Gauhati High Court
Bhupendra @ Bhupendra Sarkar vs The Union Of India And And 5 Ors on 6 April, 2026
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/8
GAHC010156172019
2026:GAU-AS:5347
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5635/2019
BHUPENDRA @ BHUPENDRA SARKAR
S/O- RAMESH SARKAR, R/O- VILL- PAKBIL, P.S. CHARIDUAR, DIST-
SONITPUR, ASSAM
VERSUS
THE UNION OF INDIA AND AND 5 ORS.
THROUGH THE SECY., TO THE GOVT. OF INDIA,, THE MINISTRY OF HOME
AFFAIRS, GRIHA MANTRALAYA, SHASTRI BHAWAN, TILAK MARG,, NEW
DELHI- 110001
2:THE STATE OF ASSAM
THROUGH THE SECY.
TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-6
3:THE ELECTION COMMISSION OF INDIA
REP. BY THE CHIEF ELECTION COMMISSIONER OF INDIA
NIRVACHAN SADAN ASHOKA ROAD
NEW DELHI- 110001
4:THE STATE COORDINATOR
NATIONAL REGISTRATION OF CITIZEN
ASSAM
BHANGAGARH
GHY-5
5:THE DY. COMMISSIONER
SONITPUR
P.O. TEZPUR DIST- SONITPUR
Page No.# 2/8
ASSAM
PIN- 784001
6:THE SUPERINTENDENT OF POLICE (B)
SONITPUR
P.O. TEZPUR DIST- SONITPUR
ASSAM
PIN- 78400
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
HON'BLE MRS. JUSTICE SHAMIMA JAHAN
Advocate for the petitioner(s) : Ms KLR Yanthan.
Mr I Hussain
Advocate for the respondent(s) : Mr H Gupta,
Mr A I Ali
Mr P Sarmah
Mr J Payeng.
Date on which judgment was reserved : NA
Date of pronouncement of judgment : 06.04.2026
Whether the pronouncement is of the : NA
operative part of the judgment?
Whether the full judgment has been : Yes
pronounced?
JUDGMENT AND ORDER (ORAL)
(Shamima Jahan, J.) Heard Ms K L R Yanthan, learned counsel appearing on behalf of Mr I Hussain, learned counsel for the petitioner. Also heard Mr H Gupta, learned CGC, appearing on behalf of the Union of India; Mr A I Ali, learned Standing Counsel for the ECI, Mr P Sarmah, learned Additional Senior Government Advocate and Page No.# 3/8 Mr J Payeng, learned Standing Counsel for the FT and NRC;
2. By this application filed under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the order/opinion dated 19.11.2018, passed by the learned Member of Foreigners' Tribunal, 7 th, Tezpur, at Balipara, in FT Case No. 232/2016, corresponding to Reference No. TZP (B)/642 of 2011, dated 18.04.2011.
3. By the said order dated 19.11.2018, the learned Tribunal held that the proceedee, i.e., the petitioner could not prove his case by the documentary evidence that he submitted and as a result thereof, the proceedee was declared an illegal migrant/foreigner post-25.03.1971.
4. The main grounds of challenge raised by the petitioner in this petition are:-
i) His forefathers migrated from Mymensingh of Bangladesh (East Pakistan) due to religious prosecution in the year 1964 and that he too came to India with his uncle and other family members and in the said migration certificate issued by the Government of India, he was placed at Serial No. 15.
The petitioner had annexed a copy of the said migration certificate dated 02.09.1964, marked as Exhibit-II.
ii) After the said migration the Sub-Divisional Officer, Barpeta, issued identity card vide Card No. 2591/1964, dated 03.09.1964, in favor of the father of the petitioner, which he had exhibited as Exhibit-III.
iii) The petitioner studied at Boragari Primary School and studied upto Class-IV as on 31.12.1964 and in that regard, Jalpaiguri District School Board Page No.# 4/8 issued a transfer certificate in favour of the petitioner, on 06.01.1969, which he had annexed as Annexure-3.
iv) The name of the parents of the petitioner appeared in the electoral roll of 1985 at Tezpur Sub-Division under 72 No. Barchala LAC, District-Sonitpur, which he exhibited as Exhibit-IV.
v) The name of the petitioner along with his parents appeared in the electoral roll of 1989 under the same LAC, which he exhibited as Exhibit-I.
vi) The petitioner purchased a plot of land in the year 1989 by way of a registered sale deed at Village Pirakata, District-Sonitpur, which he exhibited as Exhibit-V as well as Exhibit-VI.
5. Apart from the said grounds, the petitioner had also placed a certificate issued by Gaonburah issued in favour of the petitioner dated 10.04.2018, stating that the petitioner is the son of Late Ramesh Chandra Sarkar of Village-Pakbil under the Sub-Division-Tezpur, District-Sonitpur.
6. The learned Tribunal had considered all the aforesaid documents along with the written statement filed by the petitioner. The migration certificate exhibited as Exhibit-II, by which the petitioner had shown that the forefathers were refugees from Mymensingh, Bangladesh and entered into India in the year 1964. The said migration certificate also displayed that the petitioner came with his uncle, Jitendra Chandra Sarkar, whose name is reflected at Serial No. 2 of the said certificate. However, the learned Tribunal, on the ground that no seal and signature are seen in the Migration Certificate, and that in the affidavit filed by the petitioner, he had not mentioned about the issuing authority of the migration certificate, the same was disbelieved and was not considered to be an Page No.# 5/8 admissible evidence, much less any proof of it.
