Asia Bibi @ Asiya Bibi D/O Lt. Rohim Boksa @ Rohim Boksa Sk @ Rohim Box, W/O Baser Uddin Sk @ Boser Uddin V. The Union of India and The Election Commission of India and The State of Assam and The Deputy Commissioner Dhubri and The Superintendent of Police (B) Dhubri and The State-Coordinator National Register of Citizens

WP(C)/6555/2018

AI Insights

Asia Bibi, the petitioner, challenged the opinion of the Foreigner's Tribunal which declared her a foreigner based on the grounds that she could not prove her continuous residence in India before the cut-off date of 25.03.1971. The case involved various documents including electoral rolls and identity cards, which the petitioner argued supported her claim of Indian citizenship. However, the court found discrepancies in the evidence provided and noted that the petitioner failed to establish her and her family's continuous residence in India prior to the specified date. The court also addressed procedural concerns regarding the reference made to the Tribunal under the IM(D)T Act, which was declared ultra vires by the Supreme Court but had been transferred to the Foreigners Tribunals.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 799971 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 13-02-2025
• Assessment Year: misc
• Other Referred Cases: Sarbananda Sonowal v. Union of India, Md. Babul Islam v. Union of India & Ors.
• Laws Referred To: Article 226 of the Constitution of India, IM(D)T Act, Foreigners Act, 1946, Evidence Act, 1972
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: ASSTT S G I SC F T SC ELECTION COMMISSION
• Assessee Lawyers: A F N U MOLLAH
• Keywords: Electoral roll; Foreigner; Illegal entry; NRC; IM(D)T Act; Foreigners Tribunals
• Section: 9; 106

Judgement Text

"Page No.# 1/10 GAHC010202382018 2025:GAU-AS:1587 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/6555/2018 ASIA BIBI @ ASIYA BIBI D/O LT. ROHIM BOKSA @ ROHIM BOKSA SK @ ROHIM BOX, W/O BASER UDDIN SK @ BOSER UDDIN, VILL KAIM BHASANI PT.II, PO AND PS DHUBRI, DIST. DHUBRI, ASSAM, PIN- 783323 VERSUS THE UNION OF INDIA AND 5 ORS REP. BY THE MINISTRY OF HOME AFFAIRS, NEW DELHI-01 2:THE ELECTION COMMISSION OF INDIA REPRESENTED BY THE CHIEF ELECTION COMMISSIONER NEW DELHI 3:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME AND POLITICAL DEPARTMENT DISPUR GUWAHATI-6 4:THE DEPUTY COMMISSIONER DHUBRI DIST. DHUBRI ASSAM PIN-783301 5:THE SUPERINTENDENT OF POLICE (B) DHUBRI DIST. DHUBRI ASSAM PIN-783301 Page No.# 2/10 6:THE STATE CO-ORDINATOR NATIONAL REGISTER OF CITZENS BHANGAGARH GHY-0 Advocate for the Petitioner : MR. A F N U MOLLAH, MD H R AHMED,SC, NRC Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, ELECTION COMMISSION. BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 13.02.2025 (Kalyan Rai Surana, J) Heard Mr. A.F.N.U. Mollah, learned counsel for the petitioner. Also heard Mr. G. Sarma, learned standing counsel for the FT matters and NRC; Mr. A.I. Ali, learned Standing Counsel for the ECI and Mr. R. Talukdar, learned Government Advocate. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned opinion dated 14.06.2018, passed by the learned Member, Foreigner’s Tribunal No.1, Dhubri in FT Case No. 1466/D/2010, arising out of IM(D)T/R/925/98, thereby declaring the petitioner to be foreigner, having illegally entered into India after 25.03.1971. 3. In brief, the case of the petitioner is that on receipt of notice of the said proceeding, she had entered appearance before the learned Tribunal and had filed her written statement. In support of the statement made in the written statement, the petitioner had annexed 9(nine) documents thereto. Thereafter, the petitioner filed her evidence-on-affidavit as DW-1, wherein she Page No.# 3/10 has stated that her grandfather was Kader Bepari, father’s name is Rohim Boksa and mother’s name is Halimon Nessa. She has 2(two) brothers, namely, Rojob Ali and Mojibar Rahman and 6(six) sisters, namely, Rohima Bibi, Rejia Bibi, Samartho Bibi, Asia Bibi (herself), Halima Bibi and Rabiya Bibi. Her husband’s name is Baser Uddin and she has 2(two) sons, namely Shahjahan Ali and Ajahar Ali and 6(six) daughters, namely, Rohima Khatun, Khodeja Khatun, Fatema Khatun, Chayna Khatun, Anowara Khatun and Ambiya Khatun. 