Page No.# 1/14 GAHC010004432021 2026:GAU-AS:9762-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/187/2021 MD. CHAN MIYA S/O- LT. ASAR ALI, R/O- VILL- BHOGIRAM GAON, P.S. DOBOKA, PIN- 782428, DIST.- HOJAI, ASSAM VERSUS THE UNION OF INDIA AND 6 ORS REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI- 110001 2:THE ELECTION COMMISSION OF INDIA REP. BY THE CHIEF ELECTION COMMISSION OF INDIA NIRVACHAN BHAWAN ASHOKA ROAD NEW DELHI 3:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-6 4:THE NATIONAL REGISTER OF CITIZEN REP. BY THE STATE COORDINATOR ACHYUT PLAZA BHANGAGARH GHY-5 DIST.- KAMRUP (M) ASSAM 5:THE DY. COMMISSIONER HOJAI Page No.# 2/14 DIST.- HOJAI ASSAM 6:THE SUPERINTENDENT OF POLICE (B) HOJAI P.O. AND P.S. HOJAI DIST.- HOJAI ASSAM 7:THE MEMBER FOREIGNERS TRIBUNAL NAGAON COURT NO. 10TH SANKARDEV NAGAR DIST.- HOJAI ASSAM PIN Advocate for the Petitioner : MR J C GOGOI, 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 SHAMIMA JAHAN Advocate for the petitioner : Mr. J. C. Gogoi. Advocate for the respondents : Mr. S. K. Medhi, CGC, : Mr. A. I. Ali, SC, ECI : Mrs. R.B. Bora, Jr. G.A. : Mr. G. Sarma, SC, FT, Border matters and NRC. Date on which judgment was reserved : 24.04.2026 Date of pronouncement of judgment : 17.07.2026 Whether the pronouncement is of the operative part of the judgment? : NA Whether the full judgment has been pronounced? : Yes Page No.# 3/14 JUDGMENT AND ORDER (Kalyan Rai Surana, J.) Heard Mr. J. C. Gogoi, learned counsel for the petitioner. Also heard Mr. S. K. Medhi, learned CGC for respondent no.1; Mr. A.I. Ali, learned Standing Counsel for the respondent no.2; Mr. G. Sarma, learned Standing Counsel for the respondent nos. 3, 4 and 6; and Mr. P. Sarmah, learned Addl. Senior Government Advocate for respondent no. 5. 2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 25.11.2020, passed by the learned Member, Foreigners Tribunal Nagaon 10th, at Sankardev Nagar, Hojai, Assam, in F.T. (D) Case No. 931/2015, arising out of S.P.(Border) FT Case No. 621/2010, by which the petitioner, namely, Md. Chan Miya, was declared to be a foreigner who had illegally entered into the territory of India (Assam), on or after 25.03.1971 from the specified territory. 3) The learned counsel for the petitioner has submitted that the reference was bad in law. It was submitted that the petitioner had filed his written statement denying the allegation that he was a foreigner and in support of his defence, the petitioner had examined himself as D.W.1 and had exhibited 11 (eleven) documents as Ext.1 to Ext.11. The petitioner had also examined one Subed Ali as D.W.2, who claimed to be the cousin brother of the petitioner and he had exhibited 9 (nine) documents as Ext. 12 to Ext.19. It was submitted that the petitioner had also examined the Gaonburah, who was the author of Ext. 9 as D.W.3. Thus, it was submitted that the petitioner had proved all the relevant documents to show his link with his projected parents and to prove that he is Page No.# 4/14 not a foreigner but a citizen of India. 4) It was submitted that the name of the petitioner, as an elector, is reflected in the voter’s lists of 1997, 2005, 2010 and 2014. Due to flood and river erosion, the petitioner along with his parents and other family members had shifted to Bhogiram Gaon for livelihood. Accordingly, it is submitted that the impugned opinion has been passed on the basis of surmises and conjectures overlooking the pleadings and documentary evidence. Accordingly, it was submitted that the said opinion dated 25.11.2020, is liable to be set aside and the petitioner be declared as Indian and not a foreigner. 5) Per contra, the learned Standing Counsel for the FT, Border Matters and NRC had submitted that the pleadings and evidence including the exhibited documents do not corroborate with each other and failed to demonstrate a consistent stand of the petitioner. It was submitted that the documents exhibited by the petitioner reflect that the name of his father had last appeared in the voter’s list of 1995, in his cross-examination on 01.07.2017, the petitioner had stated that his father had died 12 years ago at the age of 60 years. Therefore, it was submitted that the presence of the father of the petitioner ought to be there in all voter list till 2005. It was stated that in his cross-examination, the petitioner had stated that he came to Bhogiram Gaon at the age of 18 years. The affidavit in support of this writ petition was sworn on 07.01.2021, where the petitioner had declared his age as 49 years. Therefore, the year of birth of the petitioner would be in 1972. Thus, if his statement in cross-examination is accepted as correct, then the year when the petitioner was 18 years when he shifted to Bhogiram Gaon would be 1990, and accordingly, it was submitted that the voter’s list of 2005 (Ext.6), in the light of the statement made by the petitioner in his cross-examination, was of an unconnected person Page No.