GAHC010192622019 2026:GAU-AS:15325 THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH) W.P. (C) NO. 6574 OF 2019 NURUL HOQUE S/O- FARUK HUSSAIN, R/O- VILL- PASCHIM LANKA GAON, P.S- LANKA, DIST- HOJAI, ASSAM VERSUS UNION OF INDIA AND 5 ORS REP. BY THE SECRETARY TO THE GOVT OF INDIA, MIN OF HOME AFFAIRS, SHASTRI BHAWAN, NEW DELHI- 110001 2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM HOME DEPTT DISPUR GHY- 6 3:THE DEPUTY COMMISSIONER HOJAI PIN- 4:THE SUPERINTENDENT OF POLICE (B) HOJAI PIN- 5:THE ELECTION COMMISSION OF INDIA NEW DELHI- 110001 6:THE STATE COORDINATOR NRC ASSAM, GUWAHATI- 78100 BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SHAMIMA JAHAN For the petitioner : Ms. S.K. Nargis. For respondents : Mr. C.K.S. Barua, CGC. : Mr. J. Payeng, SC, FT & Border. : Mrs. R.B. Bora, G.A : Mr. A.I. Ali, SC, ECI. Date on which judgment is reserved : 22.06.2026 Date of pronouncement of judgment : 12.10.2026 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 Mrs. S.K. Nargis, learned counsel for the petitioner. Also heard Mr. C.K.S. Barua, learned CGC for respondent no.1; Mr. J. Payeng, learned standing counsel for Border and F.T. matters for respondent nos. 2, 4 and 6; Mrs. R.B. Bora, learned Govt. Advocate for respondent no.3; and Mr. A.I. Ali, learned standing counsel for Election Commission of India, respondent no.5. 2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Unruly Hogue, has assailed the opinion dated 10.10.2018, passed by the learned Member, Foreigners Tribunal, Negron 7th at Lanka, Hojai, by which the petitioner has been declared to be a foreigner under Section 2(a) of the Foreigners Act, 1946, who has illegally entered into the territory of India (Assam) after 25.03.1971 without any valid documents. 3) On service of notice, the petitioner had appeared before the learned Tribunal and had filed his written statement, wherein apart from usual denial, in brief, it was stated as follows: - a. The petitioner was born and brought up at village- Godaimari, P.S. Rupahihat, Mouza- Juria, Nagaon, and is presently residing at village- Paschim Lanka Gaon, P.S. Lanka, Dist. Hojai, Assam. It may be stated herein that in paragraph 3 of the written statement available in the Tribunal’s record, the name of the village where the petitioner is born is written as “Godaimari”, whereas, in paragraph 3 of the copy of the written statement which is annexed to the writ petition as Annexure- 14, the name of the village where the petitioner was born is stated to be “Samdhara”. b. The name of his grandparents were enrolled in the voter list of 1965 and 1970 as Mafij Uddin, son of Haji Usman of village- Samdhara, P.S. Rupahihat, Mouza- Juria, Dist. Nagaon, under Rupahi Hat LAC. After 1971, his grandfather and father shifted their residence to nearby village- Godaimari and the name of his grandfather and father and other members of his family were enrolled in the voter list of 1975, 1979 and 1989 of village- Godaimari, P.S. Rupahihat, Mouza- Juria, Dist. Nagaon, under Rupahi Hat LAC. The name of his grandfather, parents and his name was enrolled in the voter list of 1997 of village- Godaimari, P.S. Rupahihat, Mouza- Juria, Dist. Nagaon, under Rupahi Hat LAC. The name of his parents, and his name was enrolled in the voter list of 2005, 2010, 2014 under village- Godaimari, P.S. Rupahihat, Mouza- Juria, Dist. Nagaon, under Rupahi Hat LAC. The petitioner shifted his residence from village- Godaimari to village- Paschim Lanka Gaon, P.S. Lanka, Dist. Hojai and on 29.10.2014, he had applied for transfer of his vote from 85 No. Rupahi Hat LAC to 91 No. Hojai LAC and his name was enrolled in the voter list of 2016 in the said Paschim Lanka Gaon village under 91 No. Hojai LAC. It may be stated herein that on a comparative reading of the written statement of the petitioner which is annexed to this writ petition at Annexure-14 with the written statement available in the Tribunal’s record, both are not similar because in the copy of written statement annexed to the writ petition, paragraph nos. 14 to 16 is not available. c. In paragraph 15 of the written statement which is available in the Tribunal’s record, it has been stated as follows: – “15. That, in the voter list of 2018 under 91 No. Hojai LAC of Village Paschim Lanka Gaon, P.S. Lanka, Dist. Nagaon, Assam “D” is put in front of the name of Opp. Party Faruk Hussain.” 17. That, an Aadhaar Card has been issued in the name of the opp. Party vide No. 7448 8084 4704 by the concerned authority and as a Bonafide citizen of India. d. There is a mismatch of other paragraphs of the written statement which is available in the learned Tribunal’s record with the written statement annexed to the writ petition, which has been referred to later, which makes the written statement annexed to the writ petition as totally unreliable as the same is not a replica and/or true copy of the written statement that is available in the Tribunal’s record. 