Gauhati High Court
Jaygun Bibi vs The Union Of India And 5 Ors on 7 March, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/20
GAHC010085292019
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2645/2019
JAYGUN BIBI
W/O- MD. IBRAHIM ALI, D/O- AMBAJ ALI, R/O. VILL.- HAIBAR GAON, P.S.
BHURAGAON, DIST. MORIGAON, ASSAM, PIN- 782105.
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECY. TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF
INDIA, NEW DELHI-1.
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY.-06.
3:THE DY. COMMISSIONER
MORIGAON
P.O. AND DIST.- MORIGAON
ASSAM
PIN- 782105.
4:THE SUPERINTENDENT OF POLICE (B)
MORIGAON
P.O. AND DIST. MORIGAON
ASSAM
PIN- 782105.
5:THE ELECTION COMMISSIONER OF INDIA
NEW DELHI-1.
6:THE N.R.C. COORDINATOR
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NATIONAL REGISTER OF CITIZEN ( NRC)
ASSAM
BHANGAGARH
GHY.-05
Advocate for the Petitioner : MR. A R SIKDAR, MD A ALI
Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, NRC,SC, ECI
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SHAMIMA JAHAN
JUDGMENT
Date : 07-03-2026 Date on which judgment is reserved : 16.12.2025 Date of pronouncement of judgment :07.03.2026 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 Mr. A.R. Sikdar, learned counsel for the petitioner. Also heard Ms. B. Sarma, learned CGC for respondent no.1; Ms. A. Verma, learned standing counsel for respondent nos. 2, 4 and 6; Mr. P. Sarmah, learned Addl. Senior Govt. Advocate for respondent no. 3; and Mr. A.I. Ali, learned standing counsel Page No.# 3/20 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 21.06.2016, passed by the learned Member, Foreigners Tribunal (2nd), Morigaon, Assam, in Case No. F.T.(D) 1189/11 [Police Ref. D/N Case No. 175/97 dated 15.12.1997, arising out of E.R.O. Ref. No. LDB/ERO/81/16/12 dated 31.10.1997], by which the petitioner, namely, Musstt. Joygun Bibi, was declared to be a foreigner under Section 2(a) of the Foreigners Act, 1946, who has illegally entered into India (Assam) after the cut-off date 25.03.1971.
3) The petitioner, upon service of notice of the proceeding, appeared before the learned Tribunal and submitted her written statement, inter alia, stating that she is a citizen of India by birth. Her father is Md. Ambaz Ali, who is a citizen of India by birth, having landed property and she was born in village- Digali Ati under Bhuragaon P.S. in Morigaon District. She had married Md. Ibrahim Ali, son of Late Kuddus Ali of village- Haibargaon, P.S. Bhuragaon, Dist. Morigaon. The name of Ambaz Ali was enlisted as voter in the voters list of 1966 and 1970 in village- Baruating, under Bokoni (S.C.) LAC. The name of the petitioner was enrolled as a voter after marriage, but with mark 'D' against her name and therefore, she could not exercise her right to franchise. She had also stated that the Investigating Officer had submitted his report without any investigation and therefore, the case was liable to be set aside and she be declared as an Indian.
4) In support of her defence, the petitioner had examined herself as DW-1. In her examination-in- chief, she had stated that she was born in village- Dighali Ati under Bhuragaon P.S. Her father's name is Ambaj Ali, Her Page No.# 4/20 marriage was performed with Ibrahim Ali of Haibargaon. Her grandfather's name is Askar Ali. She had stated that it is not true that she had illegally come from Bangladesh. No case is pending against her family. She has documents. In her cross-examination, she had stated that she cannot recollect the date of her birth. She cannot sign. She cannot state the dag and patta number of the land.
