Gauhati High Court
Page No.# 1/25 vs Union Of India And 6 Ors on 21 April, 2026
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/25
GAHC010060432019
2026:GAU-AS:5460
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2149/2019
SAHARA BEGUM
W/O- MD. SIDDIQUE ALI, R/O- KACHARIPAM, P.S- TEZPUR, DIST-
SONITPUR, ASSAM, PIN- 784105
VERSUS
UNION OF INDIA AND 6 ORS
THROUGH THE COMMISSIONER AND SECRETARY TO THE MIN OF HOME
AFFAIRS, GOVT OF INDIA, NEW DELHI- 01
2:THE STATE OF ASSAM
THROUGH THE COMMISSIONER AND SECRETARY TO THE GOVT OF
ASSAM
HOME DEPTT
DISPUR
GUWAHATI- 781006
3:THE DIRECTOR GENERAL OF POLICE
ULUBARI
ASSAM- 781006
4:THE STATE COORDINATOR
NRC
ACHYUT PLAZA
BHANGAGARH
GUWAHATI
ASSAM
PIN- 781005
5:THE ELECTION COMMISSION OF ASSAM
REP. BY THE COMMISSIONER
BELTOLA BASISTHA ROAD
Page No.# 2/25
HOUSEFED COMPLEX
GUWAHATI
ASSAM
PIN- 781006
6:THE DEPUTY COMMISSIONER
SONITPUR
TEZPUR
7:THE SUPERINTENDENT OF POLICE (B)
SONITPUR
TEZPU
Advocate for the Petitioner : MR. A GANGULY, MR. A DUTTA,MR. A DHANUKA
Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, ELECTION COMMISSION.,SC, NRC
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
Advocates for the petitioner :Mr. A.Ganguly
Advocate for the respondents :Mr. S.S. Roy, CGC
Mr. G. Sarma, FT & Border;
Mr. N. Kalita, ECI;
Mr. P. Sarmah, ASGA
Date on which judgment is reserved : 20.02.2026
Date of pronouncement of judgment : 21.04.2026
Whether the pronouncement is of
the operative part of the judgment : Full judgment.
Whether the full judgment has been
pronounced : Yes
Page No.# 3/25
JUDGEMENT AND ORDER (CAV)
(S.P. Khaund, J)
The petitioner, Musstt. Sahara Begum is aggrieved by the Judgment and
Order dated 03.08.2018, passed by the learned Member, Foreigners Tribunal,
Tezpur (1st) Assam in connection with FT (D) Case No.65/2016, Police Inquiry
No.109/2016, whereby the petitioner was declared to be a foreigner who
entered into Assam from the specified territory after 24.03.1971.
2. A reference was made by the Superintendent of Police (B), Sonitpur,
Tezpur under the Foreigners’ Act, 1946, Police Inquiry No. 109/2016, expressing
doubt over the nationality of the petitioner. This case was then registered and
notices were issued to the petitioner, who appeared and filed two written
statements. The petitioner also adduced evidence of 3 witnesses and exhibited
several documents. The petitioner adduced the evidence of the following
witnesses and exhibited the following documents:
DW-1- Petitioner Sahera Khatun
DW-2- Muslim Ali @Muslimuddin
DW-3- Sher AlomExhibit 1- a certified copy of the voters list, 1966;
Exhibit 2- a certified copy of voters list of 1992;
Exhibit 2.1- a certified copy of electoral roll of 2016; and,
Exhibit 3- EPIC.
Page No.# 4/25
3. After scrutinizing the documentary evidence and assessing the evidence of
the witnesses, the learned Tribunal declared the petitioner to be a foreign
national who entered into India from the specified territory of Bangladesh, after
24.03.1971.
4. Heard Mr. A. Ganguly, learned counsel for the petitioner. Also heard Mr.
S.S. Roy, learned CGC; Mr. G. Sarma, learned standing counsel for FT and
Border matters; Mr. N. Kalita, learned counsel appearing on behalf of Mr. A.I. Ali,
learned standing counsel for the ECI; and Mr. P. Sarmah, learned Additional
Senior Govt. Advocate for the State respondent.
