Page No.# 1/7 GAHC010110152022 2026:GAU-AS:10334 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3776/2022 FAJILA @ FAJILA KHATUN W/O- NURICH ALAM @ NUR ISLAM, D/O- LATE MAIZ UDDIN, R/O- HUGALTOLI, P.O. DATIALBORI, P.S. LAHARIGHAT, DIST- MORIGAON, ASSAM, PIN- 782126. VERSUS THE UNION OF INDIA AND 6 ORS REPRESENTED BY SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI-110001. 2:THE CHIEF ELECTION COMMISSIONER OF INDIA ASHOK ROAD NEW DELHI-110001. 3:THE STATE OF ASSAM REPRESENTED BY ITS SECRETARY GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6. 4:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GUWAHATI-781007. 5:THE STATE COORDINATOR OFFICE OF THE STATE COORDINATOR OF NATIONAL REGISTER OF CITIZENS (NRC) ASSAM 1ST FLOOR Page No.# 2/7 ACHYUT PLAZA GS ROAD BHANGAGARH GUWAHATI-781005. 6:THE DEPUTY COMMISSIONER MORIGAON DIST. MORIGAON ASSAM PIN- 782104. 7:THE SUPERINTENDENT OF POLICE (BORDER) MORIGAON DIST. MORIGAON ASSAM PIN- 782104 Advocate for the Petitioner : MR. K M HASSAN, Advocate for the Respondent : ASSTT.S.G.I., GA, ASSAM,SC, NRC,SC, ECI,SC, F.T BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 27.07.2026 (K.R. Surana, J) Heard Mr. K.M. Hassan, learned counsel for the petitioner. Also heard Mr. J.K. Goswami, 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 27.07.2018, passed by the learned Member, Foreigners Tribunal, 2nd, Morigaon, Assam, in. Case No. F.T.(D) 722/11, arising out of Police reference D/N Case No.1483/98 dated 22.06.1998 and E.R.O. reference No.83/107/36, dated 17.10.1997, by Page No.# 3/7 which the petitioner was declared as an illegal migrant. 3. The petitioner on receipt of notice entered appearance and filed her written statement of defence wherein apart from mere denial, took up a plea that she was born in village-Solmari, under Lahorighat P.S, under Morigaon district and on attaining maturity, was married to Md. Nur Islam, resident of village-Hugaltoli, under Lahorighat P.S, in the district of Morigaon. After marriage she has been casting her vote from the house of her husband. The petitioner claims that her father’s name is enlisted in the voter list of 1966 and 1970. The petitioner claims to have certificates issued by the village headman, panchayat certificate and annual income certificate. Accordingly, the petitioner had prayed for being exonerated in the proceedings. 4. In support of her defence, the petitioner examined herself as DW-1 and also examined her projected uncle Ainunddin as DW-2. While the petitioner did not exhibit any documents, her projected uncle, namely, Ainuddin (DW-2), had exhibited the certified copy of voter list of 1965 as Ext.1 and the certified copy of voter list of 1970 at Ext.2 claiming that he, his father and brother had casted their vote in the year 1965 and 1970 and asserted that the petitioner was not a foreigner. 5. The learned Tribunal, on appreciating the materials available on record, found the evidence of the DW’s untrustworthy and the impugned opinion was passed on arriving at a conclusion that the petitioner has not produced any other reliable and trustworthy documents which could prove that her parents and grandparents existed in the Indian soil prior to 25.03.1971. Ext.1 and Ext.2 were discarded as the petitioner did not prove as she is the daughter of Moizuddin and Ext.1 and Ext.2 were found unacceptable and unreliable. Moreover, the learned Tribunal found contradictions in the evidence Page No.# 4/7 of the petitioner and DW-2 so far as the year and date of death of the father of the petitioner is concerned. While DW-1, in her examination-in-chief, had stated that her father had died on 16.01.2006, but DW-2, in reply to the query of the Court had stated that the father of the petitioner had died 7 (seven) years back. 6. Considering the materials available on record, the learned Tribunal opined that the petitioner had failed to discharge her burden of proof with reliable and trustworthy documents and reliable oral evidence regarding the existence of her parents and grandparents in the Indian soil prior to 25.03.1971. Accordingly, the petitioner is held to be a foreigner of post 25.03.1971 stream. 7. The learned counsel for the petitioner has submitted that the petitioner, in her written statement made a specific statement that the name of her father appeared in the voter list of 1965 and 1970 and he had casted vote in those years, the evidence of DW-1 and DW-2 could not have been discarded by the learned Tribunal. It has been submitted that the impugned opinion was whimsical as the learned Tribunal had discarded Ext.1 and Ext.2 without any cogent reasons. It is submitted that as DW-2 had deposed to the effect that the petitioner was her niece (brother’s daughter), the said statement remained un- rebutted and therefore, could not have been disbelieved by the learned Tribunal. Moreover, it is submitted that the evidence of DW-2 had probative value. Accordingly, it is submitted that the learned Tribunal had declared her to be a foreigner with pre-determined mind. 8. It is submitted that DW-2 was 80 years of age and therefore, some minor discrepancies in his evidence is required to be overlooked, in so far as the death of the father of the petitioner is concerned. It is submitted that the petitioner is a genuine Indian citizen and accordingly, the impugned opinion is liable to be set aside. Page No.