Gauhati High Court
Page No.# 1/23 vs The Union Of India on 5 May, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/23
GAHC010079582025
2025:GAU-AS:5646-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2060/2025
INTAJ MANDAL ALIAS INTAJ ALI
S/O LATE EKTAR ALI MANDAL @ EKTAR MANDAL @ EKTAR ALI, R/O
VILL. DOMANI, P.O. AND P.S. BARPETA ROAD, PIN-
DIST. BARPETA, ASSAM.
VERSUS
THE UNION OF INDIA
REPRESENTED BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF
HOME AFFAIRS, NEW DELHI 110001
2:THE STATE OF ASSAM
REPRESENTED BY ITS SECY.
GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GUWAHATI 781006
3:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTION COMMISSIONER
NIRVACHAN SADAN
ASHOK ROAD
NEW DELHI 110001
4:THE STATE COORDINATOR
NATIONAL REGISTRAR OF CITIZENS (NRC)
ASSAM 1ST FLOOR
ACHYUT PLAZA
Page No.# 2/23
G.S. ROAD
BHANGAGARH
GUWAHATI 781005
5:THE DIST. COMMISSIONER
BARPETA
DIST. BARPETA
ASSAM
PIN 781301
6:THE DEPUTY COMMISSIONER
GOALPARA
DIST. GOALPARA
ASSAM
PIN 783101
7:THE SUPERINTENDENT OF POLICE (BORDER)
BARPETA DIST.
DIST. BARPETA
ASSAM
PIN 781301
8:THE SUPERINTENDENT OF POLICE (BORDER)
GOALPARA
BAPUJINAGAR
DIST. GOALPARA
ASSAM
PIN 783121
9:THE OFFICER IN CHARGE (BORDER)
MATIA POLICE STATION
GOALPARA
DIST. GOALPARA
ASSAM
PIN 78312
Page No.# 3/23
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HON'BLE MRS. JUSTICE MALASRI NANDI
Advocates for petitioner Mr. A Thakuria.
Advocates for Mr. K.K. Parashar.
respondent no.1
Advocates for Mr. G. Sarma, standing counsel.
respondent nos.2, 4, 7, 8
and 9.
Advocates for Mr. M. Islam, on behalf of Mr. A.I. Ali.
respondent nos.3
Advocates for Mr. P. Sarmah, Addl. Senior Govt. Advocate.
respondent no.5
Date of hearing 05.05.2025
Date of order 05.05.2025
JUDGEMENT&ORDER
(ORAL)
(K.R. Surana, J) Heard Mr. A. Thakuria, learned counsel for the petitioner. Also heard Mr. K.K. Choudhury, learned CGC, Mr. M. Islam, learned counsel, appearing on behalf of Mr. A.I. Ali, learned standing counsel for the Election Commission of India; Mr. G. Sarma, learned standing counsel for the FT matters and N.R.C.; and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate for the State.
Challenge in this writ petition:
2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 30.03.2022, passed by the learned Member, Foreigners Tribunal (10 th), Barpeta, in FT Case No. 188/2017 [arising out of IM(D)T Case No. 1927(B)/98], thereby declaring the petitioner to Page No.# 4/23 be a foreigner, who has entered into Assam on or after 25.03.1971.
Case of the petitioner before the Foreigners Tribunal:
3) In brief, the case of the petitioner is that after service of notice of the proceeding, he had appeared before the learned Tribunal and filed his written statement. The petitioner had denied that he was a foreigner and claimed that his parents were Indian citizens.
4) In his written statement, the petitioner had stated his defence, which is in consonance with the statement made in her evidence-on-affidavit.
Accordingly, the contents of the written statement are not reproduced.
5) The petitioner has examined himself as DW-1 and had exhibited the following documents, viz., (i) certified copy of voter list of 1965 (Ext.A); (ii) certified copy of voter list of 1970 (Ext.B); (iii) certified copy of voter list of 1975 (Ext.C);(iv) certified copy of voter list of 1989 (Ext.D); (v) certified copy of voter list of 1997 (Ext.E); (vi) certified copy of voter list of 1997 (Ext.F); (vii) Photocopy of Elector Photo Identity Card (Ext.G) and (viii) Identity Card issued by Gaonburah of Domani and Bejegaon Pathar (Ext.H).