5. It is submitted on behalf of the petitioner that the oral evidence of the
petitioner’s father cannot be ignored. The petitioner’s name has been reflected
along with her father’s name in the PRC, but the learned Tribunal did not
consider this fact, which was important to establish the petitioner’s lineage with
her father to prove her citizenship. It is further contended that although the
learned Tribunal held that the petitioner has illegally migrated to India from the
specified territory, the interrogation report does not at all state that the
petitioner has entered into India from Bangladesh. The interrogation report
solely depicts that the petitioner has entered into India after 25.03.1971, but
the enquiry officer failed to mention that the petitioner had entered India from
Bangladesh. This failure is solely because the petitioner is not a Bangladeshi
national but an Indian national. The evidence of the petitioner substantiates her
written statement and the petitioner was not cross-examined by the authority to
dispute her evidence and her written statement.
Page No.# 5/25
6. It is further contended that the petitioner did not claim at any stage before
the Tribunal that her mother is Morjan Nessa and not Sakina Khatoon. She
stated clearly in her evidence on 03.04.2018 under oath that her mother’s name
is Morjan Nessa and her father’s name is Muslim Ali @ Muslimuddin and
therefore, no burden was cast upon the petitioner to show that Sakina Khatoon
is related to her in any manner. On such superfluous grounds, the Tribunal has
erroneously declared the petitioner to be a foreigner. The Tribunal has
completely ignored the fact that the petitioner’s father, as DW-2, replied on a
query by the Court on 19.06.2018 that he has 6 sons and 6 daughters, including
the petitioner, and he clearly mentioned the names of his children. The doubts
culled out by the Tribunal were of no relevance. The Tribunal has failed to
acknowledge the fact that the petitioner is DW-2’s daughter, and this is a good
ground why the petitioner’s linkage with her father ought to have been taken
into consideration. The Tribunal has failed to examine that DW-2 is the same
person who is shown as Muslimuddin, son of Sabed Ali in the electoral roll of the
year 1966 or if he is a different person and thus this proves that the petitioner is
the daughter of Muslimuddin whose name figures in the electoral roll of 1966
and she is an Indian citizen. It is further contended that Tribunal cannot
presume the petitioner to be a foreigner when the interrogation report does not
say so.
7. Per contra, Mr. G. Sarma, learned Standing Counsel for the FT and Border
matters laid stress in his argument that the petitioner has failed to discharge the
burden cast upon her, as per Section 9 of the Foreigners Act, 1946 (the Act of
1946 for short). The petitioner has failed to prove continuous residence from
1966 to 1997. The pleadings are vague and not sufficient to prove citizenship.
Page No.# 6/25
Based on oral testimony, the citizenship of a person cannot be proved as per
Section 9 of the Act of 1946. The argument of the learned counsel for the
petitioner that Exhibits- A, C, D are 3 electoral rolls and Elector Photo Identity
Card (EPIC for short) are the documents linking the petitioner’s name with her
father cannot be taken into consideration. It is trite law that an EPIC does not
prove citizenship of a person. It is further submitted that the submission of the
learned counsel for the petitioner that the Tribunal has transgressed the
reference, which does not clearly indicate that the petitioner has illegally
migrated from a specified territory, can be safely brushed aside. The learned
counsel for the FT and border matters has relied on the decision of this Court in
Asia Khatun vs. Union of India & Ors. in connection with WP (C) No.4020/2017,
(order dated 21.11.2019).
8. We have given our thoughtful consideration to the submissions at the Bar.
9. The trial court records have been carefully scrutinized. It is pertinent to
mention in this case that earlier on 19.10.2016, the petitioner had filed a written
statement and thereafter, again on 11.09.2017, an amended written statement
was submitted by the petitioner. Conjointly, through both the written
statements, the petitioner has averred that her father, Muslem Uddin @ Muslem
Ali, cast his valuable vote in the year 1966 from –
78 Bilasipara, LAC,
Mouza-Goroimari,
Part No. 148,
Page No.# 7/25
Village- Kurukani,
Serial No. 284,
House No. 86, and,
District- Sonitpur, Assam.
