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2026 DAILYLAW 10604 (GAU)

Ohema Bibi Wife of Aktar Ali v. Union of India

2026-04-24

Kalyan Rai Surana, Shamima Jahan

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JUDGMENT AND ORDER : (K.R. Surana, J.) Heard Mr. S. Nath, learned counsel for the petitioner. Also heard Mr. P.Chakraborty, learned CGC, Ms. S. Katakey, learned sc for the Election Commission of India, Mr. J. Payeng, learned SC for the FT and Border matters and Mr. P. Sharma, learned Addl. Senior Govt. Advocate appearing for the respondents. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner namely, Ohema Bibi, has assailed the opinion dated 20.06.2024 passed by the learned Member, Foreigner’s Tribunal, Bongaigaon No.2, Abhayapuri, in Case No. BNGN/ FT-2/APR/692/2017, arising out of IMDT Case No. 642/2004, thereby declaring the petitioner to be foreigner of post 25.03.1971 stream. 3. The learned counsel for the petitioner in support of the challenge has submitted that the petitioner is a citizen of India by birth and she was born in the year 1971. Her forefathers were also citizens of India and they belong to the indigenous Goria Moria Assam Muslim community. It is submitted that the names of the grandparents of the petitioner were entered in the Voters list of 1966, 1970 and 1985. The name of the father of the petitioner is Rohim Uddin. She had married Md. Akhtar Ali on 12.06.1987 by executing a Kabinnama in the office of the Kazi and thereafter she resided in the matrimonial home and her name along with the name of her husband and other family members was entered in the Voters list of 1989, 1997, 2008, 2010, 2013, 2014, 2015 and 2017. It is submitted that on receipt of notice, the petitioner appeared and filed her written statement of defence and in support of her defence, the petitioner had submitted an evidence-on affidavit along with 20 exhibits. Moreover, it is submitted that the projected mother of the petitioner, namely, Paribanu Bewa adduced evidence as DW-2. However, the learned Tribunal had mechanically discarded all the documentary evidence on finding some minor discrepancies in the exhibited documents. Accordingly, it is submitted that the rejection of several documentary evidence including the Kabinnama, the Bank Passbook, the Link Certificate by the Gaon Panchayat Secretary and the Jamabandi which establishes the link with her parents and forefathers is not sustainable. By referring to the exhibited documents, it is submitted that the said documents are sufficient to prove the link of the petitioner with her projected parents. By referring to the exhibited documents, it is submitted that the said documents are sufficient to prove the link of the petitioner with her projected parents. Accordingly, it is submitted that the impugned opinion warrants interference of the Court. 4. Per contra, the learned standing counsel for the FT and Border matters has submitted that the documents cannot be believed in view of the fact that the kabinnama was not proved by the issuing authority. Moreover, the Jamabandi on which reliance is placed does not connect the petitioner to her projected parents and moreover, as the petitioner has relied on the Voters list of 1989, it is noticed that the age difference between the mother (DW-2) and the petitioner is only 12 years which makes the evidence not believable. Accordingly, the impugned opinion is sustainable and therefore, the impugned opinion does not warrant any interference. 5. Perused the records of the learned Tribunal and considered the materials available in the writ petition as well as the submissions made at the Bar. 6. It appears from the record that upon receipt of notice of the proceedings, the petitioner had submitted her written statement, denying that she is a foreigner and stated that the case was not maintainable as she is a citizen of India. It was stated that the grandfather and grandmother from her paternal side namely, Nakas Sheikh @ Nafaz Sheikh, son of Late Jadu Sheikh and Ohiran Nessa @ Rahima were Indian citizens and were the residents of village Balajani under the then Bijni Police Station and their names were recorded in the Voters list of 1966 from the said village under 43 Bongaigaon LAC and their names also appear in the subsequent Voters list of 1970. It was stated that the petitioner was born in the year 1971 but due to poverty she could not get education and before attaining the age of majority she was married to Akhtar Ali, son of Late Ibrahim Khalil of village Kakoijana, Srijangram in the year 1987 by executing a Kabinnama in the presence of parents of both the parties which was solemnised on 12.06.1987. The petitioner has also stated that the name of her father appeared in the Voters list of 1989, namely, Rohim Uddin Sheikh, son of Nakas Sheikh @ Nafaz from the same village under 34 Abhayapuri North LAC and her own name appears as a resident of Jaraguri in the