# 5/14 with similar name. Moreover, it is submitted that in view of the said pleadings and evidence, the entries in the voter’s list of 1997 (Ext.5) appears to be doubtful because the concerned voter’s village in Ext.5 is Baruating. It was submitted that there is no pleadings or evidence as to when the petitioner along with his parents had shifted from village- Solmari to Bhogiram Gaon. However, as per the voter’s list of 1997 (Ext.5), the petitioner was a voter in Baruating. The name of the petitioner appears in the voter’s list of 2005 (Ext.6) at Bhogiram Gaon. Accordingly, it is submitted that the finding and opinion by the learned Tribunal appears was correct. Hence, the learned Standing Counsel for the FT, Border matters and NRC has prayed for dismissal of this writ petition. 6) Perused the records called for from the learned Tribunal and considered the submissions made by all sides. 7) On a perusal of the written statement of the petitioner that was filed before the learned Tribunal, it is seen that the basic facts have not been pleaded therein. He had not pleaded about the existence and names of (i) the petitioner’s grandparents, (ii) siblings of his grandfather, (iii) mother, and (iv) his own siblings. He had not stated where his father was born. Though it was stated that he was born in village- Solmari, but he did not disclose the year of his birth. He had also not pleaded in which year he had shifted from village- Solmari to village- Baruating and/or to village- Bhogiram Gaon. The petitioner had pleaded that the name of his father, Asor, son of Ahmed appeared in the voter’s lists of 1966 and 1970 at village- Solmari, P.S. Laharighat, Dist. Nagaon, under 83 Bukoni (SC) LAC; and his name appeared as Asor Ali, son of Ahmed Ali, in the voter list of 1975 at the same village, under 81 Laharighat LAC. He had stated that his own name was enlisted in the voter list of 1997 as Chan Miya, at Village- Baruating, under 81 Laharighat LAC. His name has been Page No.# 6/14 enlisted as Shan Miya, son of Asor Ali, in the voter list of 2005, 2010 and 2014 at village- Bhogiram Gaon, under P.S. Doboka, Dist. Nagaon, under 90, Jamunamukh LAC. It was stated that he came to village- Bhogiram Gaon along with his deceased parents when he was only 18 years of age for his livelihood. The Govt. Gaonburah of village- Solmari had issued a certificate in the name of the petitioner, Chan Miya, son of Late Asor Ali of village- Solmari. Accordingly, the petitioner had prayed that he be declared as a citizen of India. 8) In his evidence-on-affidavit, apart from reiterating the statements made in his written statement, the petitioner had stated that the Election Commission of India had issued an Elector Photo Identity Card (hereinafter referred to as ‘EPIC’ for short) and the authority had issued an Aadhaar Card to him. Accordingly, it was claimed that the petitioner is a bona fide citizen of India by birth and did not enter into India after 25.03.1971. In support of his defence, the petitioner, who had examined himself as DW-1, had exhibited 11 (eleven) documents, referred hereinbefore and marked them as Ext.1 to Ext.11 respectively. The documents exhibited by the DW-1 are:- a. Certified copy of voter list of 1966 (Ext.1). b. Certified copy of voter list of 1970 (Ext.2). c. N.R.C. 1951, containing voter details (Ext.3). d. Certified copy of voter list of 1975 (Ext.4). e. Certified copy of voter list of 1997 (Ext.5). f. Certified copy of voter list of 2005 (Ext.6). g. Certified copy of voter list of 2010 (Ext.7). h. Certified copy of voter list of 2014 (Ext.8). i. Certificate issued by Govt. Gaonburah of Solmari Village (Ext.9). j. EPIC of the petitioner (Ext.10). k. Aadhaar Card of the petitioner (Ext.11). 9) The petitioner had examined one Subed Ali as DW-2. He had stated that he was born and brought up at village- Solmari and the petitioner is Page No.