Page No.# 1/9 GAHC010235692024 2026:GAU-AS:8874- DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5922/2024 MD. MAKIBUR @ MAKIBUR RAHMAN @ MAKIBUR HUSSAIN S/O- LATE JAHED ALI, R/O- SILPUKHURI, P.S.- MIKIRBHETA, DISTRICT- MORIGAON, ASSAM, PIN- 781313. VERSUS THE UNION OF INDIA AND 5 ORS REPRESENTED BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, SASTRI BHAWAN, NEW DELHI, PIN- 110001. 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-06. 3:THE SUPERINTENDENT OF POLICE (B) MORIGAON P.O.- MORIGAON DISTRICT- MORIGAON ASSAM PIN- 782105. 4:THE DEPUTY COMMISSIONER MORIGAON Page No.# 2/9 P.O. AND DISTRICT- MORIGAON ASSAM PIN- 782105. 5:THE ELECTION COMMISSION OF INDIA REPRESENTED BY THE CHIEF ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI INDIA PIN- 110001. 6:THE NATIONAL REGISTER OF CITIZEN REPRESENTED BY THE STATE COORDINATOR ASHYUT PLAZA BHANGAGARH KAMRUP(M) ASSAM PIN- 781005 Advocate for the Petitioner : MR. M A SHEIKH, MR. W A SHEIKH,MS F INTAZ Advocate for the Respondent : DY.S.G.I., SC, ECI,SC, F.T,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI HONOURABLE MR. JUSTICE PRANJAL DAS JUDGEMENT AND ORDER (CAV) For the Petitioner : Mr. M.A. Sheikh For the Respondent(s) : Ms. A. Verma, SC, Home Deptt. & NRC, Mr. P. Sarma, GA, Assam, Ms. S. Kataki, SC, ECI, Ms. M. Das, CGC Date on which judgment is reserved : 26.05.2026 Date of pronouncement of judgment : 19.06.2026 Whether the pronouncement is of the Page No.# 3/9 operative part of the judgment ? : N/A Whether the full judgment has been : Yes pronounced? (Pranjal Das, J) Heard Mr. M.A. Sheikh, learned counsel for the petitioner. Also heard Ms. A. Verma, learned Standing counsel, Home Department & NRC; Mr. P. Sarma, learned Government Advocate, Assam; Ms. S. Katakey, learned Standing counsel, ECI and Ms. M. Das, learned counsel appears on behalf of Mr. S.K. Medhi, learned CGC. 2. The petitioner Md. Makibur Hussain has invoked the provisions of Article 226 of the Constitution of India to challenge the impugned judgment and order/opinion dated 20.07.2019 passed by the learned Member, Foreigners' Tribunal No. 3rd, Morigaon, in F.T. Case No. 129/2016 (arising out of Reference F.T. Case No. 417/2009 dated 21-10-2009) whereby the learned Tribunal was pleased to answer the Reference against the petitioner by holding that he is a foreign national having entered India and Assam after 25-03-1971. 3. The facts in brief may be narrated as follows – the Superintendent of Police Border, Morigaon, originally referred the case regarding doubtful citizenship of the petitioner to the IMDT Court, Nagaon and subsequently, the matter came before the Foreigners' Tribunal No. 2, Morigaon for adjudication. Thereafter, and eventually, the reference came before the Foreigners' Tribunal No. 3, Morigaon, which adjudicated the matter. 4. Upon receiving the reference, the aforementioned F.T. Case No. 129 of 2016 was registered and notice was issued upon the petitioner as proceedee. Upon receiving the notice, the petitioner appeared and filed the written statement dated 05-09-2016 denying that he was a foreign national. On behalf of the petitioner as proceedee, two witnesses were adduced. One Sahara Khatun, stated to be his wife, adduced evidence as DW1 and one Page No.# 4/9 Saidur Rahman, stated to be his younger brother, adduced evidence as DW2. 5. It was contended that the petitioner, being a paralytic patient, was unable to depose physically before the learned Tribunal and accordingly, the witnesses deposed on his behalf. Five documents were also exhibited as part of the deposition. 6. Upon perusing the materials and hearing the parties, the learned Tribunal answered the Reference against the petitioner by opining that he is a foreign national who illegally came into India after 25.03.1971. 7. Aggrieved by the same, the petitioner is before this Court with this writ petition. In the written statement filed by the petitioner before the learned Tribunal during the proceeding, he stated that he is not a foreigner and that he is a citizen of India by birth. That, Md. Makibur Rahman, was born at village Silpukhuri under the jurisdiction of Mikirbheta police station in the district of Morigaon and he was born and brought up in that village and cast his first vote also in the said village. He annexed a voters’ list of 2005. It was stated that the petitioner purchased land at village Silpukhuri in 1974 and that the name of his father was Jahed Ali. Summing up the pleadings, the petitioner in the written statement stated that all the allegations of being a foreign national are denied and that he is an Indian citizen. 8. As mentioned above, Sahara Khatun, stated to be the wife of the petitioner, adduced evidence as DW1 in which she stated that Makibur Rahman is her husband but his surname is wrongly written as Hussain instead of Rahman. She stated that she settled down at Silpukhuri after getting married with Makibur Rahman of Silpukhuri. She stated that she and her husband are Indian citizens by birth and not illegal migrants. 