5) On 12.05.2016, the petitioner had examined Md. Mainuddin Ahmed, aged 35 years, son of Md. Kadir Ali, as DW-2. He had stated in his examination-in-chief that she knows the petitioner, Joygun Bibi. She is her related cousin. He had stated that her father's name is Ambaj Ali and she was born in Dighali Ati and is married at Haibargaon. Ext.Ka is the Gaonburah certificate issued to Joygun Bibi. Ext.Kha is the certificate issued by the Gaonburah of Dighali Ati. Ext.Ga is the land document in her father's name. Ext.Gha is the voters list of 1966 and Ext.Unga is the voters list of 1970. In his cross-examination, the DW-2 had stated that the exhibited documents, i.e. Ext.Kha, Ext.Kha, Ext.Ga, Ext.Gha and Ext.Unga were not collected by him from the office. He did not know the signatures in the exhibited documents. He had stated that Ext.Ka is dated 25.03.2014 and Ext.Kha is dated 19.12.2015. He did not collect the Gaonburah certificate. Nothing is mentioned in remarks column of Ext.Gha. There is no patta document. He cannot say about payment of revenue and no receipt is submitted. He did not know who collected Ext.Gha and Ext.Unga from the office. He cannot identify the signature. The house of the petitioner is in the land of beel (fishery). No document of land having house is submitted.
6) The learned Tribunal, upon examination of the pleadings and evidence, held that the name of Ambaj Ali, projected father of the petitioner, appearing in the jamabandi (Ext.Ga) did not tally with the name appearing in Page No.# 5/20 any other document. It was also held that though the petitioner had exhibited some procured document, but failed to duly prove the same. Accordingly, it was held that the petitioner had failed to discharge her burden of proof under Section 9 of the Foreigners Act, 1946 and resultantly, held that the petitioner, Musstt. Joygun Bibi, was a foreigner under Section 2(a) of the Foreigners Act, 1946, who has illegally entered into India (Assam) after the cut-off date 25.03.1971.
7) Assailing the impugned opinion, the learned counsel for the petitioner had submitted that the LVO report was blank and thus, no investigation was conducted. It was also submitted that the name of the father of the petitioner Ambaj Ali appeared in the voter list of 1966 (Ext.Gha), but his name appeared only as Ambaj in the voters list of 1970 (Ext.Unga). However, the learned Tribunal had discarded the exhibited documents on an incorrect ground that the name of Ambaj Ali, appearing in the jamabandi (Ext.Ga) did not tally with other documents.
8) It has been submitted that the LVO report was blank, which shows that there was no investigation at all and thus, the grounds to suspect the petitioner to be a foreigner was not supplied to her, which had impacted her ability to defend herself. In support of his submission on the point, reliance has been placed on the case of Sarbananda Sonowal v. Union of India & Ors., (2005) 5 SCC 665 (para 26) . It was submitted that the evidence of the petitioner was not challenged and thus, it was submitted that the petitioner could not have been declared to be a foreigner. In support of the said submission, the case of State of Assam v. Moslem Mandal, 2013 (1) GLT 809 (para 117.3), has been cited. It was also submitted that strict rules of evidence does not apply in proceedings before the Foreigners Tribunal and on the said Page No.# 6/20 point, the case of Idris Ali v. Union of India & Ors., (2020) 0 Supreme(Gau) 192 (para-11) was cited. It has also been submitted that all the documents exhibited by the DW-2 were public documents and therefore, it could be exhibited by any witness.
9) Per contra, the learned standing counsel for the FT, Border matters and NRC has submitted that the LVO report had to be left blank because no document was produced by the petitioner before the LVO. It has been submitted that the submission regarding blank columns in the LVO report is misconceived because the reference was made by the Elector Registration Officer, which was an exercise neither under the Foreigners Act, 1946, nor under the erstwhile Illegal Migrants (Determination by Tribunals) Act, 1983, but was an exercise under the Representation of the People Act, 1950 and the procedure was to make the reference to the Illegal Migrants (Determination) Tribunal [IM(D)T for short), having jurisdiction, through the competent authority i.e. Superintendent of Police of the concerned District. It has been submitted that the cases pending before the erstwhile IM(D)T were transferred pursuant to the directions contained in the case of Sarbananda Sonowal (supra), consequent upon declaring the Illegal Migrants (Determination by Tribunals) Act, 1983, as ultra vires. Hence, it was submitted that as the proceedings were transferred by virtue of orders passed by the Supreme Court of India, this Court may not like to re-open the reference. It was submitted that the petitioner had not exhibited a single document showing her name with her father. She has not disclosed the name of her mother, siblings of her father, her grandparents, her own siblings. Therefore, a sudden appearance of Mainuddin Ahmed, aged 35 years, son of Md. Kadir Ali, as DW-2 did not inspire confidence because the petitioner did not exhibit any documents for reasons not disclosed.
