Page No.# 1/6 GAHC010038702025 2025:GAU-AS:2312- DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/1206/2025 KHUDEJA KHATUN @ KHUDEJA BEGUM @ KHADIJA KHATUN D/O-LATE KASIMUDDIN MIYA @ KASIMUDDIN @ KASIM (FATHER) AND LATE EATAN NESSA (MOTHER), W/O AHAMMAD ALI, VILL.-BARDANGA, P.O.- CHARCHARIA, MOUZA- RUPSHI, P.S.- KALGACHIA, DIST.-BARPETA, ASSAM, PIN-781319 VERSUS THE UNION OF INDIA AND 5 ORS. REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, NEW DELHI - 110001 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6 3:THE ELECTION COMMISSION OF INDIA NIRVACHAN BHAWAN ASHOK ROAD NEW DELHI- 110001 4:THE STATE CO-ORDINATOR NATIONAL REGISTER OF CITIZENS (NRC) ASSAM BHANGAGARH GUWAHATI-781005 5:THE DISTRICT COMMISSIONER Page No.# 2/6 BARPETA DIST.- BARPETA ASSAM PIN- 781301 6:THE SUPERINTENDENT OF POLICE (BORDER) BARPETA DIST- BARPETA ASSAM PIN- 78130 Advocate for the Petitioner : MR. S AHMED, T UDDIN,MR M RAHMAN Advocate for the Respondent : DY.S.G.I., SC, ECI,SC, NRC,SC, F.T,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 05.03.2025 (K.R. Surana, J) Heard Mr. S. Ahmed, learned counsel for the petitioner. Also heard Mr. D.J. Das, learned CGC; Mr. J. Payeng, learned standing counsel for the FT matters and NRC; Mr. M. Islam, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for the ECI; and Mr. P. Sarmah, learned Additional Senior Govt. Advocate for the State respondent. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Khudeja Khatun @ Khudeja Begum @ Khadija Khatun has belatedly assailed the impugned opinion dated 10.05.2022, passed by the learned Member, Foreigner Tribunal, Barpeta 11th, in Case No. (Bpt/11th) F.T. 1885/2017, arising out of P.E. No. IM(D)T Case No. 7551/B/98, thereby declaring the petitioner to be a foreigner. However, the stream to which the petitioner belongs is written in a cryptic manner, for which, it would be relevant Page No.# 3/6 to quote the paragraph nos.1-13 of the summary, opinion and order forming part of the impugned opinion: “SUMMARY 1. As per terms of the Reference, OP is the D/O Ahmed Ali and a r/o village- Bordanga, P.S-Sorbhog, District- Barpeta, which is the fact not admitted. 2. OP has claimed that, she is the D/O Kasimuddin Miya (S/O Jahar Ali) and Eatan Nessa and the W/O Ahammad Ali, not his daughter as was noted wrongly in the CR. 3. After due verification of the CR, OP's statement in her WS and the documents filed by her as Exhibits, I have ascertained that, OP is the W/O Ahmed Ali and not his daughter as mentioned in the CR, consequent upon which CR was amended to that effect under order dated 05-03-2020. 4. Be that, as it may, the OP had contested the Reference claiming herself to be the D/O Kasimuddin Miya and Eatan Nessa and as the W/O Ahmmad Ali (S/O Anar Hussain) of village- Bardanga under Kalgachia PS of Barpeta District. 5. From Exhibit 1, it appears that, OP's father, Kasimuddin Miya, mother Eyatan Nessa and their son (OP's brother) Abdul Khalek Miya came to Assam from the specified territory before the cutoff date and registered themselves as first time voters of Assam in the Voters' List of 1966 when they were 40, 31 and 22 years of ages respectively. 6. As per OP's narrative in Para 12 of her WS, her parent died about 50 years ago due to "Malaria"; whereas, as per her oral evidence recorded on oath on 05-03-2020 as DW-1, her parents died at village- Bardanga about 50 years back due to "Diarrhea” and therefore their names did not appear in the Voters' lists after 1966. 7. OP's narrative besides being contradictory, so far as the cause of her parents deaths is concerned, she did not convince me about it's truthfulness or the place of their death in Assam. 8. Under the circumstances of the facts stated in (6) and (7) above, I am constrained to opine that, OP could not prove the nationality of her parents u/s 6A (2) Citizenship Act 1955 (hereinafter called the Citizenship Act). 9. However, OP's brother, Abdul Khalek continued to appear in the Voters' Lists of 1970, 1989, 1997 and 1916 and also has appeared before me on 06-12-2021 as DW-3 and therefore he is a citizen of India u/s 6A (2) Citizenship Act. 10. Surprisingly OP did not even plead the presence of her other two brothers, Abdul Mazid and Eyad All and the sisters, Haliman Nessa and Surjya Bhanu in Assam leave alone pleading their Indian nationality to support her case, nor did she examine any of them as her witness other then Abdul Khalek 11. OP also did not plead/prove her presence in Assam prior to she came on record as a first time voter of Assam in 1989 when she was 32 years of age vide Exhibit-6 which is a post 25th March 1971 period document and therefore she is not a citizen of India Page No.