Page No.# 1/11 GAHC010233622018 2025:GAU-AS:17470 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7447/2018 MUKLESH UDDIN @ MUKLESH ALI S/O- LT ABDUL MAZID, VILL- BHEHUGURI, P.O. SILPUKHURI, P.S. MIKIRBHETA, DIST- MORIGAON (ASSAM), PIN- 782123 VERSUS THE UNION OF INDIA AND 5 ORS. REP. BY THE MINISTRY OF HOME AFFAIRS,, NEW DELHI- 110001 2:THE STATE OF ASSAM REP. BY THE COMM. ANND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-6 3:THE DY. COMMISSIONER MORIGAON DIST- MORIGAON ASSAM 782105 4:THE SUPERINTENDENT OF POLICE (B) MORIGAON ASSAM 782105 5:ELECTION COMMISSION OF INDIA NEW DELHI- 110001 6:THE STATE COORDINATOR NATIONAL REGISTER OF CITIZEN (NRC) ASSAM Page No.# 2/11 PIN- 78103 Advocate for the Petitioner : MR H R A CHOUDHURY, MR. A MATIN,MRS H AHMED Advocate for the Respondent : ASSTT.S.G.I., SC, NRC,SC, ELECTION COMMISSION.,SC, F.T BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SHAMIMA JAHAN ORDER Date : 11.12.2025 (K.R. Surana, J) Heard Mr. A.M. Ahmed, learned counsel for the petitioner. Also heard Mr. S.P. Choudhury, learned CGC; Mr. A.I. Ali, learned standing counsel for the ECI; Mr. G. Sharma, 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 27.06.2018, passed by the learned Member, Foreigners’ Tribunal No. 3rd, Morigaon Assam, in Case No. F.T. 81/2015, arising out of Reference F.T. Case No. 100/2004, dated 20.09.2004, by which the petitioner was declared to a foreigner who has illegally entered into the Indian territory after 25.03.1971 and therefore, declared foreigner under Section 2(a) of the Foreigners Act, 1946. 3. The petitioner, on receipt of the notice of the proceedings appeared before the learned Tribunal, inter alia, the name of his deceased father was enlisted in voter’s of 1966 and 1970 of 84 No. Laharighat LAC in village- Behuguri, under Laharighat Police Station in the district of Nagaon. The name of the petitioner was enlisted in the voter’s of 1985 and 2005 under 84 No. Page No.# 3/11 Batadrava LAC of the same village and he also claimed that the father of the petitioner has landed property in village-Behuguri. Accordingly, it was submitted that the petitioner and father were not foreigners and did enter India after 25.03.1971 and are Indian Citizens. 4. In support of his evidence, the petitioner had examined himself as DW-1. He stated that one of the opposite parties in the proceedings was Abdul Mazid, his father, who had expired about 10 (ten) years back. It is stated that he did not attend school when his father casted vote in the year 1966 and 1970 and he had submitted land documents and he had casted his first vote in 1985 and thereafter, he is casting vote regularly. He had exhibited the voter’s list of 1966 of Abdul Mazid (Ext.A), Jamabandi Copy containing the name of the grandfather (Ext.B), Jamabandi Copy his projected father (Ext.C), Gaonpanchayat certificate (Ext.D) and Gaonburah certificate (Ext.E). In his cross-examination, he had stated that his father expired 10 (ten) days back and were born and brought up in Behuguri. He has 5 (five) brothers, namely, Muzibur, Azizul, Abdul Hasen, Abdul Kadir and Abul. His father hailed from Behuguri, his grandfather’s name is Abdul Rahman and his mother’s name is Jamena Khatun, who is alive and living with him. He has 3 (three) Paternal uncles, namely, Miason, Alison, … (illegible) and not reproduced in the certified copy. He has stated that Miason has one son Jakir Hussain and Alison has 3 (three) sons, namely, Gofur, Mannes, Kasrem were all settled in Behuguri. No further witnesses were examined. 5. The learned Tribunal, on appreciating the pleadings and evidence on record, took note of the evidence on record, stating that in Ext. A, the voter’s list of 1966, the name of the voter is A. Mozid, son of Rahman and there is no Page No.# 4/11 other voter’s list of A. Mozid, though he expired only 10 (ten) years back, it was observed that the name of Jamena Khatun, whom the petitioner named as his mother, did not surface anywhere. Similarly, his 5 (five) projected brother therefore, so as to establish relationship between the petitioner and his projected father whose name appears in the voter’s list of 1966. 6. It is noticed that while appreciating Ext. E, the learned Tribunal has committed a blunder. Although the document exhibited was Ext. E is a Gaonpanchayat certificate issued on 11.06.2015 certifying that Mokalesh Uddin, son of Abdul Majit, is an inhabitant of village-Bhehaguri, which is rendered inadmissible in view of usage of the State Emblem of Pillar of “Asoka”, but in paragraph no. 3 of the opinion Ext.E is referred to as Gaonburah certificate and in paragraph no. 4 (ii) Ext. E is referred to as school certificate. In paragraph no. 3 of the opinion Ext. D is referred to as Gaonpanchayat certificate whereas in the documents exhibited as Ext.D is an identity card issued by the Govt. Gaonburah; therefore, it appears that in paragraph no. 3 of the opinion, Ext. D and Ext. E are interchanged. 