Gauhati High Court
Saken Ali vs The Union Of India And 4 Ors on 24 April, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/23
GAHC010222652017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4946/2017
SAKEN ALI
S/O BABUR ALI, VILL-KHUTAMARI, PS-GOALPARA, DIST. GOALPARA,
ASSAM
VERSUS
THE UNION OF INDIA and 4 ORS.
REP. BY THE SECRETARY OF THE MINISTRY OF HOME AFFAIRS, GOVT. OF
INDIA, NEW DELHI-1
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GUWAHATI-6
3:THE DEPUTY COMMISSIONER
GOALPARA
DIST- GOALPARA
ASSAM
4:THE SUPERINTENDENT OF POLICE B
GOALPARA
DIST-GOALPARA
ASSAM
5:THE OFFICER-IN-CHARGE
GOALPARA POLICE STATION
DIST-GOALPARA
ASSA
Page No.# 2/23
Advocate for the Petitioner : MR.S ISLAM, MR.A DAS,MR.M ALI,MR.M U MAHMUD,MR.S
HOQUE,MS.C KALITA
Advocate for the Respondent : , ADDL. AG, ASSAM,ASSTT.S.G.I.,GA, ASSAM,MR.D K SAIKIA
BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND For the petitioner : Mr. M.U. Mahmud, Advocate For respondents : Mr. G. Sarma, Ms. K. Phukan, Mr. P. Sarma, Mr. A.I. Ali, Advocate.
Date on which judgment is reserved : 05.03.2026
Date of pronouncement of judgment : 24.04.2026
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. M.U. Mahmud, learned counsel for the petitioner. Also heard Ms. K. Phukan, learned CGC for respondent no.1; Mr. G. Sarma, learned standing counsel for FT, Border matters and NRC for respondent nos. 2, 4 and 5; and Mr. H.K. Hazarika, learned Govt. Advocate for respondent no.3.
2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Md. Saken Ali, has assailed the opinion dated Page No.# 3/23 17.07.2017, passed by the learned Member, Foreigners Tribunal No. 1, Goalpara, Assam, in F.T. Case No. 751/G/2006 [arising out of Ref. Case No. GLP(B)/Doubtful IM/98/7196; ERO Case No. 158-98/38], thereby declaring him to be a foreigner, who had entered into Assam on or after 25.03.1971.
3. In his written statement that was filed on 10.09.2008, apart from usual statements denying that he was a foreigner, the petitioner had stated that he was born in village- Katlamari, under River Police Station, Pancharatna, Dist. Goalpara. The name of his father is Babur Ali, whose name is enlisted in the voter list of 1966 of village- South Katlamari, under 43 Bongaigaon LAC. The petitioner had also casted his vote previously at Khutamari Voting Centre. The name of Khanu Sk, petitioner's grandfather appeared in the said voter list. The petitioner is presently staying in village- Khutamari, PS and Dist. Goalpara, Assam, as river Brahmaputra had eroded his residence of 19 years. It was also stated that the case was filed against the petitioner for harassment. Accordingly, it was prayed that the petitioner be declared not a foreigner but an Indian Citizen.
4. In support of his defence, the petitioner had examined himself as DW-1. Apart from reiterating the statements made in his written statement, the petitioner had stated that the name of his father- Babur Ali; grandfather- Thanu Sheikh, grandmother- Chambuli Nessa, paternal uncle- Azid Sheikh and paternal aunt- Sahar Bhanu, appeared in the same house in the voter list of 1970 of village- Dakshin Katlamari Part, under 43 Bongaigaon LAC. The name of his parents, Babur Ali and Shaharun Nessa are recorded in the voter list of 1979 of village- 193 Katlamari, under 38 Goalpara West LAC, and the names of his grandfather- Thanu Sheikh, @ Khanu Sheikh and paternal uncle- Amzadali appeared in the same house in the said voter list. It was also stated that Village-
Page No.# 4/23 Katlamari was eroded in the River Brahmaputra and therefore, his father along with his family members including him shifted to village- Khutamari under Balijana Circle, P.S., Sub-Division and Dist. Goalpara. His name was first enumerated and appeared in the voter list of 1989 of village- Khutamari under 38 Goalpara LAC, and the names of his parents, Babor Ali and Saharun Nessa were also recorded under the same house of the said voter list. His name was also recorded in the voter list of 1997 village No.7 Khutamari, under 38 Goalpara West LAC, and the names of his parents, Babor Ali and Saharun Nessa and his wife Johura Khatun are also recorded under the same house of the said voter list. He had also stated that the letter 'D' was illegally recorded in the voter list of 1997 against his name without verifying the previous records of his parentage. He had referred to the discrepancy in the name of his father, grandfather and mother in the voters list. In the said context, it was stated as follows:-
a. The name of his father was recorded as Babur Ali in the voter list of 1966 and 1970; as Baburali in the voter list of 1979; as Babor Ali in the voter list of 1989.