# 7/14 his cousin brother, who is a citizen of India and not a foreigner. He had stated that his parents were earlier residing in Village- Solmari and they came to village- Bhogiram Gaon after flood damaged their residence. Due to flood damage, he had also come to Bhogiram Gaon, where he is presently residing. He had exhibited 9 (nine) documents marked as Ext.12 to Ext.18, Ext.18(i) and Ext.19. He had referred to Ext.G, the certificate by land revenue authority in the name of the petitioner regarding river erosion and damage of his land due to flood. In his cross-examination, he had stated that he does not know who has overwritten the age of his father in Ext.12. On a perusal of the voter list of 1970 (Ext.12) from the Tribunal’s record, it is seen that the age of the voter, namely, Kasem Ali, is overwritten by ball-point pen to 49. The DW-2 had exhibited the following 9 (nine) exhibits: - a. Certified copy of voter list of 1970 (Ext.12). b. EPIC of Subed Ali (DW-2) (Ext.13). c. Jamabandi containing the name of father and paternal uncle (Ext.14). d. Certificate dated 09.02.2017 by Circle Officer, Bhuragaon Revenue Circle regarding land of the petitioner, which was affected by river erosion (Ext.15) e. Identity Certificate of Subed Ali (DW-2) by the Govt. Gaonburah of Solmari (Ext.16). f. Identity Certificate of Subed Ali (DW-2) by the Govt. Gaonburah of Batoni (Ext.17). g. Certified copy of jamabandi of 1970-71 of land in the name of Asor Ali at village- Solmari (Ext.18). h. Land revenue paid receipt 17.02.2017 regarding land at Solmari [Ext.18(i)]. i. Certified copy of voter list of 1966 (Ext.19). 10) The Govt. Gaonburah, namely, Nirmal Deka, resident of village- Pabhakati, was examined as DW-3 on 13.06.2017. He had stated in his examination-in-chief that he was the Govt. Gaonburah of Bhuragaon since 31.12.2011. He knows the petitioner since he was in Solmari, under P.S. Bhuragaon. The name of father of the petitioner is Late Asor Ali and name of his Page No.# 8/14 mother is Amena Khatun. The name of petitioner’s grandfather is Late Ahmed Ali but he did not know the name of his grandmother. The father and his five brothers had all resided in Solmari locality. Their names are (1) Late Rafat Ali, (2) Late Hussain Ali, (3) Late Kasem Ali, (4) does not remember, and (5) Late Asor Ali. He had stated that due to land erosion the petitioner’s uncles had shifted to different places and the petitioner’s father had shifted to Bhogiram Gaon under Doboka P.S. He had exhibited the residence certificate (Ext.9) and his signature [Ext.9(ka)] thereon. 11) In paragraph 11 of his evidence-on- affidavit, the petitioner as DW-1, had stated that he came to Bhogiram Gaon along with his parents when he was 18 years of age. As per his evidence, his name had appeared for the first time in the voter list of 1997 (Ext.5) as Sanmiya, aged 35 years in Village- Baruating. The petitioner had stated in his cross-examination on 01.07.2017 that his father, along with his mother, he, his brothers and sisters, had shifted from Solmari Gaon to Bhogiram Gaon prior to 10 years of his death. The presence of petitioner’s father, namely, Asor Ali, is only upto voter list of 1997 (Ext.5) at Village- Baruating. In his cross-examination, the petitioner had stated that his father had died 12 years ago at the age of 60 years and his mother had died 10 years ago at the age of 55 years. As stated hereinbefore, the cross- examination of the petitioner (DW-1) was done on 01.07.2017. Therefore, the petitioner’s father had died in the year 2005 and his mother had died in the year 2007. The name of the mother of the petitioner was neither pleaded in the written statement nor disclosed by the petitioner in his evidence-on- affidavit. Moreover, the presence of Asor, the projected father of the petitioner and his projected mother do not appear in the voter list of 2005. 12) It would be relevant to refer to the entries contained in the 9 Page No.