Page No.# 1/15 GAHC010019182019 2025:GAU-AS:17549 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/1210/2019 SAMSUL HAQUE D/O.- LT. ABDUL KHALEQUE, A RESIDENT OF VILL- HABIDOLONI, P.O. ITAKHOLA, P.S.- SOOTEA, DIST- SONITPUR (NOW BIAWANATH) ASSAM. VERSUS THE UNION OF INDIA AND 6 ORS. REP. BY THE MINISTRY OF HOME AFFAIRS, GRIHA MANTRALAYA, NEW DELHI. 2:THE STATE OF ASSAM REP. BY THE SECRETARY TO THE GOVT. OF ASSAM HOME DEPTT. PIN- 781006 KAMRUP(M) ASSAM. 3:THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI PIN- 110001. 4:THE STATE CO-ORDINATOR OF NRC ASSAM BHANGAGARH GUWAHATI PIN- 781006. 5:THE DEPUTY COMMISSIONER SONITPUR Page No.# 2/15 DIST.- SONITPUR ASSAM PIN- 784001. 6:THE SUPERINTENDENT OF POLICE (BORDER) SONITPUR DIST.- SONITPUR ASSAM PIN- 784001. 7:THE MEMBER FOREIGNERS TRIBUNAL -(2) SONITPUR TEZPUR ASSAM. PIN- 784001 Advocate for the Petitioner : MR. S SAHU, MR. A K SAHU Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,MR J PAYENG,SC, NRC,MS. A VERMA,SC, ECI,MR. D BARUAH BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE YARENJUNGLA LONGKUMER ORDER Date : 10.12.2025 (K.R. Surana, J) Heard Mr. S. Sahu, learned counsel for the Petitioner. Also heard Mr. S.K. Medhi, learned CGC; Mr. J. Payeng, learned standing counsel for the FT and Border matters; Mr. A.I. Ali, learned standing counsel for the ECI; and Mr. H.K. Hazarika, learned Junior Govt. Advocate. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 23.10.2018, passed by learned Member, Foreigners’ Tribunal (Second), Sonitpur, Tezpur, in F.T. Case No.409/2012, arising out of S.P. Case No. 1195/03, thereby declaring the petitioner to be a foreigner post 25.03.1971 stream. Page No.# 3/15 3. Upon receipt of notice, the petitioner had appeared before the learned Tribunal and filed his written statement and took a defence that he was born on 28.09.1976 at Habidalani Gaon under Sootea Police Station. His father's name is Late Abdul Khalek @ Bhekuli and mother's name is Late Fatema @ Fatema Sikdari @ Fatema Ali, who were original residents of village Habidalani under Itakhola Post Office and Sootea Police Station under Mouza Nagsankar, District- Sonitpur, Assam and their names appeared in the Electoral Roll of 1971 and 1993 as a voter under Sootea L.A.C. His name appeared in the voter's list of 2013. He also projected that the marriage between his parents was solemnized in the year 1959, and in the year 1960 a court case was instituted against the parents of the petitioner and they were served with a summons from the Court of Sadar Sub-Divisional Magistrate, Tezpur requiring their attendance on 07.01.1960. The father of the petitioner possessed, purchased and possessed a land at village Habidalani, which is still under their possession and the petitioner has a voter I.D. card. 4. In support of his defence, the petitioner examined himself as DW-1 and had exhibited several documents, viz., (i) HSLC Admit Card (Ext.1), (ii) Certified copy of the Kabil Nama (Ext.2), (iii) Certified copy of the Voter List of 1971 (Ext.3), (iv) Certified copy of the Voter List of 1993 (Ext.4), (v) Certified copy of the Voter List of 2005 (Ext.5), (ivi) Certified copy of the Voter List of 2013 (Ext.6), (vii) Govt. Gaon Bura Certificate (Ext.7), (viii) Court summons (Ext.8), (ix) Certified copy of the draft Jamabandi (Ext.9), (x) Periodic Khiraj patta (Ext.10), (xi) Certified copy of the Jamabandi (Ext.11), (xii) Certified copy of the Jamabandi (Ext.12), (xiii) EPIC of Samsul Ali (Ext.13), 5. The petitioner had also examined his projected brother, namely Akon Page No.# 4/15 Ali, son of Abdul Khalek, as DW-2, who had filed his evidence-on-affidavit and thereafter, he was cross-examined on 05.06.2018. The said DW-2 had exhibited the following documents, viz., (i) Certified copy of the Voter List of 2005 of DW- 2 (Ext.14), (ii) EPIC of DW-2 (Ext.15), (iii) Certified copy of the Voter List of 2014 of DW-2 (Ext.16). 6. As per page 94 to 97 of Tribunal's records, the petitioner had also examined one Moidul Islam as DW-3, who was the Extra Writer in the Sub- Registrar's Office, who had produced the Kabin Nama Register for the year 1959 to 1960, which was proved as Ext.17 and the relevant entry no.87 was exhibited as Ext.17(1). The DW-3 was examined and cross-examined and discharged on 12.06.2018. 7. The petitioner had also examined one Horen Goyari as DW-4, who was the Revenue K.G. in the Office of the Deputy Commissioner, Biswanath. He had produced the original Draft Jamabandi Book (Ext.18), relevant entry [Ext.18(1)] Draft Jamabandi Book (Ext.9) and his signature as [Ext.9(1)]. This said witness was examined, cross-examined and discharged on 11.07.2018. 