Gauhati High Court
Page No.# 1/13 vs The Union Of India And 7 Ors on 12 March, 2026
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/13
GAHC010291292019
2026:GAU-AS:3620
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/8824/2019
MD. ALI HUSSAIN @ MD. ALI HUSSAIN
S/O- LT ABDUL JABBAR, VILL- THANAGORA, P.S. MORIGAON, DIST-
MORIGAON, ASSAM
VERSUS
THE UNION OF INDIA AND 7 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NEW DELHI, 110001
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-06
3:THE ELECTION COMMISSION OF INDIA
NEW DELHI- 110001
4:THE STATE COORDINATOR
NRC ASSAM
ACHYUT PLAZA
BHANGAGARH
GHY-05
5:THE STANDING COUNSEL
SPECIAL FT AND BOARDER
ASSAM
6:THE DY. COMMISSIONER
MORIGAON
ASSAM- 782105
Page No.# 2/13
7:THE SUPERINTENDENT OF POLICE (B)
MORIGAON ASSAM- 782105
8:THE O/C
MORIGAON P.S.
MORIGAON- 78210
Advocate for the Petitioner : MR. J AHMED, MS A HUSSAIN,J N KHANDAKAR,MS A
HUSSAIN,MS G PARMAWI,MR. Z RAHMAN,MRS R BEGUM
Advocate for the Respondent : ASSTT.S.G.I., SC, ELECTION COMMISSION.,SC, NRC,SC, F.T
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
Date on which judgment is reserved: 18.02.2026
Date of pronouncement of judgment: 12.03.2026
Whether the pronouncement is of
the operative part of the judgment : N/A
Whether the full judgment has been
pronounced : Yes
JUDGMENT AND ORDER (CAV)
(S.P. Khaund, J)
The petitioner in this case is Md. Ali Hussain @ Md. Ali Hussain, who is aggrieved by the
opinion dated 29.04.2019 passed by the learned Member, Foreigners’ Tribunal Morigaon 3 rd in
Case No. F.T. (C) 259/2015 and Reference I.M. (D) T. Case No. 90/2002, declaring the
petitioner to be a foreigner, who entered into India (Assam) after 25.03.1971.
Page No.# 3/13
2. It is contended that the petitioner is an Indian citizen and his father Abdul Jabbar @
Jabbar was a permanent resident of Village – Goroimari, P.S. – Laharighat, Laharighat LAC,
District – Nagaon.
3. After 1984, the petitioner’s father shifted base to Thanagara Revenue village –
Charabari, Mouza – Dhadua, P.S. – Morigaon, which is a village adjacent to Khatarbari and
both the villages Charabari and Khatarbari, after demarcation falls under Charabari village.
4. It is submitted that the petitioner was born at village – Thanagara (Charabari) under
Morigaon Police Station. From the Voter ID issued by the Election Commission of India, the
petitioner’s address is recorded as Khatarbari Charabari, Morigaon.
5. It is submitted that the petitioner’s name figures in the voters’ list of 1997, 2005, 2010
and 2019 in the village – Khatarbari, P.S. – Morigaon in the district of Morigaon. The
petitioner’s mother’s name figures in the voters’ list of 1997 along with the petitioner. It is
submitted that after shifting, the petitioner’s father’s name appeared in the voters’ list of
1985 at village – Khatarbari. The petitioner’s father’s name was also enrolled in the voters’ list
of 1966 and 1970 but the petitioner could not exhibit the voters’ lists of 1985, 1993, 2005,
2010, 2019 and the elector photo identity card (EPIC for short)
6. The petitioner is highly aggrieved by the opinion of the learned Tribunal as, the learned
Tribunal held the petitioner to be a foreigner, despite the pleadings and evidence that he is an
Indian. It is contended that the learned Tribunal overlooked the fact that special provision has
been brought under Section 6 A of the Citizenship Act, 1955. As per the said provision, if a
person comes to Assam after 01.01.1966 but before 25.03.1971, he shall have to register
himself in accordance with the rule and if such person is registered from the date on which
he has been detected to be a foreigner and till the expiry period of 10 (ten) years from the
date, he shall have the same rights and obligation as a citizen of India except inclusion of his
name in the electoral roll.It is further submitted that the learned Member has thus committed
a serious error in declaring the petitioner to be a foreigner.