# 4/6 u/s 6A (2) Citizenship Act. 12. As OP was 32 years of age in 1989 vide Exhibit-6, therefore she was born sometime in 1957, i.e. 9 years before her parents came on record in Assam in 1966 vide Exhibit-1 and therefore she might have not born in Assam/ India. 13. The evidence of the OP/DW-1 and that of her brother, Abdul Khalek/DW-3 is not supported with hard documentary evidence and therefore stand rejected. OPINION In my opinion, OP could not prove the nationality of her parents, Kasimuddin Miya and Eatan Nessa nor could she prove her birth in Assam/India or her presence in Assam from before 01-01-1966 residing as it's ordinary resident as envisaged u/s 6A (2) Citizenship Act requiring me to answer the Reference accordingly in the Affirmative. ORDER Reference has been answered in the Affirmative.” 3. Therefore, from the contents of the opinion as extracted hereinbefore, on a finding by the learned Tribunal that the petitioner could not prove her presence in Assam on or before 1966, it can be presumed that the presence of the petitioner in Assam is there post 01.01.1966. There is no specific finding that the petitioner is a foreigner of post 25.03.1971 stream. 4. Under such circumstances, the provision of section 6-A(3) of the Citizenship Act, 1955 would become applicable. 5. Resultantly, it was incumbent on part of the learned Member, Foreigners Tribunal, Barpeta 11th to also issue a direction to the petitioner to get herself registered in accordance with the rules made by the Central Govt. Under Section 18 of the Citizenship Act, 1955. 6. The provisions of sub-section (3) of section 6-A of the Citizenship Act, 1955 is quoted below: “(3) Subject to the provisions of sub-sections (6) and (7), every person of Indian origin who- (a) came to Assam on or after the 1st day of January, 1966 but before the 25th Page No.# 5/6 day of March, 1971 from the specified territory; and (b) has, since the date of his entry into Assam, been ordinarily resident in Assam; and (c) has been detected to be a foreigner, shall register himself in accordance with the rules made by the Central Government in this behalf under section 18 with such authority (thereafter in this sub-section referred to as the registering authority) as may be specified in such rules and if his name is included in any electoral roll for any Assembly or Parliamentary constituency in force on the date of such detection, his name shall be deleted therefrom.” 7. Accordingly, as the learned Member, Foreigners Tribunal, Barpeta 11th has not given a definite finding that the petitioner has entered into India (Assam) from a specified territory after 25.03.1971, the Court is inclined to remand the matter back to the said learned Tribunal by directing the learned Member, Foreigners Tribunal, Barpeta 11th to pass an appropriate order in accordance with section 6-A(3) of the Citizenship Act, 1955 read with rules made by the Central Govt. under section 18 of the Citizenship Act, 1955, clearly indicating the authority before which the petitioner be required to appear and get herself registered. 8. The petitioner is directed to appear before the learned Member, Foreigners Tribunal, Barpeta 11th within a period of 15 (fifteen) days from today and by producing a certified copy of this order, await for appropriate orders by the said learned Court. 9. In the meanwhile, as the petitioner has not been detected to be a foreigner of post 25.03.1971, it is provided the petitioner shall not be arrested or deported pursuant to opinion dated 10.05.2022, passed by the learned Member, Foreigner Tribunal, Barpeta 11th, in Case No. (Bpt/11th) F.T. 1885/2017. 10. However, it is provided that in the event the petitioner does not appear before the said learned Tribunal within the time allowed, it would be open to the Page No.# 6/6 said learned Tribunal to pass appropriate orders in accordance with law. 11. We request the learned standing counsel for the FT matters to forward a photocopy of the impugned opinion dated 10.05.2022 as well as a copy of this order to the competent authorities in the Home Department to examine if any further training is required for the Member of the Foreigners Tribunals to prevent the re-occurrence of such inherent legal lapse in the order. 12. This writ petition stands disposed of at the motion stage without issuance of notice on the respondents. JUDGE JUDGE Comparing Assistant