Mahar Ali V. The Union of India and The State of Assam and The Deputy Commissioner Goalpara and The Superintendent of Police (Border) Goalpara and The Election Commission Govt. of India and The State-Coordinator of National Registration (NRC) Assam and The Foreigners Tribunal No. 4 Goalpara

WP(C)/5638/2018

AI Insights

Mahar Ali filed a writ petition challenging the opinion of the Foreigner's Tribunal, which declared him a foreigner based on discrepancies in the documentation of his father's name across different electoral rolls and a PAN card. The Tribunal's decision was based on the inability of the petitioner to conclusively link himself as the son of Kabej Ali, an Indian citizen, through reliable and consistent documentary evidence. The High Court upheld the Tribunal's decision, emphasizing the need for cogent, reliable, and admissible evidence to prove citizenship under the Foreigners Act.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 808859 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 28-03-2025
• Assessment Year: misc
• Other Referred Cases: Aziz Miya @ Md. Aziz Mia v. Union of India & Ors., Bijoy Das v. Union of India & Ors., Nur Begum v. Union of India & Ors., Asia Khatoon v. Union of India & Ors., Rashminara Begum v. Union of India and Ors., Ayesha Khatun v. Union of India & Ors.
• Laws Referred To: Article 226 of the Constitution of India, Foreigners Act, Citizenship Act, 1955
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: J PAYENG; D BARUAH; A VERMA
• Assessee Lawyers: A ROSHID; M DEVI
• Keywords: Burden of Proof; Citizenship; Electoral roll; Evidence; Foreigner
• Section: 9; 6A

Judgement Text

"Page No.# 1/12 GAHC010181022018 2025:GAU-AS:3841 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5638/2018 MAHAR ALI S/O. LATE KABEJ ALI, VILL. RAKHYASHINI JHAR, P.O. BALADMARI, P.S. MORNOI, DIST. GOALPARA, PIN- 783101. VERSUS THE UNION OF INDIA AND 6 ORS. REP. BY THE SECRETARY TO THE GOVT. OF INDIA, DEPTT. OF HOME, NEW DELHI-1. 2:THE STATE OF ASSAM REP. BY THE SECRETARY TO THE GOVT. OF ASSAM DEPTT. OF HOME DISPUR GUWAHATI-6. 3:THE DEPUTY COMMISSIONER GOALPARA PIN- 783101. 4:THE SUPERINTENDENT OF POLICE (BORDER) GOALPARA PIN- 783101. 5:THE ELECTION COMMISSION GOVT. OF INDIA NEW DELHI-1. 6:THE STATE CO-ORDINATOR OF NATIONAL REGISTRATION (NRC) ASSAM GUWAHATI-32. 7:THE FOREIGNERS TRIBUNAL NO. 4 GOALPARA Page No.# 2/12 REP. BY THE STANDING COUNSEL OF THE TRIBUNAL PIN- 783101 Advocate for the Petitioner : MR. A ROSHID, MS. M R DEVI Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,MR J PAYENG,SC, NRC,MS. A VERMA,SC, ECI,MR. D BARUAH BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI JUDGMENT AND ORDER Date : 28.03.2025 (K.R. Surana, J) Heard Ms. T. Begum, learned counsel for the petitioner. Also heard Mr. K. Gogoi, learned CGC; Mr. G. Sarma, learned standing counsel for the FT matters and NRC; Mr. M. Islam, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for the ECI; and Mr. P. Sarmah, learned Additional Senior Govt. Advocate for the State respondents. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned opinion dated 31.07.2018, passed by the learned Member, Foreigner’s Tribunal- 4th, Goalpara in FT Case No. FT(G-4) 18/M/17, arising out of IM(D)T Case No. 876 of 2000, by which the petitioner was held to be a foreigner of post 25.03.1971 stream. 3. On receipt of notice of the notice of the proceedings, the petitioner had appeared before the learned Tribunal and filed his written statement. The petitioner had denied that he was a foreigner as alleged and had stated that his parents and grandparents were also citizen of India by birth. The petitioner had Page No.# 3/12 alleged that the Investigation Officer did not visit his house and did not ask him to produce any document about his citizenship or nationality and without proper enquiry or investigation, a false case was submitted against the petitioner. 4. As the evidence of the petitioner as DW-1 is by and large similar to the averments made in the written statement, this order is not burdened with the contents of the written statement. 