6) The petitioner's projected brother, namely, Muktar Mandal @ Muktar Ali was examined as DW-2, had re-exhibited the documents already exhibited by the petitioner as Ext.A to Ext.H respectively.
Submission by the learned counsel for the petitioner:
7) The learned counsel for the petitioner has submitted that the learned Tribunal had not considered the documentary evidence of the petitioner in its proper perspective and arrived at a wrong conclusion for which the impugned opinion was not sustainable on facts and in law.
Page No.# 5/23
8) It was submitted that the LVO report did not contain anything to show that the petitioner was a foreigner and therefore, the investigation carried out against the petitioner was not fair. Accordingly, it was submitted that the petitioner was not provided with the grounds to suspect him as a foreigner and thus, the proceeding against the petitioner was bad in law. In this regard, the learned counsel for the petitioner has cited the case of State of Assam & Ors. v. Moslem Mondal & Ors., 2013 (1) GLT 809.
9) The relevant paragraph 97 of the case of Moslem Mondal (supra), cited by the learned counsel for the petitioner isquoted below:-
Moslem Mondal (supra):
97. Fair investigation and fair trial being the basic fundamental/human right of a person, which are concomitant to preservation of the fundamental right of a person under Article 21 of the Constitution, there has to be a fair and proper investigation by the investigating agency before making a reference to the Tribunal. In such investigation the attempt has to be made to find out the person against whom the investigation is made, so that the person concerned is given the opportunity to demonstrate at that stage itself that he is not a foreigner. In case the person concerned could not be found out in the village where he is reported to reside or in the place where he ordinarily resides or works for gain, the investigating agency has to record the same in presence of the village elder or the village headman or any respectable person of the locality, which in turn would ensure visit of the investigating officer to the place where such person ordinarily resides or reported to reside or works for gain and making of an effort to find him out for the purpose of giving him the opportunity to produce the documents etc., if any, to demonstrate that he is not a foreigner. The investigating officer, as far as practicable, shall also obtain the signature or thumb impression of the person against whom such investigation is initiated, after recording his statement, if any, provided he makes himself available for that purpose. There are also instances where the person against whom such investigation is initiated, changes his place of residence, may be in search of livelihood or may be to avoid detection. To ensure proper investigation and also having regard to integrity and sovereignty of the nation, once investigation relating to the nationality status of a person starts he must inform the investigating agency in writing about the change of residence, if any, thereafter. In case such person has failed to intimate the investigating agency in Page No.# 6/23 writing the subsequent change of his place of residence, the investigating agency has to mention the same in his report with his opinion relating to the status of such person on the basis of materials collected at the place where he earlier resided.
That will ensure a fair investigation and submission of a proper report on such investigation to the authority. Needless to say, such investigation need not be a detailed or an exhaustive one keeping in view the nature of the proceeding before the Tribunal and the object sought to be achieved. Hence it need not be equaled with an investigation conducted in criminal cases.
10) Accordingly, it was prayed that the impugned opinion be set aside.
Submission by the learned standing counsel for FT matters:
11) Per contra, the learned standing counsel for the FT matters has made his submission in support of the impugned opinion. It was submitted that the case of Moslem Mondal (supra), cited by the learned counsel for the petitioner has no application in the present case as reference in this case was made on the strength of report of the Electoral Registration Officer (ERO for short) and not by the Local Verification Officer (LVO for short). In this regard, the case of Sayam Uddin v. Union of India & Ors., 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,were cited.
Reasons and decision:
12) On the basis of the submissions made by the learned counsel for the petitioner, two following points of determination arise for decision in this case:-
i. Whether the reference, which is based on LVO report, as forwarded by the ERO, wherein certain paragraphs/ columns were left un-filled, vitiates the proceedings before the Foreigners Tribunal?