b. The name of his grandfather was recorded as Thanu Sheikh in the voter list of 1966 and 1970; as Mohd. Khanu Sheikh in the voter list of 1979; as Khanu Sheikh against the name of his father in the voter list of 1989; and as Manu Sheikh against the name of his father in the voter list of 1997. It was also stated that the age of his father was wrongly recorded as 35, 43 and 48 in the voter list of 1979, 1989 and 1997, which ought to have been 41, 51 and 59 years respectively.
c. The name of his mother appeared in the voter's lists as Jaharun Nessa in the year 1979, as Chaharun Nessa in the voter list of 1989, Page No.# 5/23 and as Saharun Nessa in the voter list of 1997. It was also stated that the age of his mother was wrongly recorded as 38 in the voter list of 1997, which ought to have been 43 years.
5. As per the evidence-on-affidavit of DW-1, the following documents were exhibited by the petitioner; viz., voter list of 1966 (Ext.A);
voter list of 1970 (Ext.B); voter list of 1989 (Ext.C); voter list of 1997 (Ext.D). Along with the list of documents filed on 14.07.2017, the EPIC of the DW-2 was marked as Ext.E. However, no corresponding statement in respect of Ext.E was made in the evidence-on-affidavit filed by DW-1 and DW-2.
6. In his cross-examination, DW-1 had stated that the name of his grandfather is Khanu Sk. and his father's name is Babur Ali, and he is alive. His father was born in village- South Katlamari. He was also born there. His grandfather had 3 (three) sons and 3 (three) daughters. They are Late Ajit Sk, his father, Babur Ali, Moti Nessa, Late Halimon Nessa, Late Ambiya Khatun, Amzad Ali. His father had married one wife. Saharun Nessa is his mother. His mother gave birth to one son and one daughter Saleha Khatun. He had married Jahura Khatun, daughter of Late Taribullah Sk of Ambari Lalkura Gaon, P.S. Baguan in 1993. He had casted his vote once. In the year 1997, his name was marked with 'D'. Due to erosion by river, his father with his family members shifted to Khutamari, P.S. Goalpara. He casted his vote in the year 1989 and now he is not casting vote. His father casted his vote in the year 1966 and he had casted his vote regularly till date. He had denied that he had illegally entered into India from Bangladesh after 25.03.1971.
7. The petitioner had examined Babur Ali, his projected father as DW-2. He had reiterated the statements made in the evidence-on-affidavit filed by the petitioner, including discrepancy in his name and the name of his father, Page No.# 6/23 Babur Ali. In his cross-examination, DW-2 had stated that he was born in village- Katlamari. Saken Ali is his son. He was also born in village- Katlamari. Now they are residing at Khutamari. About 35 years ago due to erosion they had shifted to Khutamari. He had married two wives. First wife was Saharan Nessa. Second wife was Fazari Khatun. First wife gave birth to one son and one daughter Second wife gave birth to one son. He had casted his vote first at Katlamari. Now he is casting his vote from village Khutamari. Respondent had married Jahura Khatun. He did not know father's name of Jahura Khatun and the village in which Jahura Khatun's father resided. He had denied that he had deposed falsely.
8. The learned Tribunal, on appreciating the evidence available on record held that the evidence of the petitioner (DW-1) and his projected father (DW-2 were contradictory on material parts. The learned Tribunal had observed that while in his written statement, the petitioner had stated that he was born in village- Katlamari, but in his evidence, he did not state the place of his birth. DW-1 had stated that Babur Ali (DW-2) was his father, and therefore, DW-2 should have known the place of birth, but in his evidence DW-2 failed to state the place and date of birth of the petitioner. Though in cross-examination, DW-2 had stated that the petitioner was born in village Katlamari, but the evidence of DW-2 was not found believable because DW-1, as son of DW-2, could not state about the number of wives of his father. DW-1 had stated that his father married one wife, but DW-2 had stated that he had married two. DW-1 had stated that he had married Jahura Khatun, daughter of late Tarifulla Sk of village- Ambari Lalkura Gaon, but DW-2 could not state the name of the father of Jahura Khatun and the place of his residence. DW-1 had stated that the name of his grandfather is Khanu Sk, but the DW-2 had stated that the name of Page No.# 7/23 his father was Thanu Sk.
9. The learned Tribunal held that except that the name of petitioner's father is Babur Ali and the name of the grandfather is Khanu Sk, son of Late Anu Sk and that their names were enrolled in the voter list of 1966 of village- South Katlamari under 43 Bongaigaon LAC and the petitioner is now residing at Khutamari due to erosion at Katlamari, the rest of the evidence was outside pleading. Moreover, as the learned Tribunal had found discrepancies in the evidence of DW-1 and DW-2, the evidence of DW-2 regarding enrollment of the name of his father in the voter list of 1966 and 1970 was discarded. Accordingly, it was held that the petitioner was not able to discharge his burden under Section 9 of the Foreigners Act, 1946 to prove that DW-2, Babur Ali is his father and Thanu Sk was his grandfather, who resided in Katlamari before 1966 and their names were enrolled in the voter list (Ext.A).