5. The petitioner had examined himself as DW-1 by filing his evidence- on-affidavit. The petitioner had reiterated his stand in the written statement. He had projected that the name of his father is Late Kabej Uddin @ Kajab Ali @ Kabej Ali and the name of his mother is Late Mohiron Nessa @ Mohiron Bewa. He had also projected that his grandfather’s name is Late Hekmot Ali and his grandmother’s name is Bibijan Nessa and the name of his step grandmother is Late Foziron Nessa. 6. By referring to the names appearing in the Electoral Roll of 1966 (Ext.A), the petitioner has stated that Hekmot Ali, son of Moksed Ali was his grandfather; Bibijan Nessa was his grandmother and Foziron Nessa was his step grandmother. Kobejuddin, was his father; Joidullah Sheikh was his uncle; and Bhanu Bibi was his aunt. By referring to the Electoral Roll of 1970 (Ext.B), it was stated that it contains the name of persons whose names appeared in the Electoral Roll of 1966 as well as the name of Juran Ali, his younger uncle. 7. The petitioner had stated that for better livelihood, his family had shifted from village- Geramari Part-II to village- Kaminir Vita about 41-42 years ago. By referring to the electoral roll of 1979 (Ext.C), it was stated that it contains the name of Kowaj Ali, son of Late Himmat, his projected father; Mohiran Nessa, mother; and Bibijan Bewa, his grandmother. By referring to Page No.# 4/12 electoral roll of 1985 (Ext.D), it was stated that it contains the name of the parents and grandmother of the petitioner. The petitioner has projected that he was born and brought up in village- Kaminir Vita, where he is residing since last 40 years. By referring to his PAN Card (Ext.E), it was submitted that the petitioner’s name was recorded as Mohor Ali, son of Kabas Ali. By referring to the electoral roll of 1997 (Ext.F), it was stated that his name was recorded as Mohor Ali, son of Kobaj Ali. The petitioner had stated that due to river erosion, he shifted with his family from village- Kaminir Vita to village- Rakhashini Jhar under Mornoi P.S. about 17 years ago and in the Electoral Roll of 2005 (Ext.G), his name was recorded as Mohor Ali, son of Kowaj Ali. The petitioner has exhibited his Electoral Photo Identity Card (EPIC for short) as Ext.H, where his name is recorded as Mohor Ali, son of Kabas Ali. The petitioner had also stated that his name is recorded as Mohor Ali, son of Kabaj Ali in the electoral roll of 2015 (Ext.I). 8. The petitioner has stated that that the name of his father was recorded in the electoral roll of 1966 as Kobejuddin; Kowaj Ali in the electoral roll of 1979; as Kabaj Ali in other electoral roll; and Kabas Ali in his PAN Card. Accordingly, it was stated that all these names were of same and one person, his father. 9. In his cross-examination, the petitioner has stated that he cannot say the year of his birth. Hekmat Ali was his grandfather, who had no brother or sister. His grandfather had 2 (two) wives and 8 (eight) children, whose names are, Jobed Ali; Kobad Ali, in some documents, Kobej Uddin; Kabaj Ali; Juran Ali, but not Juran Munshi. Hurmuj Ali, Toimuddin, Surman Ali, Bisa, Suha. He cannot say when his father had casted vote for the first time. Later on says 1966. He stated that his father expired when he was 10 years old. He has 5 (five) Page No.# 5/12 brothers, whose names are Late Mahor Uddin, Mohor Ali (his own), Sarbes Ali, Ohad Ali, Abdul Awal. 10. The petitioner had examined one Juran Ali as DW-2, by projecting him as his uncle. The DW-2 had reiterated the statement of the petitioner. He had stated that the petitioner was his nephew, who was born to Late Kabej Uddin @ Kabaj Ali @ Kabej Ali of Kaminir Vita about 40 years ago and since then he has been living with his family continuously and about 7 years ago, he shifted from village- Kaminir Vita to village- Rakhashini Jhar. In his cross- examination, the DW-2 has stated that he knows the petitioner. He had cast his vote for the first time in 1970 and the petitioner had cast his vote in 1997 for the first time. 11. Although the