Page No.# 1/14 GAHC010248252019 2026:GAU-AS:10482 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/8464/2019 SAHEB ALI S/O- HASEM ALI @ HATEM ALI, VILL- MERGANDA, P.S. CHAYGAON, DIST- KAMRUP(RURAL), PIN- 781124, ASSAM. VERSUS THE UNION OF INDIA AND 5 ORS. REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI- 110001. 2:THE CHIEF ELECTION COMMISSIONER OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI-110001. 3:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY.-06. 4:THE DY. COMMISSIONER KAMRUP DIST.- KAMRUP ASSAM KAMRUP- 781057 5:THE SUPDT. OF POLICE (B) KAMRUP DIST.- KAMRUP ASSAM KAMRUP- 781057 Page No.# 2/14 6:THE STATE CO-ORDINATOR NATIONAL REGISTER OF CITIZENS (NRC) ASSAM 1ST FLOOR ACHYUT PLAZA BHANGAGARH GHY.-05 Advocate for the Petitioner : MR. S S S RAHMAN, MR. M R SODIAL,MR B ISLAM,MR K BROOK Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, ECI,SC, NRC BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SHAMIMA JAHAN Advocate for the petitioner : Mr. S.S.S. Rahman. Advocate for the respondents : Mr. K. Gogoi, CGC, : Mr. A. I. Ali, SC, ECI, : Mr. P. Sarmah, Sr. G.A., : Ms. A. Verma, SC, FT, Border matters and NRC. Date on which judgment was reserved : 22.04.2026 Date of pronouncement of judgment : 30.07.2026 Whether the pronouncement is of the operative part of the judgment? : No Whether the full judgment has been pronounced? : Yes Page No.# 3/14 JUDGMENT AND ORDER (Kalyan Rai Surana, J.) Heard Mr. S.S.S. Rahman, learned counsel for the petitioner. Also heard Mr. K. Gogoi, learned CGC; Ms. A. Verma, learned standing counsel for FT and Border matters; Mr. A.I. Ali, Advocate, learned standing counsel for Election Commission of India; and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate for the State. 2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Saheb Ali, has challenged the opinion dated 26.04.2018, passed by the learned Member, Foreigners Tribunal, Kamrup (Rural) No.1, Guwahati, Assam, in GFT(R) Case No. 1436/2017 [arising out of Ref. IM(D)T No. 546/98], thereby declaring him to be a foreigner, who had entered Assam on or after 25.03.1971. 3) On service of notice, the petitioner entered appearance before the said learned Tribunal and filed his written statement, wherein apart from usual denial, he had stated that he is a permanent resident of village- Merganda, P.S. Chhaygaon, Dist. Kamrup. As per PAN Card and family horoscope, he was born on 10.03.1970 to Hasem Ali and Haleman Nessa at his paternal house situated at village- Hatipara, P.S. Chhaygaon, Dist. Kamrup. He had stated that his grandparents, parents and other family members, namely, Jaban Ali, son of Fajar, Asiran Nessa, wife of Jaban, Hasem Ali, son of Jaban, Haleman Nessa, wife of Hasem, Ajam Ali, son of Jaban, and Sakina Khatun, wife of Ajam Ali were voters of 1966 of village- Hatipara. His parents, namely, Hasem Ali and Haleman Nessa were voters of 1970 and 1977 at village- Hatipara. After 1977, he along with his parents and other family members had shifted from Page No.# 4/14 Hatipara to village- Barbhitha, P.S. Chhaygaon, Dist. Kamrup. His parents were voters in 1985 and 1993, but the name of his mother was stated as Halemuna Nessa, wife of Hasem, instead of Haleman Nessa, wife of Hasem Ali. After 1993, due to river erosion, he along with his parents and other family members shifted to nearest village- Merganda, P.S. Chhaygaon, Dist. Kamrup. His parents were voters in 2005 and 2010 at village- Merganda, but the name of his mother was stated as Halemun Nessa, wife of Hasem, instead of Haleman Nessa, wife of Hasem Ali. His parents were voters in 2017 in the same village. The name of his father appears in Elector Photo Identity Card (hereinafter referred to as EPIC for short) as Hashem Ali, son of Jaban instead of Hasem Ali, son of Jaban Ali. The petitioner has a PAN Card. The petitioner has a bank account, but his name has been written as Shahab Ali, son of Hashem Ali, instead of Saheb Ali. The Gaonburah of village- Hatipara had issued a certificate dated 03.01.2018, to him stating that he was born at village- Hatipara. He has been a doubtful voter in the voter list of 1997 and has not cast his vote since then. He is a voter in 2005, 2007, 2014, 2016 and 2017 at village- Merganda. Accordingly, the petitioner had stated that he is a citizen of India and therefore, he be declared to be not a foreigner. 