Aminul Hoque vs The Union Of India And 7 Ors.
- Court
- Gauhati High Court
Page No.# 1/21
GAHC010178042019
2026:GAU-AS:9434
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5471/2019
AMINUL HOQUE
S/O MOHIRUDDIN SHEIKH, A PERMANENT R/O VILL. HASDOBHA, P.S.
LAKHIMPUR, DIST. GOALPARA, ASSAM, PIN-781017
VERSUS
THE UNION OF INDIA AND 7 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NEW DELHI-1
2:THE ELECTION COMMISSIONER OF INDIA
NEW DELHI-1
3:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPTT. DISPUR
GUWAHATI-6
4:THE ASSAM CO-ORDINATOR OF NRC
BHANGAGARH
ASSAM
GHY-5
5:THE DEPUTY COMMISSIONER OF POLICE
KAMRUP (M)
ASSAM
PIN-781001
6:THE DEPUTY COMMISSIONER OF POLICE
KAMRUP (B)
ASSAM
PIN-781001
Page No.# 2/21
7:THE OFFICER IN CHARGE
AZARA POLICE STATION
DIST. KAMRUP (M)
ASSAM
PIN-781017
8:THE OFFICER IN CHARGE
LAKHIPUR POLICE STATION
DIST. GOALPARA
ASSAM
PIN-78101
Advocate for the Petitioner : MR. M U MAHMUD, MS F N ZAMAN,MR S ISLAM,MS. R
AHMED
Advocate for the Respondent : ASSTT.S.G.I., SC, ECI,SC, NRC,SC, F.T
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SHAMIMA JAHAN
For the petitioner : Mr. M.U. Mahmud, Advocate.
For the respondent No.1 : Mr. B. Deka, CGC.
For the respondent no.2 : Mr. A.I. Ali, Standing Counsel
For the respondent nos. 3, 4 & 6 : Mr. J. Payeng, Standing
: counsel.
For the respondent nos. 5, 7 & 8 : Ms. R.B. Bora, Govt.
: Advocate.
Date on which judgment is reserved : 02.04.2026.
Date of pronouncement of judgment : 30.06.2026.
Whether the pronouncement is of
the operative part of the judgment? : No.
Whether the full judgment has been
Pronounced? : Yes.
Page No.# 3/21
JUDGMENT AND ORDER
(CAV)
(K.R. Surana, J)
Heard Mr. M.U. Mahmud, learned counsel for the petitioner. Also
heard Mr. B. Deka, learned CGC for the respondent no.1; Mr. A.I. Ali, learned
standing counsel for the respondent no.2; Mr. J. Payeng, learned standing
counsel for the FT and Border matters, for respondent nos. 3, 4 and 6, and Ms.
R.B. Bora, learned Junior Govt. Advocate for respondent nos.5, 7 and 8.
2) By filing this writ petition under Article 226 of the Constitution
of India, the petitioner, namely, Aminul Hoque, has assailed the opinion dated
28.02.2019, passed by the learned Member, Foreigners Tribunal No.4, Kamrup
(M), Guwahati, in FT Case No. FT[K(M)-4] 1077/2017, arising out of F.T. Case
No. 842/2016, which was a reference forwarded by the Deputy Commissioner of
Police Kamrup (M), Guwahati (respondent no.6).
3) On receipt of the notice, the petitioner had filed his written
statement. In the written statement, the petitioner had stated as follows:-
a. That due to poverty he was working as day labourer in Guwahati
by staying in a rented house at village- Borbori under Azara P.S. The
Investigating Officer, who had come for enquiry, gave his report
without fair or proper enquiry.
b. The name of his father is Mohiruddin Sheikh @ Mahruddin Sheikh
@ Mohiruddin @ Mohir Uddin. The name of his mother is Foziron
Nessa and nickname is Nesa Khatun @ Nesaton Bibi. The name of his
grandfather is Late Pashan Ali Sheikh @ Pashan Ali @ Pashan Sheikh.