# 9/14 (nine) exhibited voter’s lists of 1966 (Ext.1), 1966 (Ext.19), 1970 (Ext.3), 1970 (Ext.12), 1975 (Ext.4), 1997 (Ext.5), 2005 (Ext.6), 2010 (Ext.7), 2014 (Ext.8), in form of a chart for ready reference: - Name of voter and voter list year Relation Village Ext. No. Age VL- 1966 Asor Relation: Ahmed Solmari Ext.1 22 VL- 1966 Arafat Kasam Hosain Asor Relation: Ahmed Ali -do- -do- -do- Solmari Ext.19 35 45 50 32 VL- 1970 Hussain Asor Relation: Ahmed -do- Solmari Ext.3 55 65 VL- 1970 Kasem Ali Hussain Asor Relation: Ahmed -do- -do- Solmari Ext.12 49 (over- written) 54 36 VL- 1975 Asor Ali Jamila Khatun Relation: Ahmed Asor Solmari Ext.4 41 30 VL- 1997 Asor Ali Jamena Chanmiya Relation: Ahmed Ali Asor -do- Baruating Ext.5 65 52 35 VL- 2005 Chan Miya Fatema Begum Relation: Asor Ali Chan Miya Bhogiram Gaon Ext.6 30 20 VL- 2010 Chan Miya Fatema Begum Relation: Asor Ali Chan Miya Bhogiram Gaon Ext.7 32 22 VL- 2014 Chan Miya Fatema Begum Relation: Asor Ali Chan Miya Bhogiram Gaon Ext.8 35 25 13) It is seen from the entries contained in the herein before referred voter’s lists that in the voter’s list of Solmari village of 1970 (Ext.2), the Page No.# 10/14 two voters are (i) Sl. No. 225- Hussain, son of Ahmed, age 55 years; and Sl. No. 226- Asor, son of Ahmed, age 65 years. The three voters whose name appear in the voter’s list of Solmari village of 1970 (Ext.12) are (a) Sl. No. 243- Kasem Ali, son of Ahmed, age (disputed- 49, overwritten); (b) Sl. No. 244- Kasem, son of Ahmed, age 54 years; and (c) Sl. No. 245- Asor, son of Ahmed, age- 36 years. Therefore, the DW-1 and DW-2 have jointly proved that there are two sets persons in Solmari village, having common names of “Hussain, son of Ahmed” and “Asar, son of Hussain”, who are voters of same village. The names of “Hussain, son of Ahmed (age- 55 years)” and “Asar, son of Hussain (age 65 years)” appear at serial numbers 225 and 226 of Ext.2. The names of other set of “Hussain, son of Ahmed (age- 54 years)” and “Asor, son of Hussain (age- 35 years)” appear at serial numbers 244 and 245 of Ext.12 respectively. It is neither the pleaded case of the petitioner in his written statement nor it is his stand in his evidence-on- affidavit that the name of his projected father, Asor, son of Ahmed appeared in the same electoral roll as voter under two serial numbers, i.e. 226 and 245 respectively. Thus, because of the age difference, it can be presumed that in the year 1970, there were two voters, named, Asor Ali/ Asar, son of Ahmed in Solmari village, having brother named Hussain, son of Ahmed. 14) Therefore, the credibility of the projected case of the petitioner falls apart because it is not known which out of two Asor Ali/ Asar Ali had land in Solmari per Ext.18 and Ext.18(i) and which Asor Ali shifted to Baruating and which of the two Asor Ali had shifted to Bhogiram Gaon. It is interesting to note that DW-2 had produced the voter list of 1970 (Ext.12), jamabandi (Ext.18) and land revenue paid receipt [Ext.18(i)], but there is no explanation as to why the land certificate (Ext.15), jamabandi (Ext.18), land revenue paid receipt Page No.# 11/14 [Ext.18(i)] and voter list of 1966 (Ext.19) were produced from the custody of Sabed Ali (DW-2) and not produced by the petitioner, when he had examined himself as DW-1. 15) The identity certificate (Ext.17) was not proved by calling the author of the said exhibit. Moreover, the Govt. Gaonburah of Solmari village, who had issued the identity certificate to the petitioner (Ext.9) and to Sabed Ali (Ext.16) was examined as DW-3, he had only exhibited Ext.9 and his signature as Ext.9(A) [as per deposition, orally exhibited as Ext.9(ka)], but he had not exhibited Ext.16, which was issued to Sabed Ali (DW-2). Thus, the identity of Sabed Ali, who was examined as DW-2, remained “not proved”. 16) Out of the remaining documents exhibited by the DW-1 and DW- 2, it is trite law that EPIC is not a document which proves citizenship. If one requires any authority on the point, the decision of this Court in the case of Md. Babul Islam v. Union of India, W.P.(C) 3547/2016, decided on 09.05.2018, may be referred to. Moreover, in view of the finding recorded on the basis of Ext.2 and Ext.12, whereby the petitioner had proved that there were two Asor Ali, having different identities, the EPIC (Ext.13) of DW-2 and the EPIC (Ext.10) of the petitioner do not help the petitioner to establish that he is an Indian and born out of parents who were Indian. 17) The Aadhaar card (Ext.11) is a post reference document. As per the contents of Certificate dated 09.02.2017 (Ext.15), issued by the Circle Officer, Bhuragaon Revenue Circle, it had been certified that Shan Miya, son of Asor Ali, has a plot of land measuring 1 katha, covered by Dag No. 277, of Miyadi Patta No. 180 of Solmari Kissam. Moreover, it was also certified that the land was lost in Brahmaputra erosion in 1983-84. On 07.01.2021, when the petitioner had sworn his affidavit in support of the writ petition, his age was 49 Page No.