Gauhati High Court
Jahura Khatun vs The Union Of India And 5 Ors on 24 April, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/29
GAHC010063852019
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2641/2019
JAHURA KHATUN
D/O- LT. TUKKU MIYA @ SIRAJ UDDIN, W/O- SHAJAHAN ALI, R/O. VILL.-
DIGHIR PATHAR, P.S. BAGHBAR, DIST.- BARPETA, ASSAM.
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, SHASHRI BHAWAN, TILOK MARG, NEW DELHI-1.
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY.-6.
3:THE SUPERINTENDENT OF POLICE (B)
BARPETA
P.O.
P.S. AND DIST.- BARPETA
ASSAM
PIN- 781301.
4:THE DY. COMMISSIONER
BARPETA
P.O.- BARPETA
DIST.- BARPETA
ASSAM
PIN- 781301.
5:THE STATE COORDINATOR NRC
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BHANGAGARH
GHY.-5.
6:THE ELECTION COMMISSIONER OF INDIA
NEW DELHI-1
Advocate for the Petitioner : MR. A R SIKDAR, MR N AHMED,MR. S I TALUKDAR
Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, NRC,SC, ECI
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE MITALI THAKURIA
JUDGMENT
Date : 24-04-2026
For the petitioner : Mr. A.R. Sikdar, Mr. N. Ahmed, Advocate
For respondents : Mr. J. Payeng, Mr. P. Sarma, Mr. A.I. Ali, Ms. B.
Sarma, Advocate.
Date on which judgment is reserved : 03.02.2026
Date of pronouncement of judgment : 24.04.2026
Whether the pronouncement is of
the operative part of the judgment? : NO
Whether the full judgment has been
Pronounced : YES
JUDGMENT AND ORDER
(CAV)
(K.R. Surana, J)
Heard Mr. A.R. Sikdar, learned counsel for the petitioner. Also heard Ms. B.
Sarma, learned CGC appearing for respondent No.1; Mr. J. Payeng, Advocate,
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standing counsel for FT and Border matters, representing respondent nos. 2, 3
and 5; Mr. A.I. Ali, Advocate, learned standing counsel for Election Commission
of India, respondent no.6; and Mr. P. Sarmah, learned Addl. Senior Govt.
Advocate representing respondent no.4.
2. By filing this writ petition under Article 226 of the Constitution
of India, the petitioner, namely, Jahura Khatun, has challenged the opinion
dated 12.07.2018, passed by the learned Member, Foreigners Tribunal No. 4 th,
Barpeta, Assam, in. F.T. Case No 135/2017, arising out of Ref. F.T. Case No.
1287(A) dated 09.07.98, thereby declaring her to be a foreigner, who had
entered into Assam on or after 25.03.1971.
3. In her written statement the petitioner has stated that she is
the wife of Shajahan Ali and is a bona fide citizen of India by birth and residing
at Vill. Digir Pathar, Mouza- Mandia, P.S. Baghbar, District- Barpeta, Assam. The
names of Tukku Miya @ Shiraj Uddin, her father and Moiran Nessa, her mother
appeared in the voter list of 1966 and 1970 as voter of village- Dighir Pam,
under 52 No. Baghbar LAC. Their names also appeared in the voter list of 1989
and 1997 from Village- Digirpam, under 45, No. Baghbar LAC, however, in the
voter list of 1989, the name of her mother appeared as Mariam Khatun instead
of Moiran Nessa. She had submitted certificates from the Gaonburah of her
father’s side and husband’s side to show her linkage. Accordingly, the petitioner
had prayed that she may be declared as an Indian citizen.
4. In support of her defence, the petitioner had examined 3
(three) witnesses, including herself (DW-1); Rafiqul Islam, Gaonburah of Charge
No. 12 of Village- Digir Pam (DW-2); and Sukur Ali Ahmed, Gaonburah of
Charge No.8 of Village No.2 Chasra and Digir Pathar (DW-3). The petitioner had
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reiterated the statements made in her written statement and had exhibited the
following documents:-
a. Certified copy of voters list of 1966 containing the names of Tukku Miya
and Moiran Nessa (Ext.A);
b. Certified copy of voters list of 1970 containing the names of Tukku Miya
and Moiran Nessa (Ext.B);
c. Certified copy of voters list of 1989 containing the names of Tukku Miya
and Moriom Nessa (Ext.C);
d. Certified copy of voters list of 1997 containing the names of Tukku Miya
and Moiran Nessa (Ext.D),
e. Certificate dated 16.01.2016, issued by Rafiqul Islam, Gaonburah of
Charge No.12, Village- Digirpam, stating that Jahura Khatun, daughter of Late
Tukku Miya (Siraj), village- Digirpam, is residing under his Charge No.12. It
contains a foot note that the above noted lady is married with Shajahan Ali, son of
Late Raham Ali of village- Digir Pathar (Ext.E); and
f. Certificate dated 14.01.2016, issued by Sukur Ali Ahmed, Gaonburah of
Charge No.8, Village- 2 No. Chasra and Digir Pathar, stating that Jahura Khatun,
daughter of wife of Shajahan Ali of village- Digir Pathar, P.O. Nirala, Mouza-
Mandia, District- Barpeta, is residing under his Charge No.8 of vill. Digir Pathar
(Ext.F).
