containing single name of Aa. Karim, son of
Malimuddin, male, age- 40.
vii. Voters list of 1997 (Ext.7), containing single name of Aa. Karim, son of
Kemat Ali, male, age- 60.
viii. Voters list of 1989 (Ext.8), containing single name of Abatan Nessa, wife of
Majid, female, age- 26.
ix. Land sale deed dated 04.02.1931 (Ext.9).
x. Annual Khiraj Patta (Ext.10).
xi. Copy of jamabandi (Ext.11).
xii. Land revenue paid receipt (Ext.12).
xiii. Certificate dated 23.11.2018, issued by Gaonburah, Mahguri Revenue Circle
(Ext.13), disclosing that Musstt. Aytan Nessa, daughter of Late Abdul Karim,
Vill. Mahguri, P.O. Singari Madrassa, P.S. Juria, Mouza- Juria, District-
Nagaon (Assam) has her permanent address in Mahguri Revenue Village .
18) It may be relevant 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 has been held to the effect that if the 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. In light of the said law, it is seen that the exhibited voter lists
do not show the entire family of the father and/or grandfather of the petitioner
and thus, it is not the case of the petitioner that there are discrepancies in the
names of one or two voters in the exhibited voters lists of the year 1965 (Ext.4),
1970 (Ext.5), 1975 (Ext.6), 1997 (Ext.7) and 1989 (Ext.8).
19) In respect of the submissions made by the learned counsel for
the petitioner that there were certain discrepancies in the name of the
petitioner, her father and grandfather, it may be appropriate to refer to the case
of Basiron Bibi v. Union of India & Ors., 2018 (1) GLT 372 , wherein this Court,
while distinguishing the decision in the case of Abdul Matali @ Mataleb (supra) ,
Page No.# 11/22
cited by the learned counsel for the petitioner, has held to the effect that when
the voters list was proved in evidence by the 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 and that is not how a piece of evidence is to be
examined. In this case, the petitioner, save and except oral evidence, the
petitioner has not proved by exhibiting any other contemporaneous records to
show that she, her father and grandfather were having more than one name.
20) It is quite possible for a particular village to have more than one
Abdul Karim as a resident. It is not uncommon for one to find several persons
with a common name in one locality. Therefore, merely on the strength of a
single voter certified copy and by way of only oral evidence, it cannot be
presumed that in a voter list "A, son of B" is an error and should have been "A,
son of C". However, if the ratio in the case of Sirajul Hoque (supra), is applied,
then if the other voters in the family, say "A, B, C, D" appear in three voters list
and in one voter list, the family is shown as "A, B, C, E", then it may be
acceptable that the name 'E' appearing in one voter list is a spelling error and
the actual person is 'D'. The petitioner has neither pleaded nor explained what
happened to two persons out of three names appearing in the voters list of
1965 (Ext.4).
21) In respect of the two certificates of Gaonburah, which were
exhibited as Ext.1 and Ext.13, DW-3 did not give any reason for issuing the two
certificates, being Ext.1 and Ext.13 and therefore, the finding by the learned
Tribunal on the said Ext.1 and Ext.13, thereby discarding them, cannot be
faulted with. The petitioner, for reasons not disclosed in the writ petition, has
not annexed the photocopy of Ext.9, Ext.10, Ext.11 and Ext.12 and therefore,
no observations can be made in respect of those four exhibited documents. The
Page No.# 12/22
author of the Gaon Panchayat certificate (Ext.2), was not examined as a witness
by the petitioner and therefore, the petitioner could not prove the said Ext.2.
22) On the issue of delay and laches, it is noticed that this Court, in
the case of Ajbahar Ali v. Union of India, (2025) 0 Supreme (Gau) 763 , had held
to the effect that the plea of compliance with the principles of natural justice
cannot be permitted to lead to a farcical situation and to be an engine for
defeating the very object of identification and deportation of foreigners. A
similar opinion has also been expressed by this Court in the case of Abu Bokkor
Siddique v. Union of India, 2019 (1) GLT 813.
