Page No.# 1/24 GAHC010201012019 2026:GAU-AS:11973 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/6205/2019 KAMAL KARKI CHETRY @ KAMAL KUMAR CHETRY S/O- LT INDRA BAHADUR CHETRY, R/O- WARD NO.4, RANGAPARA, P.O. AND P.S. RANGAPARA, DIST- SONITPUR, ASSAM, PIN- 784101 VERSUS THE UNION OF INDIA AND 5 ORS. REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, NEW DELHI-1 2:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM DEPTT. OF HOME DISPUR DIST- KAMRUP (M) GHY-1 3:THE DY. COMMISSIONER SONITPUR TEZPUR ASSAM PIN- 784001 4:THE SUPERINTENDENT OF POLICE (B) SONITPUR DIST- SONITPUR ASSAM PIN- 784001 5:ELECTION COMMISSION OF INDIA NIRBACHAN SADAN ASHOKA ROAD Page No.# 2/24 NEW DELHI- 11001 6:STATE COORDINATOR NATIONAL REGISTRAR OF CITIZENS G.S.ROAD BHANGAGARH GHY- Advocate for the Petitioner : MR S CHAKRABORTY, MR. R SARKAR Advocate for the Respondent : ASSTT.S.G.I., SC, ELECTION COMMISSION.,SC, NRC,SC, F.T BEFORE HON’BLE MR. JUSTICE KALYAN RAI SURANA HON’BLE MRS. JUSTICE SHAMIMA JAHAN Advocate for the petitioner: Mr. S. Chakraborty, Advocate. Advocate for respondent no.1: Ms. L. Devi on behalf of Mr. R.K.D. Choudhury, DSGI. Advocate for respondent nos.2, 4 & 6: Mr. J. Payeng, Standing Counsel. Advocate for respondent no.5: Mr. N. Kalita on behalf of Mr.A.I. Ali, Standing Counsel. Advocate for respondent no.3: Ms. R.B. Bora, Jr. Govt. Advocate. Date on which judgment is reserved : 14.05.2026 Date of pronouncement of judgment : 20.08.2026 Whether the pronouncement is of the operative part of the judgment? : No Whether the full judgment has been pronounced? : Yes JUDGMENT AND ORDER (CAV) (K.R. Surana, J) Heard Mr. S. Chakraborty, learned counsel for the petitioner. Also heard Page No.# 3/24 Ms. L. Devi, learned counsel on behalf of Mr. R.K.D. Choudhury, learned CGC, Mr. J. Payeng, learned standing counsel for the FT and NRC and Mr. N. Kalita, learned counsel on behalf of Mr. A.I. Ali, learned standing counsel for the ECI and Ms. R.B. Bora, learned Junior Govt. Advocate. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Sri Kamal Karki Chetry @ Kamal Kumar Chetry, has assailed the impugned opinion dated 17.08.2018, passed by the learned Member, Foreigners’ Tribunal, 7th Tezpur at Balipara, in Case No. FTDC 93/2015, arising out of Ref. No-TZP(B)/892/07, dated 29.03.07, by which the petitioner was declared as an illegal migrant of post 25.03.1971 stream. 3. On being served with the notice of the proceeding, the petitioner had entered appearance before the learned Foreigner’s Tribunal and filed his written statement on 07.01.2016. Apart from usual denial that the case is false and baseless, the petitioner had stated that his parents and forefathers were genuine citizens of the Country and his father was an inhabitant of village- Singori Nepali under P.S. Dhekiajuli, in the district of Sonitpur and his name appeared in the NRC of 1951. Thereafter, his father had shifted to the present place of residence in search of livelihood, got married and brought up his children in the present place. He had submitted his HSLC Admit Card as proof of being the son of his father. He had stated that he had got sufficient documents to prove that he is a citizen of India and not a foreigner. The petitioner craved leave of the Court to file an additional written statement. Accordingly, the petitioner had prayed for dismissing the case. Thereafter, the petitioner had filed his additional written statement on 21.11.2017, wherein it was stated that Annexure-II of the written statement was wrongly inserted, which was required to be replaced by his birth certificate issued by the Registrar of Birth and Death, Page No.# 4/24 Rangapara PHC, wherein his name has been written as Kamal Kumar Chetry instead of Kamal Karki Chetry. The petitioner had also submitted the voter list of 1965 of his grandfather as Annexure-III, as well as the voter list of 1971 as Annexure-IV, wherein the name of his father is written as Pam instead of Padma Singh, and he had also annexed the voter list of 1989 as Annexure-V, which were not in his possession when he had submitted his written statement. He had also submitted a copy of order dated 29.07.2016, of the case against his mother, Smti. Basumaya Karki Chetry, being FT(DC) Case No. 155/15. He had stated that he is a voter from his voting age to 2014. 