It is further submitted that the petitioner’s father cast his vote in the year
1992, from 74 No. Rangapara LAC, Part No-110, House No. 2, Sl No. 5, Mouza-
Goroimari, Village-Karukani, Dist- Sonitpur, Assam and hence, the petitioner is
not a doubtful citizen but is an Indian citizen by birth.
10. Through the amended written statement, the petitioner has also added
that she cast her vote in the year 1992 under 74 Rangapara, LAC, Mouza-
Goroimari, P.S.- Tezpur, District- Sonitpur, Part No.- 110, Village-Kurukani, Serial
No. 7, House No. 2. The petitioner was given in adoption to Mohammad Sher
Khan, a resident of Ward No. 1, Tezpur town, District- Sonitpur, by her father,
while the petitioner was only 8 years of age. The petitioner was brought up in
the residence of Mohammad Sher Khan. Later, her marriage was solemnized
with Mohammad Sidik Ali, son of late Tayab Ali, a resident of Kacharipam, P.S.-
Tezpur, District- Sonitpur.
11. The petitioner has stated that she cast her vote in the year 2016 under 73
Tezpur, LAC, Part No. 122, Village-Tezpur Town, Ward No. 1, Mouza-
Mahabhairab. The petitioner has also stated that an Elector Photo Identity Card
(EPIC for short) was issued under serial No. JRQ1207687 on 04.04-2016, for
Polling station No. 122.
12. It is further submitted that although the petitioner shifted to her marital
home, she continued casting her vote from her previous residential address at
Tezpur town, Ward No. 1, and thus her name as a voter is not included in her
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present address.
13. The petitioner’s evidence in affidavit reiterates her pleadings. As DW-1,
she exhibited the following documents:-
Exhibit 1- a certified copy of the voters list, 1966;
Exhibit 2- a certified copy of voters list of 1992;
Exhibit 2.1- a certified copy of electoral roll of 2016; and,
Exhibit 3- EPIC.
In amended written statement, the petitioner stated that she was 8 years
old when she was given in adoption, but in her evidence-in-chief, she has stated
as DW-1 that she was 7 years old when she was adopted by Sher Alom.
14. The petitioner’s father’s name figures in the voters list of 1966, as son of
Sabed. Although the petitioner has not given the name of her mother in her
written statement, her mother’s name also figures in the voters list as Morjan
Nessa, wife of Muslem Uddin. This voters list has been proved as Exhibit-B. The
petitioner’s name also figures in the voters list of 1992 along with her father in
the same village, Kurukani, under the same Mouza-Goroimari, in the district
Sonitpur, which was earlier Darrang district in the year 1966. However, in this
voters list, another name figures as the wife of Moslem and this name is Sakina
Khatun, whereas, in the earlier voters list, the petitioner’s mother was shown as
Morjan Nessa. In the voters list of 2016, another Sahara Begum is shown as a
voter, and her age is shown as 34 years, whereas in the voters list of 1992, the
age of Sahera Khatun is shown as 24 years.
15. In her cross-examination, the petitioner has stated that her mother’s
name is Morjan and her father’s name is Muslem Uddin. Through her cross-
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examination, she has also affirmed that as she started staying in Tezpur from
the time when she was 8 years old, her name as a voter appeared at Tezpur.
When she was 8 years old, she was given in adoption to Sher Alam, a resident
of Cotton Road, Ward No. 1, Tezpur Town.
16. Relating to the voters list proved by the petitioner, the learned counsel for
the FT Matters laid stress in his argument that from 1966, not a single voters list
reflecting the name of the petitioner’s parents as voters have been proved by
the petitioner. Thus, the petitioner has failed to prove continuous residence as
mandated by Section 6A(2) of the Citizenship Act, 1955. It is further contended
by the learned counsel, Mr. G. Sharma, that despite two written statements
being submitted by the petitioner, the petitioner did not disclose the names of
her mother, siblings, or other family members in her written statement.
17. It is further contended that even in her evidence-in-chief, the petitioner
has not disclosed her mother’s name, nor did she disclose the names of her
siblings. The name of the person who adopted the petitioner appears to be
different when he appeared as a witness. It is admitted that only to ease out
the creases, a false statement has been made by the petitioner that she was
adopted by Sher Alam or Md. Sher Khan, as her name figures in the voters’ list
of Cotton Road, Ward No. 1, Tezpur Town. Discrepancies surfaced in the names
of the petitioner’s adoptive father in the written statement vis-Ã -vis the evidence
of the petitioner and her father. In her amended written statement, the
petitioner referred to her adoptive father as Md. Sher Khan whereas in her
evidence-in-affidavit. She referred to him as Sher Alam. This discredits the
petitioner’s evidence as a reliable witness.