23) The Supreme Court of India, in the case of Sarbananda Sonowal
v. Union of India, (2005) 5 SCC 665 , in paragraph 73, has held to the effect that
the procedure under the Foreigners Act, 1946 and the Foreigners (Tribunals)
Order, 1964 is just, fair and reasonable and does not offend any constitutional
provision. In paragraph 63, the Supreme Court of India had observed that there
can be no manner of doubt that the State of Assam is facing external
aggression and internal disturbance on account of large-scale illegal migration of
Bangladeshi nationals and that it, therefore, becomes the duty of the Union of
India to take all measures for protection of the State of Assam from such
external aggression and internal disturbance as enjoined in Article 355 of the
Constitution of India. In paragraph 70, it was observed that the influx of
Bangladeshi nationals who have illegally migrated into Assam pose a threat to
the integrity and security of the North Eastern region and that their presence
has changed the demographic character of that region and the local people of
Assam have been reduced to a status of minority in certain districts.
24) In this case, the petitioner is not accusing her learned counsel,
representing her before the learned Foreigners Tribunal, of not informing her
Page No.# 13/22
about the passing of the opinion dated 05.11.2019.
25) Therefore, the petitioner is found to be grossly negligent in
assailing the impugned order after a lapse of about 6 years, 2 months, 24 days
(i.e. 2,277 days). Thus, the acceptance of the said impugned opinion is willful
and deliberate, and with full knowledge of the consequences that would follow if
the said opinion is not assailed. The reasons assigned by the petitioner for not
assailing the said opinion immediately are that she is financially poor; aged 69
years; and not aware of the legal procedures. In this regard, the petitioner is a
member of a large family consisting of father, mother and two step-mothers,
five paternal uncles, four paternal aunts, two sisters, and their respective
families and therefore, it is not believable that with such a large family, the
petitioner would not get any assistance to assail the opinion, where she has
been declared to be an illegal foreigner from the specified territory. Moreover,
nothing prevented the petitioner from availing free legal aid to assail the
impugned opinion. Thus, the statements that the petitioner is financially poor or
that she is aged 69 years or that she does not have knowledge of legal
procedure are not sufficient ground for entertaining a belated challenge.
26) The Supreme Court of India, in the case of Shivamma (Dead) by
LRs v. Karnataka Housing Board & Ors., 2025 INSC 1104: (2025) 0
Supreme(SC) 1679, while dealing with the provision of Section 5 of the
Limitation Act, 1963 has laid down certain guidelines. Though Section 5 of the
Limitation Act, 1963 does not apply to a writ petition, but in the considered
opinion of the Court, when a writ petition is filed to assail the opinion of the
Foreigners Tribunals, under certiorari jurisdiction, the same principles should
apply, requiring the petitioner to provide at least some cogent and acceptable
explanation for the inordinate delay in assailing the opinion.
Page No.# 14/22
27) A very vague statement by the petitioner that she has severe
financial difficulties, cannot be accepted as a good, cogent and acceptable
explanation to entertain this writ petition when cause of action to file this writ
petition arose on 05.11.2019, because the petitioner was aware and conscious
of the said opinion against her. Therefore, the petitioner is found to be grossly
negligent in assailing the impugned order.
28) It has been submitted that the reference was not properly made
and the grounds of suspecting the petitioner to be a foreigner were not served
on her and therefore, the petitioner was prejudiced in the manner the matter
was heard. In this regard, it may be stated that from paragraph 1 of the
impugned opinion, it can be seen that on the basis of a report from the Electoral
Registration Officer of the 85 No. Rupahihat LAC, Police Reference 'D' (i.e.
doubtful) Case No. 2946/98 was registered. Accordingly, the Superintendent of
Police (Border), Nagaon, had submitted the reference before the erstwhile
Illegal Migrants (Determination) Tribunal, Nagaon for determination of the
reference. The Supreme Court of India, in the case of Sarbananda Sonowal v.
