Page No.# 1/20 GAHC010003622019 2025:GAU-AS:2045 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/245/2019 SHUKURJAN NESSA @ SUKURJAN D/O. KASHEM ALI, W/O. MANUR UDDIN, VILL. SHOWPUR, P.O. SHOWPUR, P.S. KALGACHIA, DIST. BARPETA, ASSAM-781319. VERSUS THE UNION OF INDIA AND 5 ORS. REP. BY THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI- 110001. 2:THE ELECTION COMMISSIONER OF INDIA GOVT. OF INDIA NEW DELHI-110001. 3:THE STATE OF ASSAM REP. BY COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-781006. 4:THE STATE COORDINATOR NATIONAL REGISTER OF CITIZENS (NRC) BHANGAGARH GUWAHATI-05. 5:THE DY. COMMISSIONER Page No.# 2/20 BARPETA DIST. BARPETA ASSAM-781301. 6:THE SUPDT. OF POLICE (B) BARPETA DIST. BARPETA ASSAM-781301 Advocate for the Petitioner : MR H R A CHOUDHURY, MR. J M SOLAMAN,MR H ALI Advocate for the Respondent : ASSTT.S.G.I., SC, NRC,SC, ECI,SC, F.T BEFORE HON’BLE MR. JUSTICE KALYAN RAI SURANA HON’BLE MRS JUSTICE MALASRI NANDI Advocates for petitioner Mr. H.R.A. Choudhury, Senior Advocate, Mr. H. Ali, Mr. J.M. Soleman, Advocates. Advocates for respondent no.1 Mr. S.P. Choudhury. Advocates for respondent no.2 Mr. A.I. Ali. Advocates for respondent nos.3 & 6 Mr. J. Payeng, standing counsel. Advocates for respondent no.4 Mr. G. Sarma, standing counsel. Advocate for respondent no.5 Mr. P. Sarmah, Addl. Senior Govt. Advocate. Date of hearing 06.02.2025 Date of order 28/02/25 Page No.# 3/20 JUDGMENT AND ORDER (CAV) (K.R. Surana, J) Heard Mr. H. Ali, learned counsel for the petitioner. Also heard Mr. S.P. Choudhury, learned CGC for the Union of India, Mr. H. Kuli, learned counsel, appearing on behalf of Mr. A.I. Ali, learned counsel for the Election Commission of India; Mr. J. Payeng, learned standing counsel for FT matters; Mr. G. Sarma, learned standing counsel for N.R.C.; and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate. Challenge in this writ petition: 2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 06.10.2018, passed by the learned Member, Foreigners Tribunal 5th, Barpeta, in Case No. FT (5th) 586/2016 [arising out of Reference- IM(D)T Case No. 2073/A/98], thereby declaring the petitioner to be a foreigner, who has entered into Assam on or after 25.03.1971. Case of the petitioner before the Foreigners Tribunal: 3) In brief, the case of the petitioner is that as per the record received from the said learned Tribunal, upon service of notice, the petitioner had appeared before the learned Tribunal and she had filed her written statement and contested the proceeding. The petitioner had denied that she was a foreigner and claimed that her parents were Indian citizens. 4) In her written statement, the petitioner had stated her defence, which is in consonance with the statement made in her evidence-on-affidavit and accordingly, the contents of the written statement is not reproduced. Page No.# 4/20 5) The petitioner has examined herself as DW-1 and had exhibited the following documents, viz., (i) certified copy of voter list of 1966 (Ext.A); (ii) certified copy of voter list of 1970 (Ext.B); (iii) certified copy of voter list of 1997 (Ext.C); (iv) certified copy of voter list of 2010 (Ext.D); (v) Electoral Photo Identity Card (EPIC for short) of DW-2 (Ext.E); (vi) Gaonburah’s certificate (Ext.F); (vii) Gaonburah’s certificate (Ext.G); (viii) affidavit sworn by the petitioner to explain the discrepancy in the spelling of the name of DW-2 (Ext.H). 6) The petitioner’s projected brother, namely, Eusuf Ali was examined as DW-2, had re-exhibited the documents already exhibited as Ext.A to Ext.H. Submission by the learned counsel for the petitioner: 7) The learned counsel for the petitioner has submitted that the learned Tribunal had not considered the documentary evidence of the petitioner in its proper perspective and arrived at a wrong conclusion for which the impugned opinion was not sustainable on facts and in law. 8) It was submitted that the LVO report did not contain anything to show that the petitioner was a foreigner and therefore, the investigation carried out against the petitioner was not fair. Accordingly, it was submitted that the petitioner was not provided with the grounds to suspect her as a foreigner and thus, the proceeding against the petitioner was bad in law. In this regard, the learned counsel for the petitioner has cited the case of State of Assam & Ors. v. Moslem Mondal & Ors., 2013 (1) GLT 809, and Amina Khatun v. Union of India & Ors., 2022 (4) GLT 102. Page No.