Page No.# 7/23 ii. Whether the impugned opinion is otherwise liable to be interfered with.
13) Pursuant to the order dated 11.04.2025, the original record of FT Case No. 188/2017 has been received by the Court. Carefully perused the materials available on record of this writ petition and the records received from the learned Foreigners Tribunal. Also considered the submissions as well as the case of Moslem Mandal (supra) cited by the learned counsel for the petitioner.
Point of determination no.(i):
14) The point raised by the learned counsel for the petitioner that the reference was blank and not properly filled up and therefore, the grounds of suspecting the petitioner to be a foreigner has not been furnished to him is taken up first.
15) In this case, the reference was made by the Superintendent of Police (Border), Barpeta, on receipt of communication dated 09.01.1998, issued by the Electoral Registration Officer, 40 No. Sarbhog L.A.C., which is accompanied with a three-page Local Verification Report (Annexure-A). In the said undated LVO Report, it has been mentioned at all three pages that "no documents produced".
16) 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).
17) In the present case in hand, the jurisdictional Electoral Registration Officer, on receipt of the LVO Report forwarded the reference vide "Annexure-B" to the jurisdictional Superintendent of Police (Border), who is the Page No.# 8/23 prescribed authority to make reference before the Illegal Migrants (Determination) Tribunal [IM(D)T for short], constituted under the erstwhile Illegal Migrants (Determination by Tribunals) Act, 1983 and Rules framed thereunder. Accordingly, the Superintendent of Police (Border), Barpeta, forwarded the reference and records of Doubtful Case No. 1927/B/98 to the Chairman of the erstwhile IM(D)T, Barpeta.
18) There is an important facet, which is contained in the judgment and order of this Court in the case of Sayam Uddin (supra), which must be referred to. We are in respectful agreement with the said judgment and 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 Page No.# 9/23 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 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.
Page No.# 10/23
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.
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 Page No.# 11/23 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.
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 (Incharge 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 Page No.# 12/23 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.
19) The said judgment by the learned Single Judge has stood affirmed by the virtue of judgment and order dated 29.07.2019, passed by the Division Bench of this Court in the case of Sayam Uddin v. The Union of India & Ors., W.A. 170/2019.
20) 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. Subsequently, on the scrapping of the IM(D)T, the IM(D)T case against the petitioner was transferred to the Foreigners Tribunal 10th, Barpeta and registered as F.T. Case No. 188/2017. Thus, reference in the case in hand, the reference was not made by Electoral Registration Officer (EVO for short). Hence, the decision of Moslem Mondal (supra), being distinguishable on facts, is not found to help the petitioner in any manner.
21) 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). The said fact has been stated in para-1 of the impugned opinion. Hence, this bound by the orders passed by the Supreme Page No.# 13/23 Court of India, is of the considered opinion that neither this Court, nor the learned Foreigners Tribunals would have any power or jurisdiction to remand the reference back to the Superintendent of Police (Border) for a fresh enquiry by the LVO/ERO.
22) Therefore, the challenge to the proceeding before the learned Foreigners Tribunal on the ground that certain paragraphs and/or columns of the Local Verification Officer's(LVO) Report, as forwarded by the Electoral Registration Officer(ERO) were left blank, is held to be not maintainable on facts and in law morefully referred to hereinbefore. The point of determination no. (i) is answered accordingly.
Point of determination no. (ii):
23) The other points urged by the learned counsel for the petitioner are now taken up for consideration.
24) On a perusal of the documents exhibited vide petitioner's affidavit-
in-opposition, it is seen as follows:-
a. The voter list of 1965 (Ext.A) and voter list of 1970 contains the following names, viz., Ektar Ali Mandal, Jaynab Nessa, Sumir Ali and Basiran Nessa. In respect of those entries, in his evidence-on- affidavit, the petitioner has stated that the name of his father and mother appeared with other villagers appeared in the voter list of 1965 and 1970.None of the entries in Ext.A were exhibited.