18. The learned standing counsel, Mr. G. Sharma has relied on the decision of
this Court in Asia Khatoon Vs. The Union of India and 3 Ors (supra)
Page No.# 10/25
wherein it has been held that:-
“The statement of DW-2 i.e. Amir Uddin, who claimed to be the
father of the petitioner, cannot be relied upon in the absence of any
documents showing his relationship to the petitioner. In this we would
observe that in a proceeding under the Foreigners Act, 1946 and the
Foreigners (Tribunals) Order, 1964 the evidentiary value of oral testimony
without support of documentary evidence is wholly insignificant. Oral
testimony alone is no proof of citizenship. The evidence of DW-2, thus,
falls short of being considered as cogent, reliable and admissible
evidence, so much so, to establish linkage of the petitioner to him.”
19. We find force in the argument of the learned counsel for the FT matters.
It is true that oral testimony alone is no proof of citizenship.
20. In the case at hand, the voters’ list of 1992 reflects the petitioner’s name
along with her father. Her father’s name at Serial No. 5 is shown as Muslem Ali,
whereas the petitioner’s father’s name at Serial No. 7 is shown as Muslem. This
document, marked as Exhibit B, is the voters’ list of 1992. This voters’ list is of
the village Kurukani. However, the voters’ list of 1966 reflects the petitioner’s
father’s name as Muslem Uddin. Explanation was offered by the petitioner to
prove that Muslem Uddin @ Muslem Ali @ Muslim is the same person.
Petitioner’s age was shown as 24 years in the voters’ list of 1992. The petitioner
could have produced another voters’ list along with the name of her father to
substantiate her stance that she is the daughter of Muslim Ali @ Muslem Uddin
@ Muslim of village-Kurukani. Petitioner has not only failed to prove continuous
residence in the state of Assam, but she has also failed to prove that her father
was continuously residing in the state of Assam. If the petitioner was given in
adoption to Sher Alam when she was 7 years or 8 years of age, then why has
her name appeared in the voters list of 1992 with her own father in Kurukani
village. Later her name appears in her adoptive father’s residence at Ward No-1,
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Tezpur Town, in the year 2016. Her name ought to have appeared in the voters
list of Tezpur Town, Ward No-1, in the year 1992 and not at Kurukani village.
21. It is true that the evidence of Muslim Ali @ Muslem Uddin substantiates
the evidence of his daughter DW-1. He has stated through his evidence-in-chief
that he was born at village-Kurukani under Tezpur P.S. Goroimari Mouza. He has
also stated that his name figures in the voters list of 1966 under 78 No. Balipara
LAC of village-Kurukani. His daughter Sahara Begum’s name also figures in the
voters list of 1997 under 74 No. Balipara LAC of village-Kurukani, P.S.-Tezpur,
Goroimari Mouza. But the voters list of 1997 was not exhibited.
22. Petitioner’s father has further stated that when his daughter was 7 years
old, she was given in adoption to Sher Alam, a resident of Cotton Road, Ward
No. 1, Tezpur town. His daughter ‘s i.e., the petitioner’s marriage was
solemnized about 20 years ago with Mohammad Siddique Ali, who is a resident
of village Kacharipam, under Tezpur P.S., Mahabhairab Mouza. The petitioner’s
name is recorded in the EPIC and in the certified elector roll of 2016 under 73
No. Tezpur LAC Ward No. 1, Mahabhairab Mouza. The question is that why
would the petitioner’s name appear along with her father, Muslim Ali @ Muslem
Uddin in Kurukani, when she was already given in adoption at the age of 7
years to Sher Alam, who is a resident of Ward No. 1. She ought to have been
shown as the daughter of Sher Alam of Ward No. 1, but her name was shown in
the voters list of 2016 of Ward No. 1 as daughter of Muslim Ali and her age is
shown as 34 years in the year 2016.