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10) It has been submitted that though documents not exhibited before the Tribunal cannot be looked into, but on a cursory glance of the voters list of 2012, annexed to this writ petition, the age of the petitioner was 25 years and therefore, born in the year 1987, however, in her oral deposition, on 08.03.2018, her age is recorded as 37 years and therefore, she was born in the year 1979. In this regard, the learned standing counsel had cited the case of Basiron Bibi v. Union of India & Ors., 2018 (1) GLT 372 , where this Court had laid down that the proceedee, having exhibited documents, cannot say that only those portion of the documentary evidence be read which is favourable to him/her, specifically referring to age discrepancy in exhibited documents. Moreover, the following cases were cited, viz., Sarbananda Sonowal (I) (supra) (para-26), Rashminara Begum v. Union of India & Ors., 2017 (4) GLT 346 (para
25), and State of Assam v. Ohab Ali, 2018 (4) GLT360.
11) Examined the Tribunal's records and the materials on record and also considered the submissions made by both side and the cases cited by them. The two issues which has come for determination in this case are:-
i. Whether the reference, which is based on Verification Officer's Report, as forwarded by the ERO to the Superintendent of Police, Morigaon, who in turn made the reference before the erstwhile IM(D)T and thereafter to the Foreigners Tribunal (2nd), Morigaon, wherein certain paragraphs/ columns were left struck-out, vitiates the proceedings before the Foreigners Tribunal?
ii. Whether the impugned opinion is otherwise liable to be interfered with?
Point of determination no. 1:
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12) The issue that parts of LVO report was struck-out, which has been urged by the learned counsel for the petitioner is taken up first.
13) In this regard, it may be mentioned that in this case, doubt was raised as to the citizenship of the petitioner, Joygun Bibi by the Electoral Registration Officer for No. 81 Lahorighat Assembly Constituency after the Election Commission of India had ordered revision of electoral roll with reference to qualifying date of 01.01.1997 made house-to house enumeration which was conducted between 16.01.1997 to 15.04.1997. As doubt was expressed about the citizenship of the petitioner, whose name was enumerated in the draft roll published on 24.07.1997, the matter was referred to the Superintendent of Police, Morigaon, the competent authority under the Illegal Migrants (Determination by Tribunals) Act, 1993/ Foreigners Act, 1946 and Rules made thereunder vide letter dated 31.10.1997, referred hereinbefore. The Superintendent of Police, Morigaon, thereafter, made reference before the then Chairman, IM(D)T, Nagaon, vide D/N Case No. 175/97 dated 15.12.1997.
14) It may be stated that from the Verification Officer's Report dated 03.10.1997, which is available in the Tribunal's record, it is apparent that during enquiry, no document was submitted. The endorsement was made to the effect that "The voter could not furnish her documents at the time of verification ."
15) It may also be stated that by virtue of the judgment and order passed by the Supreme Court of India in the case of Sarbananda Sonowal (supra), the proceeding was transferred to the Foreigners Tribunal. The transferred reference was received by the learned Member, Foreigners Tribunal (2nd), Morigaon, which was entered in the order dated 29.11.2013, and notice returnable on 30.12.2013, was issued. Therefore, as evident from the decision Page No.# 9/20 of the Supreme Court of India, in the case of Sarbananda Sonowal (supra), the matter was transferred by the Supreme Court of India, no further determination regarding making of reference can be gone into by this Court.
16) Nonetheless, be that as it may, the issue of struck-out and/or blank Verification Officer's Report has been decided by this Court in the case of Shukurjan Nessa @ Sukurjan v Union of India & Ors., W.P.(C) 245/2019, decided on 28.02.2025. In the said case, the issue relating to reference made at the instance of the Electoral Registration Officer (ERO for short) has been clarified.