b. The electoral roll of 1975 (Ext.C) contains the names of Ektar Ali Mandal, Sumir Ali, Basiran Nessa and Dhaliman Bewi. In respect of the entries contained in Ext.C, the petitioner has stated that it contains the name of his father, step-mother and other villagers. None of the entries Page No.# 14/23 in Ext.C was exhibited.
c. The electoral roll of 1989 (Ext.D) contains the names of Ektar Mandal, Dhalim Nessa, Muktar Mandal, Intaj Mandal and Sahera Khatun. In respect of the entries contained in Ext.D, the petitioner has stated that it contains the name of his father, step-mother, elder brother, he and his wife. None of the entries in Ext.D was exhibited.
d. The electoral roll of 1997 (Ext.E) contains the names of Ektar Ali, Dhalimun Nessa and Abubakkar Ali. In respect of the entries contained in Ext.E, the petitioner has stated that it contains the name of his father, step-mother, step-younger brother. None of the entries in Ext.E was exhibited.
e. The petitioner has exhibited another electoral roll of 1997 (Ext.F), which contains the name of Muktar Ali.
f. As per the evidence-on-affidavit, the petitioner has exhibited a copy of Elector Photo Identity Card (EPIC for short) as Ext.G. However, neither the original exhibit nor a photocopy thereof is available on record. However, as per the order dated 07.08.2019, the petitioner has exhibited 8 (eight) documents Ext.A to Ext.H. However, as per the statement made in paragraph 16 of his evidence-on-affidavit, the petitioner has stated that the Election Commission had issued an EPIC in favour of his elder brother, Muktar Ali. However, in his cross- examination, the petitioner has stated that he has produced the EPIC of his brother.
g. The Gaonburah's certificate dated 18.05.2019,was exhibited and marked as Ext.H. The said certificate (Ext.H) and/or its contents has Page No.# 15/23 not been proved by the petitioner or by the author of the said document. However, in respect of the said Ext.H, the petitioner has stated in his evidence-on-affidavit that the Gaonburah had issued a link certificate in his favour.
25) It may be mentioned that that in paragraph 5 of his evidence-on-
affidavit, the petitioner as DW-1 has stated that when he was 9 years old, his father had divorced his mother, Jaynab Nessa and then she re-married with one Anu Mandal. He resided with his father.
26) It may also be mentioned that the evidence-on- affidavit dated 17.01.2020 of Muktar Mandal @ Muktar Ali (as DW-2), who is projected as elder brother of the petitioner is almost a replica of the evidence-on-affidavit by the petitioner as DW-1 and he has re-exhibited the same documents already exhibited by the petitioner. However, in spite of granting several adjournments for more than two years, the petitioner could not produce DW-2 for his cross- examination. Accordingly, the evidence of DW-2 was closed.
27) The learned Tribunal, upon appreciating the materials available on record, observed in the impugned opinion that the ERO reference was made against Intaj Ali, son of Aktali of village Domani. Having received the reference, notice was issued to Intaj Ali, son of Aktali of village Domani, which was served on 11.02.2019. On appearance before the learned Tribunal, the petitioner had submitted a petition no. 12349 dated 12.02.2019 and his vakalatnama, where his name was clearly mentioned as Intaj Ali and with same name, the petitioner appeared till 08.05.2019. However, from 21.05.2019, the petitioner appeared as Intaj Mandal @ Intaj Ali.
28) The learned Tribunal, having examined the evidence, held that as Page No.# 16/23 per the written statement and evidence of the petitioner, his father had not two but three wives.
29) It may be mentioned that the learned Tribunal had held that the petitioner had contradicted his evidence during cross-examination, where he had stated that when he was 9 years old, his father had left him and his wife. Therefore, the learned Tribunal had disbelieved the evidence of the petitioner because, if he had left the household of his father, his name could not have entered in the voter list of 1989 (Ext.D), and thus, it was observed that Intaj Mandal, whose name is entered in the voter list of 1989 must be a different person. The Court does not find the said observation of the learned Tribunal to be sustainable because in his cross-examination, the petitioner (DW-1) has stated that his mother had "left my father and me and got married second time." Thus, the learned Tribunal is found to have misread the said part of cross-examination. Nonetheless, for reasons assigned hereinafter, the said observation, though erroneous, is not found to be vitiated the impugned opinion.
