Page No.# 1/12 GAHC010166742020 2026:GAU- AS:12802-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5004/2020 MEHER ALI S/O- LT. SADHU MIYA, VILL- MANDIA, P.S. BAGHBAR, DIST.- BARPETA, ASSAM VERSUS THE UNION OF INDIA AND 5 ORS REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, TILOK MARG, NEW DELHI-1 2:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM MINISTRY OF HOME DEPTT. DISPUR GHY-6 3:THE DY. COMMISSIONER BARPETA P.O. AND DIST.- BARPETA ASSAM PIN- 781301 4:THE SUPERINTENDENT OF POLICE (B) BARPETA P.O. AND DIST.- BARPETA ASSAM PIN- 781301 5:THE ELECTION COMMISSIONER OF INDIA NEW DELHI-1 Page No.# 2/12 6:THE STATE CO-ORDINATOR NRC ASSAM BHANGAGARH GHY- Advocate for the Petitioner : MR J HUSSAIN, MR. L HUSSAIN,MR. A H MONDAL Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, NRC,SC, ELECTION COMMISSION. BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND JUDGMENT AND O R D E R (ORAL) 03.09.2026 (K.R. Surana, J) Heard Mr. J. Hussain, learned counsel for the petitioner. Also heard Ms. B. Sharma, learned CGC; Mr. G. Sharma, learned standing counsel for the FT and Border matters; Mr. A. I. Ali, learned standing counsel for the ECI; and Mr. P. Sarmah, learned Additional Senior Govt. Advocate for the State respondent. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner namely Meher Ali, has assailed the opinion dated 19.08.2019, passed by the learned Member, Foreigners Tribunal No. 4th, Barpeta, in F.T. Case No. 89/2017, arising out of Ref. IM(D)T Case No. 3409/B/98,by which the petitioner was declared to be a foreigner of Post 25.03.1971 stream. 3. On being served with the notice of the proceeding, the petitioner appeared before the learned Tribunal and filed his written statement, claiming to be a Page No.# 3/12 bonafide citizen of India who is born and brought up at Village-Shilochi, P.S.- Baghbar, District-Barpeta. The name of his father is late Sadhu Mia and name of his mother is late Nesuman Nessa, and their names appeared in the voters list of 1966 and 1970.The name of the petitioner and his elder brothers, namely, Sahar Ali and Rustam Ali appeared in the voters list of 1993 and that one of his elder brother, namely, Rustam Ali appeared in the voter list of 1997. His own name appeared in the voters list of 2005 and 2011 at Village-Mandia. The petitioner relied on the Elector Photo Identity Card (EPIC for short) of his elder brother, Rustam Ali, bearing Card No. HNT1320612 at village-Mandia, one jamabandi copy issued by Circle Officer of Baghbar Revenue Circle as a bonafide land pattadar covered by Patta No. 83, Dag No. 83 at village Shilochi, and two certificates issued by the Local Gaonburah of village-Shilochi and Mandia in respect to earlier and present residents. He has further stated that his father died 35-36 years ago. In support of his defence, the petitioner filed his evidence-on-affidavit as DW-1, wherein by reiterating the statements made in the written statement has exhibited the following documents:- i. Exhibit-‘A’:- Photocopy of certified copy of Voter List of 1966. ii. Exhibit-‘B’:- Photocopy of certified copy of Voter List of 1970. iii. Exhibit-‘C’:- Photocopy of certified copy of Voter List of 1997. iv. Exhibit-‘D’:- Elector Photo Identity Card. v. Exhibit-‘E’:- Land Document. vi. Exhibit-‘F’ & ‘G’:- Gaonburah Certificates. 4. Apart from filing his evidence-on-affidavit, oral examination of DW-1 was also recorded on 01.11.2017, wherein he had referred to the contents of the exhibited documents. 5. The petitioner has examined one, Nipul Das, the In-Charge Gaonburah of Village-Mandia Gaon/Mandia Pathar under Charge No. 10 as DW-2. He had Page No.# 4/12 stated in his examination-in-chief that due to physical disability of his father, he was acting as the In-Charge Gaonburah pursuant to order passed by the Circle Officer, Baghbar Revenue Circle. He has stated that he knew Mohar Ali and Ext.G was the certificate issued by his father Lohit Das, whose signature was Ext.G(i). He had exhibited his In-Charge order issued by the Circle officer as Ext.H and his identity card as Ext.I. In the form of recording deposition, in his cross-examination, it has been recorded that it is a fact that the certificate was issued by his father Lohit Das, and not by him. He has stated that he was working as Gaonburah In-Charge before 2014, and the order of appointing him as In-Charge Gaonburah was passed by Circle Officer in 2014. 6. The petitioner has also examined Arun Kumar Deka, the Lot Mandal of Baghbar Circle as DW-3. In his examination-in-chief recorded on 06.04.2019, he has stated that he had appeared with authorization from the Circle Officer and he was working as a Lot Mandal under 1 No. Shilochi village and Ext.E is the extract of jamabandi issued by the Circle officer and in the jamabandi, the name of Sadhu Miya appeared. He has stated that the jamabandi was of 1965-66, and by order dated 18.11.1978, the name of legal heirs of Sadhu Miya were mutated namely, Rustam Ali, Iman Ali, Sahar Ali, Taher Ali, Meher Ali. The signature of the Circle Officer was exhibited as Ext.E(i) and his signature is Ext.E(ii). In his cross-examination, he had stated that as per the jamabandi, the Dag No. 83(sic. should be 1B-3K-3L, and out of that rented property, one bigha land was purchased by A. Hakim Khalifa. He had stated that on a perusal of the order, it is not mentioned that from whom the property has been purchased. After one bigha, only 3K-3L land is remaining. He has stated that Ijjat Ali Miya is the original pattadar and he also has some share of remaining land of 3K-3L land. He has stated that no specific share in relation to Sadhu Miya and Ijjat Ali Miya Page No.