9. One Saidur Rahman adduced evidence as DW2 stating that Makibur Rahman, the proceedee, is his elder brother and that his said brother suffered paralysis and unable to walk properly. DW2 further stated that he and other family members are permanent inhabitants of Silpukhuri and that they were born at Silpukhuri. He stated that his father is the eldest and that his grandfather's name is Intaz Ali. He denied the allegation that they had come from Page No.# 5/9 Bangladesh. He had further stated that their father earlier resided at Kothaguri under Dhing police station in Nagaon and later shifted to Silpukhuri before their birth. He proved as Exhibit-A, a voters’ list of his father Jahed Ali of 1965; as Exhibit-B, a voters’ list of his father Jahed Ali of 1985; he also proved as Exhibit-C, a voters’ list of 1997 of Jahed Ali with Makibur; he exhibited another voters’ list of 2011 as Exhibit-D; he proved as Exhibit-E, a voters’ list of 2016 with regard to Makibur Rahman; as Exhibit-F, a possession certificate of Makibur issued by the Circle Officer; another certificate issued by Gaonburah as Exhibit-G; he also proved as Exhibit-H a land deed of Jahed Ali of 1974. 10. In cross-examination, DW2 stated that his grandfather was Intaz Ali and grandmother was Malek Jan. That, grandfather had two wives. He stated that his step-brother was one Nobi Hussain. DW2 further stated in cross-examination that after shifting from Dhing, his father purchased landed property at Silpukhuri and that his father expired in 2000 and mother Malek Jan Bibi expired on the previous year of the deposition. He stated about his five sisters who are elder to him and his brothers. He stated that the landed property exhibited as Exhibit-H is not yet mutated in their name. 11. Mr. Sheikh, learned counsel for the petitioner refers to the voters’ list of 1965 and submits that Intaz Ali is the grandfather of the petitioner and Malek Jan is his grandmother. It is submitted that the father of the petitioner is Jahed Ali and mother Malek Banu. In support of the contention regarding the petitioner being an Indian citizen, the learned counsel refers to the sale deed executed by the petitioner's father on 13.03.1974. It is submitted that the learned Tribunal unnecessarily cast doubts on the name of his mother and that Jahed Ali was indeed the father of the petitioner who was earlier in Kotahguri and subsequently shifted to Silpukhuri where he purchased land. Reiterating his submission, the learned counsel Mr. Sheikh contend that the voters’ list of the petitioner's father Jahed Ali prior to 1971 and the subsequent documents adduced by the petitioner during the proceeding should be considered sufficient to hold that he is not a foreign national. In support of his contentions, the learned counsel for the petitioner cites the decision of Sirajul Hoque vs. State of Assam & Ors, reported in (2019) 5 SCC 534. Page No.# 6/9 12. On the other hand, Ms. Verma, the learned Standing counsel, Home Department and NRC, submits that the siblings of the petitioner revealed by the deposition of his brother as DW2 do not appear in the voters’ list. It is also submitted that the Gaonbhura certificate adduced in evidence has not been proved in the manner required. It is further submitted that there is considerable delay in filing the writ petition which has not been properly explained. There is also lack of the voters’ list of the siblings of the petitioner. It is submitted that between 1965 and 1997, there were no voters’ lists and creating a significant gap and thereby throwing doubts on the claim of the petitioner regarding his Indian citizenship. She has also pointed out discrepancies in the ages of the petitioner and his father. It is also contended that the names of the family members were not disclosed in the written statement. 13. Summing up the submissions, the learned counsel for the respondent side submits that the learned Tribunal has rightly opined that the petitioner as proceedee has not been able to discharge the burden under section 9 of the Foreigner Act to show that he is an Indian citizen. 14. We have perused the relevant materials, the pleadings of the writ petition, the materials and evidence before the learned Tribunal. We have considered the submissions of the learned counsels on both the sides. We have also considered and perused the decisions cited at the bar. 15. The petitioner claims that Jahed Ali is his father and Intaz Ali is his grandfather. In Exhibit-A, exhibited by the petitioner's side, there is a voters’ list of 1965 of Batadrava in the district of Nagaon. In the said voters’ list, which has been exhibited as a certified copy, the name of Intaz Ali is mentioned and the name of Malek Jan is indicated as the wife of Intaz Ali. The name of Jahed Ali, finds mention at serial No. 409 and he is indicated as the son of Intaz Ali. Malek Banu is indicated as the wife of Jahed Ali. 16. Going by the said document, the aforementioned Intaz Ali and Jahed Ali, son of Intaz Ali, were present in India and Assam in 1965 and therefore, can be held to be Indian citizens. Page No.