Union of India & Ors., (2005) 5 SCC 665 , declared the Illegal Migrants
(Determination by Tribunal) Act, 1985 [hereinafter referred to as IM(DT) Act for
short], as ultra vires, and directed that all the references pending before the
IM(D)Ts be transferred for determination before the Foreigners Tribunals. As a
result, the said reference case was transferred to the Foreigners Tribunal, 4 th,
Nagaon at Juria, and the reference was numbered as FT Case No. 70/2017
[arising out of Police Ref. 'D' Case No. 2946/98]. Thus, when an Electoral
Registration Officer expresses doubt regarding a voter, the resultant exercise is
not under the Foreigners Act, 1946, but the same is an exercise under the
Representation of the People Act, 1950, but as per the guidelines of the Election
Page No.# 15/22
Commission of India, the reference is made to the Foreigners Tribunal having
jurisdiction for its opinion. In this regard, one may refer to the decision of this
Court in the case of Shukurjan Nessa @ Sukurjan v Union of India & Ors., W.P.
(C) 245/2019, decided on 28.02.2025.
29) In the said case, the issue relating to reference made at the
instance of the Electoral Registration Officer (ERO for short) has been clarified.
The relevant part of the said judgment and order are extracted hereinbelow:-
14. The point raised by the learned counsel for the petitioner that the reference
was blank and not properly filled up and therefore, the grounds of suspecting the
petitioner to be a foreigner has not been furnished to her is taken up first.
15. In this case, the reference was made by the Superintendent of Police
(Border), Barpeta, on receipt of communication dated 16.03.1998, issued by the
Electoral Registration Officer, 44 No. Jania L.A.C., which is accompanied with a
three page Local Verification Report (Annexure-A) by one Sri Khagen Kalita, J.E. In
the said LVO Report dated 17.10.1997, it has been mentioned at two places to the
effect that no documents produced during field verification.
16. Therefore, this is not a case where any enquiry was made under the
provisions of Foreigners Act, 1946 or Rules framed thereunder, where investigation
is done under the authority of the Superintendent of Police (Border). The
jurisdictional Superintendent of Police (Border) is the prescribed authority to make
reference before the Illegal Migrants (Determination) Tribunal constituted under
the erstwhile Illegal Migrants (Determination by Tribunals) Act, 1983 and Rules
framed thereunder.
17. There is an important facet, which is contained in the judgment and order of
this Court in the case of Sayam Uddin (supra), which must be referred to. We are
in respectful agreement with the said judgment and therefore, paragraphs 11 to
22 thereof are quoted below:-
11. In the year 1997, Election Commission of India had undertaken an
intensive revision of electoral rolls in the State of Assam as apprehensions
were expressed from various quarters that the electoral rolls were infested
with the names of foreigners/illegal migrants. In the course of this exercise
citizenship status of as many as 3,13,046 persons whose names were in the
draft voters lists were found to be doubtful and accordingly they were
marked as doubtful "D" voters in the electoral rolls after local verification.
12. Legality of this exercise was challenged before this Court in HRA
Page No.# 16/22
Choudhury Vs Election Commission of India, reported in 2002 (1) GLT 1. The
challenge made was rejected by a Division Bench of this Court. In HRA
Choudhury (supra) this Court examined the guidelines dated 17.07.1997 of
the Election Commission of India laying down the procedure to carry out the
exercise.
12.1. As per paragraph 3.8 of the guidelines the Electoral
Registration Officer was required to consider the verification report
received from the Local Verification Officer. If he was satisfied on
such report and such other material/information as may be available
about the eligibility of a person, he should allow his name to continue
on the electoral roll. Where, however, he was not so satisfied and
had reasonable doubt about the citizenship of any person, he was
required to refer such doubtful cases to the competent authority
under the then Illegal Migrants (Determination by Tribunals) Act,
1983 or the Foreigners Act, 1946 as the case may be. For
convenience of the Electoral Registration Officers, Election
Commission devised proformas.
12.2. As per paragraph 3.9, after the case of a person was referred
by the Electoral Registration Officer to the competent authority, he
should wait for the decision of the relevant Tribunal in relation to that
person and act according to such decision.
12.3. As per paragraph 3.10, where the relevant Tribunal decided
that any such person was not a citizen of India, Electoral Registration
Officer should proceed under Rule 21 A of the Registration of Electors
Rolls, 1960 to have the name of such person deleted from the
electoral roll before it was finally published.