5. The learned Tribunal upon appreciating the evidence had
observed that the petitioner had not stated whether her parents were alive or
dead. Ext.A to Ext.D, but none of the voters in those voter lists or any relatives
appeared as witnesses to establish petitioner’s link with the said voter lists. It
was held that the Gaonburah’s certificates (Ext.E and Ext.F) and evidence of the
DW-2 and DW-3 only disclosed that they knew the petitioner from the year 1997
and observed that those two certificates were issued in the year 2016 after
reference was registered. The learned Tribunal held that mere filing of some
documents and picking up any name from such documents so as to establish
relationship with the said person as father or mother or grandfather,
grandmother does not amount to proof. Moreover, it was held that under the
law of evidence, mere admission of documents marked as exhibit does not
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make the document admissible in evidence unless the contents of documents
are proved. Accordingly, it was held that the petitioner had failed to discharge
her mandatory burden of proof as envisaged under Section 9 of the Foreigners
Act, 1946. Accordingly, the petitioner was declared to be a foreigner who had
illegally entered into India on or after 25.03.1971.
6. The learned counsel for the petitioner had submitted that the
enquiry report of the Local Verification Officer was vague and not properly filled-
up and therefore, there was lack of sufficient material before the learned
Tribunal to declare the petitioner to be a foreigner. It has been submitted that
the notice issued to the petitioner contained two charges, one of entering into
India between 01.01.1966 to 24.03.1971 and the other was that she had
entered into India after 25.03.1971 and accordingly, it was submitted that the
petitioner was not specifically and clearly charged regarding the stream when
she had entered into India and therefore, the learned Tribunal had rendered its
opinion in a mechanical manner. In support of the said submission, the case of
(i) Sona Kha v. Union of India, 2021 (3) GLT 12 , and (ii) Rafika Bibi v. Union of
India & Ors., W.P.(C) 3330/2020, decided on 26.05.2025.
7. It was also submitted that the voter list is a public document
and therefore, not required to be proved by calling witness and in support of the
said contention, the case of Madamanchi Ramappa & Anr. v. Muthaluru
Bojjappa, AIR 1963 SC 1633, was cited.
8. Per contra, the learned standing counsel for the Border and FT
matters has made her submission in support of the impugned opinion.
9. Thus, the following four points of determination arises out of
the submissions made by the learned counsel for the petitioner in this case:-
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a. Whether on the ground that the enquiry report of the Local
Verification Officer was vague and not properly filled-up, the reference
was vitiated?
b. Whether on the ground that the notice issued to the petitioner
contained two charges, one of entering into India between 01.01.1966
to 24.03.1971 and the other was that she had entered into India after
25.03.1971, for which the charge against the petitioner was not clear,
the impugned opinion is vitiated?
c. Whether in light of Section 77 of the Evidence Act, 1872, the voter
list was not required to be proved, being public document?
d. Whether the impugned opinion called for interference?
Analysis of the evidence of the petitioner’s side:
10. In this case, the petitioner had examined herself as DW-1. In her
evidence-on-affidavit filed on 15.07.2016, the petitioner had reiterated the
statements made in her written statement. In brief, her evidence was to the
effect that she was born in the house of her parents about 42 years ago at Digir
Pam under Baghbar P.S., under then District- Kamrup. The name of Tukku Miya
@ Shiraj Uddin, her father and Moiran Nessa, her mother appeared in the voter
list of 1966 and 1970 as voters of village- Dighir Pam, under 52 Baghbar LAC.
But in the voter list of 1970 the name of her father was written as Tubaku Miya.
Their names also appear in the voter list of 1989 and 1997 from Village- Digir
Pam, under 45, Baghbar LAC, however, in the voter list of 1989, the name of her
mother appears as Mariam Khatun instead of Moiran Nessa. She had also stated
that she is a citizen of India by birth and the case was registered against her
without verification of her documents and she was never given any notice to
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produce documents. She had exhibited the documents morefully referred in
paragraph 4 above. In her examination by the learned Tribunal, the petitioner
(DW-1) had stated that her marriage with Shajahan Ali of village- Digir Pathar
under Baghbar P.S. was solemnized about 20/21 years ago and that she was an
Indian citizen by birth and in that regard, she had submitted documents before
the learned Tribunal and that a false case was registered against her.