4) Thereafter, the petitioner had filed his evidence-on- affidavit as DW-1. It may be stated that the copy of the evidence-on-affidavit, which is annexed to the writ petition is again not the true copy of the evidence-on- affidavit available in the Tribunal’s record. While the copy of the same available in the learned Tribunal’s record contains reference to 15 (fifteen) exhibited documents, the copy of the evidence-on- affidavit of DW-1, which is annexed to the writ petition contains reference to 14 (fourteen) exhibited documents. The petitioner (DW-1) in response to the learned Tribunal’s query, has referred to 15 (fifteen) exhibited documents and in Tribunal’s record, 15 (fifteen) exhibited documents are available. The discrepancies noticed are referred to later, which makes the copy of evidence-on- affidavit annexed to the writ petition as totally unreliable as the same is not a replica and/or true copy of the evidence-on- affidavit of the petitioner (DW-1) that is available in the Tribunal’s record. 5) It would be now appropriate to refer to the discrepancies in the written statement and evidence-on- affidavit on comparative reading of the ones available in the Tribunal’s record and the writ petition. For the purpose of comparative reading of the written statement and evidence-on-affidavit, the scanned copy of the copies available in the Tribunal’s record and the ones annexed to the writ petition are made a part of this order: - Scanned copy of written statement annexed to writ petition Scanned copy of written statement in Tribunal’s record Scanned copy of evidence- on- affidavit of the petitioner (DW-1) annexed to writ petition Scanned copy of evidence- on- affidavit of the petitioner (DW-1) in Tribunal’s record 6) Thus, from the written statement filed by the petitioner as DW-1 before the learned Tribunal, it is seen that the petitioner has not disclosed the name of (i) his grandmother, (ii) siblings of his father, if any, (iii) his own siblings; (iv) wife; and (v) children. It was stated that the name of his grandfather is Mofij Uddin but it has been recorded as Mofij Uddin Master; name of his father is Faruk Hussain, but in the voter list, his father’s name was recorded as Farukul Hussain and Fakkrul Islam; name of his great-grandfather is Haji Usman, but in some voter list it has been recorded as Haji Umon and Usman Ali Sarkar. 7) The names that appear in the exhibited voter’s lists are as follows:- Sl. Name of voter Name of relation Age of voter Village and LAC detail. 1 Voter List 1965 Mofij Uddin Amiran Nessa Jahuran (Ext.1) Haji Usman Mofij Uddin - do - 42 35 25 Vill. Samdhara 87 Rupahihat LAC 2 Voter list 1970 Mofij Uddin (Ext.2) Haji Usman 47 Vill. Samdhara 87 Rupahihat LAC 3 Voter list 1979 Johurul Islam Farukul Islam Johuran Nessa Mofij Uddin (Ext.3) Mofij - do – Mofij Ha: Usman 29 28 45 57 Vill. Godaimari 85 Rupahihat LAC 4 Voter list 1985 Mofij Johuran Nessa Johirul Islam Farukul Belayat Islam (Ext.4) Usman Mofij Mofij Mofij Mofij 62 50 34 33 21 Vill. Godaimari 85 Rupahihat LAC 5 Voter list 1989 Mofij Johuran Nessa Johirul Islam Farukul Hussain Belayat Islam (Ext.5) Usman Ali Sarkar Mofij Mofij Mofij Mofij 70 60 37 33 31 Vill. Godaimari 85 Rupahihat LAC 6 Voter list 1997 Johuran Nessa Johirul Islam (Ext.6) Mofij Mofij 65 45 Vill. Godaimari 85 Rupahihat LAC Farukul Hussain Belayat Islam Mofij Mofij 43 38 7 Voter list 1997 Sakinur Islam Monjila Begum Rashida Begum Sufiya Khatun Nurul Hoque [Ext.6(A)] Mofij Mofij Johirul Farukul Farukul 23 25 26 39 22 Vill. Godaimari 85 Rupahihat LAC 8 Voter list 2005 Johuran Nessa Faruk Hussain Sakinur Islam Sufiya Khatun Nurul Hoque (Ext.7) Late Mofij Uddin Late Mofij Uddin Late Mofij Uddin Faruk Hussain Faruk Hussain 72 50 30 46 29 Vill. Godaimari 85 Rupahihat LAC 9 Voter list 2010 Johuran Nessa Faruk Hussain Sakinur Islam Sufiya Khatun Nurul Hoque (Ext.8) Late Mofij Uddin Late Mofij Uddin Late Mofij Uddin Faruk Hussain Faruk Hussain 77 55 35 51 34 Vill. Godaimari 85 Rupahihat LAC 10 Voter list 2014 Faruk Hussain Belayat Hussain Sufiya Khatun Sakinur Islam Nurul Hoque (Ext.9) Late Mofij Uddin Late Mofij Uddin Faruk Hussain Late Mofij Uddin Faruk Hussain 59 57 55 39 38 Vill. Godaimari 85 Rupahihat LAC 11 Voter list 2016 Nurul Hoque (Ext.10) Faruk Hussain 53 Vill. Paschim Lanka Gaon. 91 Hojai LAC 12 Voter list 2017 Nurul Hoque Asma Khatun (Ext.11) Faruk Hussain Nurul Hoque 53 28 Vill. Paschim Lanka Gaon. 91 Hojai LAC 8) Thus, it is seen that the petitioner, in his written statement as well as in his evidence-on- affidavit, has not referred to his relationship with all the voters in the 12 exhibited voter’s lists, being Ext.1 to Ext.6, Ext.6(A) and Ext.7 and Ext.11. In the event the petitioner had described the names of his grandparents, parents, siblings of parents, his own siblings and his children and referred to his relationship with all the voters whose names appear in the exhibited voters lists, then discrepancies in the names of one or two voters could have been considered. But in this case, not only the petitioner has not pleaded about his relationship with the various voters whose name appear in the exhibited voters lists. 