Page No.# 1/9 GAHC010306302019 2025:GAU-AS:9786 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/9286/2019 ABDUL BAREK @ ABDUL BARIK S/O. BAJAR ALI, VILL. BAGBMARA CHAR, P.S. ALOPOTI CHAR, DIST. BARPETA, ASSAM, PIN-781301. VERSUS THE UNION OF INDIA AND 5 ORS. REP. BY THE SECRETARY, GOVT. OF INDIA, DEPTT. OF HOME AFFAIRS, NEW DELHI-01, INDIA. 2:THE STATE OF ASSAM REP. BY THE SECRETARY TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY.-06. 3:THE SUPDT. OF POLICE (B) BARPETA P.O. AND DIST. BARPETA ASSAM PIN-781301. 4:THE DEPUTY COMMISSIONER BARPETA P.O. AND DIST. BARPETA ASSAM PIN-781301. 5:THE ELECTION COMMISSIONER OF INDIA Page No.# 2/9 NEW DELHI-01. 6:THE NRC CO-ORDINATOR NATIONAL REGISTER OF CITIZEN (NRC) ASSAM BHANGAGHAR GUWAHATI-05 Advocate for the Petitioner : MR K BHUYAN, MR N ISLAM Advocate for the Respondent : ASSTT.S.G.I., SC, NRC,SC, ECI,SC, NRC,SC, F.T BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA ORDER Date : 28.07.2025 (K.R. Surana, J) Heard Mr. N. Islam, learned counsel for the petitioner. Also heard Mr. M.R. Adhikari, learned CGC; Mr. M. Islam, learned counsel on behalf of Mr. A.I. Ali, learned standing counsel for the ECI; Mr. J. Payeng, learned standing counsel for the FT matters and NRC; and Mr. P. Sarmah, learned Additional Senior Govt. Advocate for respondent. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned opinion dated 10.01.2019, passed by the learned Member, Foreigner’s Tribunal No. 6th, Barpeta, in Case No. F.T. 569/2015, corresponding to R/Case No. 6483/98, by which the petitioner was declared to be an illegal migrant. 3. At the outset, learned counsel for the petitioner had prayed for an adjournment to file additional affidavit to bring on record additional documents. In order to challenge the opinion dated 10.01.2019, the present writ petition Page No.# 3/9 was filed on 09.12.2019. The documents which are sought to be introduced had not been exhibited before the learned Tribunal and moreover, copies of those documents have also not been produced today. Therefore, the prayer for adjournment is refused. 4. Upon receipt of notice of the proceedings, the petitioner had appeared before the learned Tribunal and he had filed written statement and had stated that the case is false and that the petitioner had adequate proof of being citizen of the Country. It was projected that the petitioner was born at Vill-Baghmara Char, Mouza- Baghbar, P.S.- Alopati Char in the district of Barpeta. His name of his parents are Bajar Ali and Ajiran Nessa, whose names were enrolled in the voter’s list of 1966, 1970, 1985 and 1997 and that the name of his brother namely, Sukur Ali was enrolled in the voter’s list of 1985, 1997 and 2010. 5. By filing his evidence-on-affidavit, the petitioner had reiterated the stand taken in the written statement and had exhibited the following documents 1. Ext A: is the certified copy of the E/Roll 1966. 2. Ext B: is the certified copy of the E/Roll 1970. 3. Ext C: is the certified copy of the E/Roll 1997. 4. Ext D: is the certified copy of the E/Roll 1997. 5. Ext E: is the certified copy of the E/Roll 2010. 6. Ext F: is the linkage certificate of village: 72 No. Baghmara Char G.P. 7. Ext G: is an Affidavit. 6. In his examination by the learned Tribunal, the petitioner, as DW-1, stated that he has not submitted any land documents before the learned Tribunal. 7. The petitioner had also examined his projected brother namely, Sukur Ali, as DW-2 and he had also reiterated the statement made by the petitioner in his evidence-on-affidavit. He had also exhibited the Elector Voter Identity Card Page No.# 4/9 as Ext. H as well as Certificate of the Gaonburah of village no. 1 Baghmara Char (Ext. I). 8. The petitioner has also examined one Fazal Hoque Chowdhury, the President of the 72 No. Baghmara Char Gaon Panchayat as DW-3 and he had exhibited his identity card as Ext. J and had stated that he knew the petitioner since his childhood as he was the neighbour and he knows his parents and that they have casted vote since 1966 and the petitioner has a elder brother namely, Sukur Ali and stated Ext. F was issued and he had exhibited his signature as Ext. F (1). In his cross-examination, the DW-3 had stated that he had not placed any relevant document before the learned Tribunal in respect of the relevant voter’s list of the parents of the petitioner, on the basis of which he had issued the certificate. He had stated that the father of the petitioner may have died 20 (twenty) years back and 12 (twelve) years ago his mother had expired and he stated that as per his knowledge the age of the petitioner was 59 (fifty nine) years. 