7. Per contra, the learned Standing Counsel Mr. G. Sarma for the FT, Border and NRC
matters, laid stress in his argument that the petitioner produced voters’ lists of different
Page No.# 4/13
villages. The petitioner never disclosed his mother’s case in the written statement and now,
through an additional affidavit the petitioner has introduced his mother’s case as his projected
mother Musstt. Hajera Khatun @ Hazara Khatun, whose case was pending since 2016 and
whose case was referred in the year 2002, has been declared to be an Indian citizen.
8. Heard Mr. J. Ahmed, learned counsel for the petitioner. Also heard Ms. A. Gayan, learned
CGC; Mr. A.I. Ali, learned Standing Counsel for the ECI; Mr. G. Sarma, learned Standing
Counsel for the FT, Border and NRC matters and Mr. P. Sarmah, learned Additional Senior
Government Advocate for State respondents.
9. The petitioner examined the following witnesses and exhibited the following documents.
DW-1 Ali Hussain (petitioner).
DW-2 Nur Jahan, wife.
DW-3 Ahsan Ullah (teacher).
Exhibits
Exhibit-A Gaonburah Certificate in the name of OP1 (petitioner).
Exhibit-B Gaonburah Certificate in the name of OP2 (petitioner's wife).
Exhibit-C Gaonburah Certificate in the name of OP2 (wife) for Manipur top.
Exhibit-D Voters' list of 1966 in the name of father and grandfather of OP1.
Exhibit-E Voters' list of 1970 with the name of father and grandfather of OP1.
Exhibit-F Voters' List of 1997 in the name of OP1.
Exhibit-G Voters' List of 1965 in the name of father of OP2 (Bhengu Sk).
Exhibit-H Jamabandi copy in the name of Bhengu Sk for the year 1967-68.
Exhibit-I Registered Sale Deed in the name of father of OP1.
Page No.# 5/13
Exhibit-J Annual Kheraj Patta of grandfather of OP1.
10. It is pertinent to mention at this juncture that DW-3 exhibited the documents as the
petitioner had stated in his evidence that he would not exhibit the documents as he did not
attend school.
11. I find force in the argument of the Learned Standing Counsel, Mr. G. Sharma, that the
written statement of the petitioner is vague. Through the written statement, the petitioner
stated that the Verification Report was not filled up on the spot by the L.V.O. The petitioner
denied that he is not an Indian citizen. The petitioner stated through the written statement
that the voter’s list of 1965 and 1970 reflects his father’s name and the petitioner’s name.
Another voter’s list of 1965 and 1970 reflects the name of his wife’s father. He however, did
not mention his father’s or his grandfather’s name but, he stated that the land records reveal
the names of his father and grandfather, and another land record reveals the name of his
wife’s father and grandfather.
12. Through his written statement, the petitioner had referred to the Gaonburha’s
certificate reflecting his and his wife’s names, as well as the voter’s list reflecting his and his
wife’s names, but a person cannot establish his citizenship by trying to link any document
with his wife. The petitioner’s evidence also does not reveal the names of his siblings or his
parents or grandparents. Only by exhibiting the documents, the petitioner had tried to project
that he is an Indian citizen. His evidence is a complete departure from his pleadings. He
indeed stated as DW1 that he was born and brought up at Thanagara and his father’s name
is Abdul Jabbar @Jabbar, whereas his wife’s name is Nurjahan Begum, who was arraigned as
OP No. 2 in the instant F.T. case No. 256/2012. Through his evidence, he further stated that
his father-in-law’s residence is at Manipurtup under Roha P.S. His father-in-law is Dengu Sk,
but in the document he is referred to as Bhengu Sk. He casted his vote in the year 1997, and
since then he has been casting his vote, as he is an Indian citizen. He further stated that he
would not exhibit theses documents as he never attended school.
