Page No.# 1/9 GAHC010025292017 2026:GAU-AS:13133-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3330/2017 TILO KAIBORTA W/O SRI KANTA KAIBORTA, R/O VILL-JOYANTIPUR, PS-MATIA, DIST. GOALPARA ASSAM VERSUS THE UNION OF INDIA and 3 ORS. REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI-110011 2:THE DEPUTY COMMISSIONER GOALPARA PO and PS-GOALPARA ASSAM 3:THE SUPERINTENDENT OF POLICE BORDER GOALPARA DISTRICT GOALPARA ASSAM 4:THE STATE OF ASSAM REP. BY THE SECRETARY TO THE GOVT. OF ASSAM DEPTT. OF HOME DISPUR GUWAHATI- Advocate for the Petitioner : MS.R NEWAR, MR.U DAS,MR.D SARMAH Advocate for the Respondent : , ASSTT.S.G.I.,GA, ASSAM Page No.# 2/9 BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 08.09.2026 (K.R. Surana, J) Heard Mr. U. Das, learned counsel for the petitioner. Also heard Mr. B. Sarma, learned CGC; Mr. G. Sarma, learned standing counsel for the FT and Border matters; Mr. A.I. Ali, learned standing counsel for the ECI; and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate for the State respondent. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 24.04.2017 passed by the learned Member, Foreigners’ Tribunal No.5th, Goalpara, in F.T. Case No. F.T/5/1/MA/16, arising out of IM(D)T Reference Case No. 430/99, whereby she was declared to be a foreigner of post-25.03.1971 stream. 3. The learned counsel for the petitioner submitted that, upon receipt of the notice, the petitioner appeared before the learned Tribunal and filed her written statement, stating therein that the allegation that she had entered India between 01.01.1966 and 24.03.1971 or after 25.03.1971 was false and baseless. She claimed her father to be Gogon Das and her mother to be Sundarmani Das. The name of her father appeared in the electoral roll of 1966, and the names of her parents appeared in the voters lists of 1971, 1989 and 1997. The petitioner was born and brought up at 1 No. Dhupuri village under Bijni P.S. in the District of Goalpara (as it was then) and was married to Sri Kanta Kaibarto of village Jayantipur under Matia Police Station in the District of Goalpara. Since her marriage, which took place about 21 years ago, she has been living with her husband’s family. Her own name was enrolled in the voter Page No.# 3/9 list of 2005. The petitioner had relied upon a link certificate dated 13.07.2015 issued by the Nowapara Gaon Panchayat. It is submitted that the citizenship of the petitioner being questioned because of the difference in the name of the father. 4. It is further submitted that the entire pleading and evidence of the petitioner as well as the evidence of the three other witnesses examined on her behalf were not considered merely because in response to a query made by the learned Tribunal the petitioner could not state whether she had any relation or connection with Sri Jatin Das. In that regard, it is submitted that the dispute is only as to whether the father of the petitioner is Gagan Das or Jatin Das. 5. The learned counsel for the petitioner submitted that as the notice issued by the learned Tribunal did not disclose the name of the father of the petitioner, she had filed her written statement without having any knowledge that in the reference she was alleged to be the daughter of Jatin Das. 6. Per contra, the learned standing counsel for Border & FT matters has submitted that as per the records of the learned Tribunal, not only does the reference disclose the name of the father of the petitioner as Sri Jatin Das, but while giving her statement before the Investigating Officer, the petitioner had stated that the name of her father was Sri Jatin Das. 7. Upon considering the submissions of the learned counsel for the parties and perusing the records of the learned Tribunal, it is seen that in support of the defence taken in the written statement, the petitioner filed her evidence-on-affidavit and by referring to the documents, exhibited the certified copy of the voter list of 1966 as Ext.A, the certified copy of the voter list of 1971 containing the names of her parents as Ext.B, the voter list of 1989 containing Page No.