9. The learned Tribunal, on further examination of the materials on record observed that in the written statement there was no specific pleading in regard in the lineage of the petitioner and he had only mentioned about the voter’s list of 1966, 1970, 1985 and 1997 containing his parents name and in his evidence, he had added name of his brother, namely, Sukur Ali whose name was enrolled in the voter’s list of 1985, 1997 and 2010. 10. It was observed that the petitioner had not pleaded about the grand- parents or other members of the family or where his parents were born and brought up, and how many siblings he had. Accordingly, it was held that the relevant facts were not pleaded by the petitioner. Page No.# 5/9 11. The learned Tribunal had discarded the certificate issued by the President of the No. 72 Baghmara Char Gaon Panchayat (Ext. F), as there was unauthorized use of the State Emblem in issuing of the said certificate which renders the document inadmissible and moreover, it was held that neither the issuer nor the President of the said Panchayat was examined. Moreover, it was held that the said certificate (Ext. F) was not issued by the following the directions of the Supreme Court of India made in the case of Rupajan Begum V. Union of India and Ors., (2018) 1 SCC 579. Resultantly, it was held that the Ext. F had no evidentiary value. Moreover, in respect of Ext. I, it was held that though the petitioner had filed Gaonburah’s certificate as Ext. I, neither the document nor its contents were prooved. Moreover, it was held that the issuing Gaonburah was also not examined. Accordingly, it was held that the petitioner had failed to establish his linkage with the persons whose names appeared in the voters’ list of 1966 and 1970. 12. In respect of evidence of DW-2, the learned Tribunal questioned the credibility of his evidence on the ground that in his evidence-on-affidavit, his age was declared to be 53 (fifty three) years as on 14.05.2018 and as such he was born in the year 1965 and that as per the Electoral Photo Identity Card (Ext. H), the petitioner was born in the year 1965. However, as per the voter’s list of 1997 (Ext. D), the DW-2 was 39 (thirty nine) years old as on 01.01.1997 and therefore, it was held that no plausible explanation about the age discrepancy. 13. The learned Tribunal also disbelieved the voter’s list of 1985 as in the year 1985 found to be 18 (eighteen) years but in the year 1985 lawful age of the voter was 21 (twenty one) years. Moreover, the voter list of 1985 was a photocopy and not a certified copy of the voter list and accordingly, the learned Page No.# 6/9 Tribunal disbelieved and doubted the identity of DW-2. 14. The learned Tribunal held that the Electoral Roll was not a proof of citizenship unless the claim is substantiated by cogent, reliable and relevant materials. Resultantly, it was held that the petitioner had failed to prove that he was a citizen of India Under Section 6-A of the Citizenship Act and resultantly, the reference was answered in affirmative in favour of the State, and the petitioner was declared to be a foreigner of post 25.03.1971 stream. 15. Even before this Court the status of the petitioner remains unchanged. The petitioner has shown no document whereby his name appears along with his parents. 16. The entries in the voter’s list of 1966, 1970, 1985 and 1997, in respect of his projected parents do not disclose the entire family but they disclose only the names of Bajar Ali and Ajiran Nessa. 17. In the written statement, the petitioner had not disclosed the names of other siblings accepted his brother Sukur Ali. However, the said name of Sukur Ali has not appeared along with the projected parents of the petitioner and his name appears in the voter’s list of 1997 (Ext. D). However, in his evidence-in- chief the said DW-2 has not stated that he lives separately from his projected parents. 18. Accordingly, the Court is inclined to accept the submission made by the learned counsel for the FT matters that Panchayat Certificate (Ext. I) is acceptable only in case of shifting of married women after marriage and that a Panchayat Certificate is not a proof of citizenship. In this regard, if any authority on the point is required, one may refer to the case of Monowara Bewa @ Monowara V. Union of India and Ors., WP(C) 2643/2016, decided on Page No.# 7/9 28.03.2017, wherein it was held that the Panchayat Certificate, issued on the basis of evidence placed before the Secretary of the Gaon Panchayat is contarary to the mandate of Assam Panchayat Act, 1994 and Citizenship (Registration of Citizens and Issue of National Identity Card) Rules, 2003 and that it goes against national interest. Moreover, in the said case it was also held that such a certificate would be a private document in which event the author should come and testify regarding the truthfulness of the contents of the said document. 