[Cites 15, Cited by 0]
Gauhati High Court
Page No.# 1/13 vs The Union Of India And 6 Ors on 21 January, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/13
GAHC010258032018
2026:GAU-AS:624
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/8037/2018
KAMAL UDDIN @ KAMAL SK.
S/O- LT KHUSUT ALI @ KHUSUT ALI SK., R/O- VILL- DUDHNATH, P.S.
CHAPOR, DIST- DHUBRI, ASSAM
VERSUS
THE UNION OF INDIA AND 6 ORS.
REP. BY ITS SECY., GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW
DELHI- 110001
2:THE ELECTION COMMISSION OF INDIA
REP. BY THE CHIEF ELECTORAL OFFICER
ASSAM
DISPUR
GHY-06
3:THE REGISTRAR GENERAL OF INDIA
REP. BY THE STATE CO-ORDINATOR
NRC (NATIONAL REGISTER OF CITIZENS)
ASSAM
ULUBARI
GHY-05
4:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-6
5:THE DIRECTOR GENERAL OF POLICE (ADMN.)
ASSAM
ULUBARI
Page No.# 2/13
GHY-07
6:THE DY. COMMISSIONER
DHUBRI
ASSAM
P.O.
P.S. AND DIST- DHUBRI
ASSAM
PIN- 783301
7:THE DY. COMMISSIONER OF POLICE (B)
DHUBRI
ASSAM
P.O.
P.S. AND DIST- DHUBRI
ASSAM
PIN- 78330
Advocate for the Petitioner : MR. A RAHMAN,
Advocate for the Respondent : ASSTT.S.G.I., SC, NRC,SC, ELECTION COMMISSION.,SC, F.T
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
For the petitioner : Mr. A. Rahman, Advocate.
For the Union of India : Ms. R. Devi, CGC.
For ECI : Mr. A.I. Ali, standing counsel.
For FT and Border matters : Mr. J. Payeng, standing counsel.
For the State respondent : Mr. H.K. Hazarika, Govt. Advocate.
Date on which judgment is reserved : 07.11.2025
Date of pronouncement of judgment : 21.01.2026
Whether the pronouncement is of
the operative part of the judgment? : No
Whether the full judgment has been
Pronounced? : Yes
Page No.# 3/13
JUDGMENT AND ORDER
(CAV)
(K.R. Surana, J)
Heard Mr. A. Rahman, learned counsel for the petitioner. Also
heard, Ms. R. Devi, learned CGC appearing for respondent no.1, Mr. A.I. Ali,
learned standing counsel for the Election Commission of India, Mr. J. Payeng,
learned counsel for the FT and Border matters, representing respondent nos.3,
4, 5 and 7 and Mr. H.K. Hazarika, learned Government Advocate for respondent
no.6.
2) By filing this writ petition under Article 226 of the Constitution
of India, the petitioner, namely, Kamal Uddin @ Kamal Sk, has assailed the
opinion dated 11.01.2017, passed by the learned Member, Foreigners Tribunal
7th, Dhubri at Bilasipara, in F.T.7th Dhubri Case No. 109/CPR/16 [corresponding
to F.T. Case No. 361/CRP/11, arising out of "D" Voter Case No. 2276/D/08],
thereby declaring him to be a foreigner entering into Assam from the specified
territory after 25.03.1971.
3) The petitioner has projected in his written statement that his
father, Khusut Ali Sk @ Khusut Ali, son of Late Monai Sk and his grandfather,
Monai Sk, son of Late Pelku Sk were permanent resident of Vill. Udmari Pt-III
(374) under Bilasipara P.S., Dist. Dhubri, under No.27 Bilasipara East LAC. After
his father's death in 2003, he had shifted to Vill. Dudnath, under Chapor P.S.,
Dhubri. He had married Musstt. Hafeza Begum, daughter of Mohammad Ali of
the said village and he is residing there permanently. Along with his written
statement, he has annexed a copy of (i) the Panchayat resident certificate; (ii)
registered Kabin Nama no. 653/31693/2004 dated 07.01.2004; (iii) voter list of
1966; (iv) NRC of 1951.
