Page No.# 1/11 GAHC010138902019 2026:GAU-AS:1127 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4263/2019 JULHASH ALI S/O- MD. JAINAL ALI, R/O- VILL- HAHSARI CHAUDHARY PAM, P.S- CHHAYGAON, DIST- KAMRUP(R), ASSAM, PIN- 781136 VERSUS UNION OF INDIA AND 5 ORS REP. BY THE SECRETARY OF HOME, MIN OF HOME AFFAIRS, GOVT OF INDIA, NEW DELHI, DELHI, PIN- 110001, INDIA 2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM HOME DEPTT DISPUR GUWAHATI- 781006 DIST- KAMRUP(M) ASSAM 3:THE ELECTION COMMISSION OF INDIA GOVT OF INDIA NEW DELHI PIN- 110001 INDIA 4:THE DEPUTY COMMISSIONER KAMRUP (R) DIST- KAMRUP ASSAM AMINGAON PIN- 781030 5:THE COMMISSIONER OF POLICE (CENTRAL) Page No.# 2/11 KAMRUP (M) PANBAZAR GUWAHATI- 781001 6:THE STATE COORDINATOR NRC BHANGAGARH KAMRUP(M) PANBAZAR GUWAHATI- 78100 Advocate for the Petitioner : MR. S K BHATTACHARYYA, MR. B SINHA Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, NRC,SC, ELECTION COMMISSION. BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE ANJAN MONI KALITA ORDER Date : 28.01.2026 (K.R. Surana, J) Heard Mr. S.K. Bhattacharyya, learned counsel for the petitioner. Also heard Mr. S.S. Roy, learned CGC; Ms. A. Verma, learned standing counsel for the FT matters; Mr. J. Payeng, learned standing counsel for the NRC; Mr. S. Islam, learned counsel appearing on behalf of 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 has assailed the impugned opinion dated 28.02.2019, passed by the learned Member, Foreigners’ Tribunal- 4th, Kamrup (M), Assam, in F.T. Case No. FT(K(M)-4) 786/17, arising out of F.T.(D.C.P.)- 268/12, by which the petitioner was declared to be a foreigner of post 25.03.1971 stream. Page No.# 3/11 3. In this case by an order dated 16.08.2019, this Court had proposed to examine the records of the learned Tribunal and accordingly directed the records to be obtained. The matter was thereafter, listed on 16.09.2019 and the matter was deferred. Accordingly, after a lapse of more than five and a half years, the matter has again been listed in the motion column. Accordingly, this being an old pending case, it has been taken up for hearing with the consent of all the parties. 4. On receipt of notice, the petitioner had entered appearance before the learned Tribunal and filed his written statement of defence. Thereafter, the petitioner had filed his evidence on affidavit and by reiterating the statements made in the written statement, exhibited the following documents in support of his defence: Ext.1 to Ext.10. 5. The case of the petitioner, in brief, is that he is a permanent resident of Village Hahchari, under PS Chaygaon in the district of Kamrup and presently residing at Village Kahikuchi under Police Station Azara, Guwahati, in District Kamrup Metro Assam. The name of his father is Late Jainal Abbdin, son of Late Kazim Uddin and the name of his mother is Late Sahatan Nessa, who were permanent residents of Village Hahchari. His grandfather's name has been quoted as Kazim Uddin alias Kazim alias Kazi Sheikh in different documents. 6. The petitioner further stated that the name of his grandfather and father were listed in the voters list of 1961 and 1977. His grandfather also owned a plot of land in his name, covered by Dag No. 412 (new) / 417 (old) of Patta Number 14 and in this regard, the petitioner relies on Ext.5 (Chitha for the year 1957-64). 7. In course of his cross-examination, the petitioner had stated that Page No.# 4/11 except for himself, his family members do not have any case pending in this Tribunal or any other Tribunal, but later said that there is a case pending against one son of his stepmother, but he did not remember the name of the Tribunal. He had stated that the name of his grandmother is Sahatan Nessa. His grandparents had died but he cannot remember when they died. He does not remember how many brothers and sisters his grandfather had. He has stated that the name of his mother is Tarabhanu and she is alive. He had stated that his father had three brothers and four sisters and though he could name six persons, he could not remember the name of one maternal aunt. He had stated that the land in the name of his grandfather is still in their possession but the land is not corrected in their name. They are 12 brothers and sisters from two mothers. 