23. On the other hand, the petitioner’s age was shown as 24 years in the year
1992. If the petitioner was 24 years in the year 1992, then after 24 years, her
age ought to have been 48 years and not 34 years in 2016. It is true that there
may be some discrepancies in recording the age, but in this case, there are too
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many discrepancies. The petitioner’s father’s name appears to be different in
different voters list. In the first voters list of 1966, his name is recorded as
Muslem Uddin, whereas in the voters list of 1992, his name is recorded as
Muslem Ali and in the same voters list, i.e., in the voters list of 1992, Sahira
Khatun is shown as the daughter of Muslem and not Muslem Ali, whereas, in the
voters list of 2016, Sahara Begum is shown as the daughter of Muslem Ali. This
Court is also aware about the discrepancies in the names of the petitioner’s
adoptive father in the written statement as well as in her evidence.
24. Explanation was offered by the petitioner regarding the discrepancies of
her age and the discrepancies in recording the name of her father in different
voters list, but the petitioner has failed to discharge her onus as mandated by
Section 9 of the Act of 1946′.
25. Learned counsel Mr. G. Sharma has submitted that the argument on
behalf of the petitioner that the evidence and the cross-examination of DW-2
proves that the petitioner is his daughter, can be safely brushed aside. The
petitioner has failed to prove her lineage with her projected father Muslem
Uddin, @ Muslem Ali, @ Muslim.
26. The evidence of DW-1 is corroborated by the evidence of her father DW-2,
but it has already been held in the foregoing discussions that oral evidence is
not sufficient to prove the citizenship of a person.
27. As the onus is on the person to prove his citizenship, the person who has
all the evidence and the documents relating to his citizenship has to prove by
discharging his onus as per Section 9 of the Foreigners Act, 1946.
28. In sync with the evidence of DW-1, DW-2 also stated that DW-1’s
marriage was solemnized about 20 years ago with Md. Siddique Ali of village
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Kacharipam under Mahabhairab Mouza. He has also exhibited
Exhibit-1: Certified copy of Voters List of 1966.
Exhibit-2: Certified copy of Voters List of 1992
Exhibit-2.1: Certified copy of Electoral Roll of 2016.
Exhibit-3: EPIC.
These documents have already been exhibited by the petitioner. Although
through their evidence, the three witnesses have stated that the documents are
Exhibit-1, 2, 2.1 and 3, yet the record reveals that the documents were marked
as Exhibit-A, B, C and D.
29. In his cross-examination, DW-2 admitted that he could not furnish any
documents relating to the birth of his daughter as well as his permanent
residency. He could not produce the voters lists of 1966 and 1997. He could not
produce any document relating to adoption of his daughter by Sher Alam as he
had given his daughter in adoption, not through documents, but orally. He could
not produce any documents to prove that the petitioner is his daughter. He also
admitted that he did not submit any details of his children.
30. Although the pleadings and evidence of DW-1 and DW-2 depicts that DW-
1 was given in adoption to a person named Md. Sher Khan, yet the witness DW-
3 is projected to be the person named Sher Alam who adopted DW-1 from the
time when she was 7 years old. DW-3’s evidence reiterates the evidence of the
petitioner and DW-2, but the evidence of DW-3 was not helpful in establishing
any linkage of the petitioner to her projected predecessors shown as Indian
citizens. It is pertinent to note that only through the amended written
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statement, the adoption of DW-1 by Md. Sher Khan was introduced anew. Why
would such an important event be omitted in the initial written statement.
31. Sher Alam stated in his evidence-in-chief as DW-3 that he was originally a
resident of Cotton Road, Ward No. 1, Mouza- Mahabhairab, Sonitpur, Tezpur. He
has stated that he adopted Sahara Begum, daughter of Muslem Ali @Muslem
Uddin, who was a resident of Village-Kurukani, Tezpur under Goroimari Mouza of
Sonitpur District. He stated that the petitioner’s father brought the petitioner to
his house when the petitioner was 7 years old. Her family was suffering from
financial constraints and he brought up the petitioner in his house. The
petitioner’s marriage was solemnized about 20 years ago with Mohammad
Siddique. The petitioner’s name is recorded in the electoral roll of 2016 under 73
No. Tezpur LAC vide serial No. 277, Part No. 122 of Tezpur town, Ward No. 1, of
Mouza-Mahabhairab under Sonitpur district.