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4) In support of his defence, the petitioner had examined himself
as DW-1 and he had submitted his evidence-on-affidavit and by reiterating the
statements made in his written statement, he had exhibited the following
documents, viz., (i) voter list of 1966 of 36 Bilasipara LAC containing the name
of his father Khusut Ali Sk, son of Monai Sk (Ext.1); (ii) residence certificate of
the petitioner, issued by the President of Udmari Gaon Panchayat on 28.10.2015
(erroneously written as 28/10/015) (Ext.2); (iii) registered marriage Kabin Nama
no. 653/31693/2004 dated 07.01.2004 (Ext.3); (iv) NRC of 1951 containing the
name of his grandfather, Monai Sk. bearing Legacy Data Code No. 340-0009-
1261 of Vill. 76 Charjugipara, P.S. Dhubri, issued by the Office of the State
Coordinator of NRC (Assam) (Ext.4). He had stated that his name is Kamal
Uddin @ Kamal Sk and his father's correct name is Khusut Ali Sk, but in Kabin
Nama, his name has wrongly appeared as Khusut Ali and that both Khusut Ali
Sk and Khusut Ali are same and one person. In reply to the queries by the
learned Tribunal under Section 165 of the Evidence Act, the petitioner had
stated that the LTI on the evidence-on-affidavit was of him and that he knows
the contents of the evidence-on-affidavit.
5) In support of his defence, the petitioner had also examined two
villagers, namely, Umar Uddin Sk and Shukuddin Sheikh @ Shukuddin Sk, both
sons of Late Kitabdi Sk @ Kitabdi as DW-2 and DW-3 respectively. The petitioner
had also examined Rehna Bibi, the President of Udmari Gaon Panchayat as DW-
4 and Hasan Ali, son of Late Gulam Hussain as DW-5.
6) DW-2 had stated that he is the village uncle of the petitioner.
He had reiterated the statements made by the petitioner. Moreover, towards his
own identity, DW-2 had exhibited his Elector Photo Identity Card (EPIC for
short) (Ext.A); certified copy of electoral roll of 1966 (Ext.B); and kacha patta
Page No.# 5/13
no. 19/29 (Ext.C). In reply to the Tribunal's query under Section 165 of the
Evidence Act, the DW-2 had stated that his affidavit is regarding Kamal Uddin.
Kamal Uddin was born in the year 1982 and in the year 1982, he was residing at
Village- Udmari.
7) DW-3 had also stated that he is the village uncle of the
petitioner. Towards proof of his own identity, had exhibited his EPIC bearing ID
No. DBG3139240 (Ext.D); certified copy of electoral roll of 1966 of Udmari Part-
III (Ext.E); land document of miyadi patta no. 160 (Ext.F); and revenue receipt
(Ext.G). DW-3 had also reiterated the statements made by the petitioner and he
had stated that he was a neighbour of petitioner's father, Khusud Ali Sk @
Khusud Ali and he called him as brother and he knows the petitioner since his
birth. The father of petitioner was Khusud Ali Sk @ Khusud Ali and mother was
Sahera Bibi and the petitioner was born at Village- Udmari Part-III and after his
father's death, the petitioner migrated to Village- Dudhnath and got married to
Musstt. Hafeza Khatun of village- Dudhnath and started to permanently reside
there. In reply to the Tribunal's query under Section 165 of the Evidence Act,
the DW-3 had stated that his affidavit is regarding Kamal Uddin. Kamal Uddin
was born in the year 1982 and when he was born, his father was residing at
Village- Udmari. He has been staying at Udmari for the last 85 years since his
birth.
8) Rehana Bibi (DW-4) had stated that She is the President of
Udmari G.P. She had not brought her identity card as proof. She knows the
petitioner and had issued a certificate (Ext.2) and Ext.2(i) is her signature. She
had stated that at present the petitioner stays at Sonamukhi, Dudhnath and that
the contents of Ext.2 are true. In reply to the Tribunal's query under Section 165
of the Evidence Act, DW-4 had stated that the office of the Udmari Gaon
Page No.# 6/13
Panchayat is a public office (Govt. Office), and she was the elected President of
the Gaon Panchayat. She had not been given any written order/ instructions by
the Government to issue certificate.
9) DW-5 had stated that he was the Qazi and Secretary of
Anchalik Emarate Shariyah & Nadwatul Tamir, Dhubri. He had come on receipt
of notice. He had produced his appointment letter as Qazi and Secretary and
exhibited the same as Ext.3(i). He had stated that on 07.01.2004, marriage of
Md. Kamal Uddin, son of Khusut Ali and Hafeza Khatun, daughter of Md. Ali was
solemnized and registered vide Kabin No. 653/31693/2004. He had stated that
the whole contents of Ext.3 tallies with the original record (Vol. Book) and he
had exhibited the photocopy of the original record (Vol. Book) as Ext.3(ii). In
reply to the Tribunal's query under Section 165 of the Evidence Act, DW-4 had
stated that he had not brought any documents to prove himself.
