Page No.# 1/13 GAHC010188632020 2026:GAU-AS:14344-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5813/2020 MD. JAGER ALI @ JAGIR ALI S/O- KADER ALI, R/O- VILL- PATHSALA GAON, MOUZA- SARIHA, P.S. PATHACHARKUCHI, DIST.- BARPETA, ASSAM, PIN- 781325 VERSUS THE UNION OF INDIA AND 5 ORS REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, TILAK MARG, NEW DELHI- 110001 2:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-06 3:THE ELECTION COMMISSIONER BARPETA PIN- 781301 4:THE STATE CO-ORDINATOR NATIONAL REGISTRATION OF CITIZEN (NRC) BHANGARH GHY-05 5:THE DY. COMMISSIONER BARPETA PIN- 781301 6:THE SUPERINTENDENT OF POLICE (B) BARPETA PIN- 78131 Page No.# 2/13 BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE NCHUMBEMO MOZHUI For the petitioner : Mr. A. Dasgupta, Advocate. : Mr. B. Das, Adv. For respondents : Mr. C.S. Baruah, CGC. : Mr. G. Sarma, SC, FT & Border. : Mr. P. Sarmah, Addl. Sr. Govt. Advocate. : Mr. A.I. Ali, SC, ECI. Date on which judgment is reserved : 11.09.2026 Date of pronouncement of judgment : 25.09.2026 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. A. Dasgupta, learned Senior counsel, assisted by Ms. B. Das, learned counsel for the petitioner. Also heard Mr. G. Sarma, learned Standing counsel, F.T. & Border matters; Mr. P. Sarmah, learned Additional Senior Government Advocate, Assam; Mr. A.I. Ali, learned Standing counsel, ECI and Mr. C.S. Baruah, learned CGC. 2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 31.10.2019, passed by the learned Member, Foreigners’ Tribunal (10th), Barpeta, in F.T. Case No. Page No.# 3/13 1509/2017, arising out of IM(D)T Reference Case No. 199/2013, whereby he was declared to be a foreigner of post-25.03.1971 stream. 3) On receipt of the notice of the proceedings, the petitioner appeared before the learned Tribunal and had filed his written statement, wherein he had stated that there was no cause of action for the case and the case was baseless, concocted and filed only to harass the petitioner without any proper investigation. The petitioner had stated that he was a citizen of India and was born and brought up at village-Pathsala Gaon in the district of Barpeta. Osman Ali is his grandfather; Amiron Nessa is his grandmother; Kader Ali is his father; and Jabeda Begum is his mother. The name of his grandparents appeared in the voters’ list of 1965 and 1970 of village Pathsala Gaon, under Patacharkuchi LAC. The name of his parents appeared in the voters’ list of 1997; he and his father have Elector Photo Identity Card (EPIC for short). He has a PAN card. The Gaonburah of village Pathsala had issued a certificate dated 29.06.2018 to him. 4) The statements made in the written statement were reiterated in the evidence-on-affidavit filed by him as DW-1. Along with his evidence-on-affidavit, the petitioner had exhibited the following documents, viz., (i) Certified copy of voter list of 1965 (Ext.A), (ii) Certified copy of voter list of 1970 (Ext.B), (iii) Certified copy of voter list of 1997 (Ext.C), (iv) Elector photo identity card of the petitioner (Ext.D), (v) Elector photo identity card of the father of the petitioner (Ext.E), (vi) PAN Card (Ext.F), and (vii) Gaonburah certificate of village- Pathsala (Ext.G). 5) By referring to the materials available on record, the learned Tribunal in its impugned opinion dated 31.10.2019, referred to the deposition of the petitioner as DW-1; examination-in-chief and cross-examination of Kader Ali, the projected father of the petitioner, who was examined as DW-2. By referring to Page No.# 4/13 the cross-examination of DW-2, wherein he had stated that he was casting his vote since 1997, and it was opined that the person whose name appeared in the voter list of 1970 is a different person than DW-2. In his cross-examination, DW- 2 had stated that his father, namely, Osman Ali, died in the year 1970, and at the time of his death he was a small boy and therefore, as his age was disclosed as 72 years in his evidence-on-affidavit and accordingly, the learned Tribunal concluded that DW-2 had already attained majority in 1970 and therefore, the statement that he was a small boy when his father expired in 1970 was found unsustainable. Moreover, the age difference of DW-2 in comparison to the Exhibit- B was found to be 18 years and as the name of the parents of the petitioner did not appear as voters between 1970 to 1997, which is about 27 years, it was concluded that Kader Ali, whose name appeared in the voters’ list of 1970 (Ext.B), and Kader Ali, whose name appeared in the voters’ list of 1997 (Ext.C), are two different persons. 6) The evidence of the Gaonburah (DW-3) was discarded as he had stated that he does not know the name of petitioner’s father and grandfather. He also did not know when the name of the petitioner was enrolled in the electoral roll and he did not know about petitioner’s family. Accordingly, it was held that the DW-3 could not prove that the father of the petitioner, namely, Kader Ali is the same person whose name appeared in the voters’ list of 1970 (Ext-.B). 