8. The learned Tribunal on a perusal of the materials available on record discarded Ext.1 to 6 as they were not proved by the issuing authority. Ext.1 was the certificate issued by the Gaonburah dated 05.05.2017, certifying that the name of the petitioner appeared in the voters list of 2017 etc., but the said Gaonburah was not examined as witness. Ext.2 and 3 were the certificates issued by the Secretary of the Jorshimulu Gaon Panchayat dated 06.05.2017, but the said documents were not proved by examining the author and moreover the said two documents contained the State Emblem of India embossed at the top, which makes both the documents inadmissible in evidence in light of the provisions of the State Emblem of India (Regulation of Use) Rules, 2007 and the State Emblem of India (Prohibition of Improper Use) Act, 2005. For which reliance was also placed on the decision of this Court in the case of Nasiruddin v. Union of India and Others, WP(C) 3728/2016, decided on 05.04.2018. 9. Ext.4, being the computer-generated NRC, was also discarded as the Page No.# 5/11 document was not proved in the manner prescribed. Ext.5, being the certified copy of the Chitha, was also discarded on the ground that though the petitioner claimed the land to be in their possession, but the said land has not been mutated in their name and thus did not devolve to the petitioner. 10. Ext.6 was discarded on the ground that it discloses the name of one Kazim Uddin, son of Sadar, aged about 40 years, of Village Hasori, disclosing his age as 40 years. On being compared to the contents of Exhibit 4 where the age of Kazim Uddin is disclosed as 57 years, accordingly considering the age discrepancy, the learned Tribunal held that it could not be construed that Kazim Uddin of Ext.4, is the same person whose name appears in Ext.6. Ext.6A, 7, 8, 9, and 10 were photocopies and therefore those also could not be considered as an admissible evidence. 11. The learned Tribunal has recorded to the effect that at the time of argument, the proceedee i.e., the petitioner, had submitted a copy of opinion dated 19.04.2016 passed by the said learned Tribunal in F.T.K D.V. Case No. 268 of 2015- Union of India v. Md. Kanchu Miya, wherein the said person was declared to be not a foreigner. The petitioner projects the said Kanchu Miya to be his brother. However, the said document was not brought on record by in an appropriate manner. Moreover, the learned Tribunal observed that the said opinion was passed on 19.04.2016 and the notice of the reference was sent to the petitioner on 09.01.2017, but no reason was shown why the petitioner did not aver to those facts in his written statement and his name was disclosed only during the cross-examination. 12. Referring to the decision of this Court in the case of State of Assam v. Moslem Mondal & Ors., 2013 (1) GLT (FB) 809 as well as the decision of this Court in the case of Abiran Bibi v State of Assam and Others, wherein it has Page No.# 6/11 been held that the burden of proof under Section 9 of the Foreigners Act, 1946 lies with the proceedee. The learned Tribunal held that the petitioner has failed to discharge his burden of proof with proper and substantive evidence to prove the existence of his lineal ancestors within the State on or before 01.01.1966. Accordingly, the documents being found not trustworthy, the petitioner was declared to be a foreigner. 13. The learned counsel for the petitioner has submitted that he was the counsel for the petitioner before the Foreigners Tribunal and he had taken steps for examining the Deputy Commissioner, Kamrup at Amingaon, by summoning him as a witness. However, the said authority did not appear despite receipt of summons. Therefore, it is submitted that the petitioner did not get adequate opportunity to prove Ext.6A and Ext.7 to 10 and he could not summon any other witnesses to prove the other documents. Accordingly, it is submitted that the matter be remanded back to the learned Tribunal so as to enable the petitioner to lead further evidence in the case. It is further submitted that although the copy of the opinion of his brother was submitted before the learned Tribunal, the said document was discarded by the learned Tribunal. Accordingly, it is submitted that the opinion impugned in this writ petition is not sustainable. 