17) It may be stated that as per the Verification Officer's Report dated 03.10.1997, the said officer was a Junior Engineer by profession. It must be understood that the said officer is not trained in law before being entrusted with house-to house enumeration duty. He has recorded that no document were furnished at the time of verification. Thereafter, the column nos. 7 to 16 were struck-out. The manner in which reference was registered has already been stated hereinbefore.
18) Therefore, this is not a case where any enquiry was made under the provisions of Foreigners Act, 1946 or Rules framed thereunder, where investigation is done under the authority of the Superintendent of Police (Border). The jurisdictional Superintendent of Police (Border) is the prescribed authority to make reference before the Illegal Migrants (Determination) Tribunal constituted under the erstwhile Illegal Migrants (Determination by Tribunals) Act, 1983 and Rules framed thereunder.
19) There is an important facet, which is contained in the judgment and order of this Court in the case of Sayam Uddin v. Union of India & Ors., Page No.# 10/20 2019 (4) GLT 456, as affirmed by the Division Bench in the case of Sayam Uddin v. Union of India & Ors., W.A. 170/2019, decided on 29.07.2019 , is deemed appropriate to be referred to. As this Bench is in respectful agreement with the said judgment therefore, paragraphs 11 to 22 thereof are quoted below:-
11. In the year 1997, Election Commission of India had undertaken an intensive revision of electoral rolls in the State of Assam as apprehensions were expressed from various quarters that the electoral rolls were infested with the names of foreigners/illegal migrants. In the course of this exercise citizenship status of as many as 3,13,046 persons whose names were in the draft voters lists were found to be doubtful and accordingly they were marked as doubtful "D" voters in the electoral rolls after local verification.
12. Legality of this exercise was challenged before this Court in HRA Choudhury Vs Election Commission of India, reported in 2002 (1) GLT 1. The challenge made was rejected by a Division Bench of this Court. In HRA Choudhury (supra) this Court examined the guidelines dated 17.07.1997 of the Election Commission of India laying down the procedure to carry out the exercise.
12.1. As per paragraph 3.8 of the guidelines the Electoral Registration Officer was required to consider the verification report received from the Local Verification Officer. If he was satisfied on such report and such other material/information as may be available about the eligibility of a person, he should allow his name to continue on the electoral roll. Where, however, he was not so satisfied and had reasonable doubt about the citizenship of any person, he was required to refer such doubtful cases to the competent authority under the then Illegal Migrants (Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946 as the case may be. For convenience of the Electoral Registration Officers, Election Commission devised proformas. 12.2. As per paragraph 3.9, after the case of a person was referred by the Electoral Registration Officer to the competent authority, he should wait for the decision of the relevant Tribunal in relation to that person and act according to such decision.
12.3. As per paragraph 3.10, where the relevant Tribunal decided that any such person was not a citizen of India, Electoral Registration Officer should proceed under Rule 21 A of the Registration of Electors Rolls, 1960 to have the name of such person deleted from the electoral roll before it was finally published.
12.4. This Court in HRA Choudhury (supra) held that such guidelines and decision of the Election Commission were in accordance with Article 324 Page No.# 11/20 of the Constitution of India besides conforming to the principles of natural justice. It was held that such guidelines cannot be held to be arbitrary or vitiated by mala fide or partiality.
13. At this stage, it may be mentioned that the Illegal Migrants (Determination by Tribunals) Act, 1983 is no longer in existence, the same having been declared unconstitutional by the Supreme Court in Sarbananda Sonowal Vs Union of India reported in (2005) 5 SCC 665. Therefore, in so far paragraph 3.8 of the guidelines dated 17.07.1997 is concerned, the reference would be under the Foreigners Act, 1946.