# 5/12 and in the order dated 18.11.1978, the name of one Meher Ali, appeared as pattadar. He personally does not know Meher Ali, and he has denied the suggestion that the mutation order was not formally done. 7. It may be stated that as per the order dated 14.09.2018 and 06.04.2019, the learned Tribunal has recorded in the order that DW-2 and DW-3, respectively were examined and discharged. However, in the form of recording deposition, as against DW-2 and DW-3, which calls for examination has been recorded. Therefore, there is lack of clarity as to whether the cross-examination was by the Government pleader or it was the questions put up by the learned Tribunal under Section 165 of the Evidence Act, 1872. 8. The learned Tribunal in its opinion dated 19.08.2019, referred to the reference made by the Superintendent of Police (B), Barpeta, under the IM(D)T and the transfer of proceedings to the Foreigners Tribunal pursuant to the decision of the Supreme Court of India in the case of Sarbananda Sonowal Vs. Union of India & Ors (2005) 5 SCC 665. 9. In the said opinion, the learned Tribunal has referred to seven exhibits being Ext.A to Ext.G which are mentioned hereinbefore. The learned Tribunal observed that though the petitioner had disclosed his parents name, but he had not disclosed the grandparents or the names of the brothers and sisters of his father as well as his own brothers and sisters. It may be stated that the petitioner had not disclosed his age or wherabouts at the time of filing his written statement. Accordingly, relying on the decision of the Supreme Court of India in the case of Sarbananda Sonowal (supra), the written statement was found to be wholly inadequate. The learned Tribunal had referred to the evidence-on-affidavit filed by the petitioner where he has disclosed his age as 50 years. On an analysis of the documentary exhibits, the learned Tribunal had Page No.# 6/12 referred to the voters list of 1966 (Ext.A) and the voters list of 1970 (Ext.B), which contained the entries of Sadhu Miya and Nesuman Nessa of Village- Shiloshi and also the voters list of 1997(Ext.C), where the name of Rustam Ali, son of Sadhu Miya, Jaruna Khatun and Amena Khatun of Village-Mandia was recorded. The learned Tribunal had referred to the voters list of 1997 (Ext.C) wherein his age was recorded as 53 and accordingly, it was observed that the petitioner was eligible to vote prior to 1997 with Sadhu Miya and Nesuman Nessa, his projected parents. The learned Tribunal has made an observation that the petitioner did not submit any explanation or clarification as to why his name has not been enlisted in the voters list of 1966 and 1970. It wasalso observedthat no voters list have been submitted in the name of Rustom Ali prior to 1997. Referring to the stand of the petitioner that his father had died about 35-36 years ago, it was observed that his father had died sometime in the year 1983/84 and there was no mention about the death of his mother, Nesuman Nessa. Accordingly, on cumulative analysis of the voters list upto 1997, the learned Tribunal, in the absence of reliable evidence on record, casted doubt, which leads to the presumption that Rustam Ali, the father of the petitioner is an Indian citizen. It may be stated that in some documents, the name of the father of the petitioner is written as Sadhu Miya @ Sadhu Miah @ Sadhu Mia, indicating that all these three names refer to the same person. 10. The aforesaid finding appears to be incorrect because the petitioner has never pleaded Rustam Ali to be his father either in the written statement or in his evidence on affidavit or in course of the examination by the learned Tribunal. In respect of Ext.E, the jambandi, the learned Tribunal had recorded that the entries in the jamabandi are prepared on fiscal enquiries and the entry in the jamabandi has to be examined on the probative value which shall be regarded Page No.# 7/12 to be corroborative with other documentary evidence. However, as no other documentary evidence was produced, the learned Tribunal had held that the entry in the copy of jamabandi was inadmissible in evidence in the absence of other substantial documentary evidence.The two exhibited certificates from the Gaonburah (Ext.F and Ext.G) were discarded in view of the State emblem embossed on the said certificate. Resultantly, it was held that the petitioner was unable to establish his link with legal parent relatable to a period prior to 25.03.1971. It was further held that the narrative of the petitioner suffers from multiple material contradictions and omission which renders the same to be highly suspected and wholly improbable. Accordingly, the petitioner was declared to be a foreigner of post 25.03.1971. 