Page No.# 1/8 GAHC010067682025 2025:GAU-AS:7077 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2545/2025 MD MOKBUL ALI S/O LATE MAHAMAD ALI, R/O VILLAGE JULAGAON, P.S. MORIGAON, DISTRICT MORIGAON, ASSAM VERSUS THE UNION OF INDIA AND ORS REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, SHASTRI BHAWAN, NEW DELHI 2:THE ELECTION COMMISSION OF INDIA REP BY HE CHIEF ELECTION COMMISSIONER NIRVACHAN SADAN ASHOK ROAD NEW DELHI 110001 3:THE STATE OF ASSAM REP BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM DEPTT OF HOME DISPUR GUWAHATI 6 4:THE DISTRICT COMMISSIONER MORIGAON ASSAM 5:THE SUPERINTENDENT OF POLICE (B) MORIGAON ASSAM 6:THE OFFICER IN CHARGE MORIGAON ASSA Advocate for the Petitioner : MR S PAUL, MR. R ALI Advocate for the Respondent : GA, ASSAM, SC, ECI,DY.S.G.I.,SC, NRC,SC, F.T Page No.# 2/8 BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 28.05.2025 (K.R. Surana, J) Heard Mr. S. Paul, learned counsel for the petitioner. Also heard Mr. S.P. Choudhury, learned CGC; Mr. G. Sarma, learned standing counsel for the FT matters and NRC; Ms. P. Barua, learned standing counsel for the ECI; and Mr. P. Sarmah, learned Additional Senior Govt. Advocate for the State respondent. 2. At the outset, the learned counsel for the petitioner has submitted that pursuant to order dated 16.05.2025, the cause title of the writ petition, in respect of the respondent no.4 has been amended. 3. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned opinion dated 31.08.2021, passed by the learned Member, Foreigners’ Tribunal No.3rd, Morigaon in Case No. F.T. 24/2015, arising out of Reference F.T. Case No. 37/2005 dated 22.11.2005, by which the petitioner was declared as an illegal migrant who had entered into India (Assam) after 25.03.1971. 4. On perusal of the materials available on record, it is observed that on receipt of notice from the learned Tribunal, the petitioner has entered appearance and projected that he is the son of Mohmad Ali and resident of Kacharibori, and his mother is late Miyajan Bibi, who had expired about 10 (ten) years prior to the filing of the written statement. It is projected that the Page No.# 3/8 petitioner's father had casted his vote in 1966 from 84 No. Laharighat, LAC and he holds an Electoral Photo Identity Card (EPIC for short), and certificate by the concerned Gaonbura to assert that he is a citizen of India. It is also projected that the petitioner as well as his mother were proceeded against before the Foreigners' Tribunal. However, projecting that the petitioner and his mother were shown as husband and wife instead of son and mother. The petitioner deposed that his mother had expired 10 (ten) years back, and his grandfather was Rohman Sk. and has two paternal uncles, namely, Sultan and Romjan and he has 5 (five) brothers, namely, Abdul Ali (expired), Sobdar Ali, Hamed Ali, Motin and Asmot Ali. He also has 3 (three) sisters, namely, Jamila Begum, Jalekha Begum and Molika Begum. 5. It was also submitted that he is a voter from Jaluguti and has landed property. In support of his contention, the petitioner has exhibited the following documents, viz. (1) Gaonbura Certificate (Ext.A); (2) Gaonbura Certificate (Ext.B); (3) 1996 Voter list of parents of OP (Ext.C); (4) Birth certificate of OP-3 (Ext.D); and (5) Jamabandi copy of Hamed Ali (Ext.E). 6. The learned Tribunal, after appreciating the exhibited documents, discarded the Gaonbura certificate marked as Ext.A and Ext.B on the ground that those are supplementary documents, and their evidentiary value could be appreciated only if the primary documents were accepted for the purpose of determining the case. 7. Ext.C was the electoral roll of Mohmad Ali and Miyajan Bibi, who are the projected parents of the petitioner. The copy of jamabandi (Ext.E) was discarded as it was a post 1971 document. The electoral roll of 1997, (Ext.F and Ext.G) was not found to support the case of the petitioner as those two electoral Page No.# 4/8 rolls contained the name of a single voter and did not contain the names of the parents of the petitioner, who were projected to have died about 10-12 years back. Accordingly, except for the standalone voter list of 1966 (Ext.C), there was no document to link the petitioner with his projected parents. 8. The documents annexed to this writ petition reveals that while the petitioner examined himself as DW-1, he had examined one Hamed Ali as DW-2. It would be pertinent to quote the evidence of the DW-2, which includes the examination-in-chief and cross-examination: “I am here to adduce evidence on behalf of O.P. Mokbul Ali who is my elder brother O.P. Aijul is my nephew. I am born in Kochariburi under Laharighat P.S. My grandfather name is Rahman Sk. Mothers name is Miyazan Bibi but expired 10 years back. Parents casted vote from Kochariburi in 1906. Thereafter parents shifted to Jaluguti Julagaon. I bought landed property here in my name and all brothers are settled herein. Ext F 1997 voter list Hamed Ali. Ext G 1997 voter list of O.P. We are Indian Citizens by birth and not illegal migrants. We are six brothers – 1) Abdul Ali (Expired). 2) Sobdion Ali. 3) Mokbul Ali. 4) Hamed (Self) 5) Motin Ali. 6) Asmot Ai. We are all settled at Jaluguti. We shifted from Jaljuguti to kochariburi where we were all settled. Father expired since 20 yaers back. Mother expired 10 years back. I have 2 paternal uncles- Sultanm Ali and Romjan Ali but both of them expired. My paternal Uncles some are still settled at Kochariburi. Landed property of Kochariburi are sold off now. Grandfathers name is rahman Sk.. Sultan have 2 sons but cannot remember their name. Ramzan has 3 sons but I know name of 1 son- Rafikul Islam. I did not attend school.” 