14. The above exercise was repeated in the year 2005 with the Election Commission of India again going for intensive revision of electoral rolls in the State of Assam taking 01.01.2005 as the qualifying date. In this connection, guidelines dated 17.06.2004 were issued by the Election Commission of India. Paragraph 2.2 of the guidelines dealt with "D" voters. It was mentioned that the guidelines issued in 1997 would be followed while dealing with such category of persons. Paragraph 8 dealt with verification by Electoral Registration Officers. It laid down the procedure while carrying out such verification including verification by Local Verification Officer. As per paragraph 8.6, Local Verification Officer would conduct the verification by making an on the spot visit and the person concerned could adduce any one or more of the documents mentioned therein in support of his claim as a citizen of India. After due verification, the Local Verification Officer was required to submit his report in the prescribed format. Under paragraph 8.8, Electoral Registration Officer on receipt of the verification report from the Local Verification Officer should consider the same. Where he was satisfied about the eligibility of a person, he should allow the name of such person to continue on the electoral roll but where he was not so satisfied and had reasonable doubt about the citizenship of any person he should refer such doubtful cases to the competent authority under the then Illegal Migrants (Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946 in a prepared format (Annexure-B to the guidelines dated 17.06.2004) to the competent authority for making reference to the Tribunal and await the decision of such Tribunal.
15. As pointed out by Mr. Barua, in Mameja Khatun (supra) a Single Bench of this Court directed that "D" voters should not be allowed to cast their votes with the clarification that "D" voters would include persons whose names were included in the electoral rolls but their citizenship was doubted or disputed and also those whose cases were pending before the Foreigners Tribunals. This decision of the learned Single Bench was confirmed by the Division Bench in Writ Appeal No. 114/2011 (State Vs Mameja Khatun). By the judgment and order dated 13.10.2015, the Division Bench directed Election Commission of India and other authorities to implement the directions of the Single Bench in letter and spirit.
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16. At this stage, it may also be mentioned that in WP(C) No. 274/2009 filed by Assam Public Works which is pending before the Supreme Court of India wherein NRC updation exercise in the State of Assam is being monitored by the Supreme Court of India, on 25.10.2013, Supreme Court clarified that as far as persons in the "D" list are concerned, undoubtedly they were doubtful voters and therefore their names could not be included unless the NRC is updated and unless the Foreigners Tribunals declared them to be Indian citizens.
17. The Foreigners Act, 1946 is an act to confer upon the Central Government certain powers in respect of foreigners. This Act provides for the exercise of certain powers by the Central Government in respect of the entry of foreigners into India; their presence in India and their departure therefrom. Section 2 (a) defines a "foreigner" to mean a person who is not a citizen of India. Section 3 confers power to the Central Government to make orders making provision either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigners, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or their continued presence therein.
17.1. In exercise of the powers conferred by Section 3 of the Foreigners Act, 1946, Central Government made the Foreigners (Tribunals) Order, 1964. As per order 2 (1), the Central Government may by order refer the question as to whether a person is or is not a foreigner within the meaning of the Foreigners Act, 1946 to a Tribunal to be constituted for the purpose for its opinion.
18. Ministry of Home Affairs, Govt. of India had issued notification dated 19.04.1958 in exercise of powers conferred by Clause-(1) of Article 258 of the Constitution of India whereby the President with the consent of the State Government concerned entrusted to the Governments of each of the States mentioned therein including the State of Assam the functions of the Central Government in making orders of the nature specified in Section 3 of the Foreigners Act, 1946. Another notification dated 17.02.1976 was issued by the Government of India, Ministry of Home Affairs in the exercise of the powers conferred by Article 258 (1) of the Constitution entrusting the Superintendents of Police and Deputy Commissioners (In-charge of Police) under the Government of Assam the functions of the Central Government in making orders of the nature specified in Section 3 of the Foreigners Act, 1946 within their respective jurisdictions subject to the conditions mentioned therein which included the condition that exercise of such functions would be in respect of nationals of Bangladesh and that while exercising such functions, Superintendents of Police and Deputy Commissioners (In-charge of Police) shall comply with such general or special directions as the Government of Assam or the Central Government may issue from time to time.
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19. Article 258 of the Constitution deals with power of the Union to confer powers etc on States in certain cases. Clause (1) of Article 258 starts with a non-obstante clause. It says that notwithstanding anything in the Constitution, President may with the consent of the Government of a State entrust either conditionally or unconditionally to that Government or to its officers, functions in relation to any matter to which the executive power of the Union extends. Clause (3) provides for making of payment by the Government of India to the State concerned such sum as may be agreed upon or in default of agreement through arbitration in respect of any extra-cost of administration incurred by the State in connection with the exercise of powers and duties of the Government of India conferred or imposed upon a State Government.