Voters list of 1989 under 34 Abhayapuri North LAC. 7. The petitioner had also stated that her father Rahimuddin was the owner and possessor of a plot of land measuring 5 bighas covered by Dag No. 57 of Patta No. 89 (Old) 150 (New) of village Jaraguri No.3 under Bijni Revenue Circle and on his death on 19.10.1991, the said plot has been mutated in the name of the petitioner’s mother namely, Poribanu Bewa, and two sons namely, Pyar Ali and Amrul Islam. Out of the mother’s share, she was gifted a plot of land measuring 2 bighas out of the said 5 bighas in favour of her other daughters namely, (i) Ahema Bibi, (ii) Ahela Khatun, (iii) Hasina Khatun, (iv) Ramisha Khatun and (v) Jilmila Khatun, all daughters of Late Rahimuddin Sk and their names have been mutated in respect of the said land by order of the Circle Officer dated 06.07.2017. Her name appeared in the Voters list of 1997, 2008, 2010, 2013, 2014, 2015, 2017 under village Balajani, Chechapari under 34 Abhayapuri North LAC. The petitioner has also placed reliance on a link certificate issued by the Secretary, Hapachara Gaon Panchayat dated 20.06.2015 which was counter-signed by the Block Development Officer, Manikpur Development Block. The petitioner and her family members also have a Ration Card and there is a savings account in the Bank of India in her name. She has also been issued an Elector Photo Identity Card (EPIC for short) by the Election Commission of India. Accordingly, it is claimed that the proceedings against her are liable to be dismissed. 8. The petitioner submitted her evidence-on-affidavit which was sworn on 27.04.2017 and exhibited the following documents: (i) voter lists of 1966 (Ext. A), (ii) voter lists of 1970 (Ext. B), (iii) voter lists of 1985 (Ext. C), (iv) kabinnama (Ext. D), (v) voter lists of 1989 (Ext. E), (vi) voter lists of 1989 (Ext. F), (vii) jamabandi (Ext. G), (viii) voter lists of 1997 (Ext. H), (ix) voter lists of 2008 (Ext. I), (x) voter lists of 2010 (Ext. J), (xi) voter lists of 2013 (Ext. B), (iii) voter lists of 1985 (Ext. C), (iv) kabinnama (Ext. D), (v) voter lists of 1989 (Ext. E), (vi) voter lists of 1989 (Ext. F), (vii) jamabandi (Ext. G), (viii) voter lists of 1997 (Ext. H), (ix) voter lists of 2008 (Ext. I), (x) voter lists of 2010 (Ext. J), (xi) voter lists of 2013 (Ext. K), (xii) voter lists of 2014 (Ext. L), (xiii) voter lists of 2015 (Ext. M), (xiv) voter lists of 2017 (Ext. N), (xv) Link Certificate (Ext. O), (xvi) Ration Card (Ext. P), (xvii) Pass Book (Ext. Q), (xviii) EPIC (Ext. R). 9. It may be stated that in the evidence-on-affidavit, the petitioner had reiterated the statement made in her written statement. Accordingly, the same are not reiterated in this order. 10. The petitioner also examined Paribanu Bewa, her projected mother as DW-2. She had stated that she is the mother of the petitioner and conversant with the facts and circumstances of the case, she had married Late Rahimuddin Sk @ Rahimuddin of Jarajuri Part-II under Manikpur Police Station in the district of Bongaigaon and the petitioner was born in the year 1971 in the said village but due to poverty her daughter could not get education. Moreover, it may be stated that DW-2 had reiterated the statements made by the petitioner on her evidence-on-affidavit. She has also stated that in the Voters list of 1989, their age has been wrongly recorded and her age was reflected as 30 years instead of 40 years and the age of her husband was shown as 35 years instead of 42 years. She has also stated that she could not obtain the certified copy of the Voters list of 1977 and therefore the petitioner had filed an RTI application for a copy of the Voters list of 1977, but the Election Officer, North Salmara, Abhayapuri through letter dated 02.01.2018, expressed their inability to provide the Elector roll as their office did not have the Electoral Roll of village 295 Jaraguri Part-II of the year 1977 under North Salmara. 11. On a perusal of the Tribunals record, it is seen that the learned Tribunal had discarded the Voters list of 1985 (Ext.C), Voters lists of 1989 (Ext. E and Ext. F), Voters list of 1997 (Ext.H), Voters list of 2008 (Ext. 11. On a perusal of the Tribunals record, it is seen that the learned Tribunal had discarded the Voters list of 1985 (Ext.C), Voters lists of 1989 (Ext. E and Ext. F), Voters list of 1997 (Ext.H), Voters list of 2008 (Ext. I), Voters list of 2010 (Ext.J), Voters list of 2013 (Ext.K), Voters list of 2014 (Ext.L), Voters list of 2015 (Ext. M) and Voters list of 2017 (Ext. N) on the ground that the said exhibits were not proved by the concerned authorities who had issued the translated copies of the Voters list and therefore these were held to be not admissible and in this regard reliance was placed on the case of LIC v. Rampal Singh Bisen, (2010) 4 SCC 491 , wherein it was held that a mere marking of document does not dispense with the proof which is required to be proved in