32. He has further asserted that the petitioner is not an illegal migrant. He
has also exhibited the following documents:-
Exhibit-1
Exhibit-2
Exhibit-2.1
Exhibit-3
33. In his cross-examination, DW-3 has testified that the petitioner used to
address him as ‘Mama’. He has not submitted any documents relating to
adoption of Sahara Begum as his daughter, but he has vehemently denied that
he has not adopted Sahara Begum as his daughter. However, he stated that no
reasons were attributed why Sahara Begum cast her vote from his house even
after her marriage. He has admitted that he has not mentioned about Sahara
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Begum’s parents or siblings in his evidence-in-affidavit.
34. It is also pertinent to mention that although DW-2 has mentioned the
names of his children in his cross-examination, the petitioner has failed to
disclose the names of her siblings in her pleadings or in her evidence-in-chief.
The petitioner also did not mention about her siblings in her written statement
or in her evidence-in-chief. She has not mentioned how many brothers and
sisters she has. It would be apt to reiterate that parties cannot traverse beyond
their pleadings. In this case, the names of the petitioner’s siblings were
introduced anew, that too not by the petitioner but by the petitioner’s projected
father DW-2.
35. It has been held by this Court in Basiron Bibi-Vs.-Union of India and Ors.
reported in 2018 (3) GauLR 196 that:-
“12. In Rashminara Begum v. Union of India, reported in 2017 (4)
GLT 346 : (2017) 4 GLR 282, this Court has held that written
statement is the basic statement of defence of a procedee facing a
proceeding before the Foreigners’ Tribunal. Material facts relevant
for establishing his citizenship of India have to be pleaded in the
written statement, which are thereafter required to be proved by
adducing cogent and reliable evidence.
13. This Court has also in Momin Ali v. Union of India, reported in
2017 (2) GLT 1076 held that where a procedee fails to set up a case
in his pleadings, he would be debarred from adducing evidence in
his support at the stage of trial. As a matter of principle, variance
between pleading and proof is not permissible.
14. In Ayesha Khatun v. Union of India, reported in 2017 (1) GLT
Page No.# 16/25163: (2017) 3 GLR 820, it has been held that failure to disclose
material facts in the written statement by itself will raise a serious
question mark on the citizenship status of the procedee.”
36. Reverting back to this case, it is held that in the instant case too the fact
that the petitioner has failed to disclose the names of her siblings or even for
that matter the name of her mother, casts doubt over the veracity of the
petitioner’s case. It is not clear what prevented the petitioner from disclosing
her entire family tree when she has submitted, not one but two written
statements. In the previous written statement, she has not disclosed a defining
moment of her life. Only through her amended written statement, did the
petitioner mention about Md. Sher Khan who deposed as Sher Alam (DW-3).
37. The petitioner did not disclose the names of her siblings nor did she
disclose the name of her mother. Strange enough, there appears to be two
wives of DW-2, Sakina and Morjan. There is not even a hint in the pleadings or
in the evidence how Sakina is related to DW-2, Muslim @Muslimuddin.
38. Regarding the submissions of learned counsel for the petitioner that it is
not clearly mentioned in the interrogation report that the petitioner has illegally
entered into India from Bangladesh, the decision of this Court in Sayam Uddin
Vs. The Union Of India and Ors, reported in 2019 (4) GLT 456 , affirmed
by the Division Bench in the case of Sayam Uddin Vs. The Union Of India
and Ors in WA/170/2019 (order dated 29.07.2019) is relevant. It has been
held that:-
“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
Page No.# 17/25migrants. 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
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
Page No.# 18/25of 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 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
Page No.# 19/25competent 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.
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
Page No.# 20/25Act, 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 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
Page No.# 21/25the 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.”
Page No.# 22/25
39. Although the learned counsel for the petitioner has drawn the attention of
this Court to the interrogation report at Page-25 of the records forwarded by the
Tribunal, this Court is constrained to hold that the interrogation report clearly
depicts that “during enquiry it appears that Musstt. Sahara Begum, wife of Md.