11. The learned counsel for the petitioner has made his submissions to assail the impugned opinion. 12. However, the learned standing counsel for the FT and Border matters has made his submissions in support of the impugned opinion. It has been submitted that there is no document to link the petitioner to his projected parents and similarly there are no documents to link the projected parents of the petitioner with the petitioner’s grandparents. Accordingly, it is has been submitted that the voters list of 1966 and 1970, containing the name of petitioner’s father and his mother are of Village-Shilochi, but the name of the petitioner appears to befrom a different village being Village-Mandia where his name was enlisted in the voters list of 2005 and 2011. It is also submitted that there is a discrepancy in the date/year of death of the petitioner’s father. However, it is submitted that the impugned opinion requires no interference. 13. In this case, the petitioner had projected that the name of his father and mother appeared in the voter list of 1966 and his name of his father appeared Page No.# 8/12 in the voter list of 1970. However, the learned Tribunal has accepted that the name of the father and mother appeared in the voters list of 1966 and 1970, at that time, the place of the petitioner resided at village-Shilochi. In the evidence- on-affidavit by DW-3, who is the Lot Mandal, he had specifically stated that the jamabandi (Ext.E) was of the settlement period of 1965-66 and in the jamabandi, the name of Sadhu Miah appeared. The relevant entry in the jamabandi by virtue of which the name of the petitioner and other brothers were mutated was passed on 18.11.1978, which was by way of inheritance, the name of Rustam Ali, Mohar Ali, Sahar Ali and Taher Ali, son of late Sadhu Miah was recorded. However, the corrections were carried out on 01.11.1981. Therefore, the entry of the name of the petitioner along with his other brothers occurred prior to the reference made in the year 1997. 14. The name of the petitioner appeared in the voters list and the Electoral Registration Officer, 45 Baghbar Assembly Constituency, on a doubtregarding the citizenship of the petitioner, directedan enquiry and the Local Verification Officer’s report dated 30.09.1997 was the basis for Electoral Registration Officer to submit the reference on 20.11.1997 to the Superintendent of Police, Barpeta. Thereafter, a reference was made before the Chairman, IM(D)T, Barpeta. Subsequently, pursuant to the order passed by the Supreme Court of India in the case of Sarbananda Sonowal (supra), the matter has been transferred to the Foreigners Tribunals. 15. Therefore, the Court finds that the objections made by the learned standing counsel for the FT and Border matters that though the petitioner disclosed the name of only two brothers, the petitioner is silent on the other three brothers were found to be a valid objection. It is well settled that all the facts must be disclosed in the written statement and thereafter proved by Page No.# 9/12 cogent and admissible evidence. If one requires any authority on the point, the decision of this Court in the case of Rashminara Begum Vs. Union of India, 2017 (4) GLT 346, may be referred to. In the case of Jehirul Islam Vs. Union of India, (2017) 5 GLR 670, this Court has heldthat failure to disclose material facts would lead to adverse presumption. 16. Consequently, the second objection made by the learnedstandingcounselfor the FT and Border matters has submitted that the petitioner hasnot been able to link himself with the projected parents whoare residents of village-Shilochi whereas, the existence of Sahar Ali, Rustam Ali and Meher Ali is in village-Mandia. 17. In so far as the evidence of DW-2 is concerned, he is the Gaonburah In- Charge of Mandia Gaon/Mandia pathar under Charge No. 10. The certificate he had exhibited was marked as Ext.G. However, the said Ext.G becomes inadmissible in evidence because of the use of the State emblem which the Gaonburah is not authorized to use. Exhibits-H & I otherwise do not help the petitioner to prove his citizenship. 18. The DW-3 who is the Lot Mandal had exhibited the jamabandi (Ext.E). As stated herein before, though the jamabandi is of the year 1965-66, which establishes the patta holder no. 1, namely Sadhu Miah, son of Mazid Ali Miah, being the original pattadar, his presence in India can be traced out to the year 1965-1966, the period the jamabandi was created i.e., 1965-66. In the said context, which is already referred hereinbefore, in his written statement, the petitioner has not disclosed the name of his grandfather. Moreover, on disclosure of three siblings, whose name appears in the jamabandi by way of inheritance, is not found to help the petitioner to establish that the petitioner whose name appears in the voters list of 2005 at village-Mandia has been able to connect Page No.