12.4. This Court in HRA Choudhury (supra) held that such
guidelines and decision of the Election Commission were in
accordance with Article 324 of the Constitution of India besides
conforming to the principles of natural justice. It was held that such
guidelines cannot be held to be arbitrary or vitiated by mala fide or
partiality.
13. At this stage, it may be mentioned that the Illegal Migrants
(Determination by Tribunals) Act, 1983 is no longer in existence, the same
having been declared unconstitutional by the Supreme Court in Sarbananda
Sonowal Vs Union of India reported in (2005) 5 SCC 665. Therefore, in so far
paragraph 3.8 of the guidelines dated 17.07.1997 is concerned, the reference
would be under the Foreigners Act, 1946.
14. The above exercise was repeated in the year 2005 with the Election
Commission of India again going for intensive revision of electoral rolls in the
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State of Assam taking 01.01.2005 as the qualifying date. In this connection,
guidelines dated 17.06.2004 were issued by the Election Commission of
India. Paragraph 2.2 of the guidelines dealt with "D" voters. It was
mentioned that the guidelines issued in 1997 would be followed while dealing
with such category of persons. Paragraph 8 dealt with verification by Electoral
Registration Officers. It laid down the procedure while carrying out such
verification including verification by Local Verification Officer. As per
paragraph 8.6, Local Verification Officer would conduct the verification by
making an on the spot visit and the person concerned could adduce any one
or more of the documents mentioned therein in support of his claim as a
citizen of India. After due verification, the Local Verification Officer was
required to submit his report in the prescribed format. Under paragraph 8.8,
Electoral Registration Officer on receipt of the verification report from the
Local Verification Officer should consider the same. Where he was satisfied
about the eligibility of a person, he should allow the name of such person to
continue on the electoral roll but where he was not so satisfied and had
reasonable doubt about the citizenship of any person he should refer such
doubtful cases to the competent authority under the then Illegal Migrants
(Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946 in a
prepared format (Annexure-B to the guidelines dated 17.06.2004) to the
competent authority for making reference to the Tribunal and await the
decision of such Tribunal.
15. As pointed out by Mr. Barua, in Mameja Khatun (supra) a Single Bench
of this Court directed that "D" voters should not be allowed to cast their
votes with the clarification that "D" voters would include persons whose
names were included in the electoral rolls but their citizenship was doubted
or disputed and also those whose cases were pending before the Foreigners
Tribunals. This decision of the learned Single Bench was confirmed by the
Division Bench in Writ Appeal No. 114/2011 (State Vs Mameja Khatun). By
the judgment and order dated 13.10.2015, the Division Bench directed
Election Commission of India and other authorities to implement the
directions of the Single Bench in letter and spirit.
16. At this stage, it may also be mentioned that in WP(C) No. 274/2009
filed by Assam Public Works which is pending before the Supreme Court of
India wherein NRC updation exercise in the State of Assam is being
monitored by the Supreme Court of India, on 25.10.2013, Supreme Court
clarified that as far as persons in the "D" list are concerned, undoubtedly
they were doubtful voters and therefore their names could not be included
unless the NRC is updated and unless the Foreigners Tribunals declared them
to be Indian citizens.
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17. The Foreigners Act, 1946 is an act to confer upon the Central
Government certain powers in respect of foreigners. This Act provides for the
exercise of certain powers by the Central Government in respect of the entry
of foreigners into India; their presence in India and their departure
therefrom. Section 2 (a) defines a "foreigner" to mean a person who is not a
citizen of India. Section 3 confers power to the Central Government to make
orders making provision either generally or with respect to all foreigners or
with respect to any particular foreigner or any prescribed class or description
of foreigners, for prohibiting, regulating or restricting the entry of foreigners
into India or their departure therefrom or their presence or their continued
presence therein.
17.1. In exercise of the powers conferred by Section 3 of the Foreigners
Act, 1946, Central Government made the Foreigners (Tribunals) Order,
1964. As per order 2 (1), the Central Government may by order refer
the question as to whether a person is or is not a foreigner within the
meaning of the Foreigners Act, 1946 to a Tribunal to be constituted for
the purpose for its opinion.