Sidik Ali, entered into India after 25.03.1971. She could not produce any
documents in support of her nationality. So, this case is submitted to the
Hon’ble F.T. for opinion.” The fact that the specified territory is not mentioned in
the interrogation report does not absolve the petitioner. It is apparent that
during investigation, the petitioner failed to produce any document in support of
her nationality. During the reference proceeding the petitioner has miserably
failed to prove that she is an Indian National.
40. In the foregoing discussions, it has already been held that the petitioner
has failed to establish her lineage with her projected grandfather. It would also
be pertinent to mention that although the evidence of DW-1, DW-2 & DW-3
reveals that the exhibits were marked as Exhibit-1, Exhibit-2, Exhibit-2.1 and
Exhibit-3, the records forwarded from the Tribunal clearly reveal that the
exhibits at the time when produced and exhibited, were marked as Exhibits-A,
B, C and D. It is trite law that the onus is cast upon the petitioner to prove that
she is a citizen of India but the petitioner has miserably failed to prove the
same.
41. It has been held by the Supreme Court in Sarbananda Sonowal Vs.
The Union Of India & Anr., reported in (2005) SCC 665, that:-
“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. Sometimes the place
Page No.# 23/25of birth of his grandparents may also be relevant like under Section 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 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.”,
42. In the wake of the foregoing discussions, it is held that the documents
submitted by the petitioner reveals that she was a voter in the year 1992 from
Kurukani, years after she was adopted by DW-3, a resident of Tezpur town. At
that time, she was already daughter of DW-3 by way adoption. There is a
retraction in the voters list of 1992 as the petitioner was as a voter in Kurukani
but again in 2016 she was shown as a voter from her adoptive father’s
residence in the year 2016, despite the fact that the petitioner was adopted at
the age of 7 years and thereafter, she shifted her residence from Kurukani to
Tezpur Town, Ward No-1, Cotton road. The petitioner has given her age as 40
years on 19.06.2016 which reveals that her date of birth would be 1976. This
reveals that the petitioner was 7 years in the year 1983. The petitioner was then
again shown as a voter from her original residence in the year 1992 and
thereafter, again in the year 2016, she is shown as a voter from her adoptive
parent’s house.
43. This shifting of the petitioner’s place of franchise from Kurukani to Tezpur
town, Ward No.1, discredits the petitioner’s evidence, as the to and fro shifting
of the petitioner appears to be haphazard. The petitioner could exhibit only the
Page No.# 24/25
voters list of 1966, 1992 and 2016. It is also astonishing why the petitioner was
shown as a voter from her adoptive parent’s residence instead of a voter from
her matrimonial home in 2016. One gets perplexed when the petitioner’s
evidence is carefully scrutinized.
44. Although the petitioner has projected that she was adopted by DW-3, but
there is no evidence of how the adoption was done. The learned counsel for the
petitioner could not say if adoption is allowed under the Principles of
Mohammedan Law. Therefore, in the absence of any evidence on valid
adoption, the Court is unable to accept the plea of adoption, however, without
expressing any opinion on adoption in this case.
45. It can therefore be safely held that the petitioner has failed to discharge
her onus cast upon a person to prove his/her nationality as mandated under
Section 9 of the Act of 1946. She has failed to trace back her lineage to her
projected grandfather Sabed, nor was she successful in proving her lineage with
her father or her adoptive father.
46. This writ petition is hereby dismissed as this petition is devoid of merits.
No infirmity is discernible in the decision of the learned Tribunal.
47. The challenge to the impugned opinion fails and resultantly, this writ
petition is dismissed. Accordingly, the consequences of the impugned order
dated 03.08.2018, passed by the learned Member, Foreigners Tribunal, Tezpur
(1st) Assam in connection with FT (D) Case No.65/2016, Police Inquiry
No.109/2016, thereby holding the petitioner above-named as a foreigner of post
25.03.1971 stream, shall follow.
48. There shall be no order as to costs.
49. The Registry shall send back the Tribunal’s record along with a copy of
Page No.# 25/25
this judgment and order, to be made a part of the record by the learned
Tribunal for future reference.
JUDGE JUDGE Comparing Assistant
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