# 5/7 9. Per contra, the learned standing counsel for the FT and Border matters has submitted that the oral evidence would be grossly insufficient to prove the existence of relationship between the petitioner and her projected father and as a proof of fact that DW-2 was the own uncle of the petitioner. The learned standing counsel for the FT and Border matters placed reliance on the decision of this Court in Momin Ali Vs. Union of India and Ors., 2017 (2) GLT 1076. 10. On a perusal of the materials available on record of the learned Tribunal, it is noticed that though in her written statement, the petitioner had stated to have annexed a copy of the voter list of 1966 and 1970, but those documents are not found to be appended to the writ petition in the Tribunal’s records. The petitioner, apart from referring to the name of her projected father as Late Maizuddin in the verification contained in her written statement, has not disclosed the name of her father or grandfather in any of the 11 paragraphs of the written statement. The petitioner has also not disclosed the name of her projected uncle, namely, Ainuddin, who was examined as DW-2, or any other family members including her mother, grandmother, siblings etc. 11. Though DW-2 had exhibited the voter list of 1965 as (Ext.1) and voter’s list of 1970 (Ext.2), but the name of DW-2 is not introduced in the written statement as her uncle or the brother of her projected father. There is no statement either in the written statement as to who were the grandfather, grandmother, uncle, siblings, children and mother of the petitioner. There is no statement in the writ petition as to when the grandfather had died and in which place the father of the petitioner was born or died. The existence of the projected father of the petitioner appears only from the voter’s list 1965 (Ext.1) and voter’s list of 1970 (Ext.2) and there is no documentary evidence to prove Page No.# 6/7 the existence of the father of the petitioner after 1970. The petitioner as DW-1 had stated in her cross-examination/ statement on query of the learned Tribunal that the father of the petitioner had expired on 16.01.2006 and a contradictory statement was made by DW-2 who in his statement recorded on 09.05.2018 wherein he had submitted in response to the Tribunal’s query that the father of the petitioner died had 7 (seven) years back. Therefore, as per DW-2, the father of the petitioner died sometime in the year 2011. 12. Be that as it may, the existence of the father as a voter is not available between 1970 and 2011, the year of his death. The petitioner in her examination-in-chief had not disclosed the year of her marriage. At the time of recording of her deposition as DW-1 on 29.03.2018, the petitioner had disclosed her age as 51 years. Therefore, the year of her birth would be sometime in the year 1963 and therefore, she was eligible to vote. However, in the year 1985 and thereafter, apart from entries made in Ext.1 and Ext.2, existence of the father of the petitioner and the projected father of the petitioner and DW-2 projected uncle of the petitioner are not available after 1970 till the evidence of the petitioner and presence of DW-2, was recorded in the year 2018. 13. Therefore, in light of the decision of this Court in the case of Momin Ali (Supra), the sudden appearance of DW-2 as uncle of the petitioner does not inspire confidence of the Court on the plea of the petitioner that DW-2 was her uncle. There is no reason assigned as to why the petitioner, while tendering her evidence as DW-1, did not exhibit any documents. Admittedly, the petitioner had casted her vote for the first time in the year 1989, can be seen from the statement made in her examination-in-chief. However, the electoral roll of 1989 or certified copy thereof was also not exhibited. Therefore, in the absence of any cogent and admissible documentary evidence, the learned Tribunal is found Page No.# 7/7 to have correctly appreciated the evidence-on-record and in holding that the petitioner has failed to discharge her burden of proof that she is a bona fide citizen of India and not a foreigner. 14. Even if the Court disregards the discrepancy in the evidence of DW-1 and DW-2 as regards the year of death of her father, in the absence of existence of her father from 1970 till 2006 (as per DW-1) and 2011 (as per evidence of DW-2), the petitioner has failed to show that the person whose name appeared in the electoral roll of 1965 (Ext.1) and 1970 (Ext.2) was the father of the petitioner. Even DW-2 had not disclosed in his examination-in-chief regarding the father of the petitioner. 15. Resultantly, the challenge opinion dated 27.07.2018, passed by the learned Member, Foreigners Tribunal, 2nd, Morigaon, Assam fails. 16. Accordingly, the writ petition stands dismissed. 17. The consequences of the said opinion shall follow. 18. The Registry shall return back the Tribunals records along with a copy of this order to be made a part of record by the said lenarred Tribunal. 19. Interim bail granted to the petitioner by order dated 08.06.2022 stands vacated. JUDGE JUDGE Comparing Assistant