11. Now coming to the pleadings of the petitioner, she has not
disclosed (i) the names of her grandparents; (ii) siblings of her father; (iii) her
own siblings; (iv) her relation, if any, with the voters (other than her projected
parents) whose names appear in the four exhibited voter’s lists (Ext.A to Ext.D);
(v) whether her parents were alive , or if they had died, at least the year of
their death; (vi) about the whereabouts of her projected parents between 1970
and 1989, which was otherwise required to show their continuous stay in the
Country, as required under Section 6A (2)(b) of the Citizenship Act, 1955; and
(vii) about her own children.
12. In the aforesaid context, it may be mentioned that the voter list
of 1966 and 1970 (Ext.A and Ext.B) disclosed names of three voters. The voter
list of 1989 and 1997 (Ext.C and Ext.D) disclosed the names of 5 voters.
However, apart from referring to her parents, the petitioner has not disclosed
about her relationship with other voters.
13. In the aforesaid context, it may be mentioned that in the case of
Rashminara Begum v. Union of India & Ors., 2017 (4) GLT 346 , this Court had
held that material facts pleaded would have to be proved by adducing cogent
and admissible evidence. The said view was also endorsed by this Court in the
case of Saru Sheikh v. Union of India & Ors., (2017) 4 GLR 295 . In the case of
Ayesha Khatun v. Union of India & Ors., (2017) 3 GLR 820 , and Jehirul Islam v.
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Union of India & Ors., (2017) 5 GLR 670, this Court had held that failure to
disclose material facts would lead to adverse presumption.
14. In the case of Ramila Khatun v. Union of India & Ors., 2018 (4)
GLT 373, this court, while dealing with written statement in a proceeding before
the Foreigners Tribunal, had laid down four legal propositions, viz., (i) it was
held that it is trite law that documentary evidence will have to be proved on the
basis of record and contemporaneous record must substantiate and prove the
contents of the document; (ii) Proof of document is one thing and proof of
contents is another and it was further held that not only the document has to be
proved but the contents would also have to be proved; (iii) that apart, the
truthfulness of the contents of the document would also have to be established
from the record; and (iv) that a document or contents of a document cannot be
proved on the basis of personal knowledge.
15. In his examination-in-chief, Rafiqul Islam, the Gaonburah of Digir
Pam (DW-2), had stated that he was working as Gaonburah of Digir Pam village
since 2012. Ext.1 is the identity card. Ext.1(1) is the signature of Circle Officer
and Ext.1(2) is his signature. He had stated that he knew the petitioner since
his childhood. She resides in village- Digirpam. Her father’s name is Tukku Miya
She married with one Shajahan, resident of Digir Pathar. He had stated that he
had issued Ext.E certificate and Ext.E(1) is his signature.
16. In his examination-in-chief, Sukur Ali Ahmed, the Gaonburah
(DW-3), had stated that he was working as Gaonburah of No.2 Chasra, Digir
Pathar village since 2012. Ext.2 is the identity card. Ext.2(1) is the signature of
Circle Officer and Ext.2(2) was his signature. On a further query of the learned
Tribunal, he had stated that he knew the petitioner since 20/22 years. She
resides in village- Digirpathar. Her husband’s name is Shajahan Ali. In this case,
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he had issued a certificate. Ext.F is the said certificate and Ext.F(1) was his
signature.
17. Thus, from the evidence of DW-2 and DW-3, it is evident that
they have not disclosed about the entries made in their respective certificates
i.e. Ext.E and Ext.F. The said witnesses did not give any statement that they
knew the projected father of the petitioner. The said DW-2 and DW-3, thus,
deposed on the basis of their personal knowledge and not out of record. The
DW-2 and DW-3 did not refer to entries made in any of the voter lists i.e. Ext.A
to Ext.D.
18. Therefore, if the two certificates of the Gaonburah (DW-2 and
DW-3) are excluded, there is no link of the petitioner with her projected parents.
19. If there are no pleadings about the existence of petitioner’s
parents after 1997, it would mean that Sukur Ali Ahmed, the Gaonburah (DW-3)
did not have personal knowledge of the petitioner’s projected parents. Similarly,
Rafiqul Islam, Gaonburah (DW-2), was aged 29 years as on 08.05.2017, when
his evidence was recorded. Therefore, his year of birth would be about the year
1988. Therefore, neither of them had personal knowledge about the projected
parents of the petitioner, nor he claimed personal acquaintance with the
projected parents of the petitioner. Thus, by a mere statement of DW-2 that the
name of father of the petitioner is Tukku Miya, is not by personal knowledge but
is hearsay evidence.
20. In this regard, it would be appropriate to refer to the case of Nur
Begum v. Union of India & Ors., 2020 (3) GLT 347. In the said case, the
projected mother of the proceedee of that case had appeared and gave
evidence before the learned Foreigners Tribunal. The relevant paragraph 6
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thereof is quoted below:-
6. The statement of D.W. 2 i.e. Jahurun Begum, who claimed to be the mother
of the petitioner, cannot be relied upon in the absence of any documents showing
her relationship, either to the projected grandfather, father or to the petitioner
herself. Oral testimony of D.W. 2 alone, sans any documentary support, cannot be
treated as sufficient to prove linkage or help the cause of the petitioner.