9) The learned Tribunal, upon examination of the pleadings and evidence available on record, observed by referring to voter list of 1966 (Ext.1) and voter list of 1970 (Ext.2) that the petitioner had named his second grand-mother as Jairul Nessa, but her name in Ext.1 is Johuran, and the name of both grandmothers were missing in Ext.2. By referring to the voter list of 1979 (Ext.3) and 1985 (Ext.4), it was observed that the name of father of the petitioner appears as Farukul Islam and Faruful, son of Mofij, but the petitioner has named his father as Faruk Hussain. The learned Tribunal took note of the fact that the name of mother of the petitioner was conspicuously missing. By referring to voter list of 1989 (Ext.5), it was observed that the name of the father of the petitioner had become Usman Ali Sarkar and thus, Haji Usman becomes Usman Ali Sarkar and age discrepancy of the grandfather of the petitioner was noted, which was 70 years instead of 66 years. Referring to the voter list of 1997 [Ext.6 and Ext.6(A)], it was observed that the name of the mother of the petitioner appeared for the first time at the age of 39 years and no reason was explained. The voter lists of 2005 to 2017 and Elector Photo Identity Card (Ext.7 to Ext.12) were discarded as those were post 1971 document because he had not been able to establish his citizenship through pre-1971 documents. 10) It may be mentioned that while 15 exhibits were mentioned in the evidence-on-affidavit of DW-1 available in the Tribunal’s record, in the copy of the evidence-on-affidavit annexed to the writ petition, reference has been made to 14 exhibits only. Aadhaar Card (Ext.14) was discarded as it was a proof of identity and not a proof of citizenship. 11) Residence certificate issued by Govt. Gaonburah of Dhing Bori Sapori was discarded as the Gaonburah had used State Emblem, which he was not authorised to use under the State Emblem (Regulation of Use) Rules 2007, which had made the document inadmissible in evidence. Moreover, the Gaonburah did not depose before the Tribunal on the basis of contemporaneous record to prove the certificate and its contents. In respect of the said finding, the Court is of the considered opinion that the same is based on sound legal principle because in the State of Assam, a Gaonburah is appointed under the Executive Instructions under Assam Land and Revenue Regulation, 1886. Under the said Executive Instructions as well as under the Land and Revenue Regulation, 1886, a Gaonburah is not required to maintain population register of the villages under his charge. In the case of Basiron Nessa v. Union of India & Ors., 2018 (4) GLT 692, this Court had held that documentary evidence must be proved from record and not solely by oral testimony when citizenship of a suspect is questionable. 12) Ext.14 was a self-serving affidavit, which is not admissible evidence to prove discrepancies in the names of his projected father. 13) Thus, the rejection of the said exhibits cannot be held to be legally not sustainable. Page 31 of 34 14) Therefore, the rejection of the evidence of the petitioner in light of the discrepancies in the names of voters cannot be held to be an incorrect finding of fact. This Court, in the case of Basiron Bibi v. Union of India & Ors., 2018 (1) GLT 372, had held that when voter list is proved in evidence by the petitioner, she then cannot insist that only that portion of 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. The said ratio has been followed by this Court in a catena of decisions. 15) The Supreme Court of India, in the case of Sirajul Hoque v. State of Assam & Ors., (2019) 5 SCC 534, had held that when identity of all members of the family is established including appellant, he cannot be declared a foreigner just because there is a discrepancy in name of his grandfather in some documents. 