The name of his grandmother is Late Korimon Nessa. The name of his
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step grandmother is Late Kulsum Nessa Bibi and name of his another
step grandmother is Sokina Khatun. The name of his father, along with
grandparents, step grandmother and other family members had been
recorded in the NRC of 1951 at village- Charai Khasara, under Lakhipur
P.S., Dist. Goalpara.
c. About 56/57 years ago, due to Brahmaputra river erosion, the
petitioner shifted from village Charai Khasara to village- Dhobakura
under the same Lakhipur P.S., Dist. Goalpara. The name of Pashan Ali
and Korimon Nessa, his grandparents and Sokina Khatun, his step
grandmother were recorded in the voter list of 1966 under the then 44
No. Goalpara West LAC in village- 115, Dhobakura, Circle and PS
Lakhipur, Dist. Goalpara.
d. The name of Mahruddin Sheikh, his father; Pashan Ali and
Korimon Nessa, his grandparents; and other family members were
recorded in the voter list of 1970 under the then 44 No. Goalpara West
LAC in village- 115, Dhobakura, Circle and PS Lakhipur, Dist. Goalpara.
e. By sale deed dated 12.09.1973, his grandfather had purchased 2
bigha, 1 katha, 6 lessa land, covered by dag no. 4 and 6 was from Md.
Jason Ali Mollah at village- Ghugudoba under Lakhipur Revenue Circle.
f. The name of his father, grandparents and other family members
were recorded in the voter list of 1979. The name of his father was
recorded as Mohiruddin and the name of his mother’s name has been
recorded as Fojiran Nessa in the voter list of 1979, under the then 39
No. Jaleswar LAC in village- 78, Dhobakura, Circle and PS Lakhipur,
Dist. Goalpara. Due to family separation, the parents of the petitioner
shifted from village- Dhobakura to village- Ghugudoba about 37 years
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ago under the same PS Lakhipur, Dist. Goalpara.
g. The name of Mohir Uddin, father; and Nesa Khatun instead of
Fojiran Nesa, mother; grandmother, uncle and aunt of the petitioner
has been recorded in the voter list of 1985 in Village- (Ka) Ghugudoba
(45), under 39 No. Jaleswar LAC, Circle and PS Lakhipur, Goalpara.
h. The petitioner was born on 01.05.1988 and brought-up in village-
Ghugudoba and Hashdoba under Lakhipur P.S., Dist. Goalpara. He has
a PAN Card. For better livelihood, the family of the petitioner had
shifted from village- Ghugudoba to village- Hashdoba.
i. In the voter list of 1997, the name of his parents and elder
brother has been recorded. The name of his father appeared as Mohir
Uddin; mother’s name is recorded as Fajiron Nessa; elder brother’s
name is recorded as Fajor Ali. The petitioner has five brothers and
sisters, namely, Fajor Ali, Basaton Nessa, Foyjal Hoque, Aminul Hoque
(petitioner) and Mohila Khatun.
j. The petitioner had studied in Class-V in the year 1999 from
Hashdoba Anchalik High School and his name is entered as Aminul
Hoque in the School certificate dated 20.10.2017, in the name of the
petitioner, issued by the Headmaster of the said school and counter-
signed by the Inspector of Schools, GDC, Goalpara.
k. The name of the petitioner and other family members were
recorded in the voter list of 2005 in village- 104 No. Hashdoba under
39 No. Jaleswar LAC. His father’s name is recorded as Mohir Uddin and
mother’s name is recorded as Fajiron Nessa. The name of the
petitioner was recorded for the first time in the voter list of 2013 in
village- 104 No. Hashdoba under 39 No. Jaleswar LAC. He has Electoral
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Photo Identity Card (EPIC for short). The names of the petitioner along
with parents and other family members were recorded in the voter list
of 2015 in village- 104 No. Hashdoba under 39 No. Jaleswar LAC.
Against his name, his father’s name was recorded as Mohir Uddin
Sheikh instead of Mohir Uddin, but his father’s name was written as
Mohir Uddin. In the voter list of 2017, the name of the petitioner and
his wife was recorded, but against his name, his father’s name was
recorded as Mohir Uddin Sheikh instead of Mohir Uddin. His wife’s
name was written as Shahida Khatun.
l. The name of the father of the petitioner is recorded in the NRC
of 1951 and petitioner’s school certificate as Mohiruddin Sheikh, as
Mohiruddin in the voter list of 1970; as Mohir Uddin in the voter list of
1985, 1989, 1997, 2005 and 2015; as Mohir Uddin Sheikh in the voter
list of 2013, 2015, 2017 and petitioner’s PAN card and EPIC. Therefore,
all these are the name of the father of the petitioner. It was also stated
that Fajiron Nessa, Nessa Khatun and Nessaton Bibi are the names of
petitioner’s mother and Pasan Ali Skeikh, Pashan Ali and Pashan Sheikh
are the names of his grandfather.
m. Accordingly, it was stated that the petitioner in an Indian citizen by
birth and not a foreigner.