learned Tribunal had noted the discrepancy in the names of the father of the petitioner in the electoral rolls of 1966 (Ext.A), 1970 (Ext.B), 1979 (Ext.C), and 1985 (Ext.D), but accepted that Kabejuddin is the son of Hekmat Ali, who was a voter of 1966 and 1970. However, the learned Tribunal had discarded PAN Card (Ext.E) as an un-trustworthy document on the ground that the petitioner was not an income tax payee and that the contents of the PAN Card was not proved by tendering of evidence by the Income Tax authorities to disclose the particulars of application made for obtaining the PAN Card. Accordingly, it was held that Ext.E cannot be said to be a valid piece of evidence to establish that the petitioner is the son of Kabez Ali. The electoral rolls of 1997 (Ext.F), 2005 (Ext.G) and 2015 (Ext.I) were also held to be unacceptable as the name of the projected father of the petitioner was Kabaj Ali, which was totally different than other documents. The EPIC of the petitioner (Ext.H) was also not accepted on the ground that said evidence, by itself, was not enough unless the linkage is proved. Accordingly, it was held that the Page No.# 6/12 petitioner could not establish his linkage as an Indian citizen through Kabez Ali. Resultantly, the learned Tribunal had held that the petitioner had failed to discharge his burden as envisaged under section 9 of the Foreigners Act. 12. The learned counsel for the petitioner has strenuously submitted that merely because of the discrepancy in the name of the father of the petitioner, the evidence of the petitioner was rejected by the learned Tribunal by disregarding that the name of the petitioner remained the same all though out and moreover, the petitioner had explained that due to river erosion, his father as well as he had to shift to another village. It is also submitted that although the State respondents did not dispute the evidence of the petitioner, the learned Tribunal had held that the petitioner was unsuccessful in projecting himself as son of Kabez Ali and accordingly, the learned Tribunal had disbelieved that the petitioner was the citizen of India. 13. Per contra, the learned standing counsel for the FT matters has submitted that oral evidence is not enough for the petitioner to prove his citizenship or his link to Indian parents. It was submitted that the petitioner has relied only on electoral rolls to project that he is the son of Kobezuddin as per Ext.A; Kabejuddin as per Ext. B; Koyab Ali in Ext.C; Koyaz Ali in Ext.D; Kabas Ali in PAN card (Ext.E). Accordingly, it was submitted that in absence of any further material, a mere existence of a name in voter list is not a conclusive proof that the said person is the father of the petitioner. In the said context, the learned counsel for the FT matter has cited the case of (i) Aziz Miya @ Md. Aziz Mia v. Union of India & Ors., 2023 (4) GLT 246, (ii) Bijoy Das v. Union of India & Ors., (2018) 4 GLR 599: 2018 (3) GLT 118, (iii) Nur Begum v. Union of India & Ors., 2020 (3) GLT 347 and (iv) Asia Khatoon v. Union of India & Ors., WP(C) 4020/2017 decided on 21.11.2019. Page No.# 7/12 14. It was also submitted that the petitioner was required to prove that his parents and/ or grandparents had existence in this Country (a) prior to 01.01.1966, (b) between 01.01.1966, but prior to 25.03.1971; and (c) that they had ordinarily resided in the Country as required as per Section 6A of the Citizenship Act, 1955. In the said regard, it was submitted that in this case the names of (a) Juran Ali (DW-2); (b) petitioner’s projected father; and (c) petitioner’s projected mother appeared only in the electoral roll of 1970 and the petitioner has failed to prove any other voter list where those names had appeared. Therefore, it was submitted that the petitioner had failed to show the existence of his grandparents, parents and projected uncle, Juran Ali as an ordinary resident of Assam on or after 01.01.1966 but before 25.03.1971. 15. Examined the materials available in the writ petition and carefully perused the records of the learned Tribunal. It is seen that the petitioner had not exhibited any entry made in any of the exhibited documents. 