Page No.# 1/6 GAHC010130042017 2025:GAU-AS:13780-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3131/2017 STATE OF ASSAM and ANR. REP. BY THE COMMISSIONER AND SECRETARY, DEPARTMENT OF HOME AND POLITICAL GOVT. OF ASSAM, DISPUR, GUWAHATI -6. 2: UNION OF INDIA REP. BY THE SECRETARY MINISTRY OF HOME AFFAIRS NEW DELHI-1 VERSUS SULEMA KHATUN W/O MD. ABUL KALAM R/O KACHARIPAM P.S. TEZPUR, DIST. SONITPUR, ASSAM, PIN - 784001. Advocate for the Petitioner : SC, C G S C , MR.B N SARMA,ASSTT.S.G.I.,MR.S C KEYAL,SR GA,ASSAM,MR H K HAZARIKA (GA, ASSAM),MR. M I HUSSAIN (AMICUS CURIAE) Advocate for the Respondent : , ,,, BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 15.10.2025 (K.R. Surana, J) Heard Mr. G. Sharma, learned standing counsel for the FT and Border Page No.# 2/6 matters and Mr. H.K. Hazarika, learned Junior Govt. Advocate. Also heard Mr. M.I. Hussain, learned Amicus Curiae for the respondent. 2. The Court takes note of the fact that by order dated 29.05.2017, notice was issued on sole respondent and as per the order dated 06.06.2018, the notice was deemed to be duly served and by holding that the service is complete, Mr. M.I. Hussain, learned counsel was appointed as Amicus Curiae to assist the Court. 3. By filing this writ petition under Article 226 of the Constitution of India, the petitioners, being the State of Assam and Union of India, have assailed the impugned opinion dated 19.09.2016, passed by learned Member, Forigners Tribunal, Tezpur 1ST, Dist- Sonitpur, in F.T. Case No. 67/16, thereby declaring the respondent not to be a foreigner of post 25.03.1971 foreigner. 4. The learned counsel for the petitioners has submitted that there was no cogent or reliable evidence based on which the respondent was declared to be not a foreigner as the burden of proof lies on the respondent under Section 9 of the Foreigners Act, 1946. It is submitted that the learned Foreigners Tribunal had failed to discuss the materials on record and reliance was placed on the oral evidence to proof nationality. 5. Per contra, the learned Amicus Curiae has made his submission in support of the impugned opinion. It is submitted that there is specific finding by the learned Tribunal that in the report of the I.O. there is no mention about the address of the respondent in the Country of origin, meaning that thereby there is no mention which country the respondent had entered into India. Accordingly, it is submitted that the investigation was defective and the reference was made without a proper investigation. It is also submitted that the learned Tribunal had accepted the evidence of the respondent as well as her projected brother, who Page No.# 3/6 was examined as DW-2, to the effect that the parents of the respondent were present in the year 1966 for which the electoral roll of 1966 was proved as Ext. ‘A’. Accordingly, it is submitted that in the absence of any cross-examination to demolish the oral evidence of the respondent (DW-1) and her projected brother, namely, Md. Abdul Rashid (DW-2), the evidence of the respondent that she is the daughter of Late Ali Husen @ Ali Hussain whose name appeared in the electoral roll of 1966 from Vill-Paruwa, under 77 No. Tezpur LAC. Accordingly, it is submitted that the writ petition deserves to be dismissed. 6. Considered the submissions as well as perused the records of the Tribunal, it may be stated that respondent, in her written statement filed before the learned Tribunal, has stated that her father Late Ali Husen @ Ali Hussain was a citizen of India and a original resident of Vill-Poruwa in the district of Sonitpur. However, the respondent has not made a mention of the any other family members or even her grandparents or her mother, in her written statement except referring to name of Md. Abdul Rasid as her projected brother, whose name appeared in the electoral roll of 1997 from No. 73 Tezpur LAC from Vill-Bhitorsuti, Mouza-Bhairabpad, P.S-Tezpur in the district of Sonitpur. Moreover, it was stated that after death of the father her projected brother shifted residence to Vill-Garchinga Bihia Gaon, under P.S-Tezpur in the district of Sonitpur and had Electoral Photo Identity Card (EPIC for short) of Vill- Bhojkhuwa Chapori, Mouza-Mohabhairab under 73 No. Tezpur LAC and subsequently, she had shifted to Vill-Kacharipam, Mouza-Mohabhairab in the district of Sonitpur. However, the learned Tribunal mainly on the basis of the electoral roll of 1966 (Ext.’A’), held that the parents of the respondent were present in the year 1966 as resident and voters of Vill-Paruwa. In this regard it is seen that in her written statement the respondent has not disclosed the name Page No.