14. On a perusal of all the materials available on record, the Court is inclined to hold that there is no infirmity by the learned Tribunal on the rejection of Exhibit 1, 2, and 3 as the author of the said certificates being the respective Gaonburah for Ext.1, the Secretary No. 1 Jorshimulu Gaon Panchayat in respect of Ext.2 and the President of the said Gaon Panchayat in respect of Ext.3 were not examined. Moreover, Ext.2 and 3 contain State Emblem embossed on those documents which makes the documents, inadmissible in evidence. 15. The rejection of the Ext.4 as an admissible evidence also cannot be Page No.# 7/11 held to be improper in view of the fact that the said document is an image document which is computer generated and does not contain the certificate under Section 65B(4) of the Evidence Act, 1872. Moreover, the original records were not called for and exhibited. Accordingly, Ext.4 is also not an admissible piece of evidence. In respect of Ext.5, which is the certified copy of Chitha, the said record pertains to the years 1957 to 1964. However, as the nomenclature of the document discloses that the same is a certified copy of a draft Chitha, a draft being merely a draft is not a final document and does not fall within the meaning of the land revenue records. Under the provisions of the Assam Land and Revenue Regulation, initially a draft Chitha is prepared and after corrections are made, a draft Jamabandi is prepared. Thereafter, on consideration of the objections and corrections if any, a final Jamabandi is prepared which is a land revenue record. The petitioner has not disclosed the date when his grandfather had died and therefore, the said document is not sufficient to prove the link of the petitioner with his projected grandfather or father as the said piece of property has not devolved on the petitioner by virtue of inheritance. Moreover, a certified copy of the draft Chitha or a Jamabandi may be available may be obtained by anybody and there is no restriction for issuance of a certified copy of a draft Chitha or a Jamabandi. Therefore, merely by holding a piece of certified copy of a land document would not create any relationship insofar as the petitioner and his projected father and grandfather are concerned. Insofar as Ext.6 is concerned, the certified copy of the voters list of 1961 contains only one name of Kazim Uddin, son of Sadar, whose age is 40 years and is resident of Village Hahchari. There is no existence of the grandmother or any other family members in the said voters list. Moreover, as per the own admission of the petitioner, he does not reside in that Village Hahchari but resides in Page No.# 8/11 Guwahati under Azara Police Station. Thus, there is a disconnect between the person whose name appears in Ext.6 and the present petitioner as there is no link and no document to connect the petitioner to his projected father and thereafter with his projected grandfather. Insofar as the submission of the learned counsel for the petitioner is concerned, that he had taken steps as counsel for the petitioner before the learned Foreigners’ Tribunal to summon the Deputy Commissioner, the Court has examined the records, which discloses that at Page 116 of the record there exists a summon which is addressed to the Office of the Deputy Commissioner Kamrup, Election Officer, Kamrup, Amingaon, directing the addressee to produce the voters lists of 1961, 1977, 2010 and 2014 and to appear before the Tribunal personally or through an authorized representative for examination as a witness. Surprisingly, the notice is not addressed to any particular officer but the notice is addressed to the Office of the Deputy Commissioner. Moreover, as per the order sheet, the petitioner was required to take steps through registered post with AD or Dasti service and to obtain acknowledgement by an order dated 13.09.2018. The record does not contain the copy of the postal receipt or acknowledgement by the authority on whom the notice was served. Therefore, there is no record of service of the said notice on the concerned authorities. Accordingly, it cannot be said that there was any default on the part of the addressee of the said notice at Page 116 of the record to appear before the Foreigners Tribunal. In the said context, we notice from the order dated 11.10.2018, passed by the learned Tribunal that though the learned counsel for the petitioner had submitted that in spite of issuance of notice the issuing authority did not appear or nor any communication was received, but he had made a categorical statement before the learned Tribunal that the proceedee i.e. the petitioner does not want to Page No.