# 5/20 9) The relevant paragraph 6 and 7 of the case of Amina Khatun (supra) and paragraph 97 of the case of Moslem Mondal (supra), cited by the learned counsel for the petitioner are quoted below:- Amina Khatun (supra): 6. In the ERO's report which is based on the LVO's report, some doubt has been expressed about the citizenship of the aforesaid person. However, when we see the LVO's report, we have noticed that the entire format is blank except the name mentioned as Amina Khatun, W/o Ismail. As regards the various other particulars required to be filled up, there is nothing mentioned except the word 'Absent' on the top of the format. If the basis of the doubt on the citizenship of the person is based on LVO's report, we are of the view that since the LVO's report is devoid of any particular or any finding or for that matter any remark or observation, the said reference cannot be said to have been made after proper application of mind. 7. In Moslem Mondal (supra), the Full Bench of this Court had observed that fair investigation and fair trial is one of the basic fundamental rights of a person and it has been also observed that though investigation need not be detailed or an exhaustive one, keeping in view the nature of the proceeding of the before the Tribunal, the reference by the referral authority cannot be mechanical. The Referral Authority has to apply his mind on the materials collected by the Investigating Officer during his investigation and make the reference on being satisfied that there are grounds for materials for such reference. Referral Authority, however, need not pass a detail order recording his satisfaction and order agreeing with the investigation would suffice and the Referral Authority while making reference shall produce all the materials collected during the investigation before the Tribunal as the Tribunal prima is required facie to satisfy itself about the existence of the main grounds before issuing the notice to the proceedee as mentioned in para nos. 97 and 98 of the aforesaid decision. Moslem Mondal (supra): 97. Fair investigation and fair trial being the basic fundamental/human right of a person, which are concomitant to preservation of the fundamental right of a person under Article 21 of the Constitution, there has to be a fair and proper investigation by the investigating agency before making a reference to the Tribunal. In such investigation the attempt has to be made to find out the person against whom the investigation is made, so that the person concerned is given the opportunity to Page No.# 6/20 demonstrate at that stage itself that he is not a foreigner. In case the person concerned could not be found out in the village where he is reported to reside or in the place where he ordinarily resides or works for gain, the investigating agency has to record the same in presence of the village elder or the village headman or any respectable person of the locality, which in turn would ensure visit of the investigating officer to the place where such person ordinarily resides or reported to reside or works for gain and making of an effort to find him out for the purpose of giving him the opportunity to produce the documents etc., if any, to demonstrate that he is not a foreigner. The investigating officer, as far as practicable, shall also obtain the signature or thumb impression of the person against whom such investigation is initiated, after recording his statement, if any, provided he makes himself available for that purpose. There are also instances where the person against whom such investigation is initiated, changes his place of residence, may be in search of livelihood or may be to avoid detection. To ensure proper investigation and also having regard to integrity and sovereignty of the nation, once investigation relating to the nationality status of a person starts he must inform the investigating agency in writing about the change of residence, if any, thereafter. In case such person has failed to intimate the investigating agency in writing the subsequent change of his place of residence, the investigating agency has to mention the same in his report with his opinion relating to the status of such person on the basis of materials collected at the place where he earlier resided. That will ensure a fair investigation and submission of a proper report on such investigation to the authority. Needless to say, such investigation need not be a detailed or an exhaustive one keeping in view the nature of the proceeding before the Tribunal and the object sought to be achieved. Hence it need not be equaled with an investigation conducted in criminal cases. 