30) It is seen that even if the discrepancies of the name of various persons whose name appears in Ext.A to Ext.H, is ignored and/or over-looked, but the fact remains that none of his family members, including step-brothers and step sisters came forward as a supporting witness to the petitioner. Thus, the learned Tribunal had disbelieved the evidence of the petitioner and the opinion was rendered against the petitioner.
31) It is seen that although the petitioner had exhibited the certificate of the Gaonburah (Ext.H), he was not produced as witness to prove the contents of the said certificate. The learned counsel for the petitioner has not made any attempt to demonstrate that a Gaonburah is a person who is Page No.# 17/23 exempted from giving evidence to prove the document authored by him. Therefore, as neither the Gaonburah's certificate (Ext.H) was been proved by its author, nor the contents of the said document were exhibited, the petitioner has failed to prove his link to his projected parents.
32) In the said context, it would be relevant to quote paragraph 100 to 104 of the case of Moslem Mandal (supra), which has been cited by the learned counsel for the petitioner:-
100. In our view, the judgment is only an authority for the proposition that the entries, in the voters lists, are not conclusive evidence of the facts stated therein.
101. On the other hand, in (1995) 3 SCC 100: Lal Babu Hussain and Ors. Vs. Electoral Registration Officer and Ors., the Supreme Court elaborately considered the statutory scheme of the Representation of the People Act, 1950, under which the voters lists are prepared. At para 6, the Supreme Court noted as follows :-
"6. From the resume of the aforementioned provisions of the Constitution and the Citizenship Act it becomes clear that whenever any authority is called upon to decide even for the limited purpose of another law, whether a person is or is not a citizen of India, the authority must carefully examine the question in the context of the constitutional provisions and the provisions of the Citizenship Act extracted hereinbefore. In the instant case Article 323 of the Constitution provides for one general electoral roll for every territorial constituency; so does 1950 Act. This has to be done under the Superintendence, direction and control of Election Commission as per the man date of Article 324 the Constitution. Section 16 of the 1950 Act in terms states that a person shall disqualified for registration in an electoral roll if he is not a citizen of India. Put positively a person must be a citizen of India to be entitled to inclusion in the electoral roll. Sub-section (2) of the said section empowers striking off the name of a person who incurs a disqualification set out in clauses (a), (b) or (c) of sub section (1) after his name is entered in the register of electoral rolls. Otherwise every person who is not less than 18 years of age on the qualifying date and is ordinarily resident in a given constituency is entitled to be registered. Section 22 empowers the Electoral Registration Officer for a constituency to delete any entry already made if on enquiry he is satisfied that it is erroneous Page No.# 18/23 or detective in any particular or needs to be transposed to another place in the roll or the concerned person has died or has ceased to be ordinarily resident in that constituency or that he is otherwise not entitled to be registered. Of course before any such action is taken the person concerned, except in the case of death, must be given an opportunity to be heard. Similar is the provision in Rule 21a of the 1960 Rules which empowers the registration officer before final publication of the roll to delete the name or names of any person or persons which, have been entered owing to inadvertence or error if the person concerned is dead or has ceased to be ordinarily resident in that constituency or is otherwise not entitled to be registered. The procedure for exercise of the said power is set out therein and conforms to the requirements of the principles of natural justice. It is obvious from the above that two situations arise; the first where the name is to be entered on the rolls for the first time and the second where the name already entered is required to be deleted. In the first mentioned situation before the name is entered on the rolls, the concerned officer must be satisfied that the person seeking to have his name entered is not disqualified by reason of his not being a citizen of India. Therefore, he would be justified in requiring the concerned person to show evidence that he is a citizen of India. In the second situation, since the name is already entered, it must be presumed that before entering his name the concerned officer must have gone through the procedural requirements under the statute. This would be so even if we invoke Section 114 (e) of the Evidence Act. But then possibilities of mistakes cannot be ruled out. These mistakes, if any, would have to be corrected. Even if we are to assume (without deciding) that the words "is otherwise not entitled to be registered in that roll" used in Section 22 of the 1950 Act or Rule 21 A of the 1960 Rules are wide enough to cover the question relating to citizenship, the issue would have to be decided after giving the concerned person a reasonable opportunity of being heard. If the opportunity of being heard before deletion of the name is to be a meaningful and purposive one, it goes without saying that the concerned person whose name is borne on the roll and is intended to be removed must be informed why a suspicion has arisen in regard to his status as a citizen of India so that he may be able to show that the basis for the suspicion is ill founded. Unless the basis for the doubt is disclosed, it would not be possible for the concerned person to remove the doubt and explain any circumstance or circumstances responsible for the doubt. "