10. The learned counsel for the petitioner had submitted that the when Babur Ali, the father of the petitioner had come and deposed as DW-2 that he is the father of the petitioner and his name appeared in the voter list of 1966, 1970, 1979, 1989 and 1997, the discarding of such evidence was illegal. It was also submitted that the enquiry conducted before making the reference was perfunctory and the majority of the entries were left blank and that as per the form of enquiry, the enquiry officer had recorded that the petitioner was born on 15.03.1970 at Khutamari and was enrolled as a voter under 38 Goalpara LAC and his mother tongue was Assamese and therefore, the Reference was not sustainable on facts and in law.
11. It was also submitted that the evidence of DW-1 and DW-2 was discarded merely because of discrepancies in the name of the DW-2 and petitioner's grandfather, which was held to be bad by the Supreme Court of Page No.# 8/23 India in the case of Sirajul Hoque v. State of Assam & Ors., (2019) 5 SCC 534, and by this Court in the case of Abdul Matali @ Mataleb (Md.), 2015 (2) GLT
617. It was submitted that the learned Tribunal applied the principle of strict proof whereas the Foreigners Tribunal ought to have applied the principles of preponderance of probability. It was submitted that the finding of the learned Tribunal was contradictory because in paragraph 11 of the impugned opinion, it was held that the petitioner had pleaded that his father was Babur Ali and his grandfather was Khanu Sk, son of Md. Anu Sk, yet, in the later part of the same paragraph, the said evidence of DW-1 and DW-2 was discarded. No other point was submitted.
12. Per contra, the learned standing counsel for the FT, Border matters and NRC has made his submission in support of the impugned opinion. It was submitted that if the contents of EPIC (Ext.E) were taken into consideration, then DW-2 would be aged 68 years as on 01.10.2013 and therefore, his year of birth would have been 1950. But as per voter list of 1966 (Ext.A), the voter, Babur Ali was 28 years of age, which made his year of birth to be 1938 and if his age in voter list of 1970 is considered, he was 33 years and thus, his year of birth would have been 1937. However, as per the evidence-on-affidavit filed on 14.07.2017 by DW-2, he was aged 76 years and hence, his year of birth would have been 1941. Thus, it cannot be said that the person who came to depose as DW-2 is the father of the petitioner was the same person whose name appeared in the voter list of 1966 and 1970. It was submitted that the discrepancies in the names of voters and their relation arose after 1989 and the name of the petitioner does not appear in any of the exhibited documents so as to link him with his projected father and grandfather.
13. The learned CGC and the learned Govt. Advocate have adopted Page No.# 9/23 the submissions made by the learned standing counsel for the FT, Border matters and NRC. In support of his submissions, the following cases were cited, viz., Aziz Miya @ Aziz Mia v. Union of India & Ors., 2023 (4) GLT 246 , Nur Begum v. Union of India & Ors., 2020 (3) GLT 347, Asia Khatoon v. Union of India & Ors., W.P.(C) No. 4020/2017, decided on 21.11.2019 , Basiron Bibi v. Union of India & Ors., 2018 (1) GLT 372 , and Shukurjan Nessa @ Sukuron Nessa v. Union of India & Ors., W.P.(C) 1304/2025, decided on 29.05.2025, and reported in 2025 GAU(AS) 6937: (2025) 0 Supreme(Gau) 900.
14. Perused the writ petition and all its enclosures as well as the Tribunal's records, which were called for and also considered the submissions made by the learned counsel for the petitioner and the learned standing counsel for the FT, Border matters and NRC.
15. The records of the learned Tribunal reveal that upon service of the notice, the petitioner had appeared and filed his written statement, but owing to subsequent default in appearance, an ex parte opinion dated 08.04.2009 was passed against him. The said ex parte opinion was unsuccessfully assailed before this Court by filing a writ petition, which was dismissed by order dated 08.01.2013, passed by this Court in W.P.(C) 2366/2009. In a writ appeal preferred, the Division Bench of this Court, by order dated 04.04.2017, passed in W.A. No. 152/2013, allowed one opportunity to the petitioner to appear before the learned Tribunal on 28.04.2017 and to file his evidence-on-affidavit. However, instead of filing his evidence, the petitioner filed a prayer for amendment of his written statement, which was refused by order dated 03.07.2017. Accordingly, evidence-on-affidavit of the petitioner as DW-1 and projected father, namely, Babur Ali was filed on 14.07.2017. Both witnesses were cross-examined on the same day and discharged. Thereafter, the opinion Page No.# 10/23 dated 17.07.2017, which is assailed in this writ petition was filed.