7) The learned Tribunal also found discrepancy in the evidence of DW-1 and DW-2, as the petitioner is DW-1 had stated in his cross-examination that he has studied up to Class IV, whereas DW-2 had stated that the petitioner had studied up to Class- I in Titka L.P. School. The learned Tribunal had also observed that DW-2 had stated that he has 2(two) sons who stayed with him at Page No.# 5/13 Pathsala, yet no voter list containing the name of DW-2, petitioner and his brother was proved. Accordingly, it was held that DW-2 and DW-3 could not support the defence of the petitioner and as such the petitioner was declared to be a foreigner of post 25.03.1971 stream. 8) The learned Senior counsel for the petitioner had referred to the evidence-on-affidavit and cross-examination of DW-1 and DW-2 as well as the examination-in-chief and the cross-examination of DW-3, and it was submitted that the effect of the deposition of the 3(three) witnesses were sufficient evidence to hold the petitioner to be an Indian and not a foreigner. It was further submitted that all the documents have been duly proved by the petitioner and other witnesses examined by him. Moreover, it is submitted that the notice of the proceeding that was served on the petitioner clearly indicated that the petitioner was the son of Kader Ali. Thus, it was submitted that the impugned opinion is not sustainable. 9) Per contra, learned Standing Counsel for the Border and F.T. matters submitted that the petitioner was 42 years of age at the time of filing his written statement and thus, he was born in the year 1976 and hence, the petitioner got his voting right on attaining the age of 18 years in the year 1994, but no voter list of the petitioner was produced and exhibited. It is also submitted that on 19.04.2019, when DW-2, the projected father of the petitioner appeared for his cross-examination, he had stated his age to be 72 years and therefore, the projected father of the petitioner was born in the year 1957. It was submitted that DW-2 had made a specific statement that in 1970, when his father had died, he was a small boy, which was contrary to the voter list of 1970 (Ext.2), where his age is 21 years. Accordingly, it was submitted that the person who had deposed as DW-2 and the voter whose name appeared in the voter list of Page No.# 6/13 1970 are two different persons. 10) By referring to the case of Aziz Mia @ Md. Aziz Mia v. Union of India & Ors., 2023 (4) GLT 246, it was submitted that this Court had held that a mere claim by a suspected person by referring to a voter list, claiming a person therein to be his father, is not conclusive proof and that by doing so, the person has discharged the burden that he is not a foreigner. Accordingly, it has been submitted that a mere entry in the voter list of 1970 was not sufficient proof that the said voter was the father of the petitioner. It is also submitted that the EPIC and the PAN Card are not valid pieces of evidence in absence of any supporting evidence. Accordingly, it was submitted that the impugned opinion is sustainable. 11) Examined the Tribunal's records which were called for. Also considered the submissions made at the Bar by the learned Senior Counsel for the petitioner as well as the learned Standing Counsel for the Border and FT matters, as well as the case laws cited by the learned Standing Counsel for the Border and FT matters. 12) In the present case in hand, the petitioner has stated in his evidence- on-affidavit that the name of his grandfather is Osman Ali and the name of his grandmother is Amiron Nessa, and the name of his father is Kader Ali and the name of his mother is Jobeda Begum. He had stated that the name of his grandparents appeared in the voter list of 1965 at village Pathsala Gaon, and the said voter list of 1965 was exhibited as Ext.A. 13) He had claimed that the name of his grandfather, grandmother, and his father appeared in the voter list of 1970 at village Pathsala Gaon, and in this regard, he has exhibited the voter list of 1970 as Ext-B. The petitioner claims Page No.# 7/13 that the name of his father and mother appeared in the voters list of 1997 of the same village Pathsala Gaon. However, it was stated that in the said voters list, the name of his father was wrongly written as 38 years instead of 48 years. He has exhibited the said voter list of 1997 as Ext.C. 14) The petitioner had exhibited his EPIC as Ext.D, and the EPIC of his father as Ext.E, and his PAN card as Ext.F. The petitioner has also exhibited the certificate dated 29.06.2018 issued by the Gaonburah of village Pathsala as Ext.G. 15) This Court, in the case of Md. Babul Islam v. Union of India & Ors. WP(C) 3547/2016, decided on 09.05.2018, has held that the EPIC and PAN card are not proof of citizenship in the absence of supporting evidence. The said documents are issued on the basis of declarations made by the petitioner while applying for EPIC and PAN card, and both are post-1971 documents. Therefore, the Court is required to examine as to whether the voters list of 1965 (Ext.A), 1970 (Ext.B), and 1997 (Ext.C), along with the Gaonburah certificate (Ext.G), constitutes admissible evidence regarding the link of the petitioner with his projected parents and grandparents. 