102. Therefore it follows, in our view, that the entries in the voters lists are Page No.# 19/23 admissible in evidence. They establish a fact that if a name is found in the voters list that a person by such name existed on the Indian soil on the date of preparation of the voters list. Even in the above judgment, the Supreme Court recognised the possibility of mistaken entries in the voters list. Any person, interested in asserting that such an entry was mistakenly made even though no such person existed on the Indian soil on that day, must substantiate his claim. We must also hasten to add that a person, producing a voters list as a piece of evidence in support of his claim to have been present on the Indian soil on the date of preparation of the voters list, must not only produce the voters list and prove the relevant entry, but also establish/prove that the name entered, in such a voters list, is referable only to him inasmuch as it is possible that more than one person, with the same name exist or existed, more particularly, when, for a long time, no voter identity cards were in existence in this country.
103. We may also mention that an entry in the voters list is certainly a relevant piece of evidence in the enquiry of the nationality of a person. Section 6a of the Citizenship Act, which has specific application only to the State of Assam makes a specific reference to the voters list by Sub-Section (2) thereof. The relevant portion of Sub-section (2) reads as follows :-
"6-A (2). (including such of those whose names were included in the electoral rolls used for the purposes of the General Election to the House of the People held in 1967) "
104. Section 6-A (2) declares a certain class of persons to be citizens of India, who are not, otherwise, entitled to be recognised as citizens of India in accordance with the provisions of the Constitution and the other provisions of the Citizenship Act. By a legal fiction, Sub-Section (2) of Section 6-A recognises as Indian citizens those persons, who came to Assam before the 1st day of January, 1966, and have been, ordinarily, resident in Assam since the date of their entry as Indian citizens. While making such a declaration, the Parliament also conferred the benefit on such persons, who on coming to Assam from a specified territory, have been, ordinarily, resident in Assam since their date of entry and whose names were included in the voters list used for the purpose of general elections to the House of People held in the year 1967. We are informed, at the Bar, that the voters list, used for the purpose of general elections to the House of the People, held in the year 1967, was prepared subsequent to 1st day of January, 1966, and but for the specific declaration extracted above, some of the persons, who had come to Assam, whose names were found in such electoral lists, would not have been eligible for being treated as citizens of this country, because of the fact that they had entered into India subsequent to 1st day of January, 1966. In other words, the cut-off date prescribed under Sub-section (2), that is, the 1 st day of January, 1966, stood Page No.# 20/23 slightly modified by extending the benefit of Sub-section (2) to those persons, whose names were included in the electoral lists used for the purpose of the general elections to the House of the People, held in the year 1967, irrespective of the fact whether they came before the 1st day of January, 1966 or not.
33) Thus, it is a well settled law that a person producing a voters list as a piece of evidence in support of his claim to have been present on the Indian soil on the date of preparation of the voters list, must not only produce the voters list and prove the relevant entry, but also establish/prove that the name entered, in such a voters list, is referable only to him inasmuch as it is possible that more than one person, with the same name exist or existed. It may be stated that in his cross-examination, the petitioner has stated that he has one brother, two step-brothers and three step-sisters. He had forgotten the name of his sister-in-law, i.e. the wife of his own elder brother. He has also stated that all his brothers are alive and stay in the same campus in village Domani. However, in the present case, the petitioner has not disclosed the existence of his father's family and about his own family in his written statement. Moreover, the petitioner has not exhibited any voter list which contains the names of the projected parents and his other siblings and/or step- siblings together.