16. Therefore, as the prayer for amendment of the written statement was refused by order dated 14.07.2017, the evidence tendered by the petitioner as DW-1 and DW-2 is beyond pleadings. This is evident from the gist of the written statement referred to in paragraph 3 above and the evidence-on- affidavit filed by DW-1 and DW-2, as referred to in paragraph nos. 4 and 7 above. It would also be pertinent to mention herein that the order dated 14.07.2017, by which the prayer for amendment of the written statement was refused, was not put to challenge then or even in this writ petition. Therefore, the said order dated 14.07.2017, by which amendment of the written statement was refused, has attained finality without any demur or challenge.
17. It would also be pertinent to mention that in the evidence-on- affidavit submitted by the petitioner (DW-1) and Babur Ali (DW-2) on 14.07.2017, there is no mention of the Elector Photo Identity Card (EPIC for short) of Babur Ali, son of Khanu Sheikh and the said document has not been exhibited. However, it is seen from the learned Tribunal's record that alongwith the list of documents filed on 14.07.2017, with the evidence-on-affidavit, the petitioner had also submitted the EPIC as Ext.E. The Tribunal's record contains the EPIC, which is marked as Ext.E and signed by the learned Member.
18. The petitioner has specifically pleaded in paragraph 5 of his written statement that he had cast his vote previously at Khutamari voting centre. However, in the absence of pleadings in the written statement, in paragraph 8 of his evidence-on-affidavit, the petitioner (DW-1) had stated that his name was first enumerated and enrolled in the voter list of 1989 (Ext.C) at serial no. 241, House No. 61 of village- Khutamari under 38 Goalpara LAC and the name of his parents were also recorded at serial no. 239 and 240 under the Page No.# 11/23 same house number in the said voter list. Therefore, the said part of the evidence was rejected, being beyond pleadings. It is reiterated at the cost of repetition that in his written statement, the petitioner had only referred to the voter list of 1966 and had stated that the name Babur Ali (father) and Khanu Sheikh (grandfather) appeared in the said voter list and no other voter's lists were referred to in his written statement. Thus, it was not pleaded in his written statement that the petitioner had casted his vote in the year 1989.
19. As stated above, except for a statement that the names of his father and grandfather appeared in the voter list of 1966, no other voter list has been referred to and the petitioner has not pleaded in his written statement about his relationship with any other person whose names appear in the voter's lists that were exhibited as Ext.A, Ext.B and Ext.C.
20. In the aforesaid context, it may be mentioned that in the case of Rashminara Begum v. Union of India & Ors., 2017 (4) GLT 346 , this Court had held that material facts pleaded would have to be proved by adducing cogent and admissible evidence. The said view was also expressed by this Court in the case of Saru Sheikh v. Union of India & Ors., (2017) 4 GLR 295 . 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 had held that failure to disclose material facts would lead to an adverse presumption.
21. Moreover, in the case of Aziz Miya @ Aziz Mia (supra), this Court had held as follows:-
"14. We are constrained to observe that a mere claim by a suspected person by referring to a voter's list claiming a person therein to be his father is not a conclusive proof and that by doing so, the person has discharged the burden that he is not a foreigner. This is because there is also a further requirement to prove that the person who is reflected in the voter's list is actually the father of the Page No.# 12/23 person who makes the claim the claim will have to be substantiated with further material/ materials acceptable in law."
22. The case of the petitioner is that Babur Ali, the projected father of the petitioner had deposed as DW-2 and stated that the petitioner, Saken Ali, is his son. In this case, DW-2 did not prove by documentary evidence that he is the father of the petitioner. It has been stated hereinbefore that along with the list of documents filed on 14.07.2017, the EPIC of DW-2 was marked as Ext.E, but in the evidence-on-affidavit filed by DW-1 and DW-2, no corresponding statement has been made in respect of Ext.E. In this regard, this Court, in paragraph 6 of the case of Nur Begum (supra) is quoted below:-
6. The statement of DW-2 ie. Jahurun Begum, who claimed to be the mother of the petitioner, cannot be relied upon in the absence of any documents showing her relationship, either to the projected grandfather, father or to the petitioner herself.
Oral testimony of DW-2 alone, sans any documentary support, cannot be treated as sufficient to prove linkage or help the cause of the petitioner. Surprisingly, the petitioner failed to produce a single voter list in her name even until the age of 50 years. We would reiterate that in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 the evidentiary value of oral testimony, without support of documentary evidence, is wholly insignificant. Oral testimony alone is no proof of citizenship. The evidence of DW-2, thus, falls short of being considered as cogent, reliable and admissible evidence, so much so, to establish linkage of the petitioner to the projected grandfather, grandmother and father. The petitioner utterly failed to provide her linkage to Indian parents relatable to a period prior to the cut-off date of 03.25.1971 through cogent, reliable and admissible documents.
