Page No.# 1/8 GAHC010181612019 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5622/2019 MD. JAKIR ALI S/O LATE RAKHMAT ALI @ RAKMAT ALI @ RAHMAT ALI, R/O VILL-NO. 1 KANDMARI, P.S.-MUKALMUA, DIST-NALBARI, ASSAM VERSUS THE UNION OF INDIA AND 5 ORS. TO BE REPRESENTED BY THE SECRETARY, GOVERNMENT OF INDIA, DEPARTMENT OF HOME AFFAIRS, NEW DELHI, INDIA 2:THE STATE OF ASSAM TO BE REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM DEPARTMENT OF HOME DISPUR GUWAHATI-6 3:THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOK ROAD NEW DELHI-110001 4:THE OFFICE OF THE STATE COORDINATOR OF NATIONAL REGISTRAR OF CITIZENSHIP (NRC) ASSAM 1ST FLOOR ACHYUT PLAZA G.S. ROAD BHANGAGARH GUWAHATI-5 DIST-KAMRUP(M) ASSAM Page No.# 2/8 PIN-781005 5:THE DEPUTY COMMISSIONER NALBARI DIST-NALBARI ASSAM 6:THE SUPERINTENDENT OF POLICE (B) NALBARI DIST-NALBARI ASSAM Advocate for the petitioner : Mr. N.A Mazarbhuiya Advocate for the respondent No.1 : Mr. B. Sarma, CGC Advocate for respondent No. 2 & 6 : Ms. A. Verma, SC Advocate for the respondent No. 4 : Mr. G. Sarma, SC Advocate for respondent No. 5 : Mr. P. Sarma, Govt. Adv. Advocate for the Respondent No.3 : Mr. N. Kalita, SC, ECI BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI HONOURABLE MR. JUSTICE PRANJAL DAS Date on which judgment is reserved : 15.05.2026 Date of pronouncement of judgment : 25.06.2026 Whether the pronouncement is of the : No. operative part of the judgment ? Whether the full judgment has been : Yes pronounced? JUDGMENT & ORDER (CAV) Date : 25-06-2026 (Pranjal Das, J)tra iptions Heard Mr. N.A Mazarbhuiya, learned counsel for the petitioner. Also heard Ms. A. Verma, learned Standing Counsel, Home Deptt., for the respondent Nos. 2 & 6; Mr. G. Sarma, learned Standing counsel, NRC for the respondent No. 4; Mr. N. Kalita, learned Standing Counsel, ECI for the respondent No. 3; Mr. B. Sarma, learned CGC for the respondent No.1 and Mr. P. Sarma, learned State Page No.# 3/8 counsel for the respondent No.5. 2. The petitioner, Md. Jakir Ali, has invoked the provisions of Article 226 of the Constitution of India to challenge the impugned judgment and opinion dated 09/05/2019 passed by the learned Member Foreigners Tribunal No. 2, Nalbari in FT(Nal-2) Case No. 45/2015 (arising out of FT Case No. 431 of 2007), further arising out of Memo No. PNB/B/5(B)2008/1067), dated 24/07/2008 - whereby the petitioner, as proceedee was declared to be a foreigner of post 25/03/1971 stream, having entered into India illegally after 25/03/1971. Thus, the reference was answered in favour of the State and against the petitioner as proceedee. 3. The facts in brief may be narrated herein below: Upon receiving the reference from the Superintendent of Police Border, Nalbari, the learned Tribunal issued notice to the petitioner whereupon he appeared and filed a written statement annexing certain documents. Subsequently, during the proceeding, the petitioner, as proceedee had adduced the evidence of two witnesses, being himself as DW-1 and one Gaon Bura as DW-2. He also exhibited five documents. However, upon perusing the evidence and exhibited documents adduced from the side of the petitioner, the learned Tribunal was unable to come to the finding that the petitioner is an Indian citizen and accordingly, returned the finding against him, holding that he is a foreign national and an illegal migrant post 25/03/1971 stream. 4. Aggrieved by the same, the instant writ petition has been filed. In the written statement filed by the petitioner as proceedee before the Tribunal, he stated that the reference proceeding is false and concocted and that he is an Indian citizen by birth, who was born and brought up at Village Pachim Bhanganmari under Mukalmua Police Station in the district of Nalbari, Assam. He further stated that after erosion of the village, the petitioner, along with his family members shifted to the village of No.1, Kandhbari. The petitioner stated that his father's name was recorded in the voters list of 1966 and that his father's name is Rahmat Ali, alias Rakmat Ali. He also stated about his father's name being recorded in the NRC of 1951 with regard to village Nadia under the jurisdiction of Nalbari Police Station in the district of Nalbari. The petitioner stated that his name figured in the voters list of 1997 under No. 60, Barkhetri, LAC of village Bhanganmari under Mukalmua Police Station. The petitioner reiterated in his written statement that he is an Indian citizen by birth and having landed property at his residential address. 