# 9/11 examine any other witness. 16. Accordingly, by the said order dated 11.10.2018, the evidence of the petitioner side was closed and the matter was fixed for argument on 02.11.2018. Thus, the learned counsel for the petitioner had made a categorical statement that he did not want to examine any further that the petitioner did not want to examine any further witnesses and the evidence was closed in his presence and hearing. Therefore, it is now not open to the petitioner to project that the petitioner did not get a reasonable opportunity to prove his documents and to examine any further witnesses. 17. Though the said orders dated 13.09.2018 and 11.10.2018 were passed in presence of the learned counsel for the petitioner, but in course of this proceeding the learned counsel for the petitioner, who was also the counsel for the petitioner before the Foreigners Tribunal, had withheld those material facts and had the Court not perused the records, this would not have come to light. Therefore, we are constrained to hold that the learned counsel for the petitioner has not been able to assist the Court. Accordingly, due to lack of any assistance by the learned counsel for the petitioner, the Court had to peruse the entire records and in that context the contents of the orders dated 13.09.2018 and 11.10.2018 were revealed. 18. Thus, the petitioner, having taken a conscious decision of not examining any further witnesses and as there is no record of due service of notice on the addressee in respect of which the copy of notice is available at Page 116 of the record, the Court is constrained to hold that the petitioner did not take any steps for summoning the authorities to prove Exhibit 6A and Exhibit 7 to 10. Page No.# 10/11 19. Resultantly, the Court is constrained to hold that as none of the documents create a link of the petitioner with his projected father or grandparents, the learned Tribunal had correctly recorded that the petitioner has failed to discharge his burden of proof under as envisaged under Section 9 of the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. 20. Insofar as the reference to the photocopy of the opinion dated 19.04.2016 passed by the Foreigners’ Tribunal No. 4th, Kamrup (M), Guwahati in F.T.K D.V. Case No. 268 of 2015 in the matter of Union of India v. Md. Kanchu Miya, it is seen that the said document is merely a photocopy which is available at Page 105 to 108 of the Tribunal's records. 21. The learned Tribunal had correctly appreciated the fact that though the said opinion was passed on 19.04.2016, the petitioner, who had filed his written statement on 04.07.2017 and his evidence on affidavit which was filed on 21.05.2018, there is no reference to the said opinion which was pre-existing at the time when the written statement and the evidence-on-affidavit were filed. Moreover, the petitioner had not produced a certified copy of the said opinion and did not exhibit the same and the concerned person in whose regard the said opinion was passed was also not examined. 22. It may be stated that neither in the written statement nor in his evidence-on-affidavit, the petitioner has disclosed the names of persons in the family of his grandfather, father or his own family. Therefore, the sudden submission of a certified copy of a photocopy of the said opinion dated 19.04.2016 could not have been taken into consideration by the learned Tribunal. However, it appears that as it was the issue of citizenship, the learned Tribunal did refer to the said document, the photocopy of which was admittedly Page No.# 11/11 submitted by the petitioner before the learned Tribunal on the date of argument. Accordingly, the said document was not rightly considered and rejected by the learned Tribunal. 23. Resultantly, no case is made out by the petitioner for any interference with the impugned opinion dated 28.02.2019, passed by the learned Member, Foreigners’ Tribunal- 4th, Kamrup (M), Assam, in F.T. Case No. FT(K(M)-4) 786/17, arising out of F.T.(D.C.P.)- 268/12. Accordingly, the said challenge fails and the writ petition is dismissed. The consequences of the said opinion dated 28.02.2019 would follow. 24. The Registry shall send back the Tribunal's records to the learned Tribunal along with a copy of the order to be made a part of the record by the said learned Tribunal for future reference. JUDGE JUDGE Comparing Assistant