9. From the above, it appears that the stand of the projected brother of the petitioner contradicts the pleading and evidence of the petitioner on several aspects. While the petitioner claims that they are five brothers and three sisters, according to DW-2, they were six brothers, and no mention is made about the Page No.# 5/8 existence of any sisters. During cross-examination, DW-1 has stated that his father had died 9 years back. However, his brother, who has deposed as DW-2 claims that his father died 20 years back. While the petitioner has exhibited the jamabandi of DW-2 as Ext.E, DW-2 has stated in its cross-examination that landed property at Kochariburi were sold off. DW-2 does not remember the name of two sons of his own grandfather i.e. his own uncles, and does not know the name of two out of three sons of his uncle Ramzan. 10. Therefore, the petitioner is found to have failed in showing that his father, whose name appears in the voter list of 1966 (Ext.C), had existence in India at any point of time beyond the electoral roll of 1966 and prior to 25.03.1971. 11. Accordingly, the petitioner has failed to convince the Court that any case on merit is made out, even for issuance of notice. 12. The learned counsel for the petitioner has submitted that the petitioner has annexed the electoral roll of 1970, 1985, 1997, 2005, 2010 and 2015, by which it is projected that the petitioner would be able to satisfy the Court that he is a bona fide citizen of India. In this connection, the Court would refer to the decision of the Supreme Court of India in the case of Central Council for Research in Ayurvedic Sciences & Anr. v. Bikartan Das & Ors., 2023 INSC 733: (2023) 0 Supreme (SC) 763, wherein the jurisdiction of the Court, while exercising certiorari jurisdiction is well laid. Paragraph no.55 thereof quoted below: 55. In Yakoob v. K.S. Radhakrishnan [Yakoob v. K.S. Radhakrishnan, 1963 SCC OnLine SC 24 : AIR 1964 SC 477] , P.B. Gajendragadkar, C.J., speaking for the Constitution Bench, placed the matter beyond any position of doubt by holding that a writ of certiorari can be issued for correcting errors of jurisdiction committed Page No.# 6/8 by inferior courts or tribunals. The observations of this Court in para 7 are worth taking note of : (SCC OnLine SC para 7) “7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised….” 13. In this case, the petitioner had made no attempt to exhibit or introduce any document other than what were exhibited as Ext.A to Ext.G before the Page No.# 7/8 learned Tribunal. The opinion of the learned Tribunal was rendered on 31.08.2021 and the petitioner, having slept over his right for more than 4 (four) years, has obtained a certified copy of the voter list from 1970 onwards only on 13.03.2025, after an unexplained delay of nearly 4 (four) years. Thus, the petitioner has accepted the opinion of the learned Tribunal for nearly 4 (four) years before making a belated challenge to the said opinion. 14. In order to explain the inordinate delay in approaching the Court, in paragraph-16 of the writ petition, it has been projected that pursuant to the opinion of 31.08.2021, the petitioner has been apprehended by the border police and he is presently lodged in Foreigners Detention Camp at Morigaon since 03.01.2025. It is also submitted that the petitioner is facing financial crunch and she is an uneducated lady. Such a statement discloses that the writ petition has not been presented with due care and diligence because the petitioner in this writ petition is a male and not a female. Be that as it may, the explanation by the petitioner for the delay of nearly 4 (four) years in approaching the Court to assail the impugned opinion does not inspire any confidence of the Court on the correctness of the statements made because the statement about petitioner suffering from financial crunch is very vague. 15. The Court is conscious of the fact that the petitioner is agitating to protect his legal and constitutional rights by projecting that he is a citizen of India. However, the petitioner is found to have accepted the opinion rendered on 31.08.2021, without putting it to challenge for a long gap of nearly 4 (four) years. The petitioner has produced additional documents at this stage, which he did not produce before the learned Tribunal, though sufficient opportunity granted to file his written statement and evidence. It is not the pleaded case of Page No.# 8/8 the petitioner that he was not given adequate opportunity to make/ submit representation in the proceeding or to take steps to produce documents. Before the learned Tribunal, the petitioner was also represented by his learned counsel and it is not the pleaded case of the petitioner that proper leagal assistance has not received by him. 16. Therefore, in exercise of certiorari jurisdiction, the Court would not venture to look into the documents which were not produced by the petitioner before the learned Tribunal. 17. Accordingly, the Court does not find any merit in the writ petition. Moreover, the Court also does not find that the laches and delay in approaching the Court would entitle the petitioner to any relief in this writ petition. 18. Moreover, the documents exhibited before the learned Tribunal does not establish the link between the petitioner and his projected father at any point of time beyond the electoral roll of 1966 as there is no continuity of the existence of the parents of the petitioner in terms of continuous stay in the Country. 19. Accordingly, the writ petition fails and the same is dismissed at the motion stage without issuance of notice on the respondents. JUDGE JUDGE Comparing Assistant