16) In the case of Basiron Bibi v Union of India & Ors., 2018 (1) GLT 372, this Court has held that while reading evidence tendered by the petitioner, who is the proceedee before the Foreigners Tribunal, it is not open to the petitioner to say that only that portion of voter list which favours her should be read and portion which goes against her should be overlooked, and that is not how a piece of evidence can be examined. In a given case, if or when the identity of all members of the family is established including the petitioner, in that case, perhaps, by following the ratio of the decision of the Supreme Court of India, in the case of Md. Sirajul Hoque v. State of Assam & Ors., (2019) 5 SCC 534, the Page No.# 8/13 discrepancy in the age of concerned voter in one voter list may be overlooked. However, in this case, the petitioner has not disclosed his entire family, as more elaborately referred in paragraph 18 and 19 below. Therefore, in this case, the Court cannot hold that the entry made in the voters of 1997 (Ext.C) list is incorrect and that the said exhibited document should be read as if the age of the concerned voter was 48 years instead of 30 years, as sought to be portrayed by the petitioner. This is not how an exhibited document can be read by presuming that the age entered therein is contrary to the fact proved through the exhibited voter list. 17) The name of the petitioner does not appear in any of the exhibited voters lists. In the present writ petition, the petitioner has declared his age in the affidavit filed in support of the writ petition on 02.12.2020 as 43 years. Therefore, the petitioner would be born sometime in the year 1977. Since the year 1989, the age at which votes could be cast was reduced to 18 years, and therefore the petitioner would have derived his voting right on and from the year 1995. However, no voters list of the petitioner on or after the year 1995 was exhibited. 18) In the written statement filed by the petitioner, the petitioner has not disclosed as to how many brothers or sisters his father had, or how many siblings he had. Moreover, the petitioner has not disclosed as to whether he is married or not, or whether he has children or not. The petitioner has not made any statement as to what happened to his grandparents after 1970 and what happened to his parents after their names appeared in the voter list of 1997. 19) Therefore, there is no pleading or evidence as to whether the grandparents and parents of the petitioner had resided all throughout in the country before the cut-off date of 25.03.1971, inasmuch as it is the admitted Page No.# 9/13 case of the petitioner that there is an age difference of 18 years in the age of his father as mentioned in the voter list of 1997 (Ext.C). 20) In his cross-examination, the petitioner as DW-1 had stated that his name was enrolled in the voters list, but he does not know when his name was enrolled for the first time. He had stated that he has produced one Gaonburah certificate, but he does not know the name of the Gaonburah. 21) The petitioner had examined Kadir Ali, his projected father, as DW-2. He has re-exhibited the seven documents already exhibited by the petitioner. In his cross-examination, he had stated that he has two sons and two daughters, namely, Arob Hussain, Minuwara Begum, Jiniwara Begum, and Jakir Ali, the petitioner. He had stated that the petitioner is the eldest and Jiniwara is the youngest, and both sons stay with him at Pathsala village. He had stated that the petitioner studied at Titka LP School in Class I (Ka), and others did not attend school. 22) He had stated that his father's name is Osman Ali, who died in 1970 when he was a small boy. He does not know the age of his father at the time of death. He had also stated that after two years from the death of his father, his mother had died. He does not know anything about her. He does not know the name of the grandmother. He had stated that he was casting his vote since 1997. He has also stated that both his sons were enrolled in the electoral roll, and admitted that no voters list is produced before this Tribunal. He does not know if the petitioner has paid any income tax or not. 23) The petitioner had examined one Manoj Das, Gaonburah of Titka. He had stated that he had issued one certificate to the petitioner, Jakir Ali (Ext.G). He does not know the name of the father of the petitioner. The petitioner is Page No.# 10/13 residing at village Pathsala. He does not know the name of the grandfather of the petitioner. He had stated that he knows the petitioner, and after verifying the voter ID, he had issued the certificate. In his cross-examination, DW-3 had stated that he did not make any spot verification before issuing the certificate. He does not know if the name of the petitioner was enrolled in the voters list or not. He does not have any idea about his family, and he does not know whether the name of his father was enrolled in the voters list or not. 24) Therefore, insofar as the evidence of the Gaonburah is concerned, he has given the certificate on the basis of the voter ID/EPIC and without verifying whether the name of the petitioner appeared in any electoral roll or not. DW-3 also does not know the family of the petitioner, he does not know the name of the grandfather of the petitioner, and also does not know whether the name of the petitioner's father was enrolled in any voters list or not. Therefore, the Gaonburah certificate (Ext.G) would not constitute proof of citizenship. 