4) In support of his defence, the petitioner had examined himself
as DW-1. In his evidence-on- affidavit, the petitioner had reiterated the
statements made in his written statement and had exhibited the following
documents: -
i. Copy of NRC of 1951 of petitioner’s father (Ext.A-1).
ii. Computerized copy of NRC of 1951 in the name of petitioner’s father,
along with his grandparents, step grandmother and other family members (Ext.A-
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2).
iii. Certified copy of voter list of 1966 in the name of petitioner’s
grandparents and step grandmother (Ext.B).
iv. Certified copy of voter list of 1970 in the name of petitioner’s father,
grandparents and other family members (Ext.C).
v. Original land purchase deed dated 12.09.1973 in the name of petitioner’s
grandfather (Ext.D).
vi. Certified copy of voter list of 1979 in the name of petitioner’s parents,
grandparents and other family members (Ext.E).
vii. Certified copy of voter list of 1985 in the name of petitioner’s parents
and other family members (Ext.F).
viii. Petitioner’s PAN Card (Ext.G).
ix. Certified copy of voter list of 1989 in the name of petitioner’s parents,
uncle and other family members (Ext.H).
x. Certified copy of voter list of 1997 in the name of petitioner’s parents and
elder brother (Ext.I).
xi. School Certificate dated 20.10.2017, issued by the Headmaster of
Hashdoba Anchalik High School (Ext.J).
xii. Certified copy of voter list of 2005 in the name of petitioner’s parents
and other family members (Ext.K).
xiii. Certified copy of voter list of 2013 in the name of the petitioner, his
parents and other family members (Ext.L).
xiv. EPIC of the petitioner (Ext.M).
xv. Certified copy of voter list of 2015 in the name of the petitioner, his
parents and other family members (Ext.N).
xvi. Certified copy of voter list of 2017 in the name of the petitioner, his wife
(Ext.O).
5) In his cross-examination, the petitioner (as DW-1) had stated
that the name of his grandfather was Pasan Ali, who were three brothers,
namely, Sikkim Ali, Pasan Ali and Iman Ali. He does not know about the sons
and daughters of Sikkim Ali and Iman Ali. Pasan Ali had five sons and two
daughters, namely, Usman Ali, Mahiruddin Seikh, Mairuddin, Sattar Ali, Abul
Hussain, Marium Nessa and Rabia Khatoon. He did not examine the author of
Ext.J. He had stated that he had not submitted any document showing him as
voter in 2013, but his name figured in the voter list of 2013.
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6) In support of his defence, the petitioner had also examined his
projected father as DW-2. In his evidence- on- affidavit, DW-2 had reiterated
the statements made by the petitioner as DW-1. He had also stated that about
56/57 years ago, due to erosion of Brahmaputra, his family shifted from Charai
Khasara to village- Dhobakura. His father had purchased land on 12.09.1973 at
village- Ghugudoba and about 37 years ago, due to family separation, he had
shifted from village- Dhobakura to village- Ghugudoba and then about 22 years
ago, he had shifted to village- Hashdoba and in the year 1999, the petitioner
had studied in Class V at Hashdoba Anchalik High School. Accordingly, it was
stated that the petitioner is a citizen of India and not a foreigner or an illegal
migrant of 1966-1971 stream or after 25.03.1971.
7) In his cross-examination, the DW-2 had stated that the name of
his father was Pachan Ali. His father were three brothers, namely, Sikim Ali,
Iman Ali and his father. Jainuddin is the son of Iman Ali. They were 5 (five)
brothers and 2 (two) sisters, namely, Usman, Guni, Mohoruddin (myself), Sattar
Ali, Moinuddin and Abul Hussain. Later states that he does not have any sister
from his own mother. Usman Goni has four sons and he does not remember
their names. He had voted 18 years back and he cannot remember the date and
year. He does not remember in which year his son Aminul Hoque was born.