10) Accordingly, it was prayed that the impugned opinion be set aside and in the event, the Court is not inclined to set aside the impugned opinion, then the alternative prayer is to remand the matter to the learned Tribunal for a fresh opinion. Submission by the learned standing counsel for FT matters: 11) Per contra, the learned standing counsel for the FT matters has made his submission in support of the impugned opinion. It was submitted that Page No.# 7/20 the case of Moslem Mondal (supra), cited by the learned counsel for the petitioner has no application in the present case as reference in this case was made on the strength of report of the Electoral Registration Officer (ERO for short) and not by the Local Verification Officer (LVO for short). In this regard, the case of Sayam Uddin v. Union of India & Ors., 2019 (4) GLT 456 as affirmed by the Division Bench in the case of Sayam Uddin v. Union of India & Ors., W.A. 170/2019, decided on 29.07.2019, were cited. Reasons and decision: 12) On the basis of the submissions made by the learned counsel for the petitioner, two following points of determination arise for decision in this case:- i. Whether the reference, which is based on LVO report, as forwarded by the ERO, wherein certain paragraphs/ columns were left un- filled, vitiates the proceedings before the Foreigners Tribunal? ii. Whether the impugned opinion is otherwise liable to be interfered with. 13) Carefully perused the materials available on record, including the records received from the learned Foreigners Tribunal and considered the submissions as well as the cases cited at the Bar. Point of determination no.(i): 14) The point raised by the learned counsel for the petitioner that the reference was blank and not properly filled up and therefore, the grounds of suspecting the petitioner to be a foreigner has not been furnished to her is taken up first. Page No.# 8/20 15) In this case, the reference was made by the Superintendent of Police (Border), Barpeta, on receipt of communication dated 16.03.1998, issued by the Electoral Registration Officer, 44 No. Jania L.A.C., which is accompanied with a three page Local Verification Report (Annexure-A) by one Sri Khagen Kalita, J.E. In the said LVO Report dated 17.10.1997, it has been mentioned at two places to the effect that no documents produced during field verification. 16) Therefore, this is not a case where any enquiry was made under the provisions of Foreigners Act, 1946 or Rules framed thereunder, where investigation is done under the authority of the Superintendent of Police (Border). The jurisdictional Superintendent of Police (Border) is the prescribed authority to make reference before the Illegal Migrants (Determination) Tribunal constituted under the erstwhile Illegal Migrants (Determination by Tribunals) Act, 1983 and Rules framed thereunder. 17) There is an important facet, which is contained in the judgment and order of this Court in the case of Sayam Uddin (supra), which must be referred to. We are in respectful agreement with the said judgment and therefore, paragraphs 11 to 22 thereof are quoted below:- 11. In the year 1997, Election Commission of India had undertaken an intensive revision of electoral rolls in the State of Assam as apprehensions were expressed from various quarters that the electoral rolls were infested with the names of foreigners/illegal migrants. In the course of this exercise citizenship status of as many as 3,13,046 persons whose names were in the draft voters lists were found to be doubtful and accordingly they were marked as doubtful “D” voters in the electoral rolls after local verification. 12. Legality of this exercise was challenged before this Court in HRA Choudhury Vs Election Commission of India, reported in 2002 (1) GLT 1. The challenge made was rejected by a Division Bench of this Court. In HRA Choudhury (supra) this Court examined the guidelines dated 17.07.1997 of the Election Page No.# 9/20 Commission of India laying down the procedure to carry out the exercise. 12.1. As per paragraph 3.8 of the guidelines the Electoral Registration Officer was required to consider the verification report received from the Local Verification Officer. If he was satisfied on such report and such other material/information as may be available about the eligibility of a person, he should allow his name to continue on the electoral roll. Where, however, he was not so satisfied and had reasonable doubt about the citizenship of any person, he was required to refer such doubtful cases to the competent authority under the then Illegal Migrants (Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946 as the case may be. For convenience of the Electoral Registration Officers, Election Commission devised proformas. 