5. In support of his case, the petitioner, as proceedee adduced evidence as DW1 in which he stated Page No.# 4/8 that his name is Jakir Ali and father's name is Rakmat Ali of No.1 Kandhmari village in the district under the jurisdiction of Mukalmua Police Station in the district of Nalbari. He stated that in the NRC of 1951, his father's name was mentioned at Sl. No. 5 of House No. 58 of village Nadia. He exhibited the said document as Exhibit 1. The petitioner further deposed that his father's name also figured in the voters list of 1966 of No.54, Chenga, LAC at Sl. No. 176 of village Nadia. He exhibited the document as Exhibit 2. He further stated that his name has been mentioned in the voters list of 1997 against No. 60 Barkhetri LAC at Sl. No 117. He exhibited the document as Exhibit 3. He also exhibited the voters list of 2014 as Exhibit 4, where his name is stated to have been recorded at Sl. No.108. However, he stated that in the voters list of 1997, his name was wrongly recorded as Jagir Ali instead of Jakir Ali. He also stated that in the voters list of 1966, his father's name has been recorded as Rahmat Ali though the actual name was Rakmat Ali. He stated that he was born in village Pachim Bhanganmari under the Police Station Mukalmua in the district of Nalbari. The petitioner also exhibited as Exhibit 5 an affidavit made by him stating that in the voters list of 1997, his name was wrongly recorded as Jagir Ali instead of Jakir Ali. He also stated that in the voters list of 1966, his father's name has been mentioned in the 58 No. Chenga LAC. As already mentioned, he exhibited as Exhibit 5 an affidavit in which he stated that in the voters list of 1997, his name was wrongly recorded as Jagir Ali instead of Jakir Ali. He also stated in the voters list of 1966, his father's name has been wrongly recorded as Rahmat Ali instead of Rakmat Ali. He stated that Jagir Ali and Jakir Ali are one and the same person as also Rahmat Ali and Rakmat Ali. In questions put by the Tribunal, DW1, the proceedee, stated that his father's name appeared as Rakmat Ali in the NRC of 1951, and his grandfather's name was Tafij Mistiri. He stated that Rakmat is his father and Tafij is his grandfather. He stated that he is residing in the present village for about 10/11 years and earlier, he was residing at village Bhanganmari, which is his birthplace. 6. One Khusnur Ali, (Gaon Bura) of village Kandhbar-1, 2, and 3, adduced evidence on behalf of the petitioner as DW2, in which he stated that he was appointed as in-charge Gaon Burah in place of late Jaynal Abdin, and that he had issued a certificate in the name of the petitioner. However, he did not exhibit any such document as part of his evidence. He stated that for the last 10 years, the petitioner has been residing at village No.1 Kandhbari, and that DW2 knew his father Rakmat Ali since long back, and that the petitioner is the son of Rakmat Ali. He stated that he also knew his father, who was earlier at Nadia. He also stated that he does not know the birth of the petitioner, and deposed that, in his view, the petitioner is an Indian person. In cross-examination, he stated that he had seen Rakmat Ali 25 years back, and he was aged about 40/45 years old. Page No.# 5/8 7. Mr. N.A Mazarbhuiya, the learned counsel for the petitioner, supporting the pleadings of the writ petition, submitted that the petitioner is an Indian citizen by birth, having been born and brought up in the aforementioned village. He stated that his father's name figured in the NRC way back in 1951 itself, and that Tafij Mistiri was his grandfather and Gendi Bibi, his grandmother. He also submitted that the petitioner's father figured in the voters' list of 1966, though his name was wrongly recorded as Rahmat Ali instead of Rakmat Ali. It is submitted by the learned counsel that, due to the minor discrepancy in name, the Tribunal ought not to have discarded the evidence of the petitioner and returned the finding that he was a foreign national. 8. In support of his contentions, the learned counsel for the petitioner cited the decision of Sirajul Hoque -Vs- State of Assam & Ors., reported in (2019) 5 SCC 534. 