10) The learned Tribunal upon analyzing the evidence, found that in
the voter list of 1966, the age of the voter Khusud Ali Sk (also spelt as Khusut
Ali Sk) is 22 years. Though the petitioner had projected that he had shifted from
Udmari Part-II village to Dudhnath village after the death of his father, but the
petitioner had not pleaded the date of death of his father and did not produce
any document for the same. As the petitioner had projected his age to be 34
years, his year of birth was presumed to be 1982 and thus, the learned Tribunal
had opined that the father of the petitioner was alive till 1982 but, the petitioner
had not produced other voter list containing his name. Thus, the learned
Tribunal had opined that the names of Khusud Ali Sk and Khusut Ali were similar
and therefore, the petitioner had picked up the document of a person whose
name resembled his father and used the document to claim Indian citizenship.
The evidence of DW-4, being his residential certificate (Ext.2) was disbelieved
Page No.# 7/13
because no instructions/order has been issued by the Government to authorize
him to issue certificates. The evidence of DW-5 and the kabin nama (Ext.3) was
disbelieved as untrustworthy because he had not produced his identity card.
The evidence of DW-2 and DW-3 was disbelieved because by their evidence,
they could not establish the link of the petitioner with Indian parents. Thus, the
learned Tribunal had opined that the petitioner is a foreigner who had entered
into India (Assam) on or after 25.03.1971 from the specified territory and liable
to be pushed back.
11) The learned counsel for the petitioner had submitted that the
learned Tribunal had mechanically decided the reference by discarding the
evidence of all five witnesses and the relevant document exhibited by the
petitioner like the link certificates, voter lists, land documents etc aforesaid,
which establishes and conclusively proves that the petitioner is a bona fide
citizen of India, whose father's name appears in the voters list of 1966 and his
grandfather's name appears in the NRC of 1951. Accordingly, it has been prayed
that the impugned opinion be set aside and the petitioner be declared as an
Indian.
12) Per contra, the learned standing counsel for the FT and Border
matters has made his submissions in support of the impugned opinion.
13) The petitioner has examined five witnesses and the following
documents were exhibited:-
a. Certified copy of voter list of 1966 of 36 Bilasipara LAC containing the
name Khusut Ali, son of Monai Sk, projected as father of the petitioner (Ext.1);
b. Certificate dated 28.10.015 (sic. ought to have been 28.10.2015), issued
by the President, Udmari Gaon Panchayat (Ext.2), stating that Kamal Sk, son of
Late Khusud Ali Sk is inhabitant of Udmari Part-III, and that his father's name Late
Khusud Ali Sk is found in the electoral roll of 1966;
Page No.# 8/13
c. Marriage Kabin Nama, bearing Book No. 653, Serial no. 653/31693/2004
dated 07.01.2004 (Ext.3) of petitioner and Musstt. Hafeza Khatun;
d. NRC of 1951 of Monai Sk, son of Pelku Sk, bearing Legacy Data Code No.
340-0009-1261, Image Id: 24122576 of Vill. Charjugipara (76), P.S. Dhubri, issued
by the Office of the State Coordinator of NRC (Assam) (Ext.4).
e. EPIC of Umar Uddin (DW-2) (Ext.A);
f. Certified copy of electoral roll of 1966, amongst others, containing the
name of Umar Uddin (Ext.B);
g. Kacha patta no. 19/29 in the name of Umar Uddin (Ext.C);
h. EPIC of Shukhuddin Sheikh (DW-3) (Ext.D);
i. Certified copy of electoral roll of 1966, amongst others, containing the
name of Shukhuddin Sheikh (Ext.E);
j. Periodic Khiraj Patta no. 160 in the name of Sukur Uddin Sheikh, issued in
the year 2009 (Ext.F);
k. Land Revenue receipt dated 30.03.2016 (Ext.G).
14) The documents exhibited as Ext.A to Ext.G does not help the
petitioner to establish his own citizenship because Ext.A to Ext.C belongs to DW-
2 and Ext.D to Ext.G belongs to DW-3. Thus, in order to find out as to whether
the impugned opinion is sustainable, the Court is required to examine Ext.1 to
Ext.4 only.