8) The learned Tribunal, examined the pleadings and evidence on
record. The finding and decision of the learned Tribunal are as under:-
a. The learned Tribunal took note of the fact that the NRC of 1951
(Ext.A-1 and Ext.A-2) were a photocopy/ computer generated details,
which was not proved in accordance with law.
b. The Sale Deed dated 12.09.1973 (Ext.D) in respect of the land
purchased by the petitioner’s projected grandfather was discarded as
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there was no explanation that if the land existed, why the land did not
devolve on the legal heirs of petitioner’s grandfather.
c. The learned Tribunal took into account the entries made in the
voter list of 1979 (Ext.E), which contained 9 (nine names), out of
which the names of there was no pleading or evidence that Josimuddin
and Asia Khatun were family members.
d. In the voter list of 1979, Faziran Nessa, wife of Mohiruddin is aged
25 years and in the voter list of 1985, Sessa Khatun, wife of Mohir
Uddin is aged 29 years. Therefore, the learned Tribunal had doubted
as to whether the family of Mohiruddin of Ghugudoba village is same
family of Mohiruddin of village Dhobakura in voter list of 1979.
e. Moreover, the learned Tribunal found discrepancies in the age of
Faziran Nessa. In the voter list of 1979, the age of Faziran Nessa is 25
years, but in voter list of 1989 the age of Faziran Nessa is 29 years.
f. Moreover, the petitioner had disclosed the names of the siblings
of his father, out of which the name of one Osman Ali was not in the
voter list of 1989 (Ext.F).
g. Ext.G was the PAN Card of the petitioner, Aminul Hoque, where
the date of birth is recorded as 01.05.1988, which was doubted
because DW-2, the projected father of the petitioner could not
remember in which year his son was born.
h. The learned Tribunal had doubted whether Mohiruddin of the
voter list of 1979 was the same Mohiruddin, whose name appeared in
the voter list of 1989.
i. Due to change of village, the learned Tribunal had doubted as to
whether Mohiruddin and Faziron Nessa, whose name appear in the
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voter list of 1997 of village- Hashdoba (Ext.I) are the same Mohiruddin
and Faziron Nessa, whose name appear in the voter list of 1989 of
village- Ghugudoba (Ext.H).
j. The learned Tribunal had held that the school certificate (Ext.J)
was not proved by examining the author.
k. The learned Tribunal had noticed the names of Mohiruddin,
Faziron Nessa and other family members were noticed in the voter list
of 2005 (Ext.K) and 2013 (Ext.L), and EPIC of Aminul Hoque (Ext.M),
and held that the said documents do not establish link of the petitioner
with Mohiruddin and Pasan Ali.
l. The learned Tribunal had observed that in the vote list of 2015
(Ext.N), the name of the petitioner appeared for the first time
alongwith the family of Mohiruddin and Faziron Nessa of Hashdoba.
m. Moreover, as those names appear in three distinct places i.e.
Dhobakura, Ghugudoba and Hashdoba in documentary exhibits, it was
held that the family of Pasan Ali of Dhobakura is different from the
family at Ghugudoba in 1985 and family at Hashdoba from 1997
onwards.
n. The learned Tribunal had noticed that in voter list of 1970 (Ext.C),
one Parbati Nessa was the wife of Osman Ali, but in the voter list of
1979 (Ext.E), one Akiran Nessa was the wife of Osman Ali of Dobakura.
o. Mohiruddin (DW-2) had stated in his cross-examination that he
had casted his vote 18 years back and therefore, it was held that
Mohiruddin, whose name appeared in the voter list of 1970, was a
different person than Mohiruddin, whose name appeared in the voter
list of 2015 (Ext.N) from a different village.
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p. Accordingly, it was held that the exhibited documents did not
prove the existence of the petitioner with his ancestors, whose
presence in India is established from 01.01.1966.
q. Accordingly, it was held that the petitioner had failed to discharge his
burden under Section 9 of the Foreigners Act, 1946 to prove that he is
not a foreigner but an Indian citizen.