13. In her evidence-in-chief, DW2 deposed that her parental home is at Manipurtup, and
her father’s actual name is Dengu Sk but in some documents his name appears as Bhengu
Page No.# 6/13
Sk. She further stated that her marriage was solemnized with the petitioner about 10 to 15
years ago and after her marriage she has been residing at Thanagara. She further stated that
she is an Indian national and not a foreigner. In her cross-examination the petitioner’s wife
deposed that she is the OP No. 2 in the instant FT Case No. 259/2015. Her father, Dengu Sk
expired around 12 years ago and her mother, Hazera Khatun is alive. She has four brothers,
Nur Hussain, Nur Islam, Saham Uddin and Akbar Ali, and all are residents of Manipurtup. Her
father did not have any brothers, and her grandfather’s name was Habab Ali Akond.
14. A neighbour, Asanullah, who also works as a teacher in a private school deposed as
DW3 that the petitioner and his wife are known to them as they are his neighbours. He
proved some documents as Exhibit-A, Exhibit-B, Exhibit-C, Exhibit-D, Exhibit-E, Exhibit-F,
Exhibit-G, Exhibit-H, Exhibit-I and Exhibit-J (which are also clearly described in the foregoing
discussions). In his cross-examination, he further stated that the petitioner and his wife are
not foreigners and they are Indian citizens.
15. It is apt to mention at this juncture that earlier this case against the petitioner was
registered as FT Case No. 256/2012 and this case was transferred from Foreigners Tribunal
2nd, Morigaon, to Foreigners Tribunal 3rd, and it was re-numbered as FT Case No. 259/2015.
Although notices were issued to two family members of the petitioner’s family, but in
compliance to the decision of this Court in Sudhir Kumar Roy and Ors vs. The State
of Assam, reported in 2019 (1) GLT 353 , the matter was adjudicated only against the
present petitioner, against whom the reference was initiated after preliminary investigation by
the Investigating Officer. To refute the charges that the petitioner is an illegal immigrant, he
exhibited two voters’ lists and the linking document was the Gaonburha’s certificate marked
as Exhibit A.
16. It was correctly held by the Tribunal that the certificate was only a supplement to the
documentary evidence and not a base document to determine the citizenship of the
petitioner, more so when the petitioner failed to produce the Gaonburha as a witness to prove
the certificate issued by him on the basis of contemporaneous records.
17. It has been held by this Court in Romila Khatun v. Union of India, reported in
Page No.# 7/13
2018 (4) GLT 373, that:-
“It is trite that documentary evidence would have to be proved on the basis of
the record and the contemporaneous record must substantiate and prove the
contents of the document. Proof of document is one thing and proof of contents
is another. Not only the document would have to be proved but its contents
would also have to be proved. That apart, the truthfulness of the contents of
the document would also have to be established from the record. A document
or the contents of the document cannot be proved on the basis of personal
knowledge. In so far Ext-F document vis-a-vis the petitioner is concerned. Nimai
Miah was a resident of Kukarpar village Petitioner after her marriage with
Saijuddin had left the said village and started residing at village Hirajani under
Hajo Police Station. When the petitioner got married and since when she had
been residing at village Hirajani has not come on evidence. When the petitioner
was not a resident of village Kukarpar on the date when the Gaonburah had
issued the certificate, Gaonburah could have issued the certificate only on the
basis of the record maintained in his office. We also do not know what
happened to Nimai Miah after his name appeared in one of the documents i.e.,
voters list of 1965 (Ext-C). Nimai Miah was 30 years of age in 1965 and in the
ordinary course. he would have been around much beyond 25.03.1971. From
the voters list of 1997 (Ext-A), we find that Ramila Bibi was 20 years of age.
This is the first time the age of the petitioner has come on record. If Ramila Bibi
was 20 years of age in 1997, she would have born in the year 1977, which
means that her father ought to have been alive atleast till 1976. Therefore, on
the basis of the testimony of Md. Ramesh Ali, as discussed above, it cannot be
said that Ext-F was proved. Besides, there is unauthorised use of the State
Emblem of India by the Gaoburah which has rendered Ext-F inadmissible in
evidence. Under the State Emblem of India (Regulation of Use) Rules, 2007,
Gaonburah is not authorised to use the State Emblem of India in any manner If
Ext-F is excluded from consideration, there is nothing on record to establish
that Ramila Bibi or Ramila Khatun was the daughter of Nimai Miah of Ext-C
(1965).