7. The learned Tribunal also did not consider the identity card placed by the petitioner bearing Card No. 2591 of 1964, dated 03.09.1964, to be an admissible evidence.
8. The learned Tribunal held that the said document is a private document and the issuing authority was not called to prove the contents of the same by the petitioner.
9. The other grounds of challenge were also negated by the learned Tribunal on the grounds mentioned in the opinion mentioned above.
10. As far as the migration certificate is concerned, it is noticed that the same preceded written application dated 02.04.1964, written by Jatindra Chandra Sarkar, requesting for permission of the Government of India to migrate to India and to settle around at Damdama in the district of Kamrup in the State of Assam. In view of the said application, it is seen from the certificate itself that the permission has been accorded by the Government of Inda and a certificate was given to the said Jatindra Chandra Sarkar, authorizing him and the members of his family, names given in the certificate itself, to enter India without a passport through the check post situated at Dallu in the district of Garo Hills in the State of Assam. It was also directed by the said certificate that the persons named therein should surrender the said certificate to the Indian Immigration Check Post at the time of entry. It be stated here that the petitioner was ranked at Serial No. 15 of the said certificate and he was the nephew of Jatindra Chandra Sarkar.
11. It is also the case of the petitioner that after he migrated with his uncle Sri Jatindra Page No.# 6/8 Chandra Sarkar to India, his father also came to India in the same year, i.e., in 1964.
12. Further, the identity card produced by the petitioner also showed that the same was issued by the Sub-Divisional Officer, Barpeta, R.R. Branch and the card number was given as 2591/64 and it is written that the head of the family was Ramesh Chandra Sarkar, who is the father of the petitioner. In the said identity card, the address from where the petitioner and other family members migrated was stated to be Village- Kapalahar, P.S-Nandail, District-Mymensingh, and the present address was shown as Barpeta Transit Camp, Howly, District-Kamrup, Assam. The said document also showed that Rs. 70/- has also been paid when the said certificate was issued. These 2 (two) certificates show that the petitioner along with other family members had migrated from East Pakistan and had settled down in India. The learned Tribunal had rejected the said 2 (two) certificates on the ground that there was no mention about the issuing authority and that the issuing authority in case of the identity card was not called to prove the contents of the said identity card. However, It is provided under the law, more specifically under Section 90 of the Indian Evidence Act that any document purporting to be 30 years old is produced from any custody, the Court may presume that the signature and any other part of such document, which is executed or attested to be duly executed and attested by the person by whom it is shown to be executed and attested. Section 90 of the Indian Evidence Act may be quoted below:-
"90. Presumption as to documents thirty years old.
Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purport to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested."
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13. Further, under Section 5 of the Citizenship Act, 1955, the Central Government on an application may register any person as a citizen of India on fulfilling certain conditions mentioned therein and under Section 6 of the said Act, the Central Government, if satisfied, that an applicant is qualified for naturalization may grant him a certificate of naturalization. As such, it is open to the petitioner to apply under Section 5 and/or Section 6 of the Citizenship Act, 1955, after validly entering the territory of India.
14. On a bare perusal of the certificate (Exhibit-II) and the Identity Card (Exhibit-III), it prima facie appears that entry of the petitioner into the territory of India may not be illegal, and the further exercise to obtain citizenship is left to the concerned migrants.
15. In the present case, the migration certificate was issued in the year 1964, as well as the identity card, which is more than 30 years old and in such a case, there is every likelihood that the presumption as to the authenticity, in this case may be attracted. As such, the grounds of rejection that the issuing authority has not been mentioned or that the issuing authority has not been called upon to prove the document, cannot be held to be a correct finding in the eyes of law on the part of the learned Tribunal. Accordingly, without going into the other grounds raised by the petitioner, this Court is of the considered opinion that the petitioner has been able to make out a case for remand of the matter to the learned Foreigners' Tribunal, 7th, Tezpur, at Balipara, for re-hearing the case. As such, the present case is remanded to the said Tribunal re-hear it afresh and consider the grounds set forth by the petitioner, more so, the relevancy of the migration certificate as well as the identity card issued by the authority concerned. After giving the petitioner one opportunity to take such steps as the petitioner may be so advised in respect of Exhibit-II an Exhibit-III.
16. In order to facilitate fresh opinion, the impugned opinion dated 19.11.2018, passed by the learned Member, Foreigners' Tribunal, 7th, at Balipara, is hereby set aside.
17. The petitioner who is duly represented by the learned counsel is directed to appear Page No.# 8/8 before the learned Member, Foreigners' Tribunal, 7 th, Tezpur, at Balipara, on or before the 25th of May, 2026, and by producing the certified copy of the order, take an appropriate step and await for further orders to be passed by the learned Tribunal.
18. Further, it is made clear that if the petitioner fails to appear before the learned Tribunal within the time allowed, it would be open to the learned Tribunal to treat the petitioner as absent on call and pass appropriate order(s) or fresh opinion by discussing the pleadings and evidence on record.
19. Writ petition stands allowed to the extent indicated above, by remanding the matter back for fresh opinion.
20. The Registry shall send back the Tribunal record expeditiously, along with a copy of this order to be made a part of the record by the learned Tribunal.
21. There shall be no order as to cost(s).
JUDGE JUDGE Comparing Assistant