25) On comparison of the statement made by the petitioner (DW-1) and projected father (DW-2), it is seen that while the petitioner asserts that he has studied up to Class IV, as per the evidence of DW-2, the petitioner had studied at Titka LP School in Class 1 (Ka). According to the petitioner, his two sisters are Minuwara Begum and Jinira Begum, and the name of his brother is Anowaraf Hussain. However, as per the evidence of DW-2, the name of his two daughters are Minuwara Begum and Jiniwara Begum and the name of his other son is Arob Hussain. Therefore, there is a mismatch in the names of the brothers and sisters of the petitioner with that disclosed by DW-2. 26) The petitioner has stated that the name of his father appeared along with his grandparents in the voters list of 1997. Moreover, as per the evidence of DW-2, his father died in the year 1970 when he was a small boy. Page No.# 11/13 27) DW-2, at the time of filing his evidence on affidavit and at the time of his cross-examination, his age was disclosed as 72 years. Therefore, DW-2 was 72 years as of 2019, and would have been born in the year 1947, and he became eligible to vote in the year 1967. Hence, his name ought to have appeared in the electoral roll of 1970 along with his parents. On the other hand, as per the disclosure made by DW-2, his father died in the year 1970 when he was a small boy. 28) Therefore, it appears that the evidence of DW-2 cannot be reconciled with the evidence on record, specifically the voters list of 1970 (Ext.B). When as per his own evidence on affidavit, the petitioner was eligible to vote having attained the age of 21 years in the year 1967, but as per the oral evidence of DW-2, in 1970 he was a small boy. Thus, it cannot be said that DW-2 is the same person whose name appears in the voter list of 1997. 29) As per the disclosure made in the voter list of 1997, the voter Kadir Ali was 30 years of age, and therefore, Kadir Ali of Ext.C was born in the year 1967. 30) In the considered opinion of the Court, this is not a case where there is some minor discrepancy in the disclosure of names and age of the concerned persons with whom the petitioner is seeking to establish a link. There is a total mismatch of the description of the family insofar as the siblings of the petitioner and children of DW-2 are concerned. There is a difference between the evidence of the petitioner and that of DW-2 as regards the class up to which the petitioner had studied in school. Therefore, the discrepancies in this case amount to inconsistency and contradiction in the evidence. 31) Accordingly, this is a fit case where the decision of this Court in the case of Aziz Mia @ Md. Aziz Mia (supra), cited by the learned Standing Counsel for Page No.# 12/13 the Border and FT matters, would squarely apply. This is not a case where a mere claim by the petitioner by referring to the voters lists of 1965, 1970, and 1997 (Ext. A, B, and C) can be said to have conclusively proved that the persons whose names appear in the said three voters lists were respectively his grandparents and father. Accordingly, it cannot be said that the petitioner, by merely referring to the three voters lists of 1965 (Ext.A), 1970 (Ext.B), and 1997 (Ext.C), could establish his link with his projected father. 32) As already stated earlier, this Court has held that the EPIC (Ext.D) and PAN card (Ext.E) cannot be proof of citizenship. 33) In the said context, this Court, in the case of Basiron Nessa v. Union of India, 2018 (4) GLT 692, has held that the Gaonburah certificate was issued after looking at the voters list, and accordingly it was held that documentary evidence must be proved from record and not solely by oral testimony. The said ratio squarely applies in the present case in hand, as the Gaonburah (DW-3) had issued the certificate based on the EPIC of the petitioner, which itself is not an admissible document in proof of citizenship. 34) In light of the discussions above, the Court is inclined to hold that the petitioner has not been able to make out a case for interference with the well- considered opinion of the learned Tribunal declaring the petitioner to be a foreigner post 25.03.1971. Hence, the writ petition fails and the same is dismissed. 35) The consequence of the impugned opinion dated 31.10.2019, passed by the learned Member, Foreigners’ Tribunal (10th), Barpeta, in F.T. Case No. 1509/2017, arising out of IM(D)T Reference Case No. 199/2013 shall follow. 36) The Registry shall return back the learned Tribunal’s record along with a Page No.# 13/13 copy of this order, to be made a part of record by the said learned Tribunal. 37) Bail granted to the petitioner by order dated 18.02.2021 is revoked. JUDGE JUDGE Comparing Assistant Munna Kumar Digitally signed by Munna Kumar Date: 2026.09.28 10:07:42 +05'30'