12.2. As per paragraph 3.9, after the case of a person was referred by the Electoral Registration Officer to the competent authority, he should wait for the decision of the relevant Tribunal in relation to that person and act according to such decision. 12.3. As per paragraph 3.10, where the relevant Tribunal decided that any such person was not a citizen of India, Electoral Registration Officer should proceed under Rule 21 A of the Registration of Electors Rolls, 1960 to have the name of such person deleted from the electoral roll before it was finally published. 12.4. This Court in HRA Choudhury (supra) held that such guidelines and decision of the Election Commission were in accordance with Article 324 of the Constitution of India besides conforming to the principles of natural justice. It was held that such guidelines cannot be held to be arbitrary or vitiated by mala fide or partiality. 13. At this stage, it may be mentioned that the Illegal Migrants (Determination by Tribunals) Act, 1983 is no longer in existence, the same having been declared unconstitutional by the Supreme Court in Sarbananda Sonowal Vs Union of India reported in (2005) 5 SCC 665. Therefore, in so far paragraph 3.8 of the guidelines dated 17.07.1997 is concerned, the reference would be under the Foreigners Act, 1946. 14. The above exercise was repeated in the year 2005 with the Election Commission of India again going for intensive revision of electoral rolls in the State of Assam taking 01.01.2005 as the qualifying date. In this connection, guidelines dated 17.06.2004 were issued by the Election Commission of India. Paragraph 2.2 of the guidelines dealt with “D” voters. It was mentioned that the guidelines issued in 1997 would be followed while dealing with such category of persons. Paragraph 8 dealt with verification by Electoral Registration Officers. It laid down the Page No.# 10/20 procedure while carrying out such verification including verification by Local Verification Officer. As per paragraph 8.6, Local Verification Officer would conduct the verification by making an on the spot visit and the person concerned could adduce any one or more of the documents mentioned therein in support of his claim as a citizen of India. After due verification, the Local Verification Officer was required to submit his report in the prescribed format. Under paragraph 8.8, Electoral Registration Officer on receipt of the verification report from the Local Verification Officer should consider the same. Where he was satisfied about the eligibility of a person, he should allow the name of such person to continue on the electoral roll but where he was not so satisfied and had reasonable doubt about the citizenship of any person he should refer such doubtful cases to the competent authority under the then Illegal Migrants (Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946 in a prepared format (Annexure-B to the guidelines dated 17.06.2004) to the competent authority for making reference to the Tribunal and await the decision of such Tribunal. 15. As pointed out by Mr. 15. As pointed out by Mr. Barua, in Mameja Khatun (supra) a Single Bench of this Court directed that “D” voters should not be allowed to cast their votes with the clarification that “D” voters would include persons whose names were included in the electoral rolls but their citizenship was doubted or disputed and also those whose cases were pending before the Foreigners Tribunals. This decision of the learned Single Bench was confirmed by the Division Bench in Writ Appeal No. 114/2011 (State Vs Mameja Khatun). By the judgment and order dated 13.10.2015, the Division Bench directed Election Commission of India and other authorities to implement the directions of the Single Bench in letter and spirit. 16. At this stage, it may also be mentioned that in WP(C) No. 274/2009 filed by Assam Public Works which is pending before the Supreme Court of India wherein NRC updation exercise in the State of Assam is being monitored by the Supreme Court of India, on 25.10.2013, Supreme Court clarified that as far as persons in the “D” list are concerned, undoubtedly they were doubtful voters and therefore their names could not be included unless the NRC is updated and unless the Foreigners Tribunals declared them to be Indian citizens. 17. The Foreigners Act, 1946 is an act to confer upon the Central Government certain powers in respect of foreigners. This Act provides for the exercise of certain powers by the Central Government in respect of the entry of foreigners into India; their presence in India and their departure therefrom. Section 2 (a) defines a “foreigner” to mean a person who is not a citizen of India. Section 3 confers power to the Central Government to make orders making provision either generally or with respect to all foreigners or with respect to any particular foreigner or any Page No.