23. Moreover, as observed by this Court in the case of Bijoy Das v. Union of India & Ors., 2018 (3) GLT 118 , mere filing of a written statement and oral testimony are not sufficient to prove the citizenship of a person, as necessary documentary evidence is required to be proved in support of the oral evidence. In the present case, apart from oral evidence and voter's lists (Ext.A to Ext.D), no other documentary evidence has been relied on or proved to show Page No.# 13/23 that the petitioner is the son of Babur Ali.
24. It may be stated that in this order, the Court has not referred to the discrepancies in the names of the voters in the exhibited voter's lists. Nonetheless, it may be stated that in the said context, the learned counsel for the petitioner had relied on the case of Sirajul Hoque (supra). In the considered opinion, the decision in the said case operates against the petitioner. The ratio on the point of discrepancies in the names is that when the identity of all members of the family is established including the appellant, he cannot be declared a foreigner just because there is a discrepancy in the name of his grandfather in some of the documents. As stated hereinbefore, the pleadings as regards the family of the petitioner is referred to in paragraph 19 above. Thus, the petitioner has withheld the disclosure of names of all family members. Hence, as the case of Sirajul Hoque (supra) operates against the petitioner, in this case, the discrepancies in the names of voters in the exhibited voter's lists would be fatal to the case of the petitioner.
25. In support of his contention, the learned counsel for the petitioner had cited the case of Abdul Matali (supra). However, the learned standing counsel for the FT, Border matters and NRC had cited the case of Basiron Bibi v. Union of India & Ors., 2018 (1) GLT 372 , which distinguishes the decision of this Court in the case of Abdul Matali (supra), cited by the learned counsel for the petitioner. Hence, the case, does not help the petitioner in any way.
26. The learned counsel for the petitioner had submitted that the Enquiry Officer's Report was blank and not properly filled up and in the said report the name of the father was mentioned as Babur Ali.
Page No.# 14/23
27. In the said context, it may be mentioned that in this case, upon a receipt of the report from the Electoral Registration Officer of the 38 Goalpara LAC, the Superintendent of Police (Border), Goalpara had registered Ref. ERO's Case No. 12598/38 dated 16.07.1998. The Local Verification Officer had submitted his undated report after marking 'X' against column nos. 14 to 16 thereof and without expressing any opinion as to whether he suspected the petitioner to be a foreigner or not. The records reveal that the In-Charge Kharmuza Water Police, vide report dated 23.11.1997, reported to the Superintendent of Police (Border), Goalpara that the name of the petitioner's father appeared in the NRC of 1951 of village- Purna Nagar, vide serial no. 4, house no. 137 under serial no. 29. However, in the Form for reference bearing Form No. VII [under Rule 9 of the Illegal Migrants (Determination by Tribunals) Rules, 1984], against column no. 11 had stated that "Circle Officer, Lakhipar, unable to produce documents as per Annexure 'A' and 'B'. Against Column No. 12, it was remarked - "As per ERO's report it appears to me in a prima facie manner that the person is a doubtful I.M. and case is fdd to Tribunal for decision." Here abbreviation 'I.M.' is "Illegal migrants" and abbreviation 'fdd' is "forwarded". Accordingly, vide forwarding Memo No. GLP/B/Doubtful IM/98/7196 dated 16.09.98, submitted the reference before the erstwhile Illegal Migrants (Determination) Tribunal, Goalpara [hereinafter referred to as IM(D)T for short] for determination of the reference. In brief, the aforesaid fact is reflected in paragraph 1 of the impugned opinion. In paragraph 2 of the impugned opinion, it has been mentioned that on abolition of the Illegal Migrants (Determination by Tribunals) Act, 1983 [IM(D)T Act for short], the cases were transferred to the Foreigners Tribunals. In this regard, it may be stated that the said IM(D)T Act was declared ultra vires the Constitution of India Page No.# 15/23 by the Supreme Court of India in the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665.
28. It is common knowledge that a culprit would ordinarily not admit his guilt and similarly, it cannot be expected that an illegal foreigner/ migrant would admit that he is a foreigner and would voluntarily disclose about his address in Bangladesh. The Court cannot lose sight of the fact that the Election Commission of India requisitions the services of various Government Servants for enumeration and verification duties. The said officers are not trained in a manner in which the police are trained for investigation. Therefore, when Verification Officers put queries to the disputed voters, and those queries are not answered and no supporting documents are produced by the suspect, the Court cannot reject the enquiry report merely because no reply was given by the suspect and no documents were produced by the suspected illegal migrant. Under such circumstances, as per Section 9 of the Foreigners Act, 1946, the burden of proof is on the suspected illegal migrant to prove that he is not a foreigner but an Indian.