7. Be that as it may, as the contents of the Ext. D and Ext. E referred to the father of the petitioner as A. Majit in Ext. D and Abdul Majit in Ext. E, it was held that A. Mozid appearing in the 1966 voter’s list (Ext. A) is a totally different person. 8. In paragraph no. 4 (iii), the learned Tribunal is referred to 3 (three) documents marked as 1, 2 and 3 but the said documents having not been exhibited, this Court would not make any comment on the contents of the said documents, which are un-exhibited documents. The learned Tribunal observed as the petitioner could not establish that A. Mozid appearing in the Page No.# 5/11 voter’s list of 1966 is his own biological father, the land documents exhibited as Ext. D and Ext. C need not be discussed. More so as the land documents were not proved in accordance with law. However, on perusal of contents of Ext. B, which is the copy of the Jamabandi of the year 1930-31, the same contents the name of Rahman Sheikh, son of Halim. However, in his cross- examination, DW-1 had stated that the name of his grandfather is Abdul Rahman; therefore, the name Abdul Rahman does not match with the contents of Ext. D, where the name of the person in whose name is Rahman Sheikh. 9. Accordingly, the learned Tribunal held that the petitioner, namely, Md. Muklesh Ali @ Muklesuddin as well as his father Abdul Mazid @ A. Mojit as foreigners. 10. The learned counsel for the petitioner had submitted that the inquiry against the petitioner was ordered by the Superintendent of Police (Border), Morigaon vide memo dated 20.09.2004, suspecting the petitioner to be a foreign national who has entered into India after 01.01.1966. Accordingly, the Enquiry Officer, who was the In-Charge of Boribazar W.P. under M.B.T. Police Station, upon enquiry, reported that the petitioner has entered into India in 1966-71 stream. 11. Accordingly, by relying on the case of (i) Santosh Das v. Union of India & Ors., 2017 (2) GLT 1065, (ii) Sona Kha v. Union of India & Ors., W.P. (C) No. 1293/2021, decided by this Court on 24.03.2021, (iii) Golapi Begum v. Union of India & Ors., W.P.(C) No. 2434/2022, decided by this Court on 15.07.2021, and (iv) Sushil Mandal v. Union of India & Ors., W.P.(C) No. 87/2017, decided on 27.10.2021, it has been submitted that the Foreigners Page No.# 6/11 Tribunals get their jurisdiction on the basis of the reference and therefore, the reference could not have been answered by holding that the petitioner had illegally entered into India after 25.03.1971. 12. Per contra, the learned standing counsel for the FT, Border matters and NRC has submitted that this Court, in the case of Rukiya Begum Borbhuiya @ Rukia Begum v. Union of India & Ors., 2023 (4) GLT 1208: (2023) 0 Supreme(Gau) 568, after discussing the case of Santosh Das (supra), had held that the reference before the Foreigners Tribunal could only be under Order 2(1) of the Foreigners (Tribunals) Order, 1964 and Section 2(a) of the Foreigners Act, 1946. 13. In the case of Santosh Das (supra), the reference was that the petitioner had entered into India illegally during the period from 01.01.1966 to 24.03.1971. Accordingly, it was held that Foreigners Tribunal would have to confine to the terms of the reference made to it and cannot go beyond the same. 14. In the case of Sona Kha (supra), the reference did not allege the petitioner therein to be an illegal migrant. Rather, the Enquiry Report was to the effect that the petitioner in the said case was not an illegal migrant and yet, the Superintendent of Police (Border), Baksa, had forwarded the case to the Foreigners Tribunal, Baksa, Tamulpur. Under such circumstances, this Court had held that the learned Tribunal would have to satisfy itself about the existence of grounds before proceeding to consider the case on merit about the citizenship. The case in hand is, thus, distinguishable. 15. In the case of Golapi Begum (supra), a valid reference can only be Page No.# 7/11 made when there is genuine doubt of dispute about the persons nationality and in the absence of such, the exercise is futile and beyond jurisdiction. It was held that since there was already a clear finding that the petitioner was not a foreigner and no dispute about his nationality, the reference to the Foreigners Tribunal was without jurisdiction and void ab initio . 16. In the case of Sushil Mandal (supra), reference to the Foreigners Tribunal can only be made when there is a doubt about the persons nationality or a specific finding by the enquiry officer that the person is suspected to be a foreigner, contrary to their claim of being Indian. It was held that the enquiry officer had already found that the petitioner was not a foreigner and had produced valid documents supporting his claim of Indian nationality. Therefore, no dispute or doubt existed that would warrant a reference to the Foreigners Tribunal. 