8. The petitioner had also examined one William Tapno, Senior Assistant in the Election Office, Tezpur, as DW-5. He appeared on 25.07.2018 and he was examined, cross-examined and discharged. He had produced the original records of voters list of 1971 (Ext.19), relevant entry of voter list of 1993 [Ext.19(1)], original records of voter list of 2005 [Ext.20 & 20(1)], original records of voter list of 2005 [Ext.21 & 21(1)], original records of voter list of 2013 [Ext.22 & 22(1)], original records of voter list of 2014 [Ext.23 & 23(1)], Authorization letter to DW-5 and signatures therein [Ext.24, 24(1) & 24(2)]. Page No.# 5/15 9. The learned Tribunal, upon appreciation of the documents available on record, discussed the evidence of DW-1, DW-2, DW-3 and DW-5, and rejected most of the exhibited documents. The admit card issued in the year 1993 (Ext.1) was discarded as it did not contain the seal and signature of the Controller of Examinations and as the same contained the logo of the Board of Secondary Education, it was held that the admit card was not a genuine document and therefore, not admissible in law. The Kabin Nama (Ext.2) was discarded after appreciating the evidence of DW-1, DW-2 and DW-3. The evidence of DW-1 was discarded because he did not mention that the said marriage was a registered one. The evidence of DW-2 was discarded as he did not know whether his parents were married or not. Ext.2, which is the Kabin Nama, was discarded as it did not contain the seal of the Government Qazi and in Ext.2, at sl. No. 2, the name of Abdul Khalek, son of Late Kalu Miya, was written. The DW-3, in his evidence, had stated that he had brought the original Register of Marriage (Ext.17) and relevant entry no.87 [Ext.17(1)] and wherein the name of the bridegroom is Abdul Khalek, son of Late Kalu Miya, and the name of bride is Musstt. Fatema Sikkdarini, daughter of Maulana Irfan Ali. In his cross-examination, DW-3 had admitted that in the Kabin Nama, the age of the bride and groom were not mentioned and there was no official seal and signature of the concerned authority, including the Government Qazi. Accordingly, the original Marriage Register was also discarded as being not admissible. 10. The voters’ lists were discarded on the ground that the DW-5 had admitted in his cross-examination that except for the 1993 Register of Voters List, other voters list did not contain official seal and signature of the concerned authority and were just xerox copies. He had admitted that he did not bring any Page No.# 6/15 identity card to give evidence on that day, and in some of the voters list recorded the name of father of Md. Khalek Ali as Kalo. In the Electoral Roll of 1993, the father of Abdul Khalek is mentioned as Kalu Sheikh. On comparison of the age of his parents and Ext.3, 4 and 5, the age of the parents were found contradictory. Moreover, in the voters list of 1971, the name of mother of the petitioner appeared as Fatema Ali, whereas her name appears as Fatema Khatun in 1993 and 2005. Having found discrepancy in the age of his parents, Ext 3, 4 and 5 were found contradictory and therefore, the same were rejected. Moreover, Ext.6, which is a certified copy of Electoral Roll of 2013, which contained the name of the petitioner, was rejected as the contents were not proved by calling for the originals. 11. The certificate issued by the Gaonbura (Ext.7) on 15.11.2017 was discarded as the Gaonbura had not stated in Ext.7 that he knows the O.P. since his birth or for how long O.P. is known to him. Accordingly, it was held that Ext.7 was not proved in accordance with law. The summons (Ext.8) was found to have not been filled up by the concerned office properly at that time. Accordingly, it was held that the summons was not proved in accordance with the Evidence Act, 1872. The land documents being Khiraj Patta (Ext.10), certified copy of the Jamabandi (Ext.11), certified copy of Jamabandi (Ext.12) were discarded primarily on the ground that DW-1, in his cross-examination, had stated that he did not submit the copy of Chita of the said land, and as per cross-examination of DW-2, he had admitted that his father had died about 25 years back and the learned Tribunal was surprised that despite the death of their father, neither the name of the petitioner nor his brother appeared in the Jamabandi in place of their father's name. However, the land documents being Ext.9 to Ext.12 were not discarded. The E.P.I.C. (Ext.13) was discarded but it Page No.# 7/15 was held that the same was not enough to prove linkage. The voters list of 2005 and 2014 (Ext.14 and Ext.16) which contained the name of DW-2 as a voter were discarded on the ground that DW-2 had admitted that he did not cast his vote for the last 10 years. Ext.15, which is the E.P.I.C. of DW-2, was discarded as it was not enough to prove linkage. Accordingly, it was held that Ext.14, Ext.15 and Ext.16 were not proved in accordance with the provisions of the Evidence Act. 12. The affidavits filed by the petitioner to explain the discrepancy in the names of his parents was discarded as the same was not an acceptable evidence. Accordingly, the learned Tribunal found the documents not trustworthy and accordingly, the petitioner was declared to be a foreigner post 25.03.1971 stream. 