Page No.# 1/13 GAHC010273382019 2026:GAU-AS:10038 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/8302/2019 SHER ALI S/O- KASER ALI @ KASER, VILL- KHARBALLI, MOUZA- RUPSHI, P.S. KALGACHIA, DIST- BARPETA ASSAM, PIN- 781301 VERSUS THE UNION OF INDIA AND 6 ORS. REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI-1 2:THE ELECTION COMMISSION OF INDIA NEW DELHI-1 3:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-6 4:THE ASSAM CO-ORDINATOR OF NRC BHANGAGARH ASSAM GHY-5 5:THE DY. COMMISSIONER DIST- BARPETA ASSAM PIN- 781301 6:THE SUPERINTENDENT OF POLICE (B) DIST- BARPETA ASSAM Page No.# 2/13 PIN- 781301 7:THE OFFICER-IN-CHARGE KALGACHIA P.S. DIST- BARPETA ASSAM PIN- 78130 Advocate for the Petitioner : MR. M U MAHMUD, MR S H MAHMUD,MS K GOGOI,MS. R AHMED,MS F N ZAMAN Advocate for the Respondent : ASSTT.S.G.I., SC, NRC,SC, ELECTION COMMISSION.,SC, F.T BEFORE HON’BLE MR. JUSTICE KALYAN RAI SURANA HON’BLE MRS. JUSTICE SHAMIMA JAHAN Advocate for the petitioner : Mr. M.U. Mahmud. Advocate for the respondents : Mr. A.K. Dutta, 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 : 20.04.2026 Date of pronouncement of judgment : 22.07.2026 Whether the pronouncement is of the operative part of the judgment? : NA Whether the full judgment has been pronounced? : Yes JUDGMENT AND ORDER (Kalyan Rai Surana, J.) Heard Mr. M.U. Mahmud, learned counsel for the petitioner. Also heard Mr. A.K. Dutta, learned CGC for respondent no.1; Mr. A.I. Ali, learned advocate, standing counsel for respondent no.2; Mr. G. Sarma, learned advocate, standing counsel for FT matter, Border and NRC, for respondent nos. Page No.# 3/13 3, 4, 6 and 7; and Ms. R.B. Bora, learned Junior Govt. Advocate for respondent no.5. 2) The opinion dated 16.07.2019, passed by the learned Member, Foreigners Tribunal, Barpeta 11th, at Sarbhog, in (Bpt/11th) F.T. 940/2016, by which the petitioner was declared to be a foreigner of post 25.03.1971 stream, is assailed by filing this writ petition under Article 226 of the Constitution of India. 3) The learned counsel for the petitioner had submitted as follows:- a. It was submitted that the petitioner was the son of Kaser Ali @ Kaser and Basaton Nessa. His grandfather is Khosh Mamud. He was born at Village- Kharballi, under P.S. Sorbhog, in the district of Kamrup (presently, under P.S. Kalgachia, in the district of Barpeta), where he is permanently residing. Late Idrish Ali was his brother and Late Kasiran and Late Rofiya Khatun were his sisters. Kosiran Nessa is his wife and he has three sons and two daughters, namely, Kasimuddin, Jahimuddin, Mohidul Islam, Rajida Khatun, wife of Shajahan Ali and Samiran Nessa, wife of Mohibul Sikdar. b. It was submitted that the petitioner had exhibited all the relevant documents, which proves that the petitioner had discharged his burden to show that he is an Indian and not a foreigner. c. The voter’s list of 1966 (Ext.1) was in respect of Kaser Ali, son of Khosh Mamud, father of the petitioner, and Basatan Nessa, his mother, who were the voters of village- Kharballi; voter list of 1970 (Ext.2), was in respect of Basatan Nessa, mother of the petitioner, who was a Page No.# 4/13 voter at Kharballi; voter list of 1985 (Ext.3) is in respect of Sher Ali, petitioner, son of Kaser, a voter at village- Kharballi; voter’s lists of 1989 (Ext.4), 2010 (Ext.5), and 2017 (Ext.6), are in respect of the petitioner, his wife Mofida Khatun and his son Kasimuddin. d. He had submitted that the petitioner had also exhibited jamabandi in respect of his land measuring 1 bigha- 0 katha- 6 lessa, covered by Dag No. 159, K.P. Patta No. 219 of village- Kharballi, under Kalgachia Revenue Circle, in the names of 10 (ten) pattadars, including the petitioner. e. Accordingly, it was submitted that the petitioner is all throughout in the same village, having landed property and has proved his link with his projected parents. Moreover, it was submitted that entries in a jamabandi cannot be disbelieved. f. It was submitted that without any discussion, the learned Tribunal had discarded all exhibited documents with a comment “not proved”, which is impermissible. g. It was also submitted that certified copies must be accepted by the Foreigners Tribunals, and could not have been discarded as inadmissible and not proved. h. It was submitted that the evidence of Amzad Ali, the nephew of the petitioner was disbelieved and discarded without any discussion, though he had stated that he is the grandson of Koser Ali and Basatan Nessa. i. It was submitted that the State did not cross-examine the witnesses examined by the petitioner and thus, none of his statements were controverted. Moreover, no evidence was tendered by the State. Page No.