# 11/20 prescribed class or description of foreigners, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or their continued presence therein. 17.1. In exercise of the powers conferred by Section 3 of the Foreigners Act, 1946, Central Government made the Foreigners (Tribunals) Order, 1964. As per order 2 (1), the Central Government may by order refer the question as to whether a person is or is not a foreigner within the meaning of the Foreigners Act, 1946 to a Tribunal to be constituted for the purpose for its opinion. 18. Ministry of Home Affairs, Govt. of India had issued notification dated 19.04.1958 in exercise of powers conferred by Clause-(1) of Article 258 of the Constitution of India whereby the President with the consent of the State Government concerned entrusted to the Governments of each of the States mentioned therein including the State of Assam the functions of the Central Government in making orders of the nature specified in Section 3 of the Foreigners Act, 1946. Another notification dated 17.02.1976 was issued by the Government of India, Ministry of Home Affairs in the exercise of the powers conferred by Article 258 (1) of the Constitution entrusting the Superintendents of Police and Deputy Commissioners (In-charge of Police) under the Government of Assam the functions of the Central Government in making orders of the nature specified in Section 3 of the Foreigners Act, 1946 within their respective jurisdictions subject to the conditions mentioned therein which included the condition that exercise of such functions would be in respect of nationals of Bangladesh and that while exercising such functions, Superintendents of Police and Deputy Commissioners (In-charge of Police) shall comply with such general or special directions as the Government of Assam or the Central Government may issue from time to time. 19. Article 258 of the Constitution deals with power of the Union to confer powers etc on States in certain cases. Clause (1) of Article 258 starts with a non- obstante clause. It says that notwithstanding anything in the Constitution, President may with the consent of the Government of a State entrust either conditionally or unconditionally to that Government or to its officers, functions in relation to any matter to which the executive power of the Union extends. Clause (3) provides for making of payment by the Government of India to the State concerned such sum as may be agreed upon or in default of agreement through arbitration in respect of any extra-cost of administration incurred by the State in connection with the exercise of powers and duties of the Government of India conferred or imposed upon a State Government. 20. Thus, under the Central Government notifications dated 19.04.1958 and 17.02.1976, Government of Assam, Superintendents of Police and Deputy Page No.# 12/20 Commissioners (Incharge of Police) have been delegated the power to make reference to the Foreigners Tribunal under order 2 (1) of the Foreigners (Tribunals) Order, 1964 to seek opinion as to whether the proceedee is a foreigner or not within the meaning of the Foreigners Act, 1946. 21. Thus from the above, what transpires is that there are two categories of “D” voters:- (i). those who were marked as “D” voters in the electoral roll by the Electoral Registration Officer following enquiry by Local Verification Officer; and (ii). those whose references are pending before the Foreigners Tribunals. 22. In so far Electoral Registration Officer is concerned the exercise undertaken by him while marking a person as a “D” voter in the electoral roll is a quasi judicial exercise. If he holds the view after examining the enquiry report of the Local Verification Officer that the concerned person is not a citizen of India he is required to forward the case of that person to the competent authority i.e., the Superintendent of Police. If it is so forwarded by the Electoral Registration Officer, the jurisdictional Superintendent of Police has to make a reference to the competent Foreigners Tribunals under order 2(1) of the Foreigners (Tribunals) Order, 1964 based on the report received from the Electoral Registration Officer. Question of making further enquiry by the Superintendent of Police in such a case would not arise because enquiry has already been made by the Electoral Registration Officer by exercising quasi judicial powers and the Superintendent of Police cannot sit over such decision of the Electoral Registration Officer. He has to forward the same by making the reference to the competent Foreigners Tribunal for its opinion. 