19. Be that as it may, in view of the unauthorized use of the State Emblem of the Country i.e. Lion Pillar of Asoka, in the said document (Ext. F) renders the said document inadmissible in evidence. 20. Under such circumstance, in the evidence of DW-2, there is no cogent, reliable and relevant evidence that the petitioner is the son of the projected parents who have been legally and continously staying in the Country in terms of Section 6(3)(b) of the Citizenship Act, 1955. 21. In this writ petition, the petitioner has taken a plea regarding fundamental rights under Article 21 of the Constitution of India and has taken a stand that the petitioner has a right of fair investigation and fair hearing by the learned Tribunal. In the present case in hand, the petitioner is not able to produce linkage with the projected parents. Moreover, the petitioner and his learned counsel have not been able to demonstrate that the finding by the learned Tribunal is incorrect. 22. As per this writ petition which was filed on 09.12.2019, the petitioner was 52 (fifty two) years of age and therefore, the petitioner would have been born in the year 1957 and he would become eligible to vote after the year 1978. Page No.# 8/9 However, the petitioner has not exhibited any document with regard that he was a voter along with his projected parents and moreover, petitioner has even not stated about the death or year when his parents had expired. Therefore, none of the essential facts have been pleaded by the petitioner in his written statement or proved by the way of evidence-on-affidavit of DW-1, DW-2 and DW-3. 23. One of the pleas taken in this writ petition is that there was no fair investigation by the Enquiry Officer. In this regard, on perusal of the reference by the Superintendent of Police (Border), Barpeta, which is available in the records of the learned Tribunal, it is seen that in column 11 thereof, the said authority has made a mention that the Annexure- A and B of the report of the Electoral Registration Officer (ERO) are not complete in all respects and due to incomplete information it is not possible to furnish clear cut opinion as to the ground. In this regard it may be stated that, in this case, as per Annexure-B to the report of the Electoral Registration Officer (ERO) which is dated 20.11.1997, it has been mentioned that the Election Commission of India (ECI) had ordered intensive revision of Electoral Roll for the Baghbar Assembly Constituency in Assam with reference to 01.01.1997 as qualifying date. Pursuant to the report of the ALRO, reference was made by the Superintendent of Police (Border), Barpeta, and the Doubtful Case No. 6483/98 was registered against the petitioner. As per paragraph no. 1 of the impugned opinion, it has been mentioned that, pursuant to orders passed by the Supreme Court of India in the case of Sarbananda Sonowal V. Union of India (2005) 5 SCC 665, the I.M.(D).T Act and rules framed thereunder were declared to be ultravires and all the cases pending before the I.M.(D).T Tribunals were transferred before the Foreigners Tribunals. Under such circumstances the jurisdiction of the learned Foreigners Page No.# 9/9 Tribunal to adjudicate the reference and pass an opinion has happened by virtue of the orders passed by the Supreme Court of India and thereafter, the said issue cannot be examined by this Court. 24. As this Court is exercising certiorari jurisdiction, it would not be permissible for this Court to examine any documents that were not exhibited by the petitioner before the learned Tribunal, more so when no review petition was filed by the petitioner before the said learned Tribunal. 25. In this regard if anyone requires an authority on the point, the decision dated 03.03.2025, passed by the Supreme Court of India in SLP(Civil) Diary No. 41389/2024 in the case of Jalal Uddin V. Union of India and Ors., may be referred to Paragraph no. 7 thereof is quoted below: 7. Admittedly, no document was produced by the petitioner before the Tribunal to prove his Indian citizenship and as such, no new document could have been produced by him before the High Court, that too in a writ jurisdiction. 26. Accordingly, the Court does not find any merit in the writ petition and the same is dismissed. 27. There shall be no order as to cost. 28. The Registry shall send back the record to the Tribunal along with a copy of this order to be made a part of the record. JUDGE JUDGE Comparing Assistant