# 5/13 j. Accordingly, it was submitted that the impugned opinion is not sustainable on facts and in law and the same is liable to be set aside by declaring the petitioner to be an Indian citizen. k. No other submission was made and no case law was cited at the Bar. However, a copy of the judgment of the Supreme Court of India in the case of Sirajul Hoque v. Union of India, Crl. Appeal No. 267/2019, decided on 14.02.2019, is found annexed in the writ petition as Annexure-9. 4) Per contra, the learned standing counsel for the FT, Border matter and NRC has submitted that the name of the petitioner appears for the first time in the voter list of 1985, where his age is recorded as 35 years. Thus, the presence of the petitioner in Indian soil is not there before the cut of date of 25.03.1971. It was submitted that the continuous presence of the parents of the petitioner for 15 years between the years 1970 and 1985 is also not proved. Moreover, there is absence of pleadings as to where the father of the petitioner was born; date when his parents died; and moreover, disclosure of all family members has also not been made. It was also submitted that Amzad Ali (DW-2) did not prove his relationship with his projected grandparents and parents and could not show that his father was the brother of the petitioner. Thus, it was submitted that the petitioner has manufactured a family by taking advantage of name appearing in the voter list of 1966 and then projecting him to be his father. 5) Perused the Tribunal’s records, also considered the submissions and cases cited at the Bar. 6) The petitioner, in his written statement, has stated that at no Page No.# 6/13 point of time he was asked to submit any document to the police or to the L.V.O (i.e. Local Verification Officer for short) in support of his citizenship. He had stated that he was a citizen of India and born at village- Kharballi under Sarbhog P.S. (now Kalgachia P.S.), in the District of Barpeta (then, Kamrup). The name of his father is Kaser Ali, name of his mother is Basatan Nessa, name of his grandfather is Khish Momud. His elder brother was Idrish Ali (deceased), He had two sisters, Kasiran (expired) and Rofiya Khatun (expired). He had one uncle- Naser Sheikh (expired). Kosiran Nessa is his wife. Kasimuddin, Jashimudin and Mohidul Islam are his three sons and Rafika Khatun, married to Shajahan Ali and Samiran Nessa, married to Mohibul Sikdar are his two daughters. His age is 68 years and is permanently residing at village- Kharballi. No F.T. Case is pending against any other family member. He had stated that the name of his parents has been recorded in the voter list of 1966. In the voter list of 1970, the name of his mother, elder brother (Idrish Ali), elder brother’s wife (Lal Bhanu), has been recorded. His own name (Sher Ali) has been recorded in the voter list of 1985. His name (Sher Ali) and his wife (Kosiran Nessa) has been recorded in the voter list of 1989. His name, name of his wife (Kosiran Nessa), son (Karimuddin) and son’s wife (Mofida Khatun) has been recorded in the voter list of 2010. His name (Sher Ali), wife (Kosiran Nessa), son (Karimuddin), son’s wife (Mofida Khatun), son (Jahiruddin), and son’s wife (Basatan Nessa), has been recorded in the voter list of 2017. He had stated that his name has been recorded in the jamabandi of land, as Sher Ali, son of Kaser Ali. He has been issued with an Elector Photo Identity Card (EPIC for short). The Gaonburah of villages Amguri, Kharballi and Sutirpathar, Charge No. 17, had issued a certificate in his name showing his identity and present residential status. Accordingly, it was stated that he is a citizen of India and to dismiss the Page No.# 7/13 reference. 7) It may be mentioned that in paragraph 5 of his written statement, the name of his eldest son is written as Kasimuddin, but in paragraph 12, and 13, the name of his eldest son is written as Karimuddin. 8) In support of his defence, the petitioner had examined himself as DW-1. He had also examined Amzad Ali, son of petitioner’s projected elder brother. 9) In his examination in chief, the petitioner has stated that his parents were born at village Kharballi, under Kalgachia PS and the names are recorded in the voter list of 1966. The name of his mother is recorded in the voter list of 1970 along with the name of his elder brother, namely, Idrish Ali and Lalbhanu, wife of Idrish Ali, i.e. his sister-in-law. He had cast his first vote in the year 1985, but he does not know his age in that year. He had stated that he has been casting his vote regularly since then till date. His name has been reflected in the land document of jamabandi record of village Kharballi in respect of land measuring 0B-2K-10L, vide dag No. 159 and patta no. 219 situated in village Kharballi. He has been issued EPIC. He has three sons and two daughters. His three sons are- (i) Kasimuddin, (ii) Jahimuddin, (iii) Mahidul, and his two daughters are- (i) Samiran Nessa, wife of (not remembered), (ii) Rezida, wife of Shajahan, Sontali PS, Boko. They are two brothers. The other one is Idrish Ali, who is no more. He had two sisters, namely, Kasiron Nessa and Rufiya Khatun, who are both dead. His grandfather was Kosh Mahmud, whom he had not seen during his lifetime. His father had one brother, Late Noser Sk, who died long ago. In his cross-examination, he had stated he does not remember when his father died. His mother died after 1970. He had denied that Page No.