# 12/14 years. Therefore, he is presumed to be born in the year 1972 and therefore, in the year 1983-84, he would be a minor and the petitioner has not produced and exhibited any sale deed in his favour in respect of the land covered by Ext.15. Moreover, the projected father of the petitioner was alive then and therefore, he could not have inherited the land from his father. Therefore, the existence of land in the name of the petitioner is not proved vide Ext.15. Be it stated that though the petitioner had exhibited certified copy of two jamabandi as Ext.14 and Ext.18, but he had failed to prove any particular entry showing any land to have been mutated in his name. The learned counsel for the petitioner had also failed to show that in the said two jamabandi, any land is shown to exist in the name of the petitioner. Therefore, the land revenue paid receipt [Ext.18(i)], also does not help the petitioner in any manner. 18) It is well settled that oral evidence of projected cousin brother (i.e. DW-3) and oral evidence regarding citizenship is not admissible in evidence. 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. Moreover, in the case of Aziz Miya @ Md. Aziz Mia @ Aziz Mia v. Union of India & Ors., 2023 (4) GLT 246, this Court had held that a mere claim by a suspected person by referring to voters list, claiming that person to be his father, is not a conclusive proof and by doing so he has discharged his burden that he is not a foreigner. There is further requirement to prove that the person who is reflected in the voters list is actually the father who makes the claim will have to be further substantiated with further material record. Hence, in the light of the discussion on the two voter’s lists of 1970 (Ext.3 and Ext.12), only on the basis of the remaining voter’s lists of 1966 (Ext.1), 1966 (Ext.19), 1975 (Ext.4), 1997 (Ext.5), 2005 (Ext.6), 2010 (Ext.7), Page No.# 13/14 2014 (Ext.8), the petitioner cannot be said to have proved that he is a citizen of India and born out of Indian parents. Thus, the petitioner has failed to discharge his burden under Section 9 of the Foreigners Act, 1946 to prove that he is not an illegal foreigner/ migrant but an Indian citizen. 19) Therefore, the challenge to the impugned opinion fails and accordingly, it is held that the impugned opinion does not warrant any interference by the Court. The petitioner could not show any perversity whatsoever in the impugned opinion. 20) The learned counsel for the petitioner had submitted that the matter be remanded back to the learned Tribunal so as to enable the petitioner to prove additional documents. Considered the said submissions. As this Court, in entertaining the challenge to the opinion rendered by the learned Foreigners Tribunal, is exercising certiorari jurisdiction, in light of the decision of the Supreme Court of India in the case of Central Council for Research in Ayurvedic Sciences & Anr. v. Bikartan Das, (2023) 16 SCC 462, and the case of Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233: (1954) 0 Supreme(SC) 175, decided by the Constitution Bench of the Supreme Court of India, where it had been held that “… An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard to the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision.” Therefore, it is trite that the Court is not exercising appellate of revisional jurisdiction and therefore, it is not open to the Court to remand the matter back to the learned Tribunal for a fresh decision after giving another opportunity to the petitioner to discharge his burden of proving that he is an Indian and not an illegal foreigner/ migrant. Page No.# 14/14 21) Consequently, the writ petition is dismissed. 22) The consequences of the impugned opinion dated 25.11.2020, passed by the learned Member, Foreigners Tribunal, Nagaon 10th at Sankardev Nagar, Hojai, Assam, shall follow. 23) The Registry shall send back the records along with a copy of this judgment and order to be made a part of record by the said learned Tribunal. JUDGE JUDGE. Comparing Assistant Private Secretary Digitally signed by Champak Rajbongshi Date: 2026.07.17 15:29:36 +05'30'