18. Ministry of Home Affairs, Govt. of India had issued notification dated
19.04.1958 in exercise of powers conferred by Clause-(1) of Article 258 of
the Constitution of India whereby the President with the consent of the State
Government concerned entrusted to the Governments of each of the States
mentioned therein including the State of Assam the functions of the Central
Government in making orders of the nature specified in Section 3 of the
Foreigners Act, 1946. Another notification dated 17.02.1976 was issued by
the Government of India, Ministry of Home Affairs in the exercise of the
powers conferred by Article 258 (1) of the Constitution entrusting the
Superintendents of Police and Deputy Commissioners (In-charge of Police)
under the Government of Assam the functions of the Central Government in
making orders of the nature specified in Section 3 of the Foreigners Act, 1946
within their respective jurisdictions subject to the conditions mentioned
therein which included the condition that exercise of such functions would be
in respect of nationals of Bangladesh and that while exercising such
functions, Superintendents of Police and Deputy Commissioners (In-charge of
Police) shall comply with such general or special directions as the
Government of Assam or the Central Government may issue from time to
time.
19. Article 258 of the Constitution deals with power of the Union to confer
powers etc on States in certain cases. Clause (1) of Article 258 starts with a
non-obstante clause. It says that notwithstanding anything in the
Constitution, President may with the consent of the Government of a State
Page No.# 19/22
entrust either conditionally or unconditionally to that Government or to its
officers, functions in relation to any matter to which the executive power of
the Union extends. Clause (3) provides for making of payment by the
Government of India to the State concerned such sum as may be agreed
upon or in default of agreement through arbitration in respect of any extra-
cost of administration incurred by the State in connection with the exercise of
powers and duties of the Government of India conferred or imposed upon a
State Government.
20. Thus, under the Central Government notifications dated 19.04.1958 and
17.02.1976, Government of Assam, Superintendents of Police and Deputy
Commissioners (In-charge of Police) have been delegated the power to make
reference to the Foreigners Tribunal under order 2 (1) of the Foreigners
(Tribunals) Order, 1964 to seek opinion as to whether the proceedee is a
foreigner or not within the meaning of the Foreigners Act, 1946.
21. Thus from the above, what transpires is that there are two categories of
"D" voters:- (i). those who were marked as "D" voters in the electoral roll by
the Electoral Registration Officer following enquiry by Local Verification
Officer; and (ii). those whose references are pending before the Foreigners
Tribunals.
22. In so far Electoral Registration Officer is concerned the exercise
undertaken by him while marking a person as a "D" voter in the electoral roll
is a quasi judicial exercise. If he holds the view after examining the enquiry
report of the Local Verification Officer that the concerned person is not a
citizen of India he is required to forward the case of that person to the
competent authority i.e., the Superintendent of Police. If it is so forwarded by
the Electoral Registration Officer, the jurisdictional Superintendent of Police
has to make a reference to the competent Foreigners Tribunals under order
2(1) of the Foreigners (Tribunals) Order, 1964 based on the report received
from the Electoral Registration Officer. Question of making further enquiry by
the Superintendent of Police in such a case would not arise because enquiry
has already been made by the Electoral Registration Officer by exercising
quasi judicial powers and the Superintendent of Police cannot sit over such
decision of the Electoral Registration Officer. He has to forward the same by
making the reference to the competent Foreigners Tribunal for its opinion.
17. The said judgment by the learned Single Judge has stood affirmed by the
virtue of judgment and order dated 29.07.2019, passed by the Division Bench of
this Court in the case of Sayam Uddin v. The Union of India & Ors., W.A. 170/2019.
18. The learned counsel for the petitioner had cited the case of Moslem Mondal
(supra) and Amina Khatun (supra) to support his contention that if LVO report is
blank, the reference is vitiated. In this regard, it would be relevant to mention that
Page No.# 20/22
as per the contents of para-10 of the case of Moslem Mondal (supra), the
Superintendent of Police, Barpeta, suspecting the respondent therein as illegal
migrant within the meaning of the Illegal Migrants (Determination by Tribunals)
Act, 1983, made a reference under Section 8 (1) of the said Act read with Rule 9
(A) of the Rules framed thereunder and accordingly, Case No. 1311/2003 was
registered before the IM(D)T, Barpeta and the said proceeding was subsequently
transferred to the Foreigners Tribunal and registered as F.T. Case No. 243/2006.