4. It is projected that the name of her father was recorded in the NRC of 1951 along with her mother Halimon Nessa and brothers, Mojibar Sk., Rojob Ali and other members. It is also stated that due to erosion of river Brahmaputra, her mother shifted to a nearby village Bhogdahar from village Reserver Char. It was stated that her father’s name was recorded in the Electoral Roll of 1966 and 1970 under 33, Dhubri LAC, as a resident of village Bhogdahar. 5. The Electoral Roll of 1966 was marked as Exhibit-1. The entry of name of the father in the Electoral Roll of 1970 was marked as Exhibit-2. The petitioner also annexed photo copy of Electoral Roll of 1997 where the name of her projected brother, Mojibar Rahman was recorded along with other family members. She also stated that the elder brother Mojibar Rahman and other family members are recorded in the Electoral Roll of 2010 under 23 Dhubri LAC. She also stated about forty-four years back, she entered with into marriage with Boser Uddin and his name is enlisted in the Electoral Roll 1994 under village- Kaim Bhasani Part-II in the district of Dhubri. She has exhibited the Electoral Roll of 1994 as Exhibit-3. She has also exhibited her Elector Photo Identity Card (EPIC for short). She also annexed the photocopy of NRC 1951 as Annexure-A, Page No.# 4/10 photocopy of Electoral Roll of 1997 as Annexure-B, photocopy of Electoral Roll of 2010 as Annexure C, photocopy of Electoral Roll of 1997 as Annexure-D, photocopy of Electoral Roll of 2010 as Annexure-E. She also exhibited her Income Tax Pan Card as Exhibit-5. 6. The petitioner has further stated that her correct and actual name is Asiya Bibi which is recorded in all official and non-official documents including electoral rolls. But in this proceeding, her name was written as Asia Bibi instead of Asiya Bibi. Accordingly, she claims that both Asia Bibi and Asiya Bibi are the same and one identical person i.e. herself. The petitioner has also stated that her father’s correct name is Rohim Boksa Sk, which is recorded in the NRC, 1955 but in the Electoral Roll of 1966 and 1970, her father’s name was written as Rohim Boksa as such, she claims Rohim Boksa Sk and Rohim Boksa is the same and one identical person i.e. her father. The petitioner further stated that her brother’s correct name is Mojibar Rahman which is recorded in the electoral roll of 1997 and 2010, but in the NRC of 1951, her brother’s name was recorded as Mojibar Sk instead of Mojibar Rahman. As such, Mojibar Sk and Mojibar Rahman are the same and one identical person. As the petitioner linkage has to be proved with the father, it is not relevant to refer to that part of the evidence of petitioner where she has stated that she has stated about the husband’s name and the discrepancy in the spelling of his name. 7. The petitioner has also stated that her date of birth is 02.07.1957, which is mentioned in the PAN card. It is also submitted that the Electoral Roll 1997, her age was recorded 38 years instead of 40 years. Accordingly, she claimed to be a bona fide citizen of India and had prayed for dismissal of the proceedings. Page No.# 5/10 8. The petitioner also examined her projected brother Majibar Rahman as DW-2, who has filed his evidence-on-affidavit. The DW-2 has projected his age to be 72 years and claims that he is son of Rohim Boksa and he is the brother of the petitioner and he was born in the village Reserver Char and he also stated that the name of his grand-father is Kader Bepari and he has also disclosed the names of one brother and 6(six) sisters and also stated the names of 6(six) sisters and one brother. It would suffice to mention here that the DW-2 as exhibited same documents which executed by DW-1 and in addition, he also exhibited his EPIC as Exhibit-6 and he has explained about the discrepancy in the age of the petitioner, appearing in the electoral roll of 2010 and EPIC by stating that in the electoral roll, age of the petitioner was recorded 38 years instead of 40 years. Accordingly, by reiterating what has been said by the petitioner, DW-2 has projected that the petitioner is the citizen of India. 9. The learned counsel for the petitioner has submitted that the evidence of the petitioner by the DW-1 and DW-2 were rejected while minor discrepancy in the age and name of the family members included projected parents. 