# 4/6 of her mother and she had also not disclosed the name of her mother in her examination-in-chief. Therefore, the finding as regards the parents of the respondents being citizens of India is found to be beyond evidence led by the respondent as DW-1, as she has not introduced her mother in her written statement or in her evidence nor she had disclosed about the name of her grandparents. 7. Referring to the observations made by the Supreme Court of India in paragraph no. 26 of the case of Sarbananda Sonowal Vs. Union of India (2005) 1 SCC 174, this Court in the case of Hajarat Ali Vs. Union of India, WP(C) 7386/2017, has held that to establish citizenship, the proceedee must provide information regarding date of birth, place of birth, date of birth details of parents, details of grandparents to prove as a citizen of India. In this the said procedure was not followed by the respondent. 8. In the case of Md. Babul Islam Vs. Union of India, WP(C) 3547/2016, decided on 09.05.2018, this Court has held that Electoral Photo Identity Card (EPIC for short) is not a valid piece of evidence in absence of supporting evidence. In this case, there is no supporting evidence to link the DW-2, with her projected father. Therefore, ratio laid down in the case of Md. Babul Islam (supra), the entries made in the EPIC cannot be a valid piece of evidence to prove citizenship of the respondent. 9. Accordingly, the Court is inclined to hold that the oral evidence, in the absence of any cogent and reliable material, cannot establish link of the respondent with her projected father only on the basis of 1966 (Ext.’A’). 10. Accordingly, the Court is of the considered opinion that oral evidence of the DW-2 to say that the respondent was her sister, is not admissible in light of absence of any document to support the said contention. Page No.# 5/6 11. In this case, the admitted case of the respondent is that her father as well as she and her brother had shifted their residence. There is no document showing the entire family together and is also not shown that all the family members except the respondent being the married daughter were otherwise living together. Therefore, as stand alone entries made in the voter’s list of 1966, showing the presence of 2 (two) persons out of which only first person is claimed to be the projected father and the voter’s list of 1997 (Ext.’D’), showing the name of the DW-2, without his relationship to the second person named in the voter list being proved, in the opinion of the Court, cannot be a accepted as a proof of any link between the respondent and her projected brother or her projected father. The electoral roll of 1997 (Ext.’D’) also does not establish the relationship of the respondent with her projected father as the said electoral roll contains as many as 9 (nine) names. There is no pleadings or evidence as regards those 9 (nine) persons or regarding their relationship with the respondent. 12. In view of above, the Court is of the considered opinion that the impugned opinion dated 19.09.2016, passed by the learned Member, Forigners Tribunal, Tezpur 1ST, Dist- Sonitpur, in F.T. Case No. 67/16, is not sustainable. Accordingly, the said opinion is hereby set aside. 13. The matter is remanded back to the learned Forigners Tribunal, Tezpur 1ST , Sonitpur for rendering a fresh opinion after serving notice to the respondent to appear in the matter and also by giving reasonable time to file additional written statement and to give fresh evidence in support of her defence. 14. The said learned Tribunal is requested to make an attempt to dispose of the proceedings, as far as practicable, preferably within period of 4 (four) Page No.# 6/6 months from the date of receipt of records and appearance of the respondent. 15. We record our appreciation towards the assistance rendered by the learned Amicus Curiae who shall be entitled to honorarium from the Gauhati High Court Legal Services Committee. 16. Accordingly, the writ petition stands allowed and disposed of. JUDGE JUDGE Comparing Assistant