15) The provision of Section 9 of the Foreigners Act, 1946, casts the
burden of proof on the proceedee against whom reference is made. In this
regard, the Court would be guided by the case of Sarbananda Sonowal v. The
Union of India & Ors., (2005) 5 SCC 665 . Paragraph 26 thereof is quoted
below:-
"17. There is good and sound reason for placing the burden of proof upon the
person concerned who asserts to be a citizen of a particular country. In order to
establish one's citizenship, normally he may be required to give evidence of (i) his
date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and
citizenship. Some times the place of birth of his grand parents may also be
relevant like u/s 6-A(1)(d) of the Citizenship Act. All these facts would necessarily
be within the personal knowledge of the person concerned and not of the
authorities of the State. After he has given evidence on these points, the State
Page No.# 9/13
authorities can verify the facts and can then lead evidence in rebuttal, if necessary.
If the State authorities dispute the claim of citizenship by a person and assert that
he is a foreigner, it will not only be difficult but almost impossible for them to first
lead evidence on the aforesaid points. This is in accordance with the underlying
policy of Section 106 of the Evidence Act which says that when any fact is
especially within the knowledge of any person, the burden of proving that fact is
upon him."
16) In this case, the petitioner has merely stated the name of his
father and grandfather in his written statement. He has not stated when they
died. The petitioner has not given any statement about the siblings of his father
or grandfather. The petitioner has exhibited the certified copy of the voter list of
1966, which contains a single entry of the name of Khusud Ali, son of Monai Sk.
However, the petitioner has not exhibited the voter list of any other family
member of his projected grandfather and father. The age of father in the voter
list of 1966 is 22 years. Therefore, the learned Tribunal has rightly considered
the age of the petitioner as 34 years on 29.11.2016, as stated in his evidence-
on-affidavit and has correctly observed that the petitioner was born in the year
1982 and thus, the existence of petitioner's father ought to have been at least
till 1982, for which no document has been exhibited. Thus, there is no pleading
as to what happened to his father after 1966. The petitioner has not disclosed
the name of his grandmother and mother and did not explain why the name of
his grandmother and mother did not appear in any voters list. Thus, the certified
copy of voter list of 1966 (Ext.1) of 36 Bilasipara LAC, containing the name
Khusut Ali, son of Monai Sk, projected as father of the petitioner, does not help
the petitioner to establish his relationship with the person whose appears in
Ext.1.
17) The petitioner (DW-1) and the President of Udmari Gaon
Panchayat (DW-4) had exhibited the certificate dated 28.10.015 (sic. ought to
Page No.# 10/13
have been 28.10.2015) (Ext.2), issued by DW-4, wherein it has been stated that
Kamal Sk, son of Late Khusud Ali Sk is an inhabitant of Udmari Part-III, and that
his father's name Late Khusud Ali Sk is found in the electoral roll of 1966.
Apparently, the statement is inconsistent and/or contradictory to the pleadings
and evidence of the petitioner (DW-1). The petitioner, had pleaded and gave
evidence to the effect that after the death of his father, he had shifted from
Udmari Part-III to Dudhnath and married Musstt. Hafeza Khatun and since then
he was living there. The said statement is also reiterated by DW-2 and DW-3
and also stated by the DW-4 in her examination-in-chief. Therefore, as the
petitioner was not a resident of Village- Udmari Part-III, on the date the said
certificate (Ext.2) was issued, the contents of the said document is rendered
false and unreliable.
18) The petitioner (DW-1) and the Qazi and Secretary, Anchalik
Emarate Shariyah & Nadwatul Tamir (DW-5) have exhibited the Kabin Nama,
bearing Book No. 653, Serial no. 653/31693/2004 dated 07.01.2004 (Ext.3), to
prove two things, firstly, the marriage of the petitioner and Musstt. Hafeza
Khatun and secondly, to prove that the petitioner, namely, Md. Kamal Uddin is
the son of Khusut Ali, the projected father of the petitioner. However, in this
regard, the petitioner and DW-5 did not prove that the said institution is the
Registrar of Moslem Marriages, as envisaged under the erstwhile Assam Moslem
Marriages and Divorces Registration Act, 1935 (since repealed) and the
erstwhile Assam Moslem Marriages and Divorces Registration Rules, 1935 (since
repealed). Thus, the said Anchalik Emarate Shariyah & Nadwatul Tamir is not
proved to be the holder of Licence granted by the State Government to
solemnize Moslem Marriage as provided under Section 3 of the said Act. Thus,
Ext.3 and Ext.3(ii), being a private document and a photocopy thereof, cannot
Page No.# 11/13
be accepted as a public document. Hence, the said document was rightly not
relied by the learned Tribunal as a proof that Late Khusut Ali, erstwhile resident
of Udmari Part-III village is the father of the petitioner.