10. The learned counsel for the petitioner has also submitted that the reference against her was without any basis and by leaving all the paragraphs blank, a perfunctory reference was made. Accordingly, it was submitted that along with the notice of the case, the petitioner was never provided with the grounds of suspecting the petitioner to be a foreigner and therefore, the petitioner was prevented from making an appropriate disclosure in her written statement. 11. Per contra, the learned standing counsel for the FT matters has Page No.# 6/10 made his submissions to support the impugned opinion. It was submitted that the reference was made under IM(D)T Act, which has been declared ultra vires the Constitution of India, which had vested the power to the Illegal Migrants (Determination) Tribunals to give an opinion as to whether the proceedee was an illegal migrant. However, after the proceedings before the erstwhile IM(D)T’s were transferred to the Foreigners Tribunals pursuant to the directions contained in the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665. Therefore, it was submitted that this Court may not question the deficiencies, if any, in the manner the reference was made. Moreover, it was submitted that without any protest, the petitioner had participated in the proceedings of the reference before the learned Member, Foreigner’s Tribunal No. 1st, Dhubri and moreover, this is also not a ground for assailing the impugned order. Therefore, it was submitted that it was too late in the day to raise this plea for the first time at the time of hearing. 12. It was submitted that the petitioner could not show that her parents had continuously resided in this Country because there is a big gap between the voter list of 1970 (Ext.2) and the voter list of 1994 (Ext.3) and as such, the petitioner has not been able to show that she was born in this Country and that both her parents were Indian citizens before the cut-off date of 25.03.1971. It was further submitted that EPIC and Income Tax Pan Card were not an admissible document to prove the parents age or kinship. In this regard reliance is placed on the case of Md. Babul Islam v. Union of India & Ors., WP(C) 3547/2016, decided on 09.05.2018. It was also submitted that the evidence of DW-1 contradicted the evidence of DW-2 because while DW-1 had stated in her cross-examination that she was born in village Bhogdahar and that her mother expired 11(eleven) years back, DW-2, her projected brother had Page No.# 7/10 stated in his cross-examination that the petitioner (DW-1) was born in village Reserver Char and that his mother died 20(twenty) years back. Accordingly, it is submitted that petitioner has not been able to prove even by preponderance of probability that she had not entered India (Assam) after 25.03.1971 or that parents were bona fide and continuous residents in the Country prior to the cut- off date of 25.03.1971. 13. Carefully perused the material on record and considered the submissions made at the Bar. 14. In her written statement filed on 17.02.2018, the petitioner has disclosed her age to be 61 years. Therefore, she was born in the year 1957. Therefore, on attaining the age of 18 years, the name of the petitioner should have been in voters list on or after the year 1975. However, for the first time the name of the petitioner was entered in the electoral roll of 1994 (Ext.-3). Although the petitioner claims in her written statement that she was married 44 (forty-four) years back, but there is no explanation why her name was not entered in the voters list between 1975 and 1994. 15. The petitioner claims that DW-2 is her projected brother and his name is recorded in the Electoral Roll of 1997 and 2010. However, neither the petitioner (DW-1) nor her projected brother has exhibited those two electoral rolls. The DW-2 in his evidence-on-affidavit filed on 15.05.2018, has projected his age to be 72 years. Therefore, DW-2 was born in the year 1946. However, except for his EPIC (Ext.-6), there is no document exhibited to show his existence in the Country prior to 25.03.1971. In this regard it can be stated that the ratio laid down by this Court in the case of Md. Babul Islam (supra), wherein it was held that EPIC and PAN Card were not admissible to prove parentage or Page No.# 8/10 kinship still holds the field and the learned counsel for the petitioner could not show why the said decision should not be considered as a binding precedent in this case. 16. Therefore, the EPIC of the petitioner (Ext.-4), PAN Card of the petitioner (Ext.