4) In support of his defence, the petitioner had examined himself as DW-1; Hasem Ali, his projected father as DW-2; Md. Giyas Uddin Ahmed, Govt. Gaonburah of Hatipara as DW-3; and Md. Tayab Ali, Govt. Gaonburah of Merganda village as DW-4. 5) The petitioner, in his evidence-on-affidavit, had reiterated the statements made in his written statement and had exhibited the following documents, viz., (i) voter list of 1966 (Ext.A); (ii) voter list of 1970 (Ext.B); (iii)voter list of 1977 (Ext.C); (iv) voter list of 1985 (Ext.D); (v) voter list of 1993 Page No.# 5/14 (Ext.E); (vi) voter list of 2005 (Ext.F); (vii) voter list of 2010 (Ext.G); (viii) voter list of 2017 (Ext.H); (ix) EPIC of his projected father, Hashem Ali (Ext.I); (x) his PAN Card (Ext.J); (xi) his bank account passbook (Ext.K); (xii) Gaonburah certificate dated 03.01.2018 (Ext.L); (xiii) Gaonburah certificate of Merganda village (Ext.M); (xiv) name correction affidavit (Ext.N). The petitioner, had annexed several voter lists as Annexure-I to Annexure-VI to his evidence-on- affidavit. 6) In his cross-examination, the petitioner has stated that he was born in Hatipara, but did not remember the year of his birth. He had denied that he was born in Bangladesh and not in Hatipara. His father had cast his vote in Hatipara in the year 1966 and denied that his father had not cast his vote. His father lives in village- Merganda but does not remember when his father shifted to village- Merganda. He had never cast his vote. His father has three brothers and two sisters, namely, Hasem Ali, Azam Ali, Manchab Ali, and he does not remember the names of his paternal aunt (father’s sister). He had denied that the documents submitted in the Tribunal do not belong to him. He had denied that the name of his father is not Hasem Ali and that he had adduced false evidence. 7) Hasem Ali, who was projected as father of the petitioner, had stated in his evidence-on-affidavit that the petitioner was born and brought up at village Hatipara and he along with his family members had shifted to nearest village- Barbitha and then after a few years to village- Merganda due to river erosion. He had stated about the discrepancy in his name, name of his father, his wife and of the petitioner. He had stated that he had provided all the voter lists exhibited by the petitioner as proof of citizenship. He had stated that his name is correctly referred in all documents as Hasem Ali, but in the Tribunal’s Page No.# 6/14 notice, his name was wrongly written as Hashem Ali. He had stated that the petitioner was not a foreigner. In his cross-examination, DW-2 had stated that the petitioner was born in village- Hatipara and he did not obtain any birth certificate. The name of his grandfather is Fazar Ali and name of his wife is Haliman Nessa. He had shifted to village- Merganda about 40 years ago. He has three brothers and two sisters, they are Hasem Ali, Azam Ali, Manchab Ali, Basiron and Mahiran. He has 7 (seven) children and later on stated that he has 9 (nine) children, i.e. 7 (seven) sons and 2 (two) daughters. He had denied that his son was born in Bangladesh and not in Hatipara or that he had adduced false evidence. 8) Md. Giyas Uddin, the Govt. Gaonburah of village- Hatipara had stated that he knows the petitioner and his other family members. The petitioner was born in village- Hatipara and his father is Hasem Ali. He had issued a certificate (Ext.L), identifying the petitioner as Saheb Ali and Ext.L(1) is his signature. He had verified all the voter lists at the time of issuing the certificate. He knows that his parents and other family members had shifted from Hatipara to the nearest village- Barbhitha after 1977 and permanently residing there. He had stated that the name of the petitioner’s father is Hasem Ali, which is wrongly recorded as Hatem Ali in the Tribunal’s notice. He had stated that the petitioner is a citizen of India and not a foreigner. In his cross- examination, the DW-3 had, inter alia, stated that the petitioner was a resident of his village- Hatipara and he now resides at Borbhitha Mergendha. The names of his parents are Hasem Ali and Haliman Nessa and Jaban Ali is his grandfather. They shifted to Borbhitha Mergendha 30/35 years ago. Hasem Ali has three brothers and two sisters, they are, Hasem Ali (i.e. himself), Ajam Ali and Manchab Ali. He does not know the names of his sisters, He had stated that he Page No.