We notice that at that stage, petitioner had introduced Ext-G, an affidavit sworn
by the petitioner on 06.05.2016 stating that her father’s actual name was Nimai
Chan but in the documents, it was wrongly mentioned as Nimai Miah or Nimai
Sheikh. Nimai Chan, Nimai Miah and Nimai Sheikh was one and the same
person.”
Page No.# 8/13
18. In the isntant case, it can be safely held that the petitioner had failed to prove his
lineage with his parents and grandparents with the help of the Gaonburha’s certificate
marked as Exhibit-A. The Exhibit-D and Exhibit-E are the voters’ lists of 1966 and 1970
reflecting the names of the petitioner’s grandfather and father. As a ready reckoner, both the
voters’ lists are extracted herein below:-
Voter List- 1966
84 No. Laharighat, Assam Legislative Assembly constituency
Mouza: Laharighat Vill: Garoimari Centre No: 115
P.S:Laharighat
State: Assam, Dist: Nagaon, Part No.:
1 2 3 4 5 6
62 15 Ain Uddin S/o. Rejat Ali M 50
63 Aima Khatun W/o. Ain Uddin F 38
64 A : Jabbar S/o -do- M 21
Voter List- 1970
84 No. Laharighat, Assam Legislative Assembly Constituency
State: Assam, Centre No: 151 Mouza: Laharighat
Dist: Nagaon, Part No.: 40 Vill: Garoimari
Page No.# 9/13P.S: Laharighat Gaon Panchayat
Center Name: Dakshin Garoimari L.P. School
1 2 3 4 5 6
57 15 Ain Uddin S/o. Rejat Ali M 54
58 Aysha Khatun W/o. Ain Uddin F 42
59 A : Jabbar S/o -do- M 25
19. The voters lists of 1966 and 1970 depicts that Abdul Jabbar is the son of Ain Uddin. He
was 21 years old in 1966 and 25 years old in 1970. The voters lists are of Laharighat Mouza,
Goroimari village within the district of Nagaon. Both the voters’ lists clearly reflect the name
of Abdul Jabbar as son of Ain Uddin of village Goroimari. Now the voters’ list of 1997 reflects
the name of the petitioner as Ali Hussain, son of Jabbar and not Abdul Jabbar, and as a
resident of Mouza-Dhadua, Village-Khatarbari, Charabari (North) under the Morigaon district.
After a gap of 27 years, a voters list has been produced and the petitioner tried to link this
voters’ list with the Gaonburha’s certificate. Through this writ petition, the petitioner tried to
portray his continuous stay by stating that after 1984, the petitioner’s father shifted to
Thanagara Revenue Circle, Charabari, Mouza- Dhadua, Village- Khatarbari, Charabari (North)
under the Morigaon P.S.
20. The voters list of 1997 is re-produced herein below:-
Voter list- 1997
80 No. Morigaon Assam Legislative Assembly Constituency
State: Assam, Centre No: 28, Sub-Div: Morigaon
Page No.# 10/13Dist: Morigaon Part No: 28 Mouza: Dandua,
P.S. Morigaon Vill: 1) Khatarbori
2) Charbari (North),
Polling Station name: Khatarbori Primary School
1 2 3 4 5 6
924 19 Mosa : Hajera Lt. Jabbar M 45
925 ” Ali Hussain Jabbar F 19
21. No infirmity is discernible in the decision of the Tribunal that the petitioner failed to
prove his lineage with his parents and grandparents. The pleadings and the evidence of the
petitioner does not even mention that the petitioner’s mother is Mosa Hajera, whose name
appears at Serial No. 19 in the voters list of 1997 as wife of late Jabbar Hussain. The
petitioner was silent in his written statement as well as in his evidence relating to his date of
birth as well as the date when his father passed away. As per Section 6(A) of the Citizenship
Act, 1955, the petitioner has failed to prove his continuous stay in Assam as he failed to link
any document to his projected father and grandfather, whose name appears in the voters list
of 1966 and 1970. As linking documents, the registered sale deeds in the name of the
petitioner’s father was proved as Exhibit-I, by a third person, DW3, and the annual khiraj
patta in the name of the petitioner’s grandfather was proved as Exhibit-J.