4. In support of his defence, the petitioner had examined himself as DW-1. In his examination-in-chief, the petitioner had reiterated the statements made in his written statement. He had stated that he was born and brought up at Village- Ward No.2, Rangapara. As per his birth certificate (Ext.1) received from Rangapara Civil Hospital, he was born on 02.10.1968 and the name of his father, Indra Bahadur Chetry and mother, Basumaya Chetry are recorded therein. He was casting his vote till 2018 from that place, but in the voter list ‘D’ mark was given against his name, name of his mother and other family members. The name of his father is wrongly written in the Elector Photo Identity Card (EPIC for short). He had exhibited the voter list of 2014 as Ext.2. His father had died about 25 years ago and he had cast his vote till 1989 and Ext.3 is the said voter list. He had exhibited the voter list of 1971 of his father as Ext.4 and his father had cast his vote in that address. His father had shifted from Singari Nepali to the present place before his birth, but he does not know the actual date of shifting. The name of his grandfather is Padma Singh, whose name is recorded in the voter list of 1965 (Ext.5). A foreigner case was registered against his mother in that Tribunal vide Case No. 155/15, and was Page No.# 5/24 declared as Indian (Ext.6). However, in his cross-examination, the petitioner had stated that his father had not cast his vote before 1971. He had denied that his mother did not cast her vote in India; that his birth certificate was false; that his father and grandfather had never resided in village- Singari Nepali earlier; and that he had given false evidence. He had stated that he is residing in Government land. His father had no brothers and sisters. 5. The learned Tribunal, after considering the evidence available on record, discarded the birth certificate (Ext.1) of the petitioner as the birth of the petitioner on 02.10.1968 was registered under no. 750/87 dated 28.11.1987. However, delayed birth can only be registered on compliance with Section 13(3) of the Registration of Births and Deaths Act, 1969. Accordingly, it was held that the petitioner had not proved the birth certificate and he had not exhibited the order of the First Class Magistrate of Sonitpur District by calling upon the issuing authority before the witness box of the Tribunal. Therefore, it was held that the certificate was not admissible document. In respect of the voter list of 2014 (Ext.2) it was observed that the voter is Kamal Chetry, which was a post 25.03.1971 document. In respect of the voter list of 1989 (Ext.3), it was observed that the voter is Indra Bahadur Chetry, son of Padma Singh age- 56 years. In respect of the voter list of 1971 (Ext.4), it was observed that the voter is Indra Bahadur Chetry, son of Pam, age- 25 years. Thus, on comparison of the age of the voter in Ext.3 and Ext.4, age discrepancy was observed as in 1971, Indra Bahadur Chetry was 25 years, and he would have been 43 years in 1989 and not 56 years. Besides, the name of his father in 1971 was Pam, and in 1989, the name of his father was Padma Singh. Accordingly, the said two voter’s lists were not found reliable. The voter list of 1965 (Ext.5) was in the name of Padma Singh, son of Sanman, age- 80 years, which was discarded as the Page No.# 6/24 petitioner had not been able to establish his link with his projected grandfather. The opinion in Case No. 155/15, declaring Basumaya Karki Chetry as Indian was discarded as the petitioner could not prove that he is the son of Basumaya Karki Chetry. The learned Tribunal had observed that the petitioner had submitted an affidavit that he was a citizen of India by birth, which was not exhibited. Accordingly, the petitioner was held to be an illegal migrant of post 25.03.1971. 6. Assailing the impugned opinion, the learned counsel for the petitioner had submitted that the case proceeded on the presumption that the petitioner is a foreigner. In the notice, it is not alleged that the petitioner had illegally entered into Assam from the specified territory. It was submitted that it was alleged that the petitioner had migrated between 01.01.1966 and 25.03.1971, as such, he cannot be deported. It was submitted that as per the birth certificate, he was born in India on 02.10.1968 and therefore, the petitioner is a citizen of India under Section 3 of the Citizenship Act. It was submitted that the petitioner had exhibited his birth certificate (Ext.1), which is a public document and thus, the said certificate cannot be doubted on the ground as to whether the procedure was followed. The voter list of his father of 2014 (Ext.2) and 1989 (Ext.3) could not have been discarded because of age discrepancy. It was also submitted that the learned Tribunal had travelled beyond the reference. It was also submitted that the petitioner is a Nepali/ Gorkha person and therefore, his case was covered by the decision of this Court in the case of Indira Newar v. Union of India & Ors., 2019 0 Supreme (Gau) 725/ 2020 1 GauLT 413. 