Surprisingly, the petitioner failed to produce a single voter list in her name even
until the age of 50 years. We would reiterate 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 D.W.
2, thus, falls short of being considered as cogent, reliable and admissible evidence,
so much so, to establish linkage of the petitioner to the projected grandfather,
grandmother and father. The petitioner utterly failed to prove her linkage to Indian
parents relatable to a period prior to the cut-off date of 25.03.1971 through
cogent, reliable and admissible documents.
21. For the same legal proposition, paragraph 7 of the case of Asia
Khatoon v. Union of India & Ors., W.P.(C) No. 4020/2017, decided on
21.11.2019, is quoted below:-
7. As the primary issue in a proceeding under the Foreigners Act, 1946 and the
Foreigners (Tribunals) Order, 1964 relates to determination as to whether the
proceedee is a foreigner or not, the relevant facts being especially within the
knowledge of the proceedee, therefore, the burden of proving citizenship
absolutely rests upon the proceedee, notwithstanding anything contained in the
Evidence Act, 1872. This is mandated under section 9 of the aforesaid Act, 1946.
In the instant case and as observed above, the petitioner not only failed to
discharge the burden but also utterly failed to make proof of the most crucial
aspect, that is, in establishing linkage to her projected father and/or the
grandfather.
Second point of determination:
22. The second point of determination is as to whether on the
ground that the notice issued to the petitioner contained two charges, one of
entering into India between 01.01.1966 to 24.03.1971 and the other was that
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she had entered into India after 25.03.1971, for which the charge against the
petitioner was not clear, the impugned opinion is vitiated, is taken up now.
23. In this case, on the basis of the report from the Electoral
Registration Officer of the 45 Baghbar LAC, the Superintendent of Police
(Border), Barpeta had registered IM(D)T Doubtful Case No. 1287(A) dated
09.07.1998. The Superintendent of Police (Border), Barpeta had submitted the
reference before the erstwhile Illegal Migrants (Determination) Tribunal, Barpeta
[hereinafter referred to as IM(D)T for short] for determination of the reference.
In brief, this fact is reflected in paragraph 1 of the impugned opinion. The
learned Tribunal’s record reveals that the Superintendent of Police (Border),
Barpeta, while sending the reference, had made an endorsement at the foot of
Form- VII that “Annexure-B of the ERO is considered as a ground for
considering the person as an illegal migrant.”
24. However, while issuing notice, the learned Tribunal had failed to
strike the period of entry “between 01.01.1966 and 24.03.1971” and “after
25.03.1971”. It is not the case of the petitioner that she was born “between
01.01.1966 and 24.03.1971”. Thus, she could only be an illegal migrant after
25.03.1971.
25. Under the Foreigners Act, 1946, the reference can only be made
as to whether or not a person is a foreigner within the meaning of Section 2(a)
of the Foreigners Act, 1946. Upon reading Order 2(1) of the Foreigners
(Tribunals) Order, 1964, it is discernible that a reference is made to a Tribunal
for its opinion whether a person is a foreigner within the meaning of Section
2(a) of the Foreigners Act, 1946. Thus, if no reference is made, the Foreigners
Tribunals cannot assume jurisdiction, but only after the reference is made, the
Tribunal would have to confine itself to the terms of reference and render its
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opinion. This Court in the case of Aziz Miya @ Md. Aziz Mia v. Union of India &
Ors., 2023 (4) GLT 246, had held that the provisions of Order 2 of the
Foreigners (Tribunals) Order, 1964 make it explicit that it is the Superintendent
of Police (Border) who would be the authority to take a decision based upon the
report of the inquiry or any further materials that may be available as to
whether a person concerned is required to be referred to a Tribunal for its
opinion as to whether he is a foreigner or not.
26. As regards, non-mentioning and/or wrong mentioning of the
stream when the suspected foreigner had entered illegally into India (Assam), it
would be appropriate to refer to the decision of this Court in the case of Ananda
Ghosh v. Union of India & Ors., 2017 (2) GLT 996 , which is quoted below:-
10. Question for consideration is whether such a finding of the Tribunal
would stand vitiated by non-mentioning in the two notices issued to the petitioner that
the allegation against him was of being a foreigner who had illegally entered into India
(Assam) after 25.03.1971?
11. As already noticed above, the reference made by the Superintendent of Police
to the Tribunal was specific. Petitioner was a Bangladeshi national who had illegally
entered into India (Assam) after 03.25.1971. Prima facie, it was the mistake of the
Tribunal not to have specifically mentioned this in the two notices issued to the
petitioner. However, from the materials on record. Tribunal came to the conclusion and
thereafter rendered its opinion that petitioner was a foreigner who had illegally entered
into India (Assam) after 25.03.1971. The reference was answered accordingly.