# 7/9 Though there is a substantial gap in the next voters list exhibited by the petitioner's side as Exhibit-B is the voters’ list of 1985 of the Batadrava LAC. In the said document, the name of Jahed Ali is mentioned and his father is indicated as Intaz Ali. In the subsequent voters’ list of 1997, 2005 and 2016, exhibited as Exhibit-C, Exhibit-D and Exhibit-E respectively, the name of Jahed Ali, indicated as son of Intaz Ali, finds mention along with the name of Makibur Rahman and the said Makibur Rahman is indicated as the son of Jahed Ali. One Farida Khatun is also indicated against the name of Jahed Ali. In the voters’ list of 2005, Makibur Rahman is indicated as the son of Jahed Ali. Similarly, in the voters list of 2016, Makibur Rahman is indicated as the son of Jahed Ali. 17. The learned Tribunal in the impugned opinion discarded the voters’ list of 1965 as well as 1985. One of the grounds for doing so is that DW2 named his father in written statement and evidence as “Jahed Ali”. But in the voters list of 1965, his father's name is mentioned as “Jahedali”. It was further opined by the learned Tribunal that in the voters’ list of 1985, the petitioner's father was mentioned as “Jahed Ali”. The learned Tribunal considered this to be a material discrepancy and held that “Jahedali” and “Jahed Ali” are not one and the same person. 18. Upon giving our consideration to this aspect of the matter, we are of the opinion that this was not a material discrepancy and can be overlooked. In this context, the decision in Sirajul Hoque (supra) cited by the petitioner can come to its aid. In that decision rendered by the Hon’ble Supreme Court, the name of grandfather of the proceedee was found to be different in one place, but in other areas, the materials were consistent and it was held by the Hon’ble Apex Court that the said discrepancy would not be a material one, so as to defeat the case of the proceedee. 19. As regards the names of “Jahedali” and “Jahed Ali”, we are of a similar opinion that the same is not a material discrepancy. 20. The learned Tribunal also found discrepancy with regard to the name of the petitioner's mother. It may be mentioned herein that in Exhibit-A, the voters' list of 1965, the mother's Page No.# 8/9 name is mentioned as Malek Jan and the petitioner's wife’s name is mentioned as Malek Banu. In 1997, voters' list, Exhibit-C, the mother’s name is mentioned as Maleka Khatun. 21. Based on these discrepancies, the learned Tribunal opined that these are two different sets of persons and therefore, the linkage of the petitioner with Jahed Ali was disbelieved. 22. However, it cannot be overlooked in our considered opinion that the mentioning of the name of the petitioner Makibur Rahman, with his projected father Jahed Ali, was for the first time in the voters' list of 1997, Exhibit-C and the said mentioning of the name of Makibur Rahman, indicated as son of Jahed Ali, has continued in the voters' list of 2005 Exhibit-B; the voters' list of 2016 as well, exhibited as Exhibit-E. It may be mentioned herein that all these voters' lists were exhibited as duly obtained certified copies and therefore, would be admissible in evidence. 23. Thus, we find that the “Jahed Ali” finds mention in the voters' list of 1965 and therefore, can be accepted as an Indian citizen. The name of the petitioner, Makibur Rahman, finds mentioned with Jahed Ali and indicated as his son in the voters' list of 1997, 2005 and 2016. 24. In our considered opinion, these three documents, being Exhibit-C, Exhibit-D and Exhibit-E, could constitute the necessary link documentary evidence between the petitioner and his projected father, Jahed Ali. Especially, the document exhibited as Exhibit-C – being the voters' list of 1997 of Batadrava LAC, where the names of Makibur Rahman, the petitioner and Jahed Ali, indicated as his father, appear together – would constitute the most important link documentary evidence between him and his projected father. 25. In our considered opinion, it was a misreading of the evidence by the learned Tribunal and this vital aspect of the matter came to be overlooked by the Tribunal. The Tribunal also considered the name of the petitioner's father as being a material irregularity, but which, in our opinion, is not so. 26. Consequently, in the facts and circumstances, upon perusing the materials and in the Page No.# 9/9 backdrop of the above discussion – we are of the considered opinion that the impugned judgment and order is required to be interfered with in exercise of certiorari jurisdiction under Article 226 of the Constitution of India. 27. Accordingly, the impugned judgment and opinion dated 20.07.2019, rendered by the learned member, Foreigners Tribunal No. 3, Morigaon, in Case No. F.T. 129/2016, is hereby set aside and quashed. The petitioner, Makibur Rahman, is declared to be not a foreigner and that, he is declared to be an Indian citizen. 28. Sent back the TCR. 29. The writ petition stands allowed and disposed of. JUDGE JUDGE Comparing Assistant