18) The said judgment by the learned Single Judge has stood affirmed by the virtue of judgment and order dated 29.07.2019, passed by the Division Bench of this Court in the case of Sayam Uddin v. The Union of India & Ors., W.A. 170/2019. 19) The learned counsel for the petitioner had cited the case of Moslem Mondal (supra) and Amina Khatun (supra) to support his contention that if LVO report is blank, the reference is vitiated. In this regard, it would be relevant to mention that as per the contents of para-10 of the case of Moslem Mondal (supra), the Superintendent of Police, Barpeta, suspecting the Page No.# 13/20 respondent therein as illegal migrant within the meaning of the Illegal Migrants (Determination by Tribunals) Act, 1983, made a reference under Section 8 (1) of the said Act read with Rule 9 (A) of the Rules framed thereunder and accordingly, Case No. 1311/2003 was registered before the IM(D)T, Barpeta and the said proceeding was subsequently transferred to the Foreigners Tribunal and registered as F.T. Case No. 243/2006. Therefore, in the said case, reference was not made by Electoral Registration Officer (EVO for short). Hence, the decision of Moslem Mondal (supra), being distinguishable on facts, is not found to help the petitioner in any manner. 20) However, in the case of Amina Khatun (supra), which was decided on 28.04.2022, the reference was made by the Superintendent of Police (Border), based on LVO by the ERO. But when the said writ petition was being heard and decided by a Coordinate Bench, it appears that the previous decision of the learned Single Judge of this Court in the case of Sayam Uddin v. The Union of India & Ors., 2019 (4) GLT 456, as affirmed by the Division Bench of this Court in the case of Sayam Uddin v. Union of India & Ors., W.A. 170/2019, decided on 29.07.2019, were not brought to the notice of this Court. Therefore, under such circumstances, the Court is of the considered opinion that under the well settled principles of stare decisis, the decision in the case of Amina Khatun (supra) would be per incurium. Accordingly, the decision rendered in the case of Amina Khatun (supra) will also not be of any help to the petitioner. 21) In the present case, the proceedings which were hitherto pending before the Illegal Migrants (Determination) Tribunals were transferred by the Supreme Court of India to the Foreigners Tribunal vide directions issued in the case of Sarbananda Sonowal (supra). The said fact has been stated in para-1 of Page No.# 14/20 the impugned opinion. Hence, this Court would refrain from making any observations on the LVO Report in this case because the Foreigners Tribunals would have no power or jurisdiction to remand the reference back to the Superintendent of Police (Border) for a fresh enquiry by the LVO/ERO. 22) Therefore, the challenge to the proceeding before the learned Foreigners Tribunal on the ground that certain paragraphs and/or columns of the Local Verification Officer’s (LVO) Report, as forwarded by the Electoral Registration Officer (ERO) were left blank, is held to be not maintainable on facts and in law morefully referred to hereinbefore. The point of determination no. (i) is answered accordingly. Point of determination no. (ii): 23) The other points urged by the learned counsel for the petitioner are now taken up for consideration. 24) On a perusal of the documents exhibited vide petitioner’s affidavit- in-opposition, it is seen as follows:- a. The voter list of 1966 (Ext.A) contains the following names, viz., Kashem Ali, Bakatan Nessa, Siddik Hesen and Omar Ali. In respect of those entries, in her evidence-on- affidavit, the petitioner has projected that Kashem Ali is her father; Bakatan Nessa is her mother; Siddik Hesen and Omar Ali were her uncle. These names appear at voter serial nos. 196 to 199, House no. 73, Part No. 89, Village- Udmari, under 51 No. Jania LAC. None of the entries in Ext.A were exhibited. b. The voter list of 1970 (Ext.B) contains the names of Bakatan Nessa, Siddik Hussen, Omar Ali, Isab Ali, Sorman Ali, Tarabhanu, Saker Ali, Page No.