accordance with law. The learned Tribunal had also discarded the Kabinnama (Ext.D), Gaon Panchayat Certificate (Ext.O), Ration Card (Ext. P), Bank Pass Book (Ext. Q) as the contents of the said documents were not proved and accordingly it was held that the said documents cannot be relied upon. Moreover, the Gaon Panchayat Certificate contained the State Emblem which the Secretary of the Gaon Panchayat is prohibited from using under the State Emblem of India (Prohibition of Improper Use) Act, 2005 and the State Emblem of India (Regulation of Use) Rules, 2007 for which Ext. O was also held to be inadmissible. The jamabandi (Ext., G) was discarded on the ground that mere entry in the jamabandi was inadmissible as up-to-date land revenue receipts and other documentary evidence was not produced. The Elector Photo Identity Card (Ext. R) was also held to be inadmissible in the absence of any supporting documents as a proof of citizenship for which reliance was placed in the case of Dayamoy Nath v Union of India, (2019) 6 GLR (NOC) 13. 12. The learned Tribunal, on analysis of the evidence of DW-2, took note of the fact that she had stated that the name of the petitioner was not recorded with her parents. The DW-2 could not respond as to when she had casted her first vote along with her husband and she could not state when the name of her father-in-law was recorded in the Voters list for the first time. The DW-2 could not respond as to when she had casted her first vote along with her husband and she could not state when the name of her father-in-law was recorded in the Voters list for the first time. Accordingly, having found that the evidence of the petitioner was not trustworthy, the evidence was held to be not reliable because of the discrepancies and contradictions of the documents. Accordingly it was held that the petitioner had failed to discharge her burden of proof as envisaged under section 9 of the Foreigners Act, 1946 with cogent and reliable evidence and accordingly she was held to be a foreigner/ illegal migrant of post 25.03.1971 stream from the specified territory. At the outset, in respect of the rejection of the translated copies of the Voters list, referred above, it is noticed that this Court in the case of Isiran Nessa, WP(C) 2460/2016, decided on 10.04.2018 had laid down that the translated copies of a Voters list cannot be treated as an evidence. 13. On a perusal of the said translated copies of the voters list, it is noticed that there is no mention in the said translated copies of the electoral rolls that there are certified copies of the voters list. Therefore, the translated copies of the voters list cannot partake on the character of a certified copy. Accordingly, the rejection and/or discarding of the said documentary evidence which are the various Voters list marked as Ext. C, Ext. E, Ext. F, Ext. H, Ext. I, Ext. J, Ext. K, Ext. L, Ext. M, Ext. N cannot be held to be vitiated by any error apparent on the face of the record. The Voters list of 1966 and 1970 which were marked as Ext A and B are certified copies. However, in view of the discarding of the other Voters list, there appears to be a break in the link between the grandparents of the petitioner whose names were recorded in the voters lists of 1966 (Ext. A and Ext. B) which is the voters lists of 1970. 14. Coming to the Letter of the Election Officer, North Salmara Abhayapuri (Ext. S), although the said authorities had stated that the Voters list of 1977 was not available, but it is noticed that the stand of the DW-2 is that she had procured a photocopy. A and Ext. B) which is the voters lists of 1970. 14. Coming to the Letter of the Election Officer, North Salmara Abhayapuri (Ext. S), although the said authorities had stated that the Voters list of 1977 was not available, but it is noticed that the stand of the DW-2 is that she had procured a photocopy. However, it is seen that no effort was made to give secondary evidence of the said Voters list of 1977 while Ext. S was exhibited. Therefore, the Letter of the Election Officer (Ext. S) is also not found to help the petitioner in any way. 15. Accordingly, the Court is of the considered opinion that none of the documents exhibited by the petitioner has been able to link her with the projected parents and grandparents whose existence in the Country was from a date on or prior to 25.03.1971. 16. Resultantly the challenge to the impugned opinion fails. 17. Resultantly the writ petition stands dismissed. No interference is warranted in respect of the impugned opinion dated 20.06.2024 passed by the learned Member, Foreigner’s Tribunal, Bongaigaon No.2, Abhayapuri, in Case No.BNGN/ FT-2/APR/692/2017, arising out of IMDT Case No. 642/2004. 18. Accordingly, the consequence of the said opinion shall follow. 19. The Registry shall send back the records to the learned Tribunal along with a copy of this order to be made a part of the said learned Tribunal.