# 7/14 had issued the certificate (Ext.L) and Ext.L(1) was his signature. He had denied that he does not know Saheb Ali or his father and that he had issued a false certificate. There are about 3,500 people in his village. He had a population register of his village, which he had not brought. He had denied that the petitioner is a citizen of Bangladesh. 9) Md. Tayab Ali, the Govt. Gaonburah of village- Merganda, who was examined as DW-4, had stated that he knows the petitioner and his other family members. In his evidence-on-affidavit, he had stated similar to the statement made by DW-3 and therefore, the same is not restated here. He had issued a certificate (Ext.M), identifying the petitioner as Saheb Ali and Ext.M(1) is his signature. He had verified all the voter lists at the time of issuing the certificate. In his cross-examination, DW-4 had, inter alia, stated that he was the Gaonburah of Mergendha and Barbhita. The names of his parents are Hasem Ali and Haliman Nessa and they had been living there since 1992. He had issued the certificate (Ext.M) and Ext.M(1) was his signature. He had denied that the petitioner is a citizen of Bangladesh. 10) The learned Tribunal, upon appreciation of the pleadings and evidence on record, in view of the pleadings that the petitioner’s parents, he and other family members had shifted from village- Hatipara to Barbhita and then to Merganda, did not accept the said contention because the names of the petitioner and other family members did not appear in the exhibited voter lists of 1977, 1985, 1997, 2005 and 2010 (i.e. Ext.C to Ext.G), moreso, because the petitioner had not explained why his name did not appear with his projected parents. The voter list of 2017 (Ext.H) and voter lists marked as Annexure-I to Annexure-VI, being not a certified copy, but photocopies of the electoral rolls, were discarded as inadmissible. The EPIC (Ext.I), PAN Card (Ext.J) and Bank Page No.# 8/14 Passbook (Ext.K) were discarded as inadmissible. The Gaonburah’s certificates (Ext.L and Ext.M) were discarded because they did not prove their own identity and therefore, it was held that the evidence of DW-3 and DW-4 were not reliable to prove nationality. The affidavit regarding discrepancies in his name and the names of his projected grandfather and father, being a self-declaratory affidavit, was held to have no evidentiary value. Accordingly, it was held that the evidence was not trustworthy and the petitioner had failed to establish his linkage with his projected grandfather and father whose names appear in the voter list of 1966 (Ext.A) at village- Hatipara. Accordingly, the petitioner was declared to be a foreigner of post 25.03.1971 stream. 11) The learned counsel for the petitioner had submitted that the evidence of the petitioner was discarded merely because of discrepancies in the name of the petitioner, his father and grandfather, which is not sustainable in light of the law laid down by the Supreme Court in the said regard. By referring to the evidence of DW-1, DW-2, DW-3 and DW-4, it was submitted that all the witnesses had categorically stated that the petitioner was born in village- Hatipara and then his father and their family had shifted to Barbhita and then to Merganda. Moreover, the petitioner had examined the Gaonburah of village Hatipara and Merganda, who had also proved that the petitioner was born in village- Hatipara and then his parents, he and other family members had shifted to Barbhita and then to Merganda. Moreover, the names of the petitioner’s projected grandfather and grandmother had appeared as voters in the same house and village. Therefore, it has been submitted that the said evidence could not have been discarded by the learned Tribunal. 12) Per contra, the learned standing counsel for the Border and FT matters has submitted that the petitioner was aware that his name was Page No.# 9/14 recorded as ‘D’ voter in the voter list of 1997 and he had not casted his vote since 1997, yet, the petitioner has not been able to establish his linkage with his grandfather and father with cogent and admissible evidence. It has been submitted that EPIC (Ext.I), PAN Card (Ext.J) and Bank passbook (Ext.K) were post reference documents and it has been held by this Court in the case of Md. Babul Islam v. Union of India & Ors., W.P.