# 15/20 Rahina Khatun and Kadbhanu. In respect of those entries, in her evidence-on-affidavit, the petitioner had stated that her father had died before 1970 and she had only referred to the name of her projected mother; her three uncles, namely, Siddik Hussen, Omar Ali and Sorman Ali, and projected Isab Ali as her brother. In the said voter list, the said five names appear at serial nos. 220 to 224, House no. 73, Part no. 90 of Village- Udmari, under 51 No. Jania LAC. None of the entries in Ext.B were exhibited. c. The electoral roll of 1997 (Ext.C) contains the names of Eusuf Ali and Hasina Bhanu. In respect of the entries contained in Ext.C, the petitioner has stated that her mother had died before the year 1997 and that her brother’s name appeared in the said voter list at serial no. 504, House no. 176, Part no. 40, Village- Udmari, under 44 No. Jania LAC. None of the entries in Ext.C was exhibited. d. The electoral roll of 2010 (Ext.D) contains the names of Eusuf Ali, Hasina Bhanu, Hasen Ali and Shomela Khatun. In respect of the said entries, the petitioner has stated in her evidence-on-affidavit that her name and name of her projected son, Hasen Ali appear in the said voter list vide serial no. 667 and 669, House no. 176, Part no. 69, of Village- Udmari, under 44 No. Jania LAC. e. The EPIC (Ext.E), bearing serial no. HTN6941522 is in the name Yusuf Ali. In respect of the said exhibit, the petitioner has stated in her evidence-on- affidavit that her brother’s name appeared in the EPIC, at Village- Udmari, under 44 No. Jania LAC. Page No.# 16/20 f. The Gaonburah’s certificate dated 11/8/17 issued by one Habibar Rahman is Ext.F and another Gaonburah’s certificate dated 30/11/16, issued by the said Habibar Rahman is marked as Ext.G. The contents of the said two exhibits have not been proved by the petitioner or by the author of the said documents. However, in respect of the said Ext.F and Ext.G, the petitioner has stated in her evidence-on-affidavit as follows:- “11. That two certificates has been issued by local Gaonburah of Village- Showpur and Udmari, linking with my father, husband and a permanent resident of concern village. Exhibit-F & G is the Gaonburah Certificates.” g. An affidavit sworn by the petitioner before the Notary Public on 16.02.2018 was exhibited as Ext.H. By the said affidavit the petitioner has declared that the correct spelling of her brother’s name is Eusuf Ali, which is written as Isab Ali in the voter list of 1970 and that Eusuf Ali and Isab Ali are the name of same and one person. However, it may be stated that in paragraphs 12 and 13 of her evidence-on-affidavit, the petitioner has stated as follows:- “12. That the Linkage Certificate has been issued in my name by the Secretary of 63 No. Showpur Gaon Panchayat duly countersigned by B.D.O. Rupshi Development Block, Kalgachia. Exhibit-H is the Linkage Certificate. 13. That my brother’s actual and correct name spelling is Eusuf Ali but unfortunately my brother’s name spelling has been written as Isab Ali in place of Eusuf Ali in the voter list of 1970 at Village- Udmari under 51 No. Jania LAC. That Eusuf Ali and Isab Ali is the name of one and same person i.e. my brother’s name. Exhibit-I is the Name declaring Affidavit.” h. Thus, it is not the purported linkage certificate that has was exhibited by the petitioner as Ext.H, but the affidavit sworn by the petitioner has been marked as Ext.H in the record received from the learned Page No.# 17/20 Foreigners Tribunal. No document is found in the record of the Tribunal, which is marked as Ext.I. 25) Although in para-15 of the written statement of the petitioner and in para-12 of her evidence-on-affidavit, the petitioner has referred to the purported linkage certificate issued by the Secretary, 63 No. Showpur Gaon Panchayat, and the same is annexed in the writ petition as Annexure-C, but the records received from the learned Tribunal does not contain the said document. It may also be mentioned that as per the provisions of the Assam Panchayat Act, 1994, a Secretary of the Gaon Panchayat is not a government servant. Thus, notwithstanding that the certificate issued by the Secretary, 63 No. Showpur Gaon Panchayat (Annexure-C to writ petition) has not been exhibited, the said document was also not exhibited and proved by its author. 26) The Gaonburah and the Secretary, Gaon Panchayat are not the persons exempted from giving evidence to prove the document authored by them. Therefore, as neither the Gaonburah’s certificates (Ext.E and Ext.F) has been proved by its author nor the contents of the said documents were exhibited, the petitioner has failed to prove the her link to her projected parents, namely, Kashem Ali and Bakatan Nessa of Village- Udmari. 27) In the case of Narbada Devi Gupta v. Birendra Kr. Jaiswal & Ors., (2003) 8 SCC 745, the Supreme Court of India has held that the mere production and marking of a document in evidence is not enough, but its execution has to be proved by admissible evidence. It was also held that where documents are admitted by the signatories thereto and marked as exhibits, no further burden to lead additional evidence to prove the writing and its execution survives. In the present case in hand, the petitioner has not exhibited any of the Page No.