7. Per contra, the learned standing counsel for the Border and FT matters had submitted that even the case of a person of Gorkha/Nepali origin, if he is a foreigner, would be within the jurisdiction of the Foreigners Tribunal. It Page No.# 7/24 was submitted that the petitioner has not been able to connect his projected father, Indra Bahadur Chetry, with the voter whose name appears in the voter list of 1989 (Ext.3), because the father of Indra Bahadur Chetry of Ext.3 is Padma Singh and the father of Indra Baha Chetry of Ext.4 is Pam. Moreover, the age difference between the voter in the said two voter’s lists is sufficient to show that these were two different persons. It was submitted that the reference was under erstwhile Illegal Migrants (Determination by Tribunals) Act, 1983 [hereinafter referred to as IM(DT) Act for short], which was not connected with any “stream” of illegal migrants. The said IM(DT) Act was declared ultra vires and the proceedings were transferred to Foreigners Tribunals by the Supreme Court of India in the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665, which cannot be questioned before this Court. It was submitted that if the birth certificate is discarded, then the petitioner had not been able to establish his link with his projected father, whose existence was in India before the cut-off date of 25.03.1971. In support of his submissions, reliance was placed on the following cases, viz., (i) Sarbananda Sonowal (supra), (ii) Sukurjan Nessa v. Union of India & Ors., 2025 (2) GLT 1058, (iii) Rukia Begum Borbhuiya v. Union of India & Ors., 2023 (4) GLT 1208, (iv) Rustom Ali v. Union of India & Ors., 2017 (4) GLT 1097. 8. In reply, the learned counsel for the petitioner had reiterated that in the notice served to the petitioner, he was accused of being a foreigner who had illegally migrated into India between 01.01.1966 and 25.03.1971 and therefore, the learned Tribunal had travelled beyond the terms of reference. He had distinguished the case of Rustom Ali (supra), by submitting that in the said case, the birth certificate was produced for the first time before the High Court and in this case, the birth certificate was not obtained after registration of the Page No.# 8/24 reference. It was reiterated that the projected mother of the petitioner, Basumaya Chetry was declared to be not a foreigner. 9. Perused the Tribunal’s records, which were called for. Also considered the submissions and the cases cited at the Bar. 10. From the submissions made at the Bar, the following points of determination arise for decision in this case:- I. Whether the reference before the learned Tribunal was sustainable in law? II. Whether the learned Tribunal could have disbelieved the evidence of birth certificate (Ext.1), merely because the petitioner did not prove whether due process was followed by the issuing authority? III. Whether the exhibited voter lists could have been disbelieved because of age discrepancy? IV. Whether the petitioner, who is of Nepali/Gorkha origin can be declared a foreigner from specified territory? V. Whether the learned Tribunal could have declared the petitioner to be a foreigner though his projected mother was declared to be not a foreigner? POINT OF DETERMINATION NO. V: 11. The petitioner relies on the opinion dated 29.07.2016, passed by the learned Member, Foreigners Tribunal, Tezpur-7th, Chariduar at Balipara, in F.T. (DC) Case No. 155/15- State of Assam Vs. Basumaya Karki Chetry (Ext.6). The learned Tribunal had recorded in paragraph no.2 of the said opinion as follows- “The opp.party in her evidence has deposed that she was born and Page No.# 9/24 brought up at vill-Siporia Chapori, P.S- Sootea, District- Darrang now Sonitpur, Assam, she is an illiterate lady, her father was a permanent resident of Vill.- Siporia Chapori, her father’s name is Late Padam Singh Lama, he was also known as Padma Singh, he died about 40 years back, her father’s name appear in the voter’s list of 1965. 