22. It is also pertinent to mention that if Hajera Khatun was the petitioner’s mother, what
prevented him from disclosing her name in the written statement as well as in his evidence.
Page No.# 11/13
One cannot forget or ignore his mother’s name when one has to prove his citizenship when it
is claimed by the petitioner that his fundamental right has been violated as he has been
declared to be a foreign national.
23. It would be pertinent to reiterate that the written statement was vague. The petitioner
failed to mention even his parents’ name as well as grandparents’ name in his written
statement. To prove a case under the Foreigners Act, 1946, the petitioner has to put forward
all the evidence which is within his knowledge. The onus is cast upon the petitioner to prove
his case with the aid of cogent, reliable and admissible evidence. The petitioner much later,
through an additional-affidavit, introduced his mother as Hazera Khatun after his mother
Musstt. Hazera Khatun @Hazera Khatun was declared to be an Indian citizen vide order dated
28.03.2025, passed by the Tribunal in FT(C) No. 651/2016 reference IM(D)T Case No.
497/2002. This Court has held in Rashminara Begum Vs. The Union Of India,
reported in 2017 Supreme (GAU) 411, that:-
“Written statement is the basic statement of defence of a proceedee before the Foreigners
Tribunal. Keeping in mind the mandate of Section 9 of the Foreigners Act, 1946, it is
incumbent upon the proceedee to disclose at the first instance itself i.e., in his written
statement all relevant facts specially within his knowledge having a material bearing on his
claim to citizenship of India. Material facts pleaded in the written statement are thereafter
required to be proved by adducing cogent and reliable evidence. It is also trite that a party
cannot traverse beyond the pleadings made in the written statement.”
24. In the instant case as the petitioner submitted a very cryptic and vague written
statement, he has failed to discharge his onus as mandated under Section 9 of the foreigners
Act, 1946.
25. In the annual khiraj patta of 1970, the petitioner’s grand father’s name is reflected at
Sl. No. 7 as Ainat Uddin, son of Rezak. The grand father’s name also appears to be different.
Be that as it may, the petitioner had failed to produce any document linking him to his father
and grandfather, whose names are reflected in the voters list of 1966 and 1970, Exhibit-I,
sale deed and Exhibit-J, annual khiraj patta.
Page No.# 12/13
26. Exhibit-I reveals the address of the petitioner’s father, Abdul Jabbar as a resident of
Thanagara, Mouza- Dhadua, under Morigaon subdivision in the district of Nagaon.
The sale deed was registered in the year 1984. This sale deed reflects the name of the
petitioner’s father and grandfather, which was not helpful as a linking document. This sale
deed of 1984, the voters list of 1966 and the voters list of 1970 has not been linked by any
other document reflecting the petitioner’s name or the name of the petitioner’s mother or
siblings. The petitioner also failed to name his siblings. He produced documents relating to his
wife’s citizenship but he did not disclose the names of his siblings, mother or grandmother.
27. Apart from the petitioner’s failure to produce any linking document, the petitioner
exhibited certain documents without even mentioning the names of his mother and siblings
as well as the name of his grandmother in his written statement, as well as in his evidence.
The petitioner has thus failed to discharge his onus as mandated under Section 9 of the
Foreigners Act, 1946. The petitioner has failed to prove his case through cogent, reliable and
credible evidence.
28. In view of the foregoing discussions, it is thereby held that no infirmity could be
detected in the decision of the learned Tribunal.
29. The challenge to the impugned opinion fails and resultantly, this writ petition is
dismissed. Accordingly, the consequences of the impugned order dated 29.04.2019 passed by
the learned Member, Foreigners’ Tribunal, Morigaon 3 rd in Case No. F.T. (C) 259/2015 and
Reference I.M.(D)T. Case No. 90/2002, thereby holding the petitioner above-named as a
foreigner of post 25.03.1971 stream, shall follow. Bail order dated 11.05.2020 stands
vacated.
30. There shall be no order as to costs.
31. The Registry shall send back the Tribunal’s record along with a copy of this judgment
and order, to be made a part of the record by the learned Tribunal for future reference.
Page No.# 13/13
JUDGE JUDGE
Comparing Assistant