# 18/20 entries in any exhibited documents, referred to in her evidence-on-affidavit as Ext.A to Ext.I. It is reiterated at the cost of repetition that in the Tribunal’s record, the exhibited documents are marked as Ext.A to Ext.H. The document referred to as Ext. H in the evidence-on-affidavit of the petitioner (DW-1), is not available in the record and instead, the document referred to as Ext.I in the petitioner’s evidence-on-affidavit is marked as Ext.H in the record. Even in the impugned opinion, the learned Member, Foreigners Tribunal has referred the affidavit of the petitioner as Ext.H. 28) Moreover, the Gaonburah’s certificate dated 11.08.2017 (Ext.F) issued by one Habibar Rahman and another Gaonburah’s certificate dated 30.11.2016 (Ext.G), issued by the said Habibar Rahman contains State Emblem i.e. Lion Pillar of Asoka, which he is not authorized to use and therefore, it is trite law that the said two certificates i.e. Ext.F and Ext.G have been rendered inadmissible in evidence. If one needs an authority on the point, the decision of this Court in the case of Afuja Begum @ Afruja Begum v. Union of India & Ors., W.P.(C) 7340/2016, decided on 19.04.2018, may be referred to. In the said decision, it has been held that a Gaonburah is not a person authorized to use State Emblem and it was further held that the use of State Emblem by an unauthorized user would make the document inadmissible in evidence. 29) In her evidence-on-affidavit as well as in her cross-examination on 16.02.2018, the petitioner has stated that she has one brother, namely, Eusuf Ali @ Isab Ali. The projected brother of the petitioner, namely, Eusuf Ali, who was examined as DW-2 has replied to the Court query on 10.08.2018 that they are 2 (two) brothers and 4 (four) sisters and he is the eldest and the petitioner is the Page No.# 19/20 youngest. Thus, due to such contradictory evidence of DW-2, the petitioner has failed to establish her link with her projected parents and her projected brother. Surprisingly, by an affidavit (Ext.H) sworn by the petitioner, she makes a statement that Eusuf Ali and Isab Ali are same and one person, but no such affidavit has been sworn by DW-2. 30) The voter list is not a document which can prove relationship of persons as father and daughter in the absence of any document as corroborative evidence. The electoral roll is available in public domain. Therefore, merely by producing an electoral roll of Kashem Ali, the petitioner, whose citizenship is doubtful, cannot establish herself to be the daughter of Kashem Ali, in the absence of her name in the electoral roll with her projected father. The petitioner claims that her father had died before 1970, but in her written statement, the petitioner has not pleaded about (a) date of death of her projected father, (b) date of her birth, (c) date of birth of her projected brother, namely, Eusuf Ali (DW-2) @ Isab Ali. If DW-2 was her brother, there was no need for the petitioner not to plead about the existence of 1 other brother and three other sisters. Thus, this is a case where the presumption can be drawn under Section 119, Illustration (g) of the Bharatiya Sakshya Adhiniyam, 2023 [section 114, Illustration (g) of erstwhile Evidence Act, 1872, since repealed] to the effect that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. 31) Therefore, in light of the discussions above, the Court is of the considered opinion that the impugned opinion rendered by the learned Member, Foreigners Tribunal 5th, Barpeta, in Case No. FT (5th) 586/2016 [arising out of Reference- IM(D)T Case No. 2073/A/98], thereby declaring the petitioner to be Page No.# 20/20 a foreigner, who has entered into Assam on or after 25.03.1971 is sustainable on facts and in law. The said learned Tribunal is not found to have misread or misconstrued any pleadings and evidence on record. The finding of the learned Tribunal is not found to be vitiated by any reason whatsoever and therefore, warrants no interference by the Court. The point of determination no. (ii) is answered accordingly. 32) Accordingly, the Court passes the following – O R D E R 33) In light of the discussions above, this writ petition fails and is dismissed. 34) The parties are left to bear their own cost. 35) The learned standing counsel for the FT matters shall send a downloaded copy of this order to the Superintendent of Police (Border), Barpeta. 36) The Registry shall send back the records back to the Foreigners Tribunal 5th, Barpeta along with a copy of this order to be made a part of the record of Case No. FT (5th) 586/2016 [arising out of Reference- IM(D)T Case No. 2073/A/98]. JUDGE JUDGE Comparing Assistant