9) Assailing the impugned opinion, the learned counsel for the
petitioner had submitted that the petitioner is a migrant worker and he has
been declared to be a foreigner merely because of some discrepancies in the
names of his father and grandfather in some documents, which is not
sustainable in light of the decision of the Supreme Court of India in the case of
Sirajul Hoque v. State of Assam & Ors., (2019) 5 SCC 534. By referring to the
case of Abdul Matali v. Union of India & Ors., 2015 (2) GLT 617, it was
submitted that due to some anomalies in the names and age, the citizenship of
a person cannot be taken away. It was further submitted that the father of the
petitioner had deposed as DW-2, who had admitted that the petitioner was his
son and that evidence could not have been disbelieved by the learned Tribunal.
10) It was submitted that the petitioner had disclosed all material
facts in his written statement, which was proved through his deposition, which
was not dislodged during cross-examination and therefore, the documentary
exhibits could not have been discarded by the learned Tribunal. Thus, it was
submitted that the entire evidence of the petitioner as DW-1 and by his father
as DW-2 was illegally and arbitrarily disbelieved and discarded. Hence, it was
submitted that the impugned opinion be set aside and quashed.
11) It was submitted that NRC, though Computer generated, cannot
be disbelieved and was admissible in evidence and in support of his submission,
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the case of Shital Krushna Dhake v. Krushna Dagdu Dhake, 2018 SCC OnLine
Bom 206 was cited.
12) In the case of Shital Krushna Dhake (supra), the learned counsel
for the petitioner had expressed apprehension that the order dated 20.12.2017
and the order passed on that day, i.e. 02.02.2018, would be available on the
official website of the Bombay High Court and there is possibility that as it
would not be certified copy of the order, the trial Court may insist upon
producing certified copy. It is in the context of the said submission that the
Bombay High Court had expressed its view that the apprehension was
misplaced since the printout of the orders from the Court’s website has sanctity,
the trial Courts are expected to consider the orders, if they are cited after taking
a printout from the official website. Moreover, it was observed that those orders
are also available before the trial Court from the official website and there can
be a counter verification to find out whether such an order is actually uploaded
to the official website or not and in that backdrop, it was observed that there is
no harm if such printout from website are placed before the Court.
13) But the said order was passed on the facts of the case. The said
decision in the case of Shital Krushna Dhake (supra), is not an authority on the
point that computer generated printout from any official website would
constitute an admissible evidence as if the provision of Section 65-B of the
Evidence Act, 1872 has been rendered otiose. There are hundreds of orders by
this Court, whereby the authorities have been directed to act in accordance with
the downloaded copy of the orders passed by this Court, which does not mean
that without complying with the statutory requirement of manner and mode of
proving an electronic record, the Courts and Tribunals would start accepting
such downloaded copies as admissible evidence.
Page No.# 13/21
14) Therefore, the submission made by the learned counsel for the
petitioner that NRC cannot be disbelieved though it was a computer generated
document supported by the case of Shital Krushna Dhake (supra), appears to be
misplaced and it pains to record that the said submission rather exposes the
ignorance of the learned counsel for the petitioner in respect of manner and
mode of proof of an electronic and/or computer generated document in a
judicial and/or quasi judicial proceeding.
15) Along with his written statement, the petitioner had filed the
NRC of 1951 containing the names of Kulsum Nessa Bibi and 7 (seven) others of
village- Charai Khasra No. 266. The said copy was issued by the Officer-In-
Charge, Lakhipur P.S. under issue no. 303/94 dated 26.04.1994. However, while
the petitioner had exhibited the NRC of 1951 bearing Legacy Data Code: 200-
0012-3816, containing the standalone name of Mohiruddin Sheikh, bearing
Image Id. No. 10102225.
16) In the said regard, it may be mentioned that this Court, in the
case of Abdul Mojid @ Mojid Ali v. Union of India, 2019 (2) GLT 45, has held
that NRC extract produced to prove domicile in India is inadmissible in evidence.
Moreover, the NRC of 1951 was prepared under the Census Act, 1948 and as
per the provision of Section 15 of the said Act, the records of census are not
open to inspection nor are they admissible in evidence. Moreover, the NRC of
1951 (Ext.A-1) contains an Image Id bearing 10102225. It also contains a note
“Generated by DLDD Version 6.0”. The petitioner has also exhibited the printout
of the Image Id 10102225, purportedly containing family details as Ext.A-2.
Thus, both the said Ext.A-1 and Ext.A-2 are admitted by the petitioner to be
computer generated printout. Hence, the ratio of the case of Ahitan Nessa v.