20. Thus, under the Central Government notifications dated 19.04.1958 and 17.02.1976, Government of Assam, Superintendents of Police and Deputy Commissioners (In-charge of Police) have been delegated the power to make reference to the Foreigners Tribunal under order 2 (1) of the Foreigners (Tribunals) Order, 1964 to seek opinion as to whether the proceedee is a foreigner or not within the meaning of the Foreigners Act, 1946.
21. Thus from the above, what transpires is that there are two categories of "D" voters:- (i). those who were marked as "D" voters in the electoral roll by the Electoral Registration Officer following enquiry by Local Verification Officer; and
(ii). those whose references are pending before the Foreigners Tribunals.
22. In so far Electoral Registration Officer is concerned the exercise undertaken by him while marking a person as a "D" voter in the electoral roll is a quasi judicial exercise. If he holds the view after examining the enquiry report of the Local Verification Officer that the concerned person is not a citizen of India he is required to forward the case of that person to the competent authority i.e., the Superintendent of Police. If it is so forwarded by the Electoral Registration Officer, the jurisdictional Superintendent of Police has to make a reference to the competent Foreigners Tribunals under order 2(1) of the Foreigners (Tribunals) Order, 1964 based on the report received from the Electoral Registration Officer. Question of making further enquiry by the Superintendent of Police in such a case would not arise because enquiry has already been made by the Electoral Registration Officer by exercising quasi judicial powers and the Superintendent of Police cannot sit over such decision of the Electoral Registration Officer. He has to forward the same by making the reference to the competent Foreigners Tribunal for its opinion.
20) The said judgment by the learned Single Judge in the case of Sayam Uddin (supra), has stood affirmed by the virtue of judgment and order Page No.# 14/20 dated 29.07.2019, passed by the Division Bench of this Court in the writ appeal of Sayam Uddin (supra).
21) The learned counsel for the petitioner had cited the case of Moslem Mondal (supra) to support his contention that if LVO report is blank, the reference is vitiated. In this regard, it would be relevant to mention that as per the contents of para-10 of the case of Moslem Mondal (supra), the Superintendent of Police, Barpeta, suspecting the respondent therein as illegal migrant within the meaning of the Illegal Migrants (Determination by Tribunals) Act, 1983, made a reference under Section 8 (1) of the said Act read with Rule 9 (A) of the Rules framed thereunder. Accordingly, Case No. 1311/2003 was registered before the IM(D)T, Barpeta and the said proceeding was subsequently transferred to the Foreigners Tribunal and registered as F.T. Case No. 243/2006. Therefore, in the said case, reference was not made by Electoral Registration Officer (ERO for short). Hence, the decision of Moslem Mondal (supra), being distinguishable on facts, is not found to help the petitioner in any manner.
22) It would be appropriate to also refer to another decision of this Court in the case of Amina Khatun v. Union of India & Ors., 2022 (4) GLT 102 (supra), which was decided on 28.04.2022. In the said case, the reference was made by the Superintendent of Police (Border), based on Local Verification Officer's Report, as forwarded by the Elector Registration Officer. But it appears that the previous decision of the learned Single Judge of this Court in the case of Sayam Uddin v. The Union of India & Ors., 2019 (4) GLT 456 , as affirmed by the Division Bench of this Court in the case of Sayam Uddin v. Union of India & Ors., W.A. 170/2019, decided on 29.07.2019, were not brought to the notice of this Court. Therefore, under such circumstances, the Court is of the considered Page No.# 15/20 opinion that under the well settled principles of stare decisis, the decision in the case of Amina Khatun (supra) would be per incurium. Accordingly, the decision rendered in the case of Amina Khatun (supra), though not cited, will also not be of any help to the petitioner.