9. On the other hand, the learned Standing counsel for the respondents Nos. 2 & 4, Ms. A. Verma submits that the written statement does not contain relevant particulars such as shifting of the village, names of the siblings of the petitioner, and also his mother's name. It is submitted that the Gaon Bura has not proved the purported certificate as per the procedure. It is submitted that there are discrepancies in the name of his father and that the petitioner, as proceedee has not been able to discharge the burden under section 9 of the Foreigner's Act, 1946. 10. In support of her contentions, the learned counsel for the respondent Nos. 2 & 6 relied on the decision of Basiron Bibi -versus- Union of India & Others, reported in 2018(1) GLT 372 (para 30). 11. We have perused the pleadings of the writ petition, the evidence and documents, and other relevant materials available before the Tribunal to adjudicate within the ambit of certiorari jurisdiction as to whether the impugned opinion is sustainable in law and facts. 12. As part of this evidence, the petitioner has exhibited as Exhibit 1, the NRC of 1951, in which his projected father's name figured. However, the name mentioned therein is Rahmat Ali, who is stated to be the son of Tafij Mistiri. On the basis of this exhibited document, perhaps it can be held that the said Rakmat Ali, whose name figured in the NRC of 1951, was present in India at that time and he was an Indian citizen. 13. The next document exhibited by the petitioner was a voter's list of 1966, in which the said Rakmat Ali again figures at Sl. No. 176, along with Tafij Mistiri and Gendi Bibi, who are stated to be his parents and grandparents of the petitioner. Thus, on the basis of this document also, as the name of Rakmat Ali Page No.# 6/8 figures in the voter's list of 1966, prior to the cutoff date, he can be taken as a citizen of India. Thus, on the basis of Exhibits 1 and 2, the said Rakmat Ali can be taken to be an Indian citizen. 14. The petitioner projects the said Rakmat Ali as his father. It is well settled that under Section 9 of the Foreigner's Act 1946, the burden of proving that the proceedee is not a foreigner is upon him or her. Further, it is well settled by a catena of decisions of this Court and of the Hon’ble Supreme Court that to discharge that burden under Section 9, the proceedee has to show a linkage through documentary evidence with an ancestor who was an Indian citizen prior to the cutoff date of 1971. 15. So now it remains to be determined in this case as to whether the petitioner, as proceedee succeeded in proving this linkage through documentary evidence with his projected father. Exhibit 3 is the certified copy of the voter's list of 1997, where the name of the petitioner is stated to have figured. However, the name mentioned as the petitioner is Jagir rather than Jakir. Of course, in his testimony, the petitioner as DW1 stated that it was wrongly recorded as Jagir instead of Jakir. Another discrepancy is that the name of his father in Exhibit 3, the voter's list of 1997, is recorded as Rahmat instead of Rakmat. Here also, the DW1, the petitioner, stated in his deposition that his actual name of his father is Rakmat Ali rather than Rahmat Ali, as mentioned in the NRC of 1951 and the voter's list of 1966. 16. Another document exhibited is Exhibit 4, which is a voter's list of 2014, in which the name of the petitioner appears this time as Jakr, and his father's name is mentioned as Rakmat. It is stated that this time, the petitioner's name has been correctly recorded as also that of his father, unlike the purported mistake with regard to his name as Jakir in the voter's list of 1997. With regard to these discrepancies, the petitioner has filed an affidavit, which has been exhibited as Exhibit 5. However, in view of Section 3 of the Indian Evidence Act, stating that a sworn affidavit of declaration by itself would not be evidence within the meaning of the Indian Evidence Act - the learned Tribunal discarded Exhibit 5, and we are of the opinion that there is no error or infirmity in such an approach of the Tribunal in discarding Exhibit 5, the self-affidavit of the petitioner. 