12. In a recent decision of this Court in the case of Mustt. Abiran Nessa Vs. Union of
India (WA 200/2016), decided on 27.3.17, it has been held that wrong mentioning of the
foreigners stream as classified under Section 6A of the Citizenship Act. 1955 to which the
noticee belongs would not vitiate the proceeding before the Tribunal or consequential
order passed by the Tribunal if the materials on record discloses that the noticee actually
belongs to the stream of foreigners which has been ultimately held to be so by the
Page No.# 13/29Tribunal. Wrong mentioning of the stream of foreigners to which the noticee belongs
contrary to the reference made by the State would not vitiate the order passed by the
Tribunal and would not confer any undue advantage to a proceedee or enable a
proceedee to improve his status. It was held as follows:-
“10. Thus, materials on record, as found by the learned Single Judge, disclosed
that appellant was a foreigner who had illegally entered into India (Assam) from the
specified territory after 25.03.1971. The reference was also made accordingly.
11. It is trite that non-mentioning or wrong mentioning of a provision would not
invalidate an order if such an order can be traced to a valid source. In such a
situation, Court would examine whether the order in question has any legal sanctity
and whether it can be traced to a valid source of power. If it can be traced to a valid
source of law, wrong mentioning of the provision of law in the order impugned
would be immaterial.
12. By applying the same analogy, it can also be said that wrong mentioning of the
foreigners stream as classified under Section of the Citizenship Act, 1955, as amended, to
which the noticee belongs would not vitiate the proceeding or the consequential order passed
by the Tribunal if materials on record disclose that the notices actually belongs to the stream
of foreigners, which has been ultimately held to be so by the Tribunal. Such wrong
mentioning contrary to the materials on record or contrary to the reference made would not
confer any undue advantage to a proceedee or enable a proceedee to improve his/her status.
Therefore, on this count, we cannot condemn the order passed by the Tribunal which has
been rightly affirmed by the learned Single Judge.
13. Having regard to the above, we have no hesitation to hold that when the
reference was as to whether petitioner was a foreigner belonging to the post 25.03.1971
stream, non-mentioning of the same or wrong-mentioning of the stream of foreigners to
which the petitioner belongs in the notices would not vitiate the ultimate conclusion
reached by the Tribunal that petitioner was a foreigner of post 25.03.1971 stream. Since
the reference was answered in favour of the State, it ought to be and has rightly been
answered in the above manner. As a matter of fact, this issue was not even raised by the
Page No.# 14/29petitioner in his written statement possibly because he was fully aware that the
allegation against him was of being a foreigner belonging to the post 25.03.1971 stream.
Therefore, this ground urged on behalf of the petitioner stands rejected. However,
before moving on to the next ground, we would like to observe that the Tribunal ought
to have been careful while issuing the notices. We hope and expect that such mistakes
would not be repeated in future.”
27. In the same context, it would be relevant to quote paragraph
nos. 10, 12, 13 and 21 of the case of Rukia Begum Barbhuiya v. Union of India
& Ors., 2023 (1) GLT 1208.
10. A reading of Rule 2(1) of the Foreigners Tribunal Order 1964 makes it discernible that 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 constituted for the
purpose. The statutory provision of Rule 2(1) makes it explicit that the reference to be made
by a Tribunal would be the question as to whether a person is or is not a foreigner within the
meaning of the Foreigners Act 1946. Section 2(a) of the Foreigners Act 1946 defines
foreigner to mean a person who is not a citizen of India. In other words, going by the
meaning given to the expression foreigner under Section 2(a) of the Foreigners Act 1946 a
reference made to the Tribunal would be as to whether the person concerned is a citizen of
India or he is not a citizen of India.
12. A reading of the provisions of Section 6 A makes it explicit that it is a special provision as
to citizenship of persons covered by the Assam Accord and the core provisions of Section 6 A
are that a person who may have entered the State of Assam from the specified territory prior
to 01.01.1966 shall be deemed to be a citizen of India from the 1st day of January. 1966.
The further provision is that such persons who entered the State of Assam from the specified
territory after 01.01.1966. but before 25.03.1971 from the specified territory, and has been
detected to be a foreigner, shall register himself with the Foreigners Registering Authority of
the district concerned and upon having been registered shall be debarred of any voting rights
for a period of ten years, but otherwise retaining all such other rights that a citizen of India
may be bestowed with under the provisions and further that upon expiry of the period of ten
years, even the voting rights would be restored back. In s persons, who had entered the
State of Assam from the specified territory on or after 25.3.1971, such persons are to be
declared as foreigners.