Union of India & Ors., W.P. (C) 6443/2017, decided by this Court on 19.12.2017,
Page No.# 14/21
is found to be squarely applicable. In the said decision, this Court had held to
the effect that the NRC legacy data, besides being inadmissible evidence, is a
computer generated statement and therefore, the provision of Sub- Section 65-
B (4) of the Evidence Act, 1872 would be applicable.
17) The said two image id are computer generated documents.
Thus, without a certificate as required under Section 65B of the Evidence Act,
1872 corresponding to Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023,
would have no evidentiary value. If one needs any authority on the point, the
decision of the case of Anowar P.V. v. P.K. Basheer, (2014) 10 SCC 473 may be
referred to. Thus, Ext.A-1 and Ext.A-2 were inadmissible in evidence.
18) Coming to the voter’s lists exhibited by the petitioner, it is
observed as under:-
Name of voter and voter
list year
Relation Village Ext.No. Age
VL- 1966
Pasan Ali
Sokina Khatun
Karimon Nessa
Relation:
Late Patu
Pasan
Pasan
Dhobakura
Ext.B
46
32
33
VL- 1970
Pasan Ali
Sokina Khatun
Karimon Nessa
Usman Ali Sheikh
Mahruddin Sheikh
Pabotti Nessa
Relation:
Late Patu
Pasan Ali
Pasan Ali
Pasan Ali
Pasan Ali
Usman Ali
Dhobakura
Ext.C
49
35
36
22
21
21
VL- 1979
Pashan Sheikh
Sokina Khatun
Karimon Nessa
Usman Ali
Mohiruddin
Akiron Nessa
Faziron Nessa
Joshimuddin
Ashiya Khatun
Relation:
Patu Sheikh
Pashan
Pashan
Pashan
Pashan
Usman
Mohiruddin
Mejuddin
Joshimuddin
Dhobakura
Ext.E
56
42
43
28
28
26
25
35
28
Page No.# 15/21
VL- 1985
Mohiruddin
Nessa Khatun
Moyanuddin
Fulbhanu Nessa
Karimon Nessa
Relation:
Pasan Ali
Mohir Uddin
Pasan Ali
Moyan Ali
Pasan Ali
Ghugudoba
Ext.F
35
29
25
23
50
VL- 1989
Mohir Uddin
Nessaton Bibi
Usman Gani
Akiton Nessa
Moyanuddin
Fulbhanu Nessa
Karimon Nessa
Relation:
Pasan Ali
Mohir Uddin
Pasan
Usman
Pasan
Moyanuddin
Pasan
Ghugudoba
Ext.H
36
29
40
35
28
25
60
VL- 1997
Mohir Uddin
Faziron Nessa
Fojor Ali
Relation:
Pasan Ali
Mohir
Mohir
Hashdoba
Ext.I
48
39
18
VL- 2005
Mohir Uddin
Faziron Nessa
Fojor Ali
Mujhila Khatun
Foyjal Hoque
Relation:
Pasan Ali
Mohir Uddin
Mohir Uddin
Fojor Ali
Mohir Uddin
Hashdoba
Ext.K
55
25
25
18
18
VL- 2013
Mohir Uddin
Faziron Nessa
Fojor Ali
Mujhila Khatun
Foyjal Hoque
Relation:
Pashan Ali
Mohir Uddin
Mohir Uddin
Fojor Ali
Mohir Uddin
Hashdoba
Ext.L
62
32
32
25
25
VL- 2015
Mohir Uddin
Faziron Nessa
Fojor Ali
Mujhila Khatun
Foyjal Hoque
Aminul Hoque
Sahida Khatun
Sajida Khatun
Relation:
Pashan Ali
Mohir Uddin
Mohir Uddin
Fojor Ali
Mohir Uddin
Mohir Uddin
Sheikh
Aminul Hoque
Fayjal Hoque
Hashdoba
Ext.N
64
54
34
27
27
25
21
19
19) At this juncture, notwithstanding that the father of the petitioner
has four names, viz., Mohiruddin Sheikh @ Mahruddin Sheikh @ Mohiruddin @
Mohir Uddin, the Court does not take a serious note of the spelling
Page No.# 16/21
discrepancies in the names of the grandfather and father of the petitioner, which
appears on a comparative reading of the hereinbefore referred voters’ lists.