29. In this regard, if one needs any authority on the point, one may refer to paragraph nos. 22, 24 to 26, 29, 51, 56, 62 of the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665 , which is not extracted below for brevity.
30. It may be mentioned herein that by virtue of the judgment and order passed by the Supreme Court of India in the case of Sarbananda Sonowal (supra), all the proceedings that were then pending before the erstwhile IM(D)Ts, were transferred to the Foreigners Tribunal having jurisdiction. The transferred reference was received by the jurisdictional Foreigners Tribunal-I, Goalpara, where it was registered as F.T Case No. 751/G/2006. Therefore, as Page No.# 16/23 evident from the decision of the Supreme Court of India, in the case of Sarbananda Sonowal (supra), the instant case was transferred from IM(D)T to the Foreigners Tribunal, no further determination can be made by this Court regarding the making of and/or registration of the reference.
31. Moreover, the learned counsel for the petitioner has not been able to show that the petitioner had taken a defence in his written statement that the Enquiry report was blank and that in the course of enquiry, he had produced documents supporting that he was a citizen of India. Thus, the petitioner had not attempted to establish before the Foreigners Tribunal that the investigation was not proper. Hence, as such a plea had not been raised before the learned Tribunal, there was no occasion for the learned Tribunal to furnish any further material available in the record to the petitioner. In this case, the petitioner was aware that he had failed to produce any material in support of his defence of not being an illegal migrant/ foreigner when enquiry was made. Moreover, in this case, the petitioner had participated in the proceedings without any demur and therefore, subjected himself to the jurisdiction of the said learned Foreigners Tribunal and therefore, it would be impermissible for the petitioner to now claim that the reference was not properly made.
32. It may be mentioned that the action by the Electoral Registration Officer is initiated under the Representation of the People Act, 1950, after draft electoral roll is prepared and the Electoral Registration Officer has reasons to suspect that a voter, whose name appears in the draft, is an illegal migrant and/or a foreigner.
33. Be that as it may, in the case of Shukurjan Nessa @ Sukurjan v Union of India & Ors., W.P.(C) 245/2019, decided on 28.02.2025 , the reference by Electoral Registration Officer has been dealt with. In the said case, the issue Page No.# 17/23 relating to reference made at the instance of the Electoral Registration Officer (ERO for short) has been clarified. Thus, this Court has no material to take a view contrary to the law as clarified in the said case of Shukurjan Nessa @ Sukurjan (supra).
34. Thus, the said plea that the petitioner was not served with the grounds of suspecting him to be a foreigner and that the verification form was not properly filled-up are both repelled and rejected.
35. Under the Foreigners Act, 1946, the reference can only be made as to whether or not a person is a foreigner within the meaning of Section 2(a) of the Foreigners Act, 1946. Upon reading Order 2(1) of the Foreigners (Tribunals) Order, 1964, it is discernible that a reference is made to a Tribunal for its opinion whether a person is a foreigner within the meaning of Section 2(a) of the Foreigners Act, 1946. This Court in the case of Aziz Miya @ Md. Aziz Mia (supra), had held that the provisions of Order 2 of the Foreigners (Tribunals) Order, 1964 make it explicit that it is the Superintendent of Police (Border) who would be the authority to take a decision based upon the report of the inquiry or any further materials that may be available as to whether a person concerned is required to be referred to a Tribunal for its opinion as to whether he is a foreigner or not.
36. As regards, non-mentioning and/or wrong mentioning of the stream when the suspected foreigner had entered illegally into India (Assam), it would be appropriate to refer to the decision of this Court in the case of Ananda Ghosh v. Union of India & Ors., 2017 (2) GLT 996, which is quoted below:-
10. Question for consideration is whether such a finding of the Tribunal would stand vitiated by non-mentioning in the two notices issued to the petitioner that the allegation against him was of being a foreigner who had illegally entered into India Page No.# 18/23 (Assam) after 25.03.1971?
11. As already noticed above, the reference made by the Superintendent of Police to the Tribunal was specific. Petitioner was a Bangladeshi national who had illegally entered into India (Assam) after 03.25.1971. Prima facie, it was the mistake of the Tribunal not to have specifically mentioned this in the two notices issued to the petitioner. However, from the materials on record. Tribunal came to the conclusion and thereafter rendered its opinion that petitioner was a foreigner who had illegally entered into India (Assam) after 25.03.1971. The reference was answered accordingly.