23) It may be mentioned that one of the submissions of the learned counsel for the petitioner was that in column no. 15 of the Verification Officer's Report, against the query as to "whether migrated into Assam", the Verification Officer had tick-marked "no". Accordingly, it was submitted that the petitioner was not suspected to be an illegal migrant. The said submission has been noted only to be rejected because, the competent authority to make make reference was the Elector Registration Officer, 81 Lahorighat LAC, who, in his reference, had doubted the citizenship of the petitioner. The Superintendent of Police (Border), Morigaon, who had made the reference before IM(D)T and then to the Foreigners Tribunal, had clearly observed that " The suspect entered into (India) Assam on or after 25-3-71 as he could not produce any document to prove her citizenship that she is not an IM." Here, in light of the context, "IM" appears to be an abbreviation of "illegal migrant". Thus, column 15 of the Verification Officer's Report does not help the petitioner.
24) In the present case, the proceedings which were hitherto pending before the Illegal Migrants (Determination) Tribunals were transferred by the Supreme Court of India to the Foreigners Tribunal vide directions issued in the case of Sarbananda Sonowal (supra). In para-1 of the impugned opinion, reference is made to the Government Notification No. PLB.101/2005/Pt/194 dated 02.02.2006, has been referred to. If one needs to verify as to whether proceeding before IM(D)T was transferred in this case, the said notification may be referred to. Hence, this Court would exercise restraint on making any Page No.# 16/20 comment on (i) the form of reference; (ii) report of the Verification Officer; (iii) reference by Electoral Registration Officer (ERO for short); and (iv) reference by the Superintendent of Police (Border), Morigaon. Moreover, as the proceedings were transferred by virtue of orders passed by the Supreme Court of India, the Foreigners Tribunals would also have no power or jurisdiction to remand the reference back to the Superintendent of Police (Border) for a fresh enquiry by the Local Verification Officer and/or the Electoral Registration Officer.
25) Moreover, in this case, the petitioner had participated in the proceedings before the Foreigners Tribunal without any demur and therefore, she is deemed to waive all or any objection to the said report. Therefore, it would be impermissible for the petitioner to now claim that the reference was not properly made.
26) Therefore, the challenge to the proceeding before the learned Foreigners Tribunal on the ground that certain paragraphs and/or columns of the Verification Officer's Report, as forwarded by the Electoral Registration Officer (ERO) were struck-out, is held to be not maintainable on facts and in law, as morefully discussed hereinbefore.
27) The point of determination no. (i) is answered accordingly.
28) The point of determination no. (ii) is now taken up. 29) It is seen from the Tribunal's records that the Verification
Officer's Report is dated 03.10.1997. Pursuant to notice being served, the petitioner appeared before the learned Tribunal on 13.02.2014. She had filed her written statement on 13.05.2014, enclosing therewith 4 (four) documents, viz., voters list of 1966, voters list of 1970, certificate by Gaonburah of Dighali Ati village, and certificate by Gaonburah of village Haibargaon. The petitioner Page No.# 17/20 did not exhibit any document. However, the DW-2, in course of his examination- in-chief on 12.05.2016, had exhibited 5 (five) documentary exhibits, viz., Gaonburah certificate of village Haibargaon, issued to Joygun Bibi (Ext.Ka); certificate issued by the Gaonburah of Dighali Ati (Ext. Kha); land jamabandi showing land in the name of Ambas Ali (Ext.Ga); voters list of 1966 (Ext.Gha); and voters list of 1970 (Ext.Unga).
30) The petitioner, as stated above, has not exhibited and proved any document. The DW-2 claims that he is the related cousin of the petitioner, but the petitioner has not pleaded or proved her relationship with DW-2 and she has also not proved whether the father of DW-2 and her father had any relationship. He had stated in his cross-examination that he had not obtained any document. Moreover, he has not proved any of the entries or contents of any of the exhibited documents.