13. The learned counsel for the petitioner has submitted that on flimsy grounds, the documents were discarded despite the fact that the petitioner could prove that the existence of his parents was in the Country prior to 1960, and merely because of discrepancies in the age and the spelling of the name of his parents, the entire evidence was discarded. Accordingly, it is submitted that the impugned opinion is not sustainable and the same is liable to be set aside. Moreover, it was submitted that the inquiry which was carried out by the Inquiry Officer was not in accordance with the accepted principles of inquiry and accordingly, the petitioner was not provided with the grounds of suspecting him to be a foreigner. 14. Per contra, the learned standing counsel for the F.T. and Border Matters has seriously opposed the challenge to the impugned opinion and it has been submitted that the documents which were exhibited by the petitioner could not Page No.# 8/15 link him with his projected parents, more so when the evidence tendered by the witnesses was not trustworthy. Accordingly, it has been submitted that the EPIC of the petitioner and his projected brother rightly discarded as election photo identity card did not prove linkage of the petitioner with his projected father. It is submitted that the pleadings do not contained the material facts and it is too well settled that in cases where the citizenship is question and it is alleged that the petitioner is a foreigner of post 25.03.1971 stream having enter into the Country illegally without valid document and was suspected to be foreigner from specified territory who had entered into India after 25.03.1971, the burden of proof is lying with the petitioner under Section 9 of the Foreigners Act to prove that he is not a foreigner and a citizen of the Country. Accordingly, it is submitted that the impugned opinion is not sustainable either on facts or in law. 15. Examined the materials which are available in the writ petition and also perused the records of the learned Tribunal. Moreover, considered the submissions made by the learned counsel for the petitioner and the learned standing counsel for the F.T. and Border Matters. 16. It has to be mentioned that the Tribunal’s records that was sent to the Court on requisition, is one of the worst and clumsily maintained record. The document filed with the written statement and documents exhibited by the witnesses are not kept in seriatim. Moreover, no index of record was prepared while sending the record to this Court. 17. From the materials available on record, it appears that in the cross- examination of DW-1, the legality of the exhibited documents was not questioned. Rather, in the cross-examination, the petitioner as DW-1 confirmed that his father had casted vote in the year 1971 and 1993. He also confirmed Page No.# 9/15 that vide Ext.5 and 6 he had casted vote and he has confirmed that his father had received a summons (Ext.8) from the Court. However, he could not say that the summons was received for which case. The said Ext.8 could not have been discarded as it was not filled up properly. The Tribunal was not examining the legality of the document, but the question appears to be aimed to enable the petitioner to establish his link with his projected parents. 18. On being asked, the petitioner has explained that his mother's name was Fatema Begum, but before her marriage her name was Fatema Sikkdarini, and he had confirmed that he had given his HSLC examination in the year 1993. The same also appears in Ext.17(1). However, he has stated that the documents related to voting in 2013 and 2017 were not submitted before the Tribunal. However, for not producing those voters list, the other exhibited voters list could not have been disbelieved. 19. The DW-2, in his cross-examination, had stated that his parents were married in the year 1960. He had stated that he does not know if the marriage was solemnized in the procedure of the government or not. He had stated that the petitioner did not pass his HSLC. This part of evidence has been read by the learned Tribunal to mean that he does not know whether his parents were married. He had also stated that the petitioner was known as Samsul Haque and Samsul, and his mother is also known as Fatema Ali. 20. The Extra Writer in the Office of the Sub-Registrar, who was examined as DW-3, had brought the Kabin Nama Register of the year 1959-1960 (Ext.17) in original, and at sl. No. 87, there is an entry of Abdul Khalek, son of Late Kalu Miya, and Fatema Sikdarini, whose marriage was solemnized on 14.10.1959, where the Mohar was fixed at ₹201/-. He had exhibited the said Kabin Nama Page No.