# 8/13 Kaser Ali whose name is recorded in the voter list of 1966 is not his father. He was at village Kharballi before he had casted his vote in 1985. He does not know why the name of his wife or other close relatives were not included in the voter list of 1985 or thereafter along with his name. He had denied that the land which is recorded in his name and in the name of his brother Idrish Ali does not prove their nationality. He had also denied that he came to Assam from Bangladesh after 25.03.1971. 10) The petitioner had examined Md. Amzad Ali, son of Late Idrish Alias DW-2. In his examination-in-chief, he had stated that his is the grandson of Koser Ali. Basatan Nessa was his grandmother. Their names were enrolled in the voter list of 1965 as resident of Kharballi under Jania LAC. He does not know the house number and serial number. His grandmother’s name is recorded in the voter list of 1970 along with the name of his parents. He had stated that Sher Ali is his parental uncle and younger brother of his father. He had stated that Sher Ali is a voter after 1970 and is a regular voter till date. Sher Ali has five children. His father died three years ago. His house is half km from the house of Sher Ali in village Kharballi. Sher Ali possesses land property at Kharballi jointly with his brother Idrish Ali. He does now know his dag number and patta number. He had stated that Sher Ali is a citizen of India by birth. In his cross examination, DW-2 had stated that he has not furnished the common voters list with his father to prove his identity. He had submitted the EPIC to prove his relation with his father Idrish Ali. He had denied that he is not the son of Idrish Ali. He has denied that his identity is not proved. He has denied that his testimony is not supported with his documentary evidence and they are not reliable. He had denied that Sher Ali came to Assam from Bangladesh after 25.03.1971. Page No.# 9/13 11) The learned Tribunal, upon appreciating the exhibited documents, had referred to the names of voters contained in Ext.1 and Ext.2, and held that the names recorded as electors, ex facie does not prove its relevancy. In respect of Ext.3, the voter’s list of 1985, as it contained in the name of the petitioner, the said exhibit was stated to be a relevant document with regard to Sher Ali, the petitioner. In connection with Ext.4, Ext.5 and Ext.6, the learned Tribunal referred to the names of petitioner, his wife Kosiron Nessa and their sons and daughters, not connected with Kaser Ali and Basatan Nessa of Ext.1 and Basatan Nessa, Idrish Ali and his wife Lalbhanu of Ext.2. Accordingly, Ext.1 and Ext.2 were rejected as their relevancy with regard to Sher Ali is not proved. It was held that as a logical corollary of the finding of Ext.3, Ext.4, Ext.5 and Ext.6, the petitioner’s claim to relationship with his projected father, Kaser Ali, his wife Basatan Nessa and their son Idrish Ali was rejected as not proved. It was held that the petitioner’s claimed place of birth with no pleading on his date of birth was also held to be not proved. It was held that earliest presence of the petitioner in Assam was in 1985 at 35 years of age vide Ext.3, which is post 25.03.1971 period document, with no connection with Ext.1 and Ext.2. Moreover, in the absence of documentary evidence, the oral evidence of the petitioner (DW-1) and of Amzad Ali (DW-2), recorded on oath was also rejected. Resultantly, the learned Tribunal declared the petitioner to be a foreigner of post 1971 stream and liable to appropriate follow up action. 12) On a careful perusal of records, it is noticed that while recording their respective examination-in-chief, the DW-1 and DW-2, had not exhibited any documents. However, 7 (seven) documents were marked as Ext.1 to Ext.7 by the learned Tribunal on 01.07.2019. As per the order-sheet, DW-1 was examined on 01.07.2019. The DW-2 was examined on 04.07.2019, but no Page No.# 10/13 documents were marked as exhibits by the learned Tribunal on 04.07.2019. 