(C) No.3547/2016, decided on 09.05.2018, that EPIC and PAN Card is not a valid piece of evidence in absence of supporting evidence. Moreover, the EPIC, PAN and the Bank Passbook are all post reference documents and thus are not sufficient proof of citizenship. Thus, the learned standing counsel had submitted in support of the impugned opinion. 13) Perused the Tribunal’s record that was called for. Considered the submissions as well as the cases cited at the Bar. 14) The petitioner, in his affidavit sworn on 01.10.2019 in support of the writ petition, had disclosed his age to be 48 years. Therefore, he was born in the year 1971 and therefore, he was eligible to cast his vote in 1989, when the age of adult franchise was reduced from 21 to 18 by virtue of the Constitution (Sixty-first Amendment) Act, 1988, which came into force on 28.03.1989. As observed hereinbefore, the name of the petitioner was marked as ‘D’ voter in the electoral roll of 1997, but the petitioner did not exhibit the voter list of 1997 to show the presence of his parents and grandparents with other family members together. The projected father of the petitioner, Jaban Ali, who gave evidence as DW-2, had stated in his cross-examination that he had 7 (seven) sons and 2 (two) daughters, but the petitioner did not disclose that fact in his written statement nor the same was disclosed in his evidence-on-affidavit. The petitioner had stated that his father, he and other family members had shifted from village- Hatipara to Barbhita and then to Merganda, but the Page No.# 10/14 petitioner had failed to prove that the entire family of his projected parents had shifted together. 15) In his written statement, the petitioner had stated that after 1977, his parents and other family members and he had shifted to village Barbhitha and after 1993, they had again shifted to village- Merganda. However, in his cross-examination on 29.03.2018, Hasem Ali (DW-2), the projected father of the petitioner had stated that he had shifted to village- Merganda “some 40 years ago”. Thus, according to DW-2, he had shifted to Merganda in the year 1978, which is inconsistent with the pleadings and evidence of the petitioner. In paragraph 3 of his evidence-on-affidavit, Md. Giyas Uddin (DW-3), the Gaonburah of village- Hatipara had stated as follows:- “That I know that his parents, other family members with himself were shifted from village- Hatipara, P.S. Chhaygaon, Mouza- Pub Chamaria, Sub-Division- Guwahati in the District of Kamrup, Assam to nearest village- Barbhitha, P.S. Chhaygaon, Mouza- Pub Chamaria, Sub-Division- Guwahati in the District of Kamrup, Assam due to cultivation and better livelihood after 1977 and accordingly permanently residing in aforesaid locality.” 16) Therefore, according to DW-3, the petitioner, his parents and other family members were permanently residing in Barbhitha locality since 1977. Moreover, DW-3 had also stated that he had verified the voter lists before issuing the certificate (Ext.L). Thus, the evidence of DW-3 is contradictory to the evidence of DW-1 and DW-2 insofar as place of residence and entries in the voter lists of 2005 (Ext.F) and 2010 (Ext.G) all concerned, as the said voter lists are of village- Merganda. 17) Md. Tayab Ali (DW-4), who was the Gaonburah of Merganda village, in his evidence-on-affidavit, did not state when the petitioner, his parents and other family members had shifted to Merganda village, though he had claimed to have verified all the voter lists before issuing the certificate Page No.# 11/14 (Ext.M). 18) It may be stated here that in the State of Assam, the Gaonburah is appointed as per the provisions contained in the Executive Instructions under the Assam Land and Revenue Regulations, 1886. Under the said law, no duty is cast on a Gaonburah to either maintain a population register or a register of births and deaths in the village. Therefore, the oral evidence of Gaonburah that the petitioner was born in the village- Hatipara cannot be accepted as a sufficient evidence to prove the citizenship of the petitioner before the Foreigners Tribunal. 19) The contents of the bank passbook (Ext.K) disclose that the bank account was opened on 09.12.2016, which is a post reference document and contains information as disclosed by the petitioner and therefore, the bank passbook cannot be a document admissible to prove citizenship. 