16) As per the copy of the written statement annexed to this writ petition as Annexure-14, the petitioner has stated in paragraph 3 that was born and brought up at village Samdhora. However, as per the written statement available in the Tribunal’s record, the petitioner has stated in paragraph 3 that he was born and brought up at village- Godaimari. The petitioner had not pleaded the date or year of his birth, however, as per his evidence-on-affidavit available in the Tribunal’s record, the age of the petitioner was 43 years on 08.05.2018 and thus, the year of his birth would be 1975. The name of voter Mofijuddin son of Haji Usman, age- 47 years, appears as sole voter in the voter list of 1970, and his village is Samdhora. But the name of Mofij Uddin appears with several other voters in the voter list of 1979 of village- Godaimari. Therefore, it appears that to cover up the place of birth, in the written statement annexed to the writ petition, the place of birth is stated to be Samdhora, in variation to the place of birth available in paragraph 3 of the written statement filed before the learned Tribunal, where it is Godaimari. 17) The copy of the evidence-on-affidavit, which is annexed to the writ petition contains the seal and signature of the Notary Public. However, the evidence-on-affidavit, which is available in the learned Tribunal's records contains signs of use of eraser and over-writing. Thus, on reading of both documents together gives an impression that the evidence-on-affidavit, which is available in the learned Tribunal's record was illegally and unauthorisedly altered after the affidavit was sworn on 08.05.2018. It is a well settled law that an already sworn affidavit cannot be corrected/ altered/ varied. The unauthorised tampering of an already sworn evidence - on affidavit has the effect of discrediting the legality of such affidavit. Such a tampered affidavit is held to be no evidence at all. 18) In this case, an unpardonable practice has been adopted by the petitioner and all his counsel engaged in this writ petition to mislead the Court by filing forged, fabricated and incorrect copy of written statement and evidence-on- affidavit. It must be presumed that the same was done with some ulterior motive, which is specifically aimed to mislead the Court for the reasons best known to them. Such unscrupulous practice itself constitutes good and sufficient ground to dismiss this writ petition in limine. However, the Court has refrained from doing so because the issue of citizenship of the petitioner had been questioned. Hence, though the petitioner did not deserve examination of the matter on merit, yet, the Court has examined the matter thoroughly and found that the impugned opinion is based on sound appreciation of exhibited documents. The learned Tribunal had not taken into consideration any extraneous materials or misread or misconstrued any pleading or evidence on record. 19) In light of such unscrupulous practice of filing ex facie forged, fabricated and incorrect copy of the written statement, and on appreciation of the pleadings and evidence available on record, there is no material to hold that the learned Tribunal had erred in any manner whatsoever, in rendering an opinion that the petitioner is not an Indian but a foreigner. 20) Thus, the finding of the learned Tribunal that the petitioner has failed to discharge his statutory burden to prove that he is not a foreigner but an Indian, which is on the petitioner under Section 9 of the Foreigners Act, 1946, is found to be sustainable on facts and in law. 21) Hence, on all counts, the challenge to the impugned opinion fails. Consequently, in light of the discussions above, this writ petition fails and is thus, dismissed. 22) Interim bail granted to the petitioner, namely, Nurul Hoque, by order dated 16.12.2019, is recalled and revoked. Page 34 of 34 23) The consequences of the opinion dated 10.10.2018, passed by the learned Member, Foreigners Tribunal, Nagaon 7th at Lanka, Hojai, by which the petitioner has been declared to be a foreigner under Section 2(a) of the Foreigners Act, 1946, who has illegally entered into the territory of India (Assam) after 25.03.1971 without any valid documents, would follow. 24) The Registry shall return back the Tribunal’s record along with a copy of this order to be made a part of record by the said learned Tribunal. 25) The Registry shall also make photocopies of the written statement and evidence-on-affidavit, which are available in the writ petition as well as in the Tribunal’s record and keep the same in safe custody for future reference. 26) In view of the unscrupulous practice referred above, let a copy of this order be sent by the Registry to the Bar Council of Assam, Nagaland, Mizoram, Arunachal Pradesh etc. along with a photocopy of the vakalatnama on record of this writ petition. JUDGE JUDGE Comparing Assistant Private Secretary Munna Kumar Digitally signed by Munna Kumar Date: 2026.10.12 18:19:02 +05'30'