# 10/12 himself as the son of Sadhu Miah and Nesuman Nessa whose name appeared in the voters list of 1966 (Ext.A) and 1970 (Ext.B). 19. In the written statement filed by the petitioner, he has stated that after the year 1994, due to river erosion of Brahmaputra, the petitioner has shifted from Shilochi Gaon to Mandia, where his name appeared in the voter list of 1997 with 'D' mark and he had only relied on the voter list of his projected elder brother, namely, Rustam Ali, whose name appeared in the voter list of 1997 under serial no. 1015, House no. 298 of Part no. 76 (Ka) at village-Mandia. An uncertified copy of the electoral roll of 1997, his father's name also appeared along with the entry of Rustam Ali, but the petitioner has not identified himself to have any relation with the other electors whose name appeared along with Rustam Ali. The petitioner has projected Sahar Ali as his elder brother whose name appeared in the voters list of 1993 but there is no explanation as to why the name of Sahar Ali does not appear in any subsequent voters list along with the petitioner or his elder brother, Rustam Ali. 20. At this stage, the learned counsel for the petitioner has submitted that perhaps the case was incorrectly conducted by the learned counsel who was representing the petitioner before the learned Tribunal. It has been submitted that the petitioner has a copy of notice issued to the petitioner and his siblings and other members of the family for grant of compensation against land acquisition vide notice dated 11.04.1984, which could link the petitioner to the other siblings, but there is lack of pleading in the written statement with regard to the existence of other siblings and the link of petitioner to the pattadar no. 2 and 3 of the jamabandi (Ext.E). Accordingly, an oral prayer has been made to remand the matter back to the learned Tribunal so as to enable the petitioner to prove further documents in support of his defence that he is not a foreigner. Page No.# 11/12 21. As indicated hereinbefore, there is lack of pleading in the written statement and full disclosure, in the evidence-on-affidavit. It has not been disclosed that the petitioner has five siblings, being Rustam Ali, Iman Ali, Sahar Ali, Taher Ali and the petitioner, namely, Meher Ali. The petitioner has failed to demonstrate that he has any link with those persons in respect of whom the land was mutated and recorded in the jamabandi asExt.E. The petitioner has also not disclosed about his linkage with two other siblings and his name does not appear along with Rustam Ali in any exhibited voter list and there is lack of pleading as to what happened to his mother after 1970, when her name last appeared in the voter list. 22. This Court is not exercising appellate power or revisional jurisdiction while examining the impugned opinion but the Court is exercising under certiorari jurisdiction. Therefore, this Court would not have the power to examine any further documents which are not relied upon or exhibited before the learned Tribunal as this Court does not have the original jurisdiction to examine documents not produced before the learned Tribunal. 23. It has been held by the Supreme Court of India in the case of Central Council for Research in Ayurvedic Sciences Vs. Bikartan Das, (2023) 16 SCC 462,that the certiorari jurisdiction is limited to examination as to whether the opinion expressed by the learned Tribunal is vitiated by incorrect appreciation of evidence on record or non consideration of any evidence which is available on record or the learned Tribunal has taken into account extraneous considerations for passing the impugned order/opinion. In this case, owing to the lack of pleadings, the petitioner has failed to connect himself with his parents whose name appeared in the voters list of 1966 and 1970, at village-Shilochi, or with his projected brother, namely Rustam Ali, whose name appears at village- Page No.# 12/12 Mandia along with two other voters. 24. Under the circumstances, the plea of the learned counsel for the petitioner for remanding back the matter afresh and allowing the petitioner to exhibit further documents cannot be accepted. 25. In view of the discussions above, Court has found no material to interfere with the impugned opinion dated 19.08.2019, passed by the learned Member, Foreigners Tribunal No. 4th, Barpeta, in F.T. Case No. 89/17, arising out of Ref. IM(D)T Case No. 3409/B/98. 26. Accordingly, this writ petition fails and the same is dismissed. 27. The consequences of the opinion shall follow. 28. The Registry shall send back the records back to the learned Tribunal along with a copy of the order to be made a part of record by the said learned Tribunal. 29. The learned standing counsel for the FT and Border matters shall send a downloaded copy of this order to the concerned respondent authorities for information. 30. There shall be no order as to costs. JUDGE JUDGE Comparing Assistant