12. On a perusal of the opinion dated 29.07.2016, of the petitioner’s projected mother, it is seen that it contains no reference to the petitioner as her son. While the case registered by the Superintendent of Police (Border), Tezpur, in respect of Basumaya Karki Chetry is numbered as S.P.(B) – 885 dated 29.03.2007, the reference against the petitioner was registered as TZP(B)/892/07 dated 29.03.2007. Be that as it may, the projected mother of the petitioner draws her lineage through her father, but the petitioner would draw his lineage through his father and grandfather. Hence, it is possible that while the mother was declared to be an Indian, the petitioner can still be declared as a foreigner. 13. Thus, the point of determination no. 5 is answered by holding that the declaration of the projected mother of the petitioner to be not a foreigner, would not come in the way of declaring the petitioner to be a foreigner. Point of determination no. (I) and (IV): 14. The point of determination no. (I) and (IV) are taken up now. 15. The learned counsel for the petitioner had submitted that the Tribunal had proceeded that the petitioner is a foreigner; in the notice of the learned Tribunal, it is not alleged that the petitioner had entered illegally into Assam from the specified territory; in the notice issued to the petitioner by the Page No.# 10/24 learned Tribunal, it was stated that he had allegedly entered into Assam between 01.01.1966 and 25.03.1971.The said points are taken up together for consideration. 16. As per the Tribunal’s records, the Electoral Registration Officer (ERO for short), 74 Rangapara LAC had directed the Local Verification Officer (LVO for short) to make an enquiry in respect of the petitioner. Accordingly, the LVO submitted a report dated 20.02.2005 to the ERO, 74 Rangapara LAC. Accordingly, the ERO 74 Rangapara LAC vide letter No. SEL-255/2005 (without any date), expressed his doubt about the citizenship of the petitioner and forwarded the matter to the Superintendent of Police, Sonitpur, the competent authority under the Illegal Migrants (Determination by Tribunals) Act, 1983/ Foreigners Act, 1946 and rules made thereunder for deciding the question whether the petitioner is a citizen of India or not. Accordingly, the Superintendent of Police, Sonitpur, Tezpur submitted the reference to the learned Member, Foreigners Tribunal, Sonitpur, Tezpur. Accordingly, by an order dated 12.11.2015, the proceeding was registered, wherein it has been mentioned that the petitioner is a foreigner who had entered illegally between 01.01.1966 and 25.03.1971. Accordingly, notice was issued by the learned Tribunal to the petitioner, alleging the petitioner to be a foreigner of the stream between the said period of 01.01.1966 and 25.03.1971. 17. Thus, in this case, the reference by the Superintendent of Police, Sonitpur, Tezpur, against the petitioner was not as to whether the petitioner had illegally entered into India (Assam) during the period between 01.01.1966 and 25.03.1971. It may stated that, though the reference was made to the learned Member, Foreigners Tribunal, but the form of reference that was used by the authorities was the one prepared under the erstwhile IM(DT) Act, 1983 and Page No.# 11/24 Rules framed there under. Therefore, it appears that the learned Tribunal in a most mechanical manner issued notice to the petitioner with the allegation that he had entered India between 01.01.1966 and 25.03.1971. 18. The issue relating to reference made by the ERO has elaborately been dealt with in the case of Amulya Paul V. The Union of India and 5 Ors., W.P.(C) No. 9127/2019, decided on 13.08.2026, as well as, in the case of Shukurjan Nessa @ Sukurjan v Union of India & Ors.,W.P.(C) 245/2019, decided on 28.02.2025, the reference by Electoral Registration Officer has been dealt with. In the said case, the issue relating to reference made at the instance of the Electoral Registration Officer (ERO for short) has been clarified. The relevant part of the said judgment and order are extracted hereinbelow:- 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. 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:- Page No.# 12/24 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 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 Page No.# 13/24 (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 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. 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 Page No.# 14/24 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 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, Page No.