13. In view of the provisions of Section & A of the Citizenship Act 1955. Clause 2(1) of the
Foreigners Tribunal Order 1964 would now have to be understood that once a reference is
made, the reference would be whether the person concerned is or is not a foreigner, meaning
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thereby, whether the person concerned is a foreigner, who had entered the Staten of Assam
from the specified territory on or after 25.03.1971 or he is a person who belongs to any of
the other categories ie, a person who entered the State of Assam from the specified territory
before 01.01.1966 or between 01.01.1966 and 25.03.1971. No other meaning can be
attributed to the reference under Clause 2(1) of the Foreigners Tribunal Order 1964 i.e.
whether a person is or is not a foreigner within the meaning of the Foreigners Act 1946. We
further take note that even if a reference is made by setting up a question whether the
person had entered the State of Assam from the specified territory between 01.01.1966 and
25.03.1971, the reference would have to be understood to be a reference under Clause 2(1)
of the Foreigners Tribunal Order 1964 ie., as to whether he is a foreigner or not. If the
reference is worded whether the person concerned, is a person who had entered the State of
Assam from the specified territory between 1.1.1966 and 25.03.1971, in order to arrive at
any such conclusion that the reference itself is faulty inasmuch as the decision of the Tribunal
upon the materials on record would be that the person concerned had entered the State of
Assam from the specified territory on or after 25.03.1971, in such circumstance, the only
situation that can be envisaged is that the Tribunal first arrives at a conclusion of its own that
the person concerned had entered the State of Assam from the specified territory on or after
25.03.1971, meaning thereby that the reference itself had been answered by the Tribunal.
After having answered the reference, it would be an inconceivable situation that merely
because the reference is worded whether the person had entered the State of Assam from
the specified territory between 01.01.1966 and 25.03.1971 it has to be referred back to the
referral authority to make a fair reference now putting up a question whether the person
concerned had entered the State of Assam on or after 25.03.1971. In such situation, as the
matter would have to be referred back only after a final decision has been arrived at and now
if the reference is again made with a corrected expression in the questions framed, the same
may lead to further complications that the subsequent reference would be barred by the
principles of res judicata inasmuch as it would be a subsequent reference on the same issue
between the same set of parties where an earlier decision had already been arrived at. It is
noticed that in Falani Bibi (supra) the aforesaid aspect of the further implication of a
corrected reference being again made had not been gone into and from such point of view, it
can be said that the view taken therein would be per inquiriam of the further consequences
of a fresh reference being made.
21. We further add that going by the statutory provisions of Clause 2(1) of the Foreigners
Tribunal Order 1964 any reference would have to be understood to be a reference to the
Tribunal on the question whether the person so referred is a foreigner or not within the
meaning of Foreigners Act, 1946, where again foreigner is given the meaning of a person
who is not a citizen and again where a citizen is defined under the Citizenship Act 1955.”
28. In light of above, the decision of this Court in the case of Rafika
Page No.# 16/29
Bibi @ Rafika Khatun (supra), cited by the learned counsel for the petitioner
appears to have been passed in ignorance of the earlier precedent of this Court
in the case of Ananda Ghosh (supra), Rukia Begum Barbhuiya (supra), Safiqul
Islam @ Md. Abikul Islam v. Union of India & Ors., 2019 (4) GLT 55 and
therefore, in respect of this case, the decision in the case of Rafika Bibi @
Rafika Khatun (supra) [where one of us (K.R. Surana, J) was the Member of the
Bench], would not be a binding precedent in respect of the point urged.
29. The learned counsel, apart from citing the case of Aziz Miya @
Md. Aziz Mia (supra), had also cited the case of Sona Kha v. Union of India &
Ors., 2021 (3) GLT 12: (2021) 4 GLR 200 . In the case of Sona Kha (supra), the
reference did not allege the petitioner therein to be an illegal migrant. Rather,
the Enquiry Report was to the effect that the petitioner in the said case was not
an illegal migrant and yet, the Superintendent of Police (Border), Baksa, had
forwarded the case to the Foreigners Tribunal, Baksa, Tamulpur. Under such
circumstances, this Court had held that the learned Tribunal would have to
satisfy itself about the existence of grounds before proceeding to consider the
case on merits about the citizenship. The case in hand is, thus, distinguishable.
30. Accordingly, the second point of determination is answered by
holding that the Superintendent of Police (Border), in this case, while making a
reference before the Foreigners Tribunal, had clearly suspected the petitioner to
be an illegal migrant. Therefore, a mere omission by the learned Tribunal, while
issuing notice, in failing to strike out one of the two charges, of entering into
India between 01.01.1966 to 24.03.1971 and the other that she had entered
into India after 25.03.1971, would not make the charge against the petitioner to
be not clear or ambiguous. Thus, the impugned opinion is not found to be
vitiated on that count. Thus, the point of determination is answered in the
Page No.# 17/29
negative and against the petitioner.
First point of determination:
31. The first point of determination is as to whether on the ground
that the enquiry report of the Local Verification Officer was vague and not
properly filled up, the reference was vitiated, is taken up first.
32. It is common knowledge that a culprit would ordinarily not admit
his guilt and similarly, it cannot be expected that an illegal foreigner/ migrant
would admit that he is a foreigner and would voluntarily disclose about his
address in Bangladesh. The Court cannot lose sight of the fact that the Election
Commission of India requisitions the serviced of various Government Servants
for enumeration and verification duties. The said officers are not trained in a
manner in which the police are trained for investigation. Therefore, when
Verification Officers put queries to the disputed voters, and those queries are
not answered and no supporting documents are produced by the suspect, the
Court cannot reject the enquiry report merely because no reply was given by
the suspect and no documents were produced by the suspected illegal migrant.