19) The petitioner had exhibited the NRC of 1951 of Monai Sk, son
of Pelku Sk, bearing Legacy Data Code No. 340-0009-1261, Image Id:
24122576 of Vill. Charjugipara (76), P.S. Dhubri, issued by the Office of the
State Coordinator of NRC (Assam) as Ext.4. In the said regard, it may be
mentioned that this Court, in the case of Abdul Mojid @ Mojid Ali v. Union of
India, 2019 (2) GLT 45, has held that NRC extract produced to prove domicile in
India is inadmissible in evidence. Moreover, the NRC of 1951 was prepared
under the Census Act, 1948 and as per the provision of Section 15 of the said
Act, the records of census are not open to inspection nor are they admissible in
evidence. Moreover, the NRC of 1951 (Ext.4) contains a remark that its Image
Id is 24122576 and the said print out is "generated by DLDD Version 6.0". Thus,
in this case, the said document is a computer generated printout and hence, the
ratio of the case of Ahitan Nessa v. Union of India & Ors., W.P. (C) 6443/2017,
decided by this Court on 19.12.2017, is found to be squarely applicable. In the
said decision, this Court had held to the effect that the NRC legacy data, besides
being inadmissible evidence, is a computer generated statement and therefore,
the provision of Sub- Section 65-B (4) of the Evidence Act, 1872 would be
applicable. Thus, Ext.4 is also rendered inadmissible.
20) It may be further stated that it is too well settled that by oral
evidence of the petitioner (DW-1) and of DW-2 to DW-5, the citizenship of a
person as Indian citizen cannot be established. If one needs any authority on
the point, the case of Bijoy Das v. Union of India & Ors., (2018) 4 GLR 599:
2018 (3) GLT 118 may be referred to. In the said case, the Division Bench of
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this Court has observed to the effect that it is trite that mere filing of written
statement and oral testimony in a proceeding under Foreigners Act, 1946 would
not be enough, further holding that the fact-in-issue would have to be proved
by the proceedee by adducing documentary evidence which are admissible and
relevant. Moreover, in the case of Basiron Nessa v. Union of India, 2018 (4) GLT
692, this Court had held to the effect that documentary evidence must be
proved from record and not solely by oral testimony. Therefore, the oral
testimony of DW-2 and DW-3 does not help the petitioner in any way. It may be
reiterated that the documents exhibited by the said witnesses as Ext.A to Ext.G,
being not the document of the petitioner, also does not help the petitioner in
any manner whatsoever.
21) Thus, the Court does not find any fault with the finding recorded
by the learned Tribunal that there are no documents to link the petitioner with
his Indian grandparents and parents.
22) Therefore, in light of discussions above, this Court does not find
that the impugned opinion rendered by the learned Tribunal is vitiated by any
jurisdictional error or that there was any failure of giving opportunity of hearing
to the petitioner. Therefore, as the Court is exercising supervisory jurisdiction
and not appellate jurisdiction, no case is made out for substituting the opinion
rendered by the learned Tribunal with the view of the Court. This is not a case
where the learned Tribunal had refused to admit admissible evidence or that it's
finding is dehors the evidence on record.
23) Hence, this writ petition fails and the same is dismissed. It is
held that the opinion dated 11.01.2017, passed by the learned Member,
Foreigners Tribunal 7th, Dhubri at Bilasipara in F.T.7th Dhubri Case No.
Page No.# 13/13
109/CPR/16 [corresponding to F.T. Case No. 361/CRP/11, arising out of "D"
Voter Case No. 2276/D/08] does not warrant any interference by the Court.
Accordingly, the consequences of the said opinion shall follow.
24) The parties are left to bear their own cost.
25) The Registry shall send back the Tribunal's record expeditiously
along with a copy of this order so as to enable the learned Tribunal to make it a
part of the record for future reference.
JUDGE JUDGE
Date: 2026.01.21 12:50:00 +05'30'
Comparing Assistant