31) Before examining the evidence, it must be mentioned that this Court, in the case of Rashminara Begum v. Union of India & Ors., 2017 (4) GLT 346, and Saru Sheikh v. Union of India & Ors., (2017) 4 GLR 295 , has held that material facts pleaded would have to be proved by adducing cogent and admissible evidence. In this case in hand, the petitioner has not disclosed the name of her mother, name of brothers and sisters of her father and about her grandparents. In voters list of 1966 (Ext.Gha) and voters list of 1970 (Ext.Unga), the voters belong to Baruating village, but there is no pleading that those voters had shifted their residence and when shifting was done. The petitioner has not pleaded about the nature of her relationship with all the persons whose names appear in the voters list of 1966, where names of 5 (five) voters are disclosed. The voters list of 1970 (Ext.Unga) contains only one name, i.e. "Ambaj", son of "Askar". In the jamabandi (Ext.Ga), the name of the patta Page No.# 18/20 holder is "Ambas Ali", son of "Askar Ali". However, the petitioner has not pleaded the name of village where the land is situated or its survey numbers, like dag and patta number and the area of land. The Gaonburah's certificates, i.e. Ext.Ka and Ext.Kha were not proved by their respective authors with contemporaneous records.
32) In light of above, it may be mentioned that in the case of Ayesha Khatun v. Union of India & Ors., (2017) 3 GLR 820 , and Jehirul Islam v. Union of India & Ors., (2017) 5 GLR 670, this Court has held that failure to disclose material facts would lead to adverse presumption.
33) It may also be mentioned that in the case relating to suspected foreigners, wherein adverse opinion was expressed by the concerned learned Foreigners Tribunals, this Court, in the case of Bijoy Das v. Union of India & Ors., (2018) 4 GLR 599: 2018 (3) GLT 118 , had held that it is trite that mere filing of written statement and oral testimony in a proceeding under Foreigners Act, 1946 would not be enough, the fact-in-issue would have to be proved by the proceedee by adducing documentary evidence which are admissible and relevant.
34) In the case of Ramila Khatun v. Union of India & Ors., 2018 (4) GLT 373, this court, while dealing with written statement in a proceeding before the Foreigners Tribunal, had laid down four legal propositions, viz., (i) it was held that it is trite law that documentary evidence will have to be proved on the basis of record and contemporaneous record must substantiate and prove the contents of the document; (ii) Proof of document is one thing and proof of contents is another and it was further held that not only the document has to be proved but the contents would also have to be proved; (iii) that apart, the truthfulness of the contents of the document would also have to be established Page No.# 19/20 from the record; and (iv) that a document or contents of a document cannot be proved on the basis of personal knowledge.
35) Thus, the DW-2, who had not procured the exhibited documents, could not be said to have any personal knowledge about the exhibited documents or of their contents. In this regard, the statement made in his cross-examination, as stated in paragraph 5 above, may be referred to.
36) Thus, except for the certificate by the Gaonburah (Ext.Kha), which was not duly proved by its author, no other exhibited document contains the name of the petitioner with her projected father.
37) Thus, there is no legal infirmity in the appreciation of pleadings and evidence by the learned Tribunal, so as to warrant any interference with the impugned opinion. Therefore, the point of determination no. (ii) is also answered in the negative and against the petitioner.
38) Thus, this writ petition to assail the opinion dated 21.06.2016, passed by the learned Member, Foreigners Tribunal (2 nd), Morigaon, Assam, in Case No. F.T.(D) 1189/11 [Police Ref. D/N Case No. 175/97 dated 15.12.1997, arising out of E.R.O. Ref. No. LDB/ERO/81/16/12 dated 31.10.1997], by which the petitioner, namely, Musstt. Joygun Bibi, was declared to be a foreigner under Section 2(a) of the Foreigners Act, 1946, who has illegally entered into India (Assam) after the cut-off date 25.03.1971, fails. Resultantly, the writ petition is dismissed.
39) The interim bail granted to the petitioner by order dated 29.04.2019, stands revoked. The consequences of the impugned opinion shall follow.
40) The parties are left to bear their own cost.
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41) The Registry shall return back the Tribunal's records along with a
copy of this order, to be made a part of record by the learned Tribunal for future reference.
42) The learned standing counsel for the FT, Border matters and NRC shall transmit a copy of this order to the concerned authorities.
JUDGE. JUDGE.
Parimita Digitally signed
by Parimita Kalita
Kalita Date: 2026.03.09
05:25:48 -07'00'
Comparing Assistant