20) The petitioner had exhibited his affidavit sworn on 15.03.2018 (Ext.N), declaring that that his grandfather and his father had more than one name but they were one person. It is trite that a self-serving affidavit does not partake the character of evidence. In this regard, it may be stated that this Court, in the case of Jan Nessa v. UoI, 2018 (5) GLT 499: (2018) 0 Supreme (Gau) 1589, had referred to the decision of the Supreme Court of India in the case of Sudha Devi v. M.P. Narayanan, (1988) 3 SCC 366, wherein it was held that affidavit filed by a party suo motu and not under direction of the Court cannot be termed as evidence. Affidavit is not included as evidence unless law specifically permits. Affidavit are not included in the definition of ‘evidence’ in Section 3 of the Evidence Act and can be used as evidence only if for sufficient reason Court passes an order under Order 19, Rule 1 or 2 of the Code of Civil Procedure. Therefore, the said affidavit (Ext.N) is not found to help the Page No.# 12/14 petitioner in any manner. 21) Though the petitioner had exhibited voters list of 1966, 1970, 1977, 1985, 1993, 2005, 2010 and 2017 (Ext.A to Ext.H), yet, the petitioner had not been able to establish his linkage with his grandfather and father, whose names appear in the voter list of 1966 (Ext.A) and 1970 (Ext.B) at village- Hatipara. It may be stated that though the voters list of 1966 (Ext.A) contains names of 6 (six) voters, but the petitioner had not exhibited the entries in the said voter list so as to identify them as members of the family. In this regard, it is a well settled legal proposition that exhibiting a document is one thing and proving its contents is another thing. If one requires any authority on the point, the case of Life Insurance Corporation of India & Anr. V. Ram Pal Singh Bisen, (2010) 4 SCC 491: AIR 2010 SC (Supp) 753, wherein the Supreme Court of India had held to the effect that mere filing or exhibiting a document in Court does not amount to proof of its contents and it was further held that admission of a document in Court may amount to admission of its contents but not its truth. 22) Therefore, in light of the discussions above, the Court does not find any infirmity or perversity in the opinion dated 26.04.2018, passed by the learned Foreigners Tribunal in light of the facts of this case. 23) While examining the opinion of the Foreigners Tribunal, this Court is not exercising appellate or revisional jurisdiction, but the Court is exercising certiorari jurisdiction, where it is impermissible for the Court to substitute its view with the considered opinion expressed by the learned Foreigners Tribunal. 24) The Supreme Court of India, in the case of Central Council for Page No.# 13/14 Research in Ayurvedic Sciences and Another -v. Bikartan Das, reported in (2023) 16 SCC 462, had observed and held as follows:- "49. Before we close this matter, we would like to observe something important in the aforesaid context: Two cardinal principles of law governing exercise of extraordinary jurisdiction under Article 226 of the Constitution more particularly when it comes to issue of writ of certiorari. 50. The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari is that in granting such a writ, the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, being a high prerogative writ, should not be issued on mere asking. 51. The second cardinal principle of exercise of extraordinary jurisdiction under Article 226 of the Constitution is that in a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal court of appeal which it is not." 25) Thus, on failure on part of the petitioner to sustain the challenge to the impugned opinion dated 26.04.2018, passed by the learned Member, Foreigners Tribunal, Kamrup (Rural) No.1, Guwahati, Assam, in GFT(R) Case No. 1436/2017 [arising out of Ref. IM(D)T No. 546/98], thereby declaring him to be a foreigner, who had entered into Assam on or after 25.03.1971, fails. Page No.# 14/14 Consequently, this writ petition stands dismissed. 26) The consequences of the said opinion shall follow. 27) The parties are left to bear their own cost. 28) The Registry shall return back the Tribunal’s record expeditiously along with a copy of this judgment and order to be made a part of record by the said learned Tribunal. JUDGE JUDGE. Comparing Assistant Private Secretary Digitally signed by Champak Rajbongshi Date: 2026.07.30 13:23:13 +05'30'