Under such circumstances, as per Section 9 of the Foreigners Act, 1946, the
burden of proof is on the suspected illegal migrant to prove that he is not a
foreigner but an Indian.
33. It may be mentioned herein that by virtue of the judgment and
order passed by the Supreme Court of India in the case of Sarbananda Sonowal
(supra), all the proceedings that were then pending before the erstwhile
IM(D)Ts, were transferred to the Foreigners Tribunal having jurisdiction. The
transferred reference was received by the jurisdictional Foreigners Tribunal- 5 th,
Barpeta, where it was registered as F.T Case No. 366/2015. Therefore, as
Page No.# 18/29
evident from the decision of the Supreme Court of India, in the case of
Sarbananda Sonowal (supra), the instant case was transferred from IM(D)T to
the Foreigners Tribunal, no further determination can be made by this Court
regarding making of and/or registration of the reference.
34. The learned counsel for the petitioner has not been able to show
that the petitioner had made any attempt to establish before the learned
Foreigners Tribunal that the investigation was not proper. 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.
35. The said action by the Electoral Registration Officer is initiated
under the Representation of the People Act, 1950, after the draft electoral roll is
prepared and the Electoral Registration Officer has reasons to suspect that a
voter, whose name appears in the draft, is an illegal migrant and/or a foreigner.
36. Be that as it may, in the case of Shukurjan Nessa @ Sukurjan v
Union of India & Ors., W.P.(C) 245/2019, decided on 28.02.2025, the reference
by the Electoral Registration Officer has been dealt with. In the said case, the
issue relating to the 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 is 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
Page No.# 19/29three 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
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
Page No.# 20/29according 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
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
Page No.# 21/29decision 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 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
Page No.# 22/29mentioned 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 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
Page No.# 23/29
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
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
Page No.# 24/29
(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.”
37. As stated hereinbefore, in this case, the petitioner did not take
any such plea in the written statement. As such a plea had not been raised
before the learned Tribunal, there was no occasion for the learned Tribunal to
provide any further material to the petitioner. In this case, the petitioner was
aware that she had failed to produce any material in support of her defence of
not being an illegal migrant/ foreigner when the enquiry was made. This is
evident from the fact that against column nos. 3 to 16 of Format-A, which is the
“Format for Verification Officer’s Report” dated 26.09.1997, the Verification
Officer has recorded a note stating that – “No documents produced.” The said
Annexure-A also has the signature and rubber stamp of the ” Gaonburah of
Charge No.8, Village- 2 No. Chasra and Digir Pathar”. The petitioner had
examined the said Gaonburah as DW-3, but he was not asked anything on the
“Format for Verification Officer’s Report”. Therefore, at this stage, when the
Court is exercising certiorari jurisdiction, it is only permissible to examine if the
opinion expressed by the learned Foreigners Tribunal is vitiated on account of
perversity. Without raising such plea before the learned Tribunal, the State
Page No.# 25/29
cannot be non-suited on such plea taken for the first time before this Court. If
one needs any authority on the point of the extent of power that can be
exercised under certiorari jurisdiction, the decision of the Supreme Court of
India in the case of Central Council for Research in Ayurvedic Sciences v.
Bikartan Das, 2023 INSC 733: (2023) 0 Supreme(SC) 763 , may be referred to.
Paragraph 77 thereof is quoted below:-
“77. The purpose of certiorari, as we understand, is only to confine the inferior
tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non-
exercise or the illegal assumption of it and not to correct errors of finding of fact or
interpretation of law committed by them in the exercise of powers vested in them
under the statute. The accepted rule is that where a Court has jurisdiction it has a
right to decide every question which crops up in the case and whether its decision
is correct or otherwise, it is bound to stand until reversed by a competent Court.
This Court in G. Veerappa Pillai v. Messrs Raman and Raman Ltd. Kumbakonam,
Tanjore District and Others, (1952) 1 SCC 334 observed:
“26. Such writs as are referred to in Article 226 are obviously intended to
enable the High Court to issue them in grave cases where the subordinate
tribunals or bodies or officers act wholly without jurisdiction, or in excess of
it, or in violation of the principles of natural justice, or refuse to exercise a
jurisdiction vested in them, or there is an error apparent on the face of the
record, and such act, omission, error, or excess has resulted in manifest
injustice. However extensive the jurisdiction may be, it seems to us that it is
not so wide or large as to enable the High Court to convert itself into a court
of appeal and examine for itself the correctness of the decision impugned
and decide what is the proper view to be taken or the order to be made.”