12. In a recent decision of this Court in the case of Mustt. Abiran Nessa Vs. Union of India (WA 200/2016), decided on 27.3.17, it has been held that wrong mentioning of the foreigners stream as classified under Section 6A of the Citizenship Act. 1955 to which the noticee belongs would not vitiate the proceeding before the Tribunal or consequential order passed by the Tribunal if the materials on record discloses that the noticee actually belongs to the stream of foreigners which has been ultimately held to be so by the Tribunal. Wrong mentioning of the stream of foreigners to which the noticee belongs contrary to the reference made by the State would not vitiate the order passed by the Tribunal and would not confer any undue advantage to a proceedee or enable a proceedee to improve his status. It was held as follows:-
"10. Thus, materials on record, as found by the learned Single Judge, disclosed that appellant was a foreigner who had illegally entered into India (Assam) from the specified territory after 25.03.1971. The reference was also made accordingly.
11. It is trite that non-mentioning or wrong mentioning of a provision would not invalidate an order if such an order can be traced to a valid source. In such a situation, Court would examine whether the order in question has any legal sanctity and whether it can be traced to a valid source of power. If it can be traced to a valid source of law, wrong mentioning of the provision of law in the order impugned would be immaterial.
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12. By applying the same analogy, it can also be said that wrong mentioning of the foreigners stream as classified under Section of the Citizenship Act, 1955, as amended, to which the noticee belongs would not vitiate the proceeding or the consequential order passed by the Tribunal if materials on record disclose that the notices actually belongs to the stream of foreigners, which has been ultimately held to be so by the Tribunal. Such wrong mentioning contrary to the materials on record or contrary to the reference made would not confer any undue advantage to a proceedee or enable a proceedee to improve his/her status. Therefore, on this count, we cannot condemn the order passed by the Tribunal which has been rightly affirmed by the learned Single Judge.
13. Having regard to the above, we have no hesitation to hold that when the reference was as to whether petitioner was a foreigner belonging to the post 25.03.1971 stream, non-mentioning of the same or wrong-mentioning of the stream of foreigners to which the petitioner belongs in the notices would not vitiate the ultimate conclusion reached by the Tribunal that petitioner was a foreigner of post 25.03.1971 stream. Since the reference was answered in favour of the State, it ought to be and has rightly been answered in the above manner. As a matter of fact, this issue was not even raised by the petitioner in his written statement possibly because he was fully aware that the allegation against him was of being a foreigner belonging to the post 25.03.1971 stream. Therefore, this ground urged on behalf of the petitioner stands rejected. However, before moving on to the next ground, we would like to observe that the Tribunal ought to have been careful while issuing the notices. We hope and expect that such mistakes would not be repeated in future."
37. In the same context, it would be relevant to quote paragraph nos. 10, 12, 13 and 21 of the case of Rukia Begum Barbhuiya v. Union of India & Ors., 2023 (4) GLT 1208.
10. A reading of Rule 2(1) of the Foreigners Tribunal Order 1964 makes it discernible that 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 constituted for the purpose. The statutory provision of Rule 2(1) makes it explicit that the reference to be made Page No.# 20/23 by a Tribunal would be the question as to whether a person is or is not a foreigner within the meaning of the Foreigners Act 1946. Section 2(a) of the Foreigners Act 1946 defines foreigner to mean a person who is not a citizen of India. In other words, going by the meaning given to the expression foreigner under Section 2(a) of the Foreigners Act 1946 a reference made to the Tribunal would be as to whether the person concerned is a citizen of India or he is not a citizen of India.
12. A reading of the provisions of Section 6 A makes it explicit that it is a special provision as to citizenship of persons covered by the Assam Accord and the core provisions of Section 6 A are that a person who may have entered the State of Assam from the specified territory prior to 01.01.1966 shall be deemed to be a citizen of India from the 1st day of January. 1966. The further provision is that such persons who entered the State of Assam from the specified territory after 01.01.1966. but before 25.03.1971 from the specified territory, and has been detected to be a foreigner, shall register himself with the Foreigners Registering Authority of the district concerned and upon having been registered shall be debarred of any voting rights for a period of ten years, but otherwise retaining all such other rights that a citizen of India may be bestowed with under the provisions and further that upon expiry of the period of ten years, even the voting rights would be restored back. In case of persons, who had entered the State of Assam from the specified territory on or after 25.3.1971, such persons are to be declared as foreigners.