# 15/24 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 Commissioners (In-charge 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 Page No.# 16/24 (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. 17. 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. 18. 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 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. 19. 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. 20. In the present case, the proceedings which were hitherto pending before Page No.# 17/24 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 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. 21. 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.” 19. Therefore, reliance by the learned counsel for the petitioner on the case of Santosh Das (supra) and Sona Kha @ Sona Khan (supra) do not help the petitioner in any way as both the said authorities do not deal with the reference made by the ERO. It may be stated that the format for making reference to the competent authority by the ERO discloses that the Election Commission of India had ordered intensive revision of the Electoral Rolls for the 74 Rangapara LAC in Assam with reference to 01.01.2005 as the qualifying date and that house to house enumeration was done during the period from 01.10.2004 to 25.11.2004 and that the draft electoral roll of the said constituency was published in draft on 15.06.2005 and the ERO for the said LAC, having doubt about the citizenship of the petitioner, got the matter verified by and on-the-spot local verification and on consideration of the report of such verification he had reasonable doubt that the petitioner is not a citizen of India. Thus, this exercise is one which has been done under the Representation of the People Act, 1950. In such a reference, so made, there is no requirement of any further investigation by the Superintendent of Police of the concerned District but as the said authority is the prescribed and competent authority to make Page No.# 18/24 reference by virtue of the provision of Section 11 of the IM(DT) Act, 1983 read with Rule 12 of the IM(DT) Rules, 1985 as well as by virtue of notifications issued under Paragraph 2 of the Foreigners (Tribunal) Order, 1964 by which authorities are designated for making reference. 20. This Court in the case of Rukia Begum Barbhuiya @ Rukia Begum Vs. Union of India and Ors., 2023 (4) GLT 1208 had held that Rule 2 (1) of the Foreigners (Tribunal) Order, 1964 makes it discernible that the Central Govt. may by order refer a question as to whether a person is or not a foreigner within the meaning of the Foreigners Act, 1946 to a Tribunal constituted for the purpose. Therefore, while agreeing with the law laid down in the case of Falani Bibi Vs. Union of India and Ors., W.P.(C)/7104/2015, decided on 18.08.2017, this Court had held that going by the meaning of the expression “foreigner” under Section 2 (a) of the Foreigners Act, 1946 a reference made to the Tribunal would be as to whether the person concerned is a citizen of India or not a citizen of India. 21. For instance, if a question arise that can a person who has come from the USA without appropriate documentation, be prosecuted under the Foreigners Act, 1946, the answer would be in the affirmative. Moreover, as per the information about the population pattern existing in the present Bangladesh, there is a considerable population of Nepali/Gorkha people there. Therefore, it is not impossible that the petitioner, though a person of Nepali/Gorkha origin, could have entered into India (Assam) from Bangladesh, but that is besides the issue involved in this case. 22. In the present case in hand, as per the contents of Paragraph 5 of the Form of Reference called “Annexure-B”, bearing No. SEL-255/2005, submitted by the ERO before the Superintendent of Police, Sonitpur, the same Page No.# 19/24 reads as follows – “5. Whereas, I, the Electoral Registration Officer for the said Assembly Constituency, having doubt about the citizenship of the said person, got the matter verified by and on-the spot local verification, and 6. Whereas, on consideration the report of such verification, I have reasonable doubt that he/she is not a citizen of India.” 