17. In the case of Rukia Begum Barbhuiya (supra), the reference was made to the learned Tribunal for an opinion as to whether the OP was a foreigner. The LVO had given a report that the OP had produced valid documents. The learned Tribunal had returned the reference to the referral authority to make a fresh reference in the Tribunal after removing the defect. Consequently, a fresh reference was made. For not allowing the prayer for filing additional documents by the learned Tribunal, the petitioner had filed the writ petition. Under such factual matrix, this Court had discussed the law relating to the provisions of Order 2(1) of the Foreigners (Tribunals) Order, 1964; Section 2(a) of the Foreigners Act, 1946; Section 6-A of the Citizenship Act, 1955. 18. The relevant paragraphs 12, 13, and 18 of the case of Rukia Begum Page No.# 8/11 Barbhuiya (supra), as extracted from (2023) 0 Supreme(Gau) 568 are quoted below: “12. A reading of the provisions of Section 6 A makes it explicit that it is a special provision as to citizenship of persons covered by the Assam Accord and the core provisions of Section 6 A are that a person who may have entered the State of Assam from the specified territory prior to 01.01.1966 shall be deemed to be a citizen of India from the 1st day of January, 1966. The further provision is that such persons who entered the State of Assam from the specified territory after 01.01.1966, but before 25.03.1971 from the specified territory, and has been detected to be a foreigner, shall register himself with the Foreigners Registering Authority of the district concerned and upon having been registered shall be debarred of any voting rights for a period of ten years, but otherwise retaining all such other rights that a citizen of India may be bestowed with under the provisions and further that upon expiry of the period of ten years, even the voting rights would be restored back. In case of persons, who had entered the State of Assam from the specified territory on or after 25.03.1971, such persons are to be declared as foreigners.” “13. In view of the provisions of Section 6 A of the Citizenship Act 1955, Clause 2(1) of the Foreigners Tribunal Order 1964 would now have to be understood that once a reference is made, the reference would be whether the person concerned is or is not a foreigner, meaning thereby, whether the person concerned is a foreigner, who had entered the Staten of Assam from the specified territory on or after 25.03.1971 or he is a person who belongs to any of the other categories i.e., a person who entered the State of Assam from the specified territory before 01.01.1966 or between 01.01.1966 and 25.03.1971. No other meaning can be attributed to the reference under Clause 2(1) of the Foreigners Tribunal Order 1964 i.e. whether a person is or is not a foreigner within the meaning of the Foreigners Act 1946. We further take note that even if a reference is made by setting up a question whether the person had entered the State of Assam from the specified territory between 01.01.1966 and 25.03.1971, the reference would have to be understood to be a reference under Clause 2(1) of the Foreigners Tribunal Order 1964 i.e., as to whether he is a foreigner or not. If the reference is worded whether the person concerned, is a person who had entered the State of Assam from the specified territory between 01.01.1966 and 25.03.1971, in order to arrive at any such conclusion that the reference itself is faulty inasmuchas, the decision of the Tribunal upon the materials on record would be that the person concerned had entered the State of Assam from the specified territory on or after 25.03.1971, in such Page No.# 9/11 circumstance, the only situation that can be envisaged is that the Tribunal first arrives at a conclusion of its own that the person concerned had entered the State of Assam from the specified territory on or after 25.03.1971, meaning thereby that the reference itself had been answered by the Tribunal. After having answered the reference, it would be an inconceivable situation that merely because the reference is worded whether the person had entered the State of Assam from the specified territory between 01.01.1966 and 25.03.1971 it has to be referred back to the referral authority to make a fair reference now putting up a question whether the person concerned had entered the State of Assam on or after 25.03.1971. In such situation, as the matter would have to be referred back only after a final decision has been arrived at and now if the reference is again made with a corrected expression in the questions framed, the same may lead to further complications that the subsequent reference would be barred by the principles of resjudicatainasmuchasit would be a subsequent reference on the same issue between