# 4/9 the names of her parents as Ext.C, the voter list of 1997 containing the name of her father as Ext.D, and the copy of the link certificate issued by the Secretary, Nowapara Gaon Panchayat, as Ext.E. 8. On a perusal of the written statement, it is seen that the same is bereft of relevant and material particulars. Apart from disclosing that the father of the petitioner is Gogon Das and the mother is Sundarmani Das, the petitioner has not referred to the names of her grandparents, the siblings of her father, her own siblings, or her children, if any. 9. Moreover, as per the exhibited documents, the name of the father of the petitioner is entered as a voter of village Patiladoha under Bijni Revenue Circle of Goalpara. However, the names of the projected parents of the petitioner appeared in the voter list of 1971 as voters of village Dhupuri Part-I. The written statement does not contain any reference to the shifting of the father of the petitioner from village Patiladoha to village Dhupuri Part-I, where the names of the projected parents of the petitioner are shown in the voter lists of 1971, 1989 and 1997. 10. The petitioner examined one Sridam Das as DW-2, who is stated to be a neighbour of the father of the petitioner. He stated that he knew the father of the petitioner as the latter was a resident of 1 No. Dhupuri village. 11. The petitioner also examined one Jiban Kaibarta as DW-3, who is stated to be her neighbour. In his evidence-on-affidavit, D.W.3 stated that the petitioner was his neighbour and that he had heard that she was born and brought up at village 1 No. Dhupuri under Bijni P.S. He also referred to Exts-A, B and E. 12. The petitioner had also examined one Bishnuram Das as DW-4, Page No.# 5/9 projecting him as her brother. He had stated that his name along with the names of his parents, were enrolled in the voter list of 1989. He also stated that the petitioner was his elder sister. He further stated that the petitioner was born and brought up at 1 No. Dhupuri village and was married to Sri Kanta Kaibarto about 22 years ago. He had accordingly supported the petitioner’s case that Gogon Das was her father. 13. Therefore, from the evidence of the four witnesses examined by the petitioner as DW-1 to DW-4, the identity of DW-2, DW-3 and DW-4 was not proved by documentary evidence. It is seen from the evidence of the petitioner as well as DW-4 that the name of the projected father of the petitioner appeared in the voter list of 1966 (Ext.A), and the names of her parents appeared in the voters lists of 1971 (Ext.B), 1989 (Ext.C) and 1997 (Ext.D). The name of the projected father of the petitioner, namely, Gogon Das, also appeared in the voter list of 1997. It appears that apart from filing the evidence- on-affidavit, DW-3 was also orally examined. In his oral examination-in-chief, the DW-3 Jiban Kaibarta, while exhibiting Ext.B, i.e. the voter list of 1996, had mentioned the name of village of the voter as Dhupri (Patiladaha). Thus, from the evidence of the DW-3, there is no shifting of the projected father of the petitioner. 14. As per the contents of Ext.E, it is contended that the projected father of the petitioner, namely, Sri Gogon Das, was a resident of Dhupuri Part-I, which appears to be consistent with the address of Gogon Das as reflected in the voters lists of 1966, 1971, 1989 and 1997. DW-4 also resides in the same village. 15. Be that as it may, the learned Tribunal took into consideration the evidence of all the four D.Ws. However, in the reference, the petitioner was Page No.# 6/9 stated to be the daughter of Jatin Das. As the petitioner had not referred to Jatin Das either in her written statement or in her evidence, the learned Tribunal had rejected her pleadings and evidence, holding that the petitioner had failed to discharge the burden cast upon her under Section 9 of the Foreigners Act, 1946. Accordingly, the petitioner was declared to be a foreigner of post 25.03.1971 stream. 16. In the present case, the evidence-on-affidavit of the petitioner was filed on 16.07.2016, and the petitioner (DW-1) was cross-examined on 15.09.2016 by the learned AGP. In her cross-examination, she disclosed the name of her father as Gogon Chandra Das and the name of her mother as Sundarmani Das. She also stated that the name of her father was enlisted in the voter list of 1966 and that the name of her mother was enlisted in the voter list of 1971. 17. The evidence-on-affidavit of DW-2, Sridam Das, was filed on 08.09.2016, and he was cross-examined by the learned AGP on 18.11.2016. D.W.2 had stated in his cross-examination that Gogon Das and Sundarmani Das were the parents of the petitioner. 