13. In view of the provisions of Section 6 A of the Citizenship Act 1955, Clause 2(1) of the Foreigners Tribunal Order 1964 would now have to be understood that once a reference is made, the reference would be whether the person concerned is or is not a foreigner, meaning thereby, whether the person concerned is a foreigner, who had entered the State of Assam from the specified territory on or after 25.03.1971 or he is a person who belongs to any of the other categories ie, a person who entered the State of Assam from the specified territory before 01.01.1966 or between 01.01.1966 and 25.03.1971. No other meaning can be attributed to the reference under Clause 2(1) of the Foreigners Tribunal Order 1964 i.e. whether a person is or is not a foreigner within the meaning of the Foreigners Act 1946. We further take note that even if a reference is made by setting up a question whether the person had entered the State of Assam from the specified territory between 01.01.1966 and 25.03.1971, the reference would have to be understood to be a reference under Clause 2(1) of the Foreigners Tribunal Order 1964 ie., as to whether he is a foreigner or not. If the reference is worded whether the person concerned, is a person who had entered the State of Assam from the specified territory between 1.1.1966 and 25.03.1971, in order to arrive at any such conclusion that the reference itself is faulty inasmuch as the decision of the Tribunal upon the materials on record would be that the person concerned had entered the State of Assam from the specified territory on or after 25.03.1971, in such circumstance, the only situation that can be envisaged is that the Tribunal first arrives at a conclusion of its own that the person concerned had entered the State of Assam from the specified territory on or after Page No.# 21/23 25.03.1971, meaning thereby that the reference itself had been answered by the Tribunal. After having answered the reference, it would be an inconceivable situation that merely because the reference is worded whether the person had entered the State of Assam from the specified territory between 01.01.1966 and 25.03.1971 it has to be referred back to the referral authority to make a fair reference now putting up a question whether the person concerned had entered the State of Assam on or after 25.03.1971. In such situation, as the matter would have to be referred back only after a final decision has been arrived at and now if the reference is again made with a corrected expression in the questions framed, the same may lead to further complications that the subsequent reference would be barred by the principles of res judicata inasmuch as it would be a subsequent reference on the same issue between the same set of parties where an earlier decision had already been arrived at. It is noticed that in Falani Bibi (supra) the aforesaid aspect of the further implication of a corrected reference being again made had not been gone into and from such point of view, it can be said that the view taken therein would be per inquiriam of the further consequences of a fresh reference being made.
21. We further add that going by the statutory provisions of Clause 2(1) of the Foreigners Tribunal Order 1964 any reference would have to be understood to be a reference to the Tribunal on the question whether the person so referred is a foreigner or not within the meaning of Foreigners Act, 1946, where again foreigner is given the meaning of a person who is not a citizen and again where a citizen is defined under the Citizenship Act 1955."
38. Therefore, when the Superintendent of Police (Border), Goalpara, who is the competent authority to submit a reference, had not made a reference that the petitioner is a foreigner of the stream between 01.01.1966 to 24.03.1971, the mere fact that in the notice of the learned Foreigners Tribunal, Goalpara, the petitioner was called upon to respond that he is a foreigner of the stream between 01.01.1966 to 24.03.1971, would not be a bar for the Foreigners Tribunal to give its opinion in terms of Section 2(a) of the Foreigners Act, 1946.
39. Therefore, at this stage, when the Court is exercising certiorari jurisdiction, it is only permissible to examine if the opinion expressed by the learned Foreigners Tribunal is vitiated on account of perversity. Without raising such plea before the learned Tribunal, the State cannot be non-suited on such Page No.# 22/23 plea taken for the first time before this Court. If one needs any authority on the point of extent of power that can be exercised under certiorari jurisdiction, the decision of the Supreme Court of India in the case of Central Council for Research in Ayurvedic Sciences v. Bikartan Das, 2023 INSC 733: (2023) 0 Supreme(SC) 763, may be referred to. Paragraph 77 thereof is quoted below:-
"77. The purpose of certiorari, as we understand, is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non- exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law committed by them in the exercise of powers vested in them under the statute. The accepted rule is that where a Court has jurisdiction it has a right to decide every question which crops up in the case and whether its decision is correct or otherwise, it is bound to stand until reversed by a competent Court. This Court in G. Veerappa Pillai v. Messrs Raman and Raman Ltd. Kumbakonam, Tanjore District and Others, (1952) 1 SCC 334 observed:
"26. Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made ."
40. Thus, the cases cited by the learned counsel for the petitioner on discrepancies in the names of voters in the voter's lists, does not help the petitioner in any way owing to lack of pleadings, as mentioned hereinbefore.
41. Therefore, on all counts, the challenge to the impugned opinion dated 17.07.2017, passed by the learned Member, Foreigners Tribunal (1), Goalpara, Assam, in F.T. Case No. 751/G/2006 [arising out of Ref. Case No. GLP(B)/Doubtful IM/98/719; ERO Case No. 158-98/38], thereby declaring the petitioner, namely, Saken Ali, to be a foreigner, who had entered into Assam on Page No.# 23/23 or after 25.03.1971, fails.
42. Resultantly, this writ petition is dismissed.
43. The consequences of the said opinion shall follow.
44. The parties are left to bear their own cost.
45. The Registry shall return back the Tribunal's records along with a copy of this order so that the said learned Tribunal would make it a part of the record for future reference.
46. The learned standing counsel for FT and Border matters shall send a downloaded copy of this order to the Home & Political (B) Department.
JUDGE. JUDGE. Digitally signed Parimit by Parimita Kalita Comparing Assistant a Kalita Date: 2026.04.23 23:35:08 -07'00'