the same set of parties where an earlier decision had already been arrived at. It is noticed that in Falani Bibi (supra) the aforesaid aspect of the further implication of a corrected reference being again made had not been gone into and from such point of view, it can be said that the view taken therein would be per inquiriam of the further consequences of a fresh reference being made.” “18. In view of such answer, we are of the view that the subsequent order dated 12.03.2020 would have to be considered from another perspective. Although, technically the corrected reference would not be maintainable, but, however, even if the earlier decision arrived at that the petitioner is a person who had entered the State of Assam from the specified territory on or after 25.03.1971 is itself a final decision, but the petitioner also deserves an opportunity to assail such final decision on its own merit. If the petitioner is of the view that some further materials are also available and such materials may be produced in the form of an additional affidavit, it would always be in the interest of justice to give every opportunity to the petitioner to prove his citizenship. In view of the above and under the circumstance, we also interfere with the order dated 12.03.2020 of the Tribunal in Case No.F 4th/D/415/2015 and allow the petitioner to submit any further additional affidavit or any further materials that he may desire to prove his citizenship and in the event, the petitioner produces any such material, the Tribunal may pass its reasoned order as may be applicable.” 19. In the present case in hand, the Superintendent of Police (Border), had issued a direction for enquiry as to whether the petitioner was a foreigner who had entered into India after 01.01.1966. As per column 11 of the LVO Page No.# 10/11 report, the petitioner is staying in India after 1966 and as per remark made in column 18 the said LVO report, the remark is to the following effect: – “During enquiry it appeared to me in a prima facie manner that the suspect has entered into India in 1966-71 stream.” 20. Following the said LVO report, the Superintendent of Police (Border), Morigaon, in order dated 29.09.2004, referred the matter to the Tribunal at Nagaon in exercise of power under Section 8(1) of the erstwhile IM(D)T Act, 1983 for taking action to delete the name of the petitioner from electoral roll as per the provision of Foreigners (Tribunals) Order, 1964 [amendment 1985]. 21. Therefore, it is seen that the Superintendent of Police (Border), Morigaon had not expressed his disagreement with the LVO Report. Nonetheless, in view of the fact that the actual order of reference did not mention any stream, in light of the law laid down in the case of Rukia Begum Barbhuiya (supra), the answering of the reference by the learned Foreigners Tribunal cannot be faulted with because the reference though enquired on the basis of allegation that the petitioner was a foreigner of post 1966-71, but the order of reference did not refer to the petitioner entering into India between 01.01.1966 to 24.03.1971. 22. Be that as it may, the Court is of the considered opinion that as the enquiry by the LVO was whether the petitioner had entered into India after 01.01.1966 and as per the Enquiry Report of the LVO, the petitioner had entered into India between 01.01.1966 to 24.03.1971, the petitioner deserves one opportunity to prove his citizenship by producing any other or further material in form of additional evidence-on-affidavit before the learned Tribunal. Page No.# 11/11 23. In order to facilitate the same, the Court is inclined to set aside with the impugned opinion dated 27.06.2018, passed by the learned Member, Foreigners’ Tribunal No. 3rd, Morigaon, Assam, in case No. F.T. 81/2015, [arising out of Reference F.T. Case No. 100/2004, dated 20.09.2004]. Consequently, the matter is remanded back to the said learned Tribunal to give one opportunity to the petitioner to prove his citizenship by producing any other or further material in form of additional evidence-on-affidavit before the learned Tribunal. 24. The petitioner, namely, Muklesh Uddin @ Muklesh Ali, who is duly represented by his learned counsel, is directed to appear before the said learned Tribunal on or before 30.01.2026 and along with the certified copy of this order, present his additional evidence-on-affidavit and to exhibit any other document as may be so advised in support of his defence. 25. It is made clear that in the event the petitioner fails to appear and file his additional evidence-on-affidavit within the time allowed, it would be open to the said learned Tribunal to treat the petitioner as absent on call and answer the reference in accordance with law. 26. This writ petition stands allowed to the extent as indicated above, leaving the parties to bear their own cost. JUDGE JUDGE Comparing Assistant