13) Out of the seven exhibited documents, Ext.1 to Ext.6 are voters lists. The voters, whose name appear in the said exhibits are as follows:- Name of voter and voter list year Relation Village Ext. No. Age VL- 1966 Kaser Ali Basatan Nessa Relation: Khosh Mamud Kaser Ali Khar Balli Ext.1 Age 47 35 VL- 1970 Basatan Nessa Idrish Ali Lalbhanu Relation: Kaser Kaser Ali Idrish Khar Balli Ext.2 Age 39 25 22 VL- 1985 Sher Ali Relation: Kaser Khar Balli Ext.3 Age 35 VL- 1989 Sher Ali Kosiran Nessa Relation: Kaser Sher Khar Balli Ext.4 Age 39 29 VL- 2010 Sher Ali Kosiran Nessa Kasimuddin Mofida Khatun Relation: Kaser Sher Ali Sher Ali Kasimuddin Khar Balli Ext.5 Age 75 67 34 31 VL- 2017 Sher Ali Kosiran Nessa Kasimuddin Mofida Khatun Jahimuddin Basatan Nessa Relation: Kaser Sher Ali Sher Ali Kasimuddin Sher Ali Mohidul Islam Khar Balli Ext.6 Age 81 73 40 37 26 19 14) In the case ofMd. Fakharuddin v. Union of India, W.P. (C) 4512/2016, decided on 28.02.2018, this Court has held that just because name of a person is enlisted in the voter list, it would not mean that he is a citizen of India. Enlistment of name in voter list or long stay in the Country per se are no proof of citizenship. In the case of Aziz Miya @ Md. Aziz Mia v. Union of India, Page No.# 11/13 2024 (4) GLT 246, this Court has 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 and hence, 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. Therefore, the exhibited voter’s lists, being Ext.1 to Ext.6 does not help the petitioner to establish that he is an Indian or that he draws his lineage from his projected father, whose existence in India is proved to be prior to the cut-off date of 25.03.1971. 15) In this case, the petitioner is not a voter along with his father in any exhibited voter list. The names of his projected father and mother appeared in the voter list of 1966. The name of his projected mother, Basanta Nessa, appears with the name of Idrish Ali and Lalbhanu and the petitioner claims that Idrish Ali and Lalbhanu are his elder brother and the wife of his elder brother respectively. In the written statement, the petitioner has neither pleaded regarding the year of death of his parents not about his projected elder brother and elder brother’s wife. The existence of his projected father vanishes after 1966. The name of his projected mother and projected brother vanishes after 1970. The name of the petitioner appears in the voter list of 1985 at the age of 35 years, with no explanation why his name not appeared immediately after his attained the age of 21 years. There is no existence of any family members of the petitioner for a long period of 15 (fifteen) years between 1970 and 1985. The petitioner has not exhibited any other voter list containing the name of his projected mother and projected brother together after 1970. Moreover, the name of the petitioner does not appear in any electoral roll with his brother Idrish Ali. Thus, the petitioner has not been able to show that he or his Page No.# 12/13 projected parents had continuously stayed in India from prior to 25.03.1971 till the year 1985, when his name appears in the voter’s list of 1985. 16) Thus, the petitioner has not been able to show that he or his parents had continuous stay in the Country as per requirement of Section 6A(3) (b) of the Citizenship Act, 1955. 17) Therefore, on the basis of entries in the exhibited voter’s lists alone, it cannot be held that the opinion of the learned Tribunal that the petitioner could prove his citizenship. Therefore, on that count, the opinion of the learned Tribunal cannot be faulted with. 18) The petitioner had exhibited the jamabandi (land revenue record) as Ext.7, but the said Ext.7 is not a certified copy but a system generated printout. Though the signature of the Circle Officer, Kalgachia Revenue Circle is affixed in the said document, but above his signature is a note to the following effect- “please note this is a system generated certificate and does not need any signature” and the date of generation of the said print-out is 05.04.2019. Therefore, it cannot be said that the said Ext.7 has been proved in accordance with law because the said exhibit is not supported by any certificate under Section 65B of the Evidence Act, 1872. Moreover, neither the petitioner nor the DW-2 had made any effort to exhibit the contents of the said Ext.7. It is too well settled that exhibiting of a document and proof of its contents are two separate things. In this case, the petitioner has failed to show from the said Ext.7 that the name of the petitioner or any other person through whom he is claiming title had his or her name in the record of rights prior to 25.03.1971, which is the cut-off date. Therefore, the discarding of the said exhibit also cannot be faulted with. Page No.# 13/13 19) Therefore, on all counts, the challenge to the impugned opinion fails. Resultantly, the writ petition fails and the same is dismissed. The consequences of the opinion dated 16.07.2019, passed by the learned Member, Foreigners’ Tribunal, Barpeta 11th, at Sarbhog, in (Bpt/11th) F.T. 940/2016 would follow. 20) Interim bail granted to the petitioner vide order dated 28.08.2020, stands vacated. 21) The Registry shall return back the Tribunal records along with a copy of this order, to be made a part of records by the said learned Tribunal. JUDGE JUDGE. Comparing Assistant Private Secretary Digitally signed by Champak Rajbongshi Date: 2026.07.22 14:43:03 +05'30'