23. Therefore, the case of Indira Newar (supra) and Santosh Das (supra), cited by the learned counsel for the petitioner is distinguishable on facts of this case and would have no application in the case in hand. 24. In this case, the reference was not made by doubting that the petitioner had come from the specified territory. However, this would not preclude the learned Foreigner’s Tribunal to examine the pleadings and evidence and arrive at a conclusion that the petitioner is an illegal migrant who has entered into India (Assam) from the specified territory after 25.03.1971. Any other interpretation would have the effect of making the Country a heaven for illegal migrants and infiltrators, who do not owe any allegiance to the Country. 25. Accordingly, in light of the discussions above, the Court is inclined to hold in respect of the point of determination nos. I and IV that the reference before the learned Foreigners Tribunal was valid and the learned Tribunal is not found to have committed any perversity in accepting and deciding the said reference against the petitioner though he is of a person of Nepali/ Gorkha origin. 26. The point of determination no. II is now taken up. The birth certificate of the petitioner (Ext.1), was prepared and issued on 13.01.1988. However, the same was disbelieved because the petitioner had not proved whether due process of law in issuing such certificate was followed or not. On a Page No.# 20/24 perusal of the Tribunal’s record, it is noticed that the petitioner, while he was being cross-examined, was not asked about the said aspect of the matter. However, in view of the statutory presumption under Section 114, Illustration (g) of the Evidence Act, 1872 that all official acts are duly performed, the Court is of the considered opinion that the matter is required to be remanded back to the said learned Tribunal so as to afford the petitioner one opportunity to call for the issuing authority of the said birth certificate to prove the issuance of the said certificate through their original records. Point of Determination No. III: 27. The point of determination no. (III) is whether the exhibited voter lists could have been disbelieved because of age discrepancy. In this regard, it would be appropriate to examine the entries made in the voter lists exhibited by the petitioner. 28. As per the contents of the exhibited voter’s lists, the voter in the electoral roll of 1965 (Ext.5) is Padma Singh, son of Sanman, age- 80 years, of village- Singari Nepali Gaon, under 75 Dhekiajuli LAC. The voter in the electoral roll of 1971 (Ext.4) is Indra Baha Chetry, son of Pam, age- 25 years, of village- Rangapara Town Ward No. 2, under 74 Rangapara LAC. The voter in the electoral roll of 1989 (Ext.3) is Indra Bahadur Chetry, son of Padma Singh, age- 56 years, of village- Rangapara Town Ward No. 2, under 74 Rangapara LAC. Thus, the name of the projected grandfather of the petitioner is different in all the said three exhibited voter lists, i.e. Ext.5, Ext.4 and Ext.3. 29. The voters in the electoral roll of 2014 (Ext.2) are (i) Basumaya Chetry, wife of Late Param Bahadur Chetry; (ii) Kamal Chetry, son of Late Param Bahadur Chetry; (iii) Mohan Chetry, son of Late Param Bahadur Chetry; and (iv) Page No.# 21/24 Sima Chetry, daughter of Late Param Bahadur Chetry, and the said voters are of village- Rangapara Town Ward No. 2, under 74 Rangapara LAC. Thus, while the petitioner claims that his father is Indra Bahadur Chetry and his mother is Basumaya Chetry, but as per the electoral roll of 2014 (Ext.2), the husband of Basumaya Chetry is Late Param Bahadur Chetry. 30. Therefore, it is apparent that the petitioner has neither been able to connect his projected grandfather with his projected father nor he has been able to connect his projected father to himself. In the light of the lack of link, the age discrepancy in the voter list of 1989 (Ext.3) and the voter list of 2014 (Ext.2) is of some significance because as per the voter list of 1971 (Ext.4), the name of the voter is Indra Baha Chetry, son of Pam, age 25, but the voter in the voter list of 1989 is Indra Bahadur Chetry, son of Padma Singh, age 56. Therefore, when the said two voter’s list contains only a single entry and there is a mismatch in the name of the father of the voter, the said entries must be examined with suspicion. 