-5) and the EPIC of DW-2 (Ext.-6) would not have any evidentiary value to prove that the petitioner is the daughter of Rohim Boksa @ Rohim Boksa Sk whose name appears in the voter list of 1966 (Ext.-1) and voter list of 1970 (Ext.2), even if the discrepancy in the spelling of names of the petitioner, petitioner’s projected father and petitioner’s brother is ignored. 17. It would be pertinent to mention here that the petitioner, by way of her evidence-on-affidavit has exhibited certified copy of Electoral Roll of 1966 as Ext.-1, certified copy of Electoral Roll of 1970 as Ext.-2, certified copy of Electoral Roll of 1994 as Ext.-3, petitioner’s EPIC as Ext.-4, petitioner’s PAN Card as Ext.5 and the DW-2 has exhibited his EPIC as Ext.-6 and he has re-exhibited Ext.-1 to Ext.-5. However, instead of exhibiting the NRC of 1951, Electoral Roll of 1997, 2010, 1997, 2010, the petitioner (DW-1) and her projected brother (DW- 2) have marked those documents only as annexures and no attempt was made to prove the said documents in accordance with law. Therefore, this is a case where the principles of Section 114 Illustration (g) of the Evidence Act, 1972 would be attracted to the effect that the evidence which could be and is not produced would, if produced, the unfavourable to the person who withholds it. 18. Therefore, this Court is unable to find any infirmity in the discussion and opinion expressed by the learned Member, Foreigners’ Tribunal No.1st, Dhubri. This is not a case where the pleadings or evidence has been misread or misconstrued by the learned Tribunal and therefore, cannot be held Page No.# 9/10 that the opinion impugned in this writ petition suffers from the vice of perversity. 19. It is a trite law that the citizenship of any proceedee is doubted, the burden of prove lies on the proceedee under the principles of Section 106 of the Evidence Act to prove the proceedee is a bona fide citizen of India with cogent and admissible proof and thereon the burden would shift on the State to dispel such evidence. In this case, the petitioner has failed to prove that she was born in India and that she is a daughter of genuine Indian parents whose roots as well as continues stay were in the Country prior to 25.03.1971 by deciding her burden as per the requirement of Section 9 of the Foreigners Act, 1946. 20. The records of the learned Tribunal reveals that by a letter No. 67 dated 10.10.1997, the Electoral Registration Officer (ERO for short) for 23- Dhubri Legislative Assembly had sent a format under Annexure- A and B for making reference to the competent authority. Accordingly, the Superintendent of Police, Dhubri, who is an officer competent to make reference, had made a reference before the Illegal Migrants (Determination) Tribunal under the then IM(D)T Act. The IM(D)T Act was declared ultra vires the Constitution of India by the Supreme Court of India in the case of Sarbananda Sonowal (supra). The Illegal Migrants (Determination) Tribunals had been vested with the power to render an opinion as to whether the proceedee was an illegal migrant. However, the proceedings before the erstwhile IM(D)T’s were transferred to the Foreigners Tribunals pursuant to the directions contained in the case of Sarbananda Sonowal (supra). Therefore, when the IM(D)T proceedings were transferred to the Foreigners’ Tribunal on the strength of order passed by Page No.# 10/10 Supreme Court of India, and the petitioner had participated in the proceeding before the learned Member, Foreigner’s Tribunal No. 1st, Dhubri, this Court would refrain from making any observation regarding the correctness or otherwise of the manner in which the reference in this case was made before the IM(D)T. 21. In light of the discussion above, this writ petition fails and is accordingly, dismissed. 22. Resultantly, the consequences of the impugned opinion dated 14.06.2018, passed by the learned Member, Foreigner’s Tribunal No.1, Dhubri in FT Case No. 1466/D/2010, arising out of IM(D)T/R/925/98, thereby declaring the petitioner to be foreigner, having illegally entered into India after 25.03.1971 shall follow. 23. Interim order passed on 30.10.2024 do not deport the petitioner out from India stands vacated. 24. The order was transcribed and placed before the Court only on 27.03.2025 and therefore, this order was uploaded only on 28.03.2025. JUDGE JUDGE Comparing Assistant "