# 10/15 Register as Ext.17 and entry at sl. No. 87 as Ext.17/1, which was at page 83 of the register. In cross-examination, he had admitted that he was not present in the marriage and that the age of the bride and groom is not written there. He did not know the bride and the groom as he was not present at the time of marriage. He had stated that the register did not contain their seal and signature and it does not have the seal of the Government Qazi, and he did not know the signatures contained therein. This could not be fatal because DW-3 did not adduced evidence from his personal knowledge but he has appeared as a representative of the Registrar to produce original record. 21. The DW-4 had appeared on receipt of summons and he had produced the original draft Jamabandi Register of the concerned land measuring 2 Bigha, 2 Katha, 7 Lessa. The entries in the name of Abdul Khalek was made in the year 1972. He could identify the signature of the Mandal as D. Khound. He had exhibited the same as Ext.18 and he has also exhibited the certified copy of draft Jamabandi as Ext.9, which contained his signature as Ext.9/1, and he had exhibited the relevant page of the register as Ext.18/1. He had stated that he was working in the said office from 1985. He did not know what the land was originally. He had identified the name of the seller of the land to Abdul Khalek as Khudia Kamar. The said DW-4 had also appeared as official witness to produce original record. The learned Tribunal has not discussed the evidence of DW-4. 22. The DW-5 had brought the original records of voters list of 1971, 1993, 2005, 2013 and 2014 of 75 Sootea L.A.C. of village Habidalani Gaon, and identified the serial number as 93 of Md. Khalek Ali in the Voters List of 1971 and his entry of Fatema Ali, his mother. He had exhibited the original voters list Page No.# 11/15 Register as Ext.19 without seal and signature of the official. He had also exhibited the other voters list referred above as Ext.20, 21, 22 and 23. Moreover, he had also exhibited the Letter of Authorization given by the Election Officer, Prabir Kumar Dutta to appear with the register and he had exhibited his signature as Ext.24(1) and 24(2), which he could identify. He had confirmed that he had brought the original register of Ext.19 to Ext.23 as per the direction by the officer. In cross-examination, the said witness had stated that the register of the voters list did not contain the seal and signature in respect of the voters list of 1971, 2009 and 2013. However, the seal and signature was available in the Electoral Roll of 1993 and the voters list Register of 2014 contained the round seal, but there was no official signature. In response to the Court question, the said DW-5 had stated that in Ext.24, there was no official seal of the Election Officer, and in Ext.24, it does not contain entry of bringing the voters list Register, and he had confirmed that except for the voters list register of 1993, other voters list register does not contain seal and signature. When the signature of the Election Officer in Ext.24, being Ext.24(i) and Ext.24(ii) was not disputed, the authorization letter by the said authority could not have been disbelieved or discarded. Be that as it may, the learned Tribunal has not discussed Ext.17 to Ext.24 in the opinion. 23. On a perusal of the materials of the exhibited documents, it is seen that the petitioner had exhibited the certified copy of Electoral Roll of 1971, 1993, 2013 as Ext.3, 4 and 6. The learned Tribunal, after referring to Ext. 16, omitted to refer to the original Marriage Register (Ext.17), relevant entry of entry no. 87 [Ext.17(1)], Original Miyadi Jamabandi Register (Ext.18), the relevant entry [Ext.1(1)], the Original Voters List and the relevant entries which were marked as Ext.19, Ext.19(1), Ext.20, Ext.20(1), Ext.21, Ext.21(1), Ext.22, Page No.# 12/15 Ext.22(1), Ext.23, Ext.23(1) and the summons issued to the DW-5, namely, William Tapno from the Election Office, who had exhibited Ext.19 to Ext.24. 24. In this case, while exhibiting the notice (Ext.24), the petitioner had exhibited the signature of the Election Officer as Ext.24(1) and Ext.24(2). The fact that he had appeared and had exhibited Ext.19 to Ext.24 without any objection shows that the petitioner had taken steps to call for the concerned officer from the Election Office to prove the voters list. Be that as it may, notwithstanding that the originals have been called for and the entries were proved, the voters list, which were exhibited by the petitioner as DW-1, were also certified copies. Therefore, the petitioner, having taken steps to call for the original by issuance of summons. Had the learned Tribunal doubted that the copies produced were not from the original records, it would have been appropriate to send back the DW-5 to bring the original Register. Therefore, when the said Ext.19 to Ext.23 were exhibited without any objection with regard to the admissibility as well as mode of proof the said exhibits, even if the said copies were not accepted, there would be no ground to discard the certified copies of the Electoral Roll of the year 1971, 1993, 2005, 2013 and 2014, which were exhibited. 