31. In this regard, this Court, in the case of Basiron Bibi v. Union of India & Ors., 2018 (1) GLT 372, has held to the effect that when a voter list is proved in evidence by the petitioner, she then cannot insist that only that portion of the voter list which favours her be read and portions which go against her be over-looked. This is not how a piece of evidence is to be examined. In respect of the said decision, the Court is of the view that the said decision is based on sound legal principles of evidence and proof. Moreover, as referred to hereinbefore, in the voter list of 2014 (Ext.2), the name of the father of Kamal Chetry and the husband of Basumaya Chetry is Late Param Bahadur Chetry. The said voter list contains four names and in his written statement and additional written statement, the petitioner has not disclosed his relationship with two Page No.# 22/24 voters, namely, Mohan Chetry and Sima Chetry, whose father is also Late Param Bahadur Chetry and he has not even pleaded in his written statement that he is also known by the name of Kamal Chetry, the name which appears in the voter list of 2014 (Ext.2). It may also be stated that in the photocopy of the voter list of 2014 (Ext.2), which is available at Page-63 and 64 of the record and marked as “proved in original”, the age column is partly printed and the age of the voters therein are not visible. In the opinion dated 29.07.2016 (Ext.6), the name of the proceedee is Basumaya Karki Chetry, wife of Late Indra Bhr Karki Chetry and in the said opinion, the statement of the said proceedee is recorded to the effect that she was married to Indra Bahadur Karki Chetry about 35 years back, which would roughly be around 1981, but her name does not appear in any voter list with the petitioner or the projected father of the petitioner. 32. Therefore, in light of the discussions above, the age discrepancy in the voter list, being too conspicuous, was rightly noticed by the learned Tribunal in this case at hand. The point of determination no. III is answered accordingly. 33. Thus, while the point of determination nos. I, III, IV and V have been answered in the affirmative and against the petitioner, but while deciding the point of determination no. II, the Court is inclined to give one opportunity to the petitioner to prove his birth certificate through original record. The Court, therefore, without finding fault with the opinion impugned in this writ petition, is inclined to remand the matter for the limited purpose as indicated herein. 34. It is reiterated at the cost of repetition that the proceeding of Case No. FTDC.93/2015 [arising out of Ref. No. TZP(B)/892/07 dated 29.03.2007] is being remanded only for the purpose of affording opportunity to the petitioner to prove his birth certificate (Ext.1) from the official records, Page No.# 23/24 which will not confer any right to the petitioner to submit further pleadings or evidence other than what has been allowed. 35. For the said limited purpose, the impugned opinion dated 17.08.2018, passed by the learned Member, Foreigners’ Tribunal, 7th Tezpur at Balipara, in Case No. FTDC 93/2015, arising out of Ref. No-TZP(B)/892/07, dated 29.03.07, is set aside. However, by remanding the matter back to the said learned Tribunal to pass a fresh opinion after giving one opportunity to the petitioner to prove his birth certificate (Ext.1) from the official record. 36. Accordingly, as the petitioner is duly represented by his learned counsel, the Court is inclined to direct the petitioner to appear before the said learned Foreigners Tribunal on or before the outer time limit of 28.09.2026, without requirement of any notice or summons to be served on him and on his appearance, the petitioner shall produce the certified copy of this order and also take such appropriate steps as he may be so advised to prove his birth certificate, for which the learned Tribunal shall provide one opportunity. 37. On appearance of the petitioner before the learned Tribunal he shall pray for bail and the learned Tribunal shall grant bail to the petitioner on such tenure as may be deemed fit and proper. The bail so granted, shall be valid for a period of 30 (thirty) days after the date when opinion of the learned Tribunal is passed. 38. It is clarified that in the event the petitioner fails to appear before the said learned within the time allowed and/or does not take steps, it would be open to the learned Tribunal to pass such order or orders as it may deem fit and proper. 39. The writ petition is partially allowed to the extent as indicated Page No.# 24/24 above, with order of remanding the matter back on one limited point as indicated hereinbefore. 40. Under the circumstances, there shall be no order as to cost. JUDGE JUDGE Comparing Assistant PRATIK GUPTA Digitally signed by PRATIK GUPTA Date: 2026.08.21 15:22:13 +05'30'