Therefore, in the said case, reference was not made by Electoral Registration
Officer (EVO for short). Hence, the decision of Moslem Mondal (supra), being
distinguishable on facts, is not found to help the petitioner in any manner.
19. However, in the case of Amina Khatun (supra), which was decided on
28.04.2022, the reference was made by the Superintendent of Police (Border),
based on LVO by the ERO. But when the said writ petition was being heard and
decided by a Coordinate Bench, it appears that the previous decision of the
learned Single Judge of this Court in the case of Sayam Uddin v. The Union of
India & Ors., 2019 (4) GLT 456, as affirmed by the Division Bench of this Court in
the case of Sayam Uddin v. Union of India & Ors., W.A. 170/2019, decided on
29.07.2019, were not brought to the notice of this Court. Therefore, under such
circumstances, the Court is of the considered opinion that under the well settled
principles of stare decisis, the decision in the case of Amina Khatun (supra) would
be per incurium. Accordingly, the decision rendered in the case of Amina Khatun
(supra) will also not be of any help to the petitioner.
20. In the present case, the proceedings which were hitherto pending before the
Illegal Migrants (Determination) Tribunals were transferred by the Supreme Court
of India to the Foreigners Tribunal vide directions issued in the case of Sarbananda
Sonowal (supra). The said fact has been stated in para-1 of the impugned opinion.
Hence, this Court would refrain from making any observations on the LVO Report
in this case because the Foreigners Tribunals would have no power or jurisdiction
to remand the reference back to the Superintendent of Police (Border) for a fresh
enquiry by the LVO/ERO.
21. Therefore, the challenge to the proceeding before the learned Foreigners
Tribunal on the ground that certain paragraphs and/or columns of the Local
Verification Officer's (LVO) Report, as forwarded by the Electoral Registration
Officer (ERO) were left blank, is held to be not maintainable on facts and in law
morefully referred to hereinbefore. The point of determination no. (i) is answered
accordingly."
30) It may further be stated that from the impugned opinion, it
would be apparent that the Superintendent of Police (Border), Nagaon, had
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made the reference as a 'D' Voter case. Such references were made before the
erstwhile Illegal Migrants (Determination) Tribunal, Nagaon. The Supreme Court
of India, in the case of Sarbananda Sonowal v. Union of India & Ors., (2005) 5
SCC 665, had transferred all the reference pending before the erstwhile Illegal
Migrants (Determination) Tribunal were transferred to the jurisdictional
Foreigners Tribunal. Therefore, in light of the decision of the Supreme Court of
India in the case of Sarbananda Sonowal (supra) as well as by this Court in the
case of Shukurjan Nessa @ Sukurjan (supra), this Court would exercise restraint
on making any comment on (i) the form by which reference; (ii) report of the
Local Verification Officer (LVO for short); (iii) reference by electoral Registration
Officer (ERO for short); and (iv) reference by the Superintendent of Police
(Border), Nagaon. Moreover, in this case, the petitioner had participated in the
proceedings without any demur and therefore, subjected herself to the
jurisdiction of the said learned Foreigners Tribunal and therefore, it would be
impermissible for the petitioner to now claim that the reference was not
properly made.
31) Thus, the impugned opinion cannot be held to be perverse or
wrong on any count whatsoever. Thus, having not found any perversity in
opinion dated 05.11.2019, and moreover, as the impugned opinion has been
assailed after acceptance of the said opinion for a long period of 6 years, 2
months, 24 days (i.e. 2,277 days), this writ petition is dismissed at the motion
stage without issuing notice upon the respondents.
32) There shall be no order as to cost.
33) The learned standing counsel for the FT, Border matters and
NRC shall communicate a downloaded copy of this order to the Home and
Political (B) Department, so as to send a copy of this order to be made a part of
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the record of the learned Tribunal for future reference.
JUDGE JUDGE
Comparing Assistant