38. Thus, the said plea that the petitioner was not served with the
grounds of suspecting her to be a foreigner and that the verification form was
not properly filled-up are both repelled and rejected. The first point of
determination is accordingly, answered in the negative and against the
petitioner.
Third point of determination:
Page No.# 26/29
39. The third point of determination is as to whether in light of
Section 77 of the Evidence Act, 1872, the voter list was not required to be
proved, being public document is taken up now.
40. Section 77 of the Evidence Act, 1872, reads as follows:-
77. Proof of documents by production of certified copies.- Such
certified copies may be produced in proof of the contents of the public
documents or parts of the public documents of which they purport to
be copies.
41. Thus, the provision of Section 77 of the Evidence Act, 1872,
merely provides for the production of certified copies to prove the contents of a
public document. There is no quarrel with the said statutory provision. However,
by producing certified copies of the voter’s lists as Ext.A to Ext.D, it cannot be
held that the petitioner has been able to establish her link with the persons
whose names appear in those voter’s lists so as to establish her Indian
citizenship. It has been held by the Supreme Court of India in the case of LIC of
India v. Ram Pal Singh Bisen, (2010) 4 SCC 491: (2010) 0 Supreme(SC) 234 ,
that admission of a document in evidence does not amount to proof. In other
words, mere marking of a document as exhibit does not amount to dispensing
with its mode and manner of proof. The contents of the documents have to be
proved in accordance with law. The effect of Section 77 of the Evidence Act,
1872 is that if a proceedee relies on voter list, only a certified copy of such voter
list would be admissible and thus, filing of uncertified copy of the electoral roll
would not be admissible in evidence. The Supreme Court of India, in the case of
Appaiya v. Andimuthu @ Thengapandi, (2023) 0 Supreme(SC) 974: 2023 INSC
835, has held to the effect that “… As per Section 77 of the Evidence Act such
certified copies may be produced in proof of the contents of the public
Page No.# 27/29
document concerned.” It may be mentioned that the learned counsel for the
petitioner has not produced any authority in law to show that once a certified
copy of a public record is produced and marked as exhibit, the proof of contents
of the document is dispensed with. Thus, the reliance of the learned counsel on
Section 77 of the Evidence Act, 1872, in the context in which submissions were
made, appears to be somewhat misplaced.
42. Therefore, the third point of determination is answered in the
negative and against the petitioner by holding that the provision of Section 77
of the Evidence Act, 1872 only enables a proceedee to produce only a certified
copy of such voter list on which he/she relies, which would be admissible and
thus, filing of an uncertified copy of the electoral roll would not be admissible in
evidence, however, a mere production of certified copy of voter list would not
amount to dispensing with the proof of the contents of such certified copies.
Fourth point of determination:
43. The fourth point of determination is as to whether the impugned
opinion called for interference.
44. In Aziz Miya @ Md. Aziz Mia (supra) , it has been held that a
mere claim by a suspected person by referring to a voters’ list claiming a person
therein to be his father is not conclusive proof and that by doing so, it cannot be
said that the person has discharged the burden to prove that he is not a
foreigner. This is because there is also a further requirement to prove that the
person who is reflected in the voters’ list relied upon, is actually the father of
the person who makes the claim. The claim will have to be substantiated with
further material/materials acceptable in law. In this case, it does not appear that
the petitioner had discharged her part of the burden to show that she is the
Page No.# 28/29
daughter of the persons whose names appear in the exhibited voters list (Ext.A
to Ext.D) through any other supporting cogent and admissible evidence.
45. In light of the 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 in giving opportunity of hearing
to the petitioner. The petitioner has not been able to show that the learned
Tribunal had failed to consider any pleadings or evidence or had taken into
consideration any extraneous materials to render its opinion. This is not a case
where the learned Tribunal had refused to admit admissible evidence or that its
finding is de hors the evidence on record. 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. The relevant part of the order passed by the Supreme Court of India in
the case of Bikartan Das (supra) on the point of certiorari jurisdiction has been
quoted hereinbefore.
46. Thus, the opinion dated 12.07.2018, passed by the learned
Member, Foreigners Tribunal No. 4th, Barpeta, Assam, in. F.T. Case No 135/2017,
arising out of Ref. F.T. Case No. 1287(A) dated 09.07.98, thereby declaring the
petitioner, namely, Jahura Khatun, to be a foreigner, who had entered into
Assam on or after 25.03.1971, does not call for any interference in this writ
petition. Hence, this writ petition fails on all counts and the same is dismissed.
47. The consequences of the said opinion shall follow.
48. The parties are left to bear their own cost.
49. The Registry shall return back the Tribunal’s records along with a
copy of this order so that the said learned Tribunal would make it a part of the
Page No.# 29/29
record for future reference.
50. The learned standing counsel for FT and Border matters shall
send a downloaded copy of this order to the Home & Political (B) Department.
JUDGE. JUDGE.
Parimit Digitally signed
by Parimita Kalita
a Kalita
Date: 2026.04.24
06:10:27 -07'00'
Comparing Assistant