16. The contents of the exhibited documents are as follows:- a. The electoral roll of 1966 (Ext.A) contains the following names, viz., (1) Hekmot Ali, father- Moksad Ali, (2) Bibijan Nessa, husband- Hekmot, (3) Foziran Nessa, husband- Hekmot, (4) Joidullah Sheikh, father- Hekmot, (5) Bhanubibi, husband- Joidullah, (6) Kobezuddin, father- Hekmot. The said electoral roll is of no. 44, Goalpara west LAC; name and number of polling station & village No: 48 Geramari Part-II; Part No. 174. b. The electoral roll of 1970 (Ext.B) contains the following names, viz., (1) Hekmot Ali, father- Moksad Ali, (2) Bibijan Nessa, husband- Hekmot, (3) Foziran Nessa, husband- Hekmot, (4) Joidullah Sheikh, father- Hekmot, (5) Bhanubibi, husband- Joidullah, (6) Kobezuddin, father- Page No.# 8/12 Hekmot, (7) Juran Ali, father-Hekmot. The said electoral roll is of no. 44, Goalpara west LAC; name and number of polling station & village No: 38 Geramari Part-II; Part No. 174. c. The electoral roll of 1979 (Ext.C) contains the following names, viz., (1) Kojad Ali, father – Late Himmat, (2) Bibijan Bewa, husband- Late Himmat, (3) Mohiron Nessa, husband- Kojad Ali. The said electoral roll is of No. 39, Jaleswar LAC; name and number of polling station & village: 170 Kaminir Vita. d. The electoral roll of 1985 (Ext.D) contains the following names, viz., (1) Koyaz Ali, father – Hemot Ali, (2) Mohiran Nessa, husband- Koyaj, (3) Bibijan, husband- Hemat. The said electoral roll is of No. 39, Jaleswar LAC; name and number of polling station & village: 135 Kaminir Vita. e. PAN Card bearing account no. BESPA3344A in the name of Mohar Ali, son of Kabas Ali, issued by the Income Tax Department. f. The electoral roll of 1997 (Ext.F) contains the following names: (1) Mohar Ali, father – Kobaj Ali, (2) Surat Bhan Nessa, husband- Mohar Ali. The said electoral roll is of No. 39, Jaleswar LAC; name and number of polling station and village No: 712 Kaminir Vita LP School; Village- 135 No. Kaminir Vita. g. The electoral roll of 2005 (Ext.G) contains the following names, viz., (1) Mohar Ali, father – Kobaj Ali, (2) Surat Bhanu, husband- Mohar Ali. The said electoral roll is of No. 37, Goalpara East LAC; name and number of polling station & village: 53 Rakhashini Jhar Part-II. h. Electoral photo identity card of Mahar Ali son of Kabaz Ali (Ext.H), issued on 01.10.2013. Page No.# 9/12 i. The electoral roll of 2015 (Ext.I) contains the following names, viz., (1) Mohar Ali, father – Kobaj Ali, (2) Surat Bhanu, husband- Mohar Ali. The said electoral roll is of No. 37, Goalpara East LAC; name and number of polling station & village: 53 Rakhashini Jhar Part-II. 17. It is not the pleaded case of the petitioner that his PAN card was issued without any application made by him. In the PAN Card, the name of his projected father is “Kabas Ali”, which does not match with his father’s name in any other exhibited document. In the said PAN card, the date of birth of the petitioner is mentioned as 02.12.1977, however, in his written statement filed on 05.09.2017 and in his evidence-on-affidavit filed on 09.10.2017, the petitioner has not pleaded about it. 18. The petitioner has stated in his written statement as well as in his evidence-on-affidavit that his family shifted from village Geramari Part- II to village Kaminir Vita about 41/42 years ago. In his written statement filed on 05.09.2017 and in his evidence-on-affidavit filed on 09.10.2017, the petitioner has stated his age to be 40 years. Therefore, the projected shifting of his family was two years before his birth. However, the petitioner has not produced and exhibited any electoral roll after 1970 and before 1979, containing the names of the entire family as disclosed in (a) his cross-examination; and (b) in the electoral roll of 1970 (Ext.B). Therefore, when there is a mismatch of the name of the projected father of the petitioner in each and every document, the Court of the considered view that merely by exhibiting the electoral rolls, it cannot be said that the petitioner has been able to connect himself with his projected parents or grandparents. It is reiterated that in his cross-examination, the petitioner has stated that his grandfather has two wives and 8 (eight) children and he had 5 (five) brothers. However, in order to create a family, the petitioner Page No.