34) In the case of Narbada Devi Gupta v. Birendra Kr. Jaiswal & Ors., (2003) 8 SCC 745, the Supreme Court of India has held that the mere production and marking of a document in evidence is not enough, but its execution has to be proved by admissible evidence. It was also held that where documents are admitted by the signatories thereto and marked as exhibits, no further burden to lead additional evidence to prove the writing and its execution survives. In the present case in hand, the petitioner has not exhibited any of the Page No.# 21/23 entries in any exhibited documents, referred to in her evidence-on-affidavit as Ext.A to Ext.H. Moreover, the Gaonburah was not examined to prove his certificate (Ext.H) or contents thereof.
35) It may be pointed out that in paragraph 21 of his evidence-on- affidavit, the petitioner as DW-1 has mentioned that Ext.C is the photocopy of the registered land deed of 1975. However, the said document was not disclosed in his written statement and moreover, the document marked as Ext.C is the electoral roll of 1975.
36) The voter list is not a stand-alone document, by which relationship of persons as father and son can be proved in the absence of any other document as corroborative evidence. The electoral roll is otherwise available in public domain and it is possible for anyone to obtain certified copy of electoral roll of a third party. Therefore, merely by producing an electoral roll of Ektar Ali Mandal, the petitioner, whose citizenship is doubtful, cannot establish himself to be the son of Ektar Ali Mandal. Surprisingly, the name of the petitioner appears in the electoral roll of 1989 with his projected father, where his age is 28 years. However, the petitioner has not explained why his name did not appear in any previous voter list after he became eligible to vote or why his name did not appear in subsequent electoral roll of 1997 (Ext.E and Ext.F) with other members of his projected father's family. Thus, in the context of absence of all family members of the petitioner's projected father, this is a case where the presumption can be drawn under Section 119, Illustration (g) of the Bharatiya Sakshya Adhiniyam, 2023 [section 114, Illustration (g) of erstwhile Evidence Act, 1872, since repealed] to the effect that evidence, which could be and is not produced, would, if produced, be unfavourable to the person who withholds it.
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37) It is reiterated at the cost of repetition that the evidence of DW-2, namely, Muktar Mandal @ Muktar Ali, is deemed to have been expunged on his failure to appear and face cross-examination. The Gaonburah was not examined to prove his certificate (Ext.H). Moreover, it is not the case of the petitioner that his projected father and he had never availed any Government aid under any scheme in force. Under such circumstances, the non-existence of any documentary evidence including voter list to show the projected father's entire family together does not support the petitioner to prove his citizenship, claiming to be the son of Late Ektar Ali Mandal @ Ektar Mandal @ Ektar Ali.
38) Therefore, in light of the discussions above, the Court is of the considered opinion that the impugned opinion dated 30.03.2022, passed by the learned Member, Foreigners Tribunal (10th), Barpeta, in FT Case No. 188/2017 [arising out of IM(D)T Case No. 1927(B)/98], thereby declaring the petitioner to be a foreigner, who has entered into Assam on or after 25.03.1971 is sustainable on facts and in law. The said learned Tribunal is not found to have misread or misconstrued any pleadings and evidence on record. The finding of the learned Tribunal is not found to be vitiated by any reason whatsoever and therefore, warrants no interference by the Court. The point of determination no.
(ii) is answered accordingly.
39) Accordingly, the Court passes the following -
ORDER
40) In light of the discussions above, this writ petition fails and is
dismissed.
41) The parties are left to bear their own cost.
42) The learned standing counsel for the FT matters shall send a
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downloaded copy of this order to the Superintendent of Police (Border), Barpeta.
43) The Registry shall send back the records back to the Foreigners Tribunal (10th), Barpeta along with a copy of this order to be made a part of the record of FT Case No. 188/2017 [arising out of IM(D)T Case No. 1927(B)/98].
JUDGE JUDGE Comparing Assistant