18. Jiban Kaibarta was examined by the petitioner as DW-3. His evidence- on-affidavit was filed on 15.12.2016, and he was also orally examined on 05.01.2017, and he had re-exhibited Ext.A to Ext.E. In his oral examination, DW-3 had stated that Ext.A was the voter list of 1966 containing the name of Gagan Das of Dhupuri (Patiladoha). He also stated that the names of the parents of the petitioner appeared in the voter list of 1971 relating to Dhupuri Part-I and that the names of the parents of the petitioner appeared in Ext.B, C and D, relating to Dhupuri Part-I. He further stated that the name of the petitioner’s father, Gogon Chandra Das, appeared in the voter list of 1997. Page No.# 7/9 19. The evidence-on-affidavit of Bisnuram Das was filed on 27.03.2017, but he was incorrectly described as that of DW-3, though he ought to have been referred to as DW-4. He was cross-examined on the same date, i.e. 27.03.2017. He stated in his cross-examination that the petitioner was his elder sister and that the names of his parents were Gogon Das and Sundarmani Das. 20. The Court also takes note of the fact that the petitioner as DW-1 and Bisnuram Das, DW-4 had stated that they were illiterate. In this regard, it is noticed that both DW-1 and DW-4 had affixed their thumb impressions on their respective evidence-on-affidavits. 21. Thus, insofar as DW-1, DW-2, and DW-4 are concerned, all of them, when cross-examined by the learned AGP, had stated that the name of the father of the petitioner was Gogon Das, and their statements remained consistent during cross-examination. Significantly, no suggestion was put to any of the witnesses by the learned AGP that the petitioner was not the daughter of Gogon Das but was, in fact, the daughter of Jatin Das. 22. In the considered opinion of this Court, the petitioner has suffered prejudice on account of the fact that she was not put to notice that she was being proceeded against on the allegation that she was the daughter of Jatin Das. The stand of the petitioner has remained consistent all throughout, both in her written statement and in the evidence of all the four D.Ws., that her father’s name was Gogon Das. 23. Accordingly, this Court is of the considered opinion that the petitioner ought to be afforded an opportunity to take an appropriate defence with regard to the identity of her projected father, particularly because the name of her father as Jatin Das appears only in (a) Form No. I, containing the particulars of Page No.# 8/9 information to be obtained by the Inquiry Officer; (b) Form No. II, being the report of the Inquiry Officer; and (c) the purported statement of the petitioner recorded by the Inquiry Officer, wherein she is stated to have disclosed the name of her father as Sri Jatin Das. 24. 24. Accordingly, as this Court has held that the petitioner was not put to notice that she was required to respond to the allegation that her father was Jatin Das, this Court is inclined to set aside the impugned opinion dated 24.04.2017, passed by the learned Member, Foreigners’ Tribunal No.5th, Goalpara, in F.T. Case No. F.T/5/1/MA/16, arising out of IM(D)T Reference Case No. 430/99, and the matter is remanded back to the said learned Tribunal to enable the petitioner to take an appropriate defence with regard to the allegation in the reference that her father was Sri Jatin Das, whereas her case is that she is the daughter of Sri Gogon Chandra Das. 25. Needless to say, the petitioner shall be entitled to file her additional written statement and adduce additional evidence by way of filing additional evidence-on-affidavit and to examine any other witness as she may be so advised. 26. The petitioner, who is duly represented by her learned counsel, is directed to appear before the said learned Tribunal on or before 26.10.2026 and by producing a certified copy of this order, file her additional written statement. Thereafter, the learned Tribunal shall afford reasonable time to the petitioner to adduce additional evidence by way of affidavit, if so advised. 27. It is made clear that if the petitioner fails to appear within the outer time limit indicated above, it would be open to the learned Tribunal to treat the petitioner as absent on call and pass a fresh opinion in accordance with law. Page No.# 9/9 28. The learned standing counsel for Border and FT matters shall transmit a downloaded copy of this order to the concerned authorities. 29. With the observations made above, the writ petition stands allowed to the extent indicated above by remanding the matter back. 30. The parties are left to bear their own cost. JUDGE JUDGE Comparing Assistant