# 10/12 has stated in his written statement that the name of his father, mother and grandmother were wrongly written in the electoral roll of 1979 (Ext.C). Similarly, in respect of electoral roll of 1985, the petitioner has stated that name of his mother, father and grandmother were wrongly recorded. Moreover, it is seen that apart from the electoral rolls, EPIC and PAN Card, no other documents were exhibited to prove the name of the father of the petitioner. Be it stated that the contents of none of the exhibited documents were proved by the petitioner. 19. In his written statement and in his evidence-on- affidavit, the petitioner has not disclosed the names of the member of (a) his projected grandfather’s family; (b) his projected father’s family; (c) his projected uncle’s family; and (d) his own family. Similarly, the DW-2, who is the projected uncle of the petitioner had also not disclosed the names of members of his father’s family or regarding members of his own family. 20. It is well settled that the petitioner should have made all requisite disclosure in his written statement and then to re evidence to prove the pleading facts by adducing cogent, reliable and admissible evidence. If one requires any authority on point, the decision in the case of (1) Rashminara Begum v. Union of India and Ors., 2017 (4) GLT 346 and (2) Ayesha Khatun v. Union of India & Ors., (2017) 3 GLR 820, may be referred to. In the case of Rashminara Begum (supra), it has been held that materials facts pleaded would have to be proved by adducing cogent, reliable and admissible evidence and in the case of Ayesha Khatun (supra), it has been held that failure to disclose materials facts would lead to adverse presumption. 21. In the case of Aziz Miya @ Md. Aziz Mia (supra), it has been held that a mere claim by a suspected person, by referring to a voter list, that a Page No.# 11/12 person whose name is contained therein to be his father, is not a conclusive proof and it was further held that the person making such claim will have to be substantiated with further materials acceptable in law. 22. In the case of Bijoy Das (supra), it has been held that statement made in a written statement or in a oral testimony in a proceeding under Foreigners’ Act would not be enough and that the facts and issues will have to be proved by adducing documentary evidence which are admissible and relevant. 23. In the case of Nur Begum (supra), it was reiterated that in a proceeding under the Foreigners’ Act, 1946 and the Foreigners’ (Tribunal) Order, 1964, the evidentiary value of oral testimony, without support of documentary evidence is wholly insignificant. It was also held that oral testimony alone is no proof of citizenship. 24. In this case Juran Ali (DW-2) did not prove any document and he also made no attempt to prove his own identity or to establish that he was an ordinarily resident in India/the State of Assam after 1970. 25. Accordingly, the Court is constrained to hold that the petitioner has failed to demonstrate that he is the son of an Indian citizen whose existence was in this Country between 01.01.1966 and 25.03.1971 as an ordinary resident. 26. Resultantly, in light of the discussion above, this writ petition fails and the same is dismissed by holding that the impugned opinion dated 31.07.2018, passed by the learned Member, Foreigner’s Tribunal- 4th, Goalpara in FT Case No. FT(G-4) 18/M/17, arising out of IM(D)T Case No. 876 of 2000 does not warrant any interference. Page No.# 12/12 27. The interim order dated 24.08.2018, providing that the petitioner shall not be arrested and deported from India is vacated. The consequences of the said opinion dated 31.07.2018 shall follow. JUDGE JUDGE Comparing Assistant "