17. The learned Tribunal held that due to the discrepancies in the names of the father, the linked evidence cannot be taken to have been established with the Indian citizen ancestor of the petitioner. Except for the testimony of the petitioner in his deposition and his self-affidavit, Exhibit 5, which was rightly discarded by the learned Tribunal - there is no other exhibited documents during the proceeding to establish that Jagir and Jakir are one and the same person and that Rahmat Ali, mentioned in the voters' list of 1997 and 2014, is the same person as Rakmat Ali mentioned in the NRC of 1951, Exhibit Page No.# 7/8 1, and the voters' list of 1966, Exhibit 2. 18. We are of the opinion that the learned Tribunal was not incorrect in opining that it cannot be automatically held that the Rahmat Ali, figuring in 1951 NRC and voters' list of 1966 - is the Rahmat Ali figuring in the voters' list of 1997 and 2014. The projected Indian citizen ancestor of the petitioner with whom the vital documentary link has to be established is mentioned as Rahmat Ali on two occasions, spanning 1951 to 1966 and when the name of the petitioner appears in the voters' list of 1997 and in 2014, it is with Rahmat Ali, rather than with Rakmat Ali. Even if, for a moment, the discrepancy with regard to the name Jagir and Md. Jakir is overlooked for the moment - since the name is mentioned as Jakir along with Rahmat in the voters' list of 2014 - however, the discrepancy regarding the name of Rahmat Ali vis-a-vis Rakmat Ali remains and cannot be overlooked in our consideration. The inordinate period from 1966 to 1997 where there is no voters list remains unexplained and that period is most crucial which covers the cut off date. 19. Reliance upon the case of Sirajul Hoque (supra) will not come to the aid of the petitioner. In the said case, while the Hon’ble Supreme Court had laid down that minor discrepancy in the voters list may be ignored, the same is with a rider that all other things are to remain consistent. In that case, except a minor change in the name of the grandfather of the proceedee from Kematullah to Kefatullah, all other things were consistent. For ready reference, the relevant observations are extracted hereinbelow: “3. There is no doubt that the great grandfather`s name Amtullah appears as Amtullah throughout the document. Equally, there is no doubt about the father's name which appears as Hakim Ali throughout. The only discrepancy found is that in some of the documents Kefatullah later becomes Kematullah. However, what is important to note is that his father's name Amtullah continues as Amtullah and the other family members associated continued as such. Also produced are NRC Registration details of the year 1971 of the grandfather who is noted to be Kefatullah in this document. Other voters lists are then produced Page No.# 8/8 where the letter F becomes the letter M with other family names remaining the same. In fact, the appellant has himself produced a document of 1981 from the Income Tax Department giving his Permanent Account Number. Apart from these documents, certain other later documents have also been produced including photo identity cards issued by the Election Commission of India and identity cards issued to his brother including voters lists in which the appellant's name appears.” 20. Further, the decision in Basiron Bibi (supra) relied upon by the respondent’s side held inter-alia that once the voter list has been adduced in evidence by the petitioner - the petitioner cannot insist that only that portion of the voter list which goes in favour of the petitioner should be accepted and the portion against the petitioner should be overlooked. It was held that the documents should be appreciated as a whole. 21. Consequently, in the instant case and in the backdrop of the above discussion, we have no option but to come to the considered opinion that during the proceeding, the petitioner as proceedee was unable to discharge the burden under Section 9 of the Foreigner's Act 1946 and was unable to prove by cogent documentary evidence his linkage with his ancestor, who was an Indian citizen, prior to the cutoff date of 25/03/1971. 22. In such view of the matter, we hold that there is no infirmity in the opinion of the learned Tribunal dated 09/05/2019. The same is accordingly upheld and confirmed being order dated 09/05/2019 passed by the learned Member, Foreigners Tribunal No.2, Nalbari in F.T(Nal-2) Case No. 45/2015. 23. Consequently, the writ petition stands dismissed. Interim order, if any, stands vacated. 24. The records be sent back forthwith. JUDGE JUDGE Comparing Assistant