25. In any event, as there is no discussion in the impugned opinion with regard to the Ext.17 to Ext.24, or of the evidence of DW-4. Hence, the inevitable conclusion is to the effect that the learned Tribunal by omitting to make any discussion on Ext.17 to Ext.24 and evidence of DW-4, had vitiated the impugned opinion for non-consideration of the material evidence on record. 26. The learned Foreigners’ Tribunal, being a quasi-judicial authority to determine the citizenship of a person, is bound to consider all the evidence, Page No.# 13/15 which is available on record, including the exhibited documents and to discuss the same in the impugned opinion. 27. Insofar as the Kabin-nama is concerned, which was exhibited by DW-1 as Ext.2, and the original register was brought by the DW-3, it was incumbent on part of the said learned Tribunal to discuss the admissibility or otherwise in respect of the Kabin-nama (Ext.2) vis-à-vis the Original Marriage Register produced as Ext.17 and relevant entry No. 87 being exhibited as Ext.17/1. The discussion on both the exhibits is important and relevant because as per the evidence of DW-3, the Kabin-nama Register is of the year 1959 to 1960. A fact that it does not contain the seal of the Qazi, in the opinion of the Court, would not be fatal in view of the fact that the Original Marriage Register was brought from the custody of the concerned authority, who was having the custody of the said register and had maintained the register and it was produced from the proper custody. The said document, being more than 30 years old, has to be examined in light of Section 90 of the Evidence Act, 1872 corresponding to Section 92 of the BSA, 2023. The person who had produced the said Marriage Register was examined as DW-4. In this regard, it would be relevant to mention that at page 116 of the TCR of the learned Tribunal is a copy of the summons to the said DW-4, which is addressed to the Senior Sub-Registrar or his authorized representative and in the Nota Bene of the said summons, it has been mentioned that the addressee was required to bring the relevant records relating to registration of marriage between parties vide Kabin-nama no. 87 dated 14.10.1959, Register A-Volume 2 of 1959 for 1959-1960. Therefore, a mere fact that the representative of the Senior Sub-Registrar had brought the Marriage Register cannot be questioned as regards producing of the same and the cross-examination to the effect as to whether he had attended the marriage Page No.# 14/15 or not would not be a relevant fact. It is not expected that a person who is not the Registrar and least not there in the office in the year 1959 would have to see the marriage to prove entry in the official register. A fact that a proper authority had produced it, is enough to prove the entries as the petitioner has produced a copy of the Kabin-nama, which is he is having. 28. In the light of the discussions above, the impugned opinion dated 23.10.2018, passed by learned Member, Foreigners’ Tribunal (Second), Sonitpur, Tezpur, in F.T. Case No.409/2012, arising out of S.P. Case No. 1195/03 is found to be vitiated by non-consideration of exhibited documents in proper legal perspective and moreover, the non-consideration of the evidence of DW-4 and Ext.17 to Ext.24 has also vitiated the impugned opinion. The learned Tribunal has expressed its surprise regarding Ext.9 to Ext.12 because the name of DW-1 (petitioner) and his projected brother (DW-2) was not mutated on death of their projected father. Here, equally surprising in the fact that the learned Tribunal had neither accepted nor rejected the said exhibit nos. 9 to 12. 29. Therefore, this Court has no hesitation to set aside the impugned opinion dated 23.10.2018, passed by learned Member, Foreigners’ Tribunal (Second), Sonitpur, Tezpur, in F.T. Case No.409/2012, arising out of S.P. Case No. 1195/03. Resultantly, the matter is remanded back to the said learned Tribunal to pay a fresh opinion after re-considering all the DWs and exhibited documents, without being influenced with any observations made in this judgment and order. 30. The petitioner, who is represented by his learned counsel, is directed to appear before the learned Member, Foreigners’ Tribunal (Second), Sonitpur, Tezpur within 30.01.2026 and by producing a certified copy of this order, take Page No.# 15/15 such steps as the petitioner may be so advised. 31. In the event the petitioner does not appear within the time prescribed, it would be open for the learned Tribunal to treat the petitioner as absent on call and decide the matter in accordance with law. 32. The learned Tribunal is directed to properly maintain the record in appropriate manner. 33. Registry shall send back the records expeditiously to the concerned learned Tribunal. JUDGE JUDGE Comparing Assistant