20) Thus, even after taking into account that the father of
Mohiruddin Sheikh @ Mahruddin Sheikh @ Mohiruddin @ Mohir Uddin is shown
to be Pasan Ali, but the petitioner has failed to show that all the projected
members of the family Pasan Ali or Mohiruddin or Aminul Hoque, the petitioner
are not continuously together in all the voters lists of three villages, i.e.
Dobakura, Ghugudoba and Hashdoba. It appears that to fill-up the gaps, the
defence of the petitioner is structured around the exhibited voter’s lists. Without
support of any document, it has been pleaded that there was shifting of the
family from Dobakura to Ghugudoba and Ghugudoba to Hashdoba. To match
with the names in the voter’s lists, it has been pleaded that there was mistake in
recording of names in voter lists.
21) Therefore, the petitioner has not been able to discharge his
burden to prove that Aminul Hoque, whose name appears in the voters list of
2015 (Ext.N) is related to Pasan Ali, whose name appears in the voter list of
1966 (Ext.B) and 1970 (Ext.C) and Mahruddin Sheikh, whose name appears in
the voter list of 1979 (Ext..C) of village- Dhobakura. There are age variations in
respect of several voters, specifically Faziron Nessa, who is 25 years in the voter
list of 1979 of village- Dhobakura, who is 39 years in the voter’s list of 1997 of
village- Hashdoba and is 25 years in the voter list of 2005 in Hashdoba village.
Thus, there are no other family members whose names consistently appear in
all the exhibited voters’ lists. If the names of other voters in the exhibited
voters’ lists remain same, then it may be an arguable point on behalf of the
petitioner that there is name of age discrepancy in the name or age of one or
two voters, which can be disregarded. In this regard, it may be appropriate to
Page No.# 17/21
refer to the decision of the Supreme Court of India in the case of Sirajul Hoque
v. State of Assam & Ors., (2019) 5 SCC 534, wherein it had been held to the
effect that when identity of all members of the family is established including
appellant, he cannot be declared a foreigner just because there is a discrepancy
in name of his grandfather in some documents. Thus, on facts, the said case of
Sirajul Hoque (supra), on which the learned counsel of the petitioner
22) The petitioner had exhibited sale deed of a plot of land which
Pasan Ali had purportedly purchased at Ghuguduba. The learned Tribunal had
not found it reliable. It is noticed that the petitioner or his father claim their
legacy from Pasan Ali. The petitioner had made a vague statement in his written
statement and evidence-on-affidavit that after partition of land his father had
shifted to Hashdoba. If that be correct then the original sale deed would not be
in the custody of the petitioner or his projected father, but it would be in the
custody of those persons who had retained the land covered by the sale deed.
The petitioner had not produced any land record showing entry to the effect
that the projected father of the petitioner had relinquished his share over the
property covered by the said sale deed (Ext.D). Therefore, the said sale deed
may at best be an evidence of sale, but cannot be a proof that the petitioner
had proved his link with the purchaser of the land.
23) The petitioner had exhibited his PAN Card (Ext.G) and EPIC of
Aminul Hoque (Ext.M). In that regard, it is well settled that PAN Card and EPIC
are not proof of citizenship. The petitioner has not adduced any evidence to
show that he is an Income Tax assessee and therefore, as PAN Card was issued
on the basis of self declaration by the petitioner, the petitioner ought to have
called for the relevant records from the office of the concerned Income Tax
Officer to prove from the records regarding the entries contained in PAN Card.
Page No.# 18/21
24) In the case of Md. Babul Islam v. Union of India & Ors., W.P.(C)
No. 3547/16, decided on 09.05.2018, this Court had held that PAN Card and
EPIC are not a valid piece of evidence in absence of supporting evidence and it
was further held that in any case, they were post reference documents.
25) The petitioner had exhibited the School certificate issued by the
Headmaster of Hashdoba Anchalik High School on 20.10.2017, stating therein
that the pupil named therein had left the school on 20.08.1999. The author of
the certificate had not come and deposed to support the certificate and the
petitioner had not called for the school admission register to prove the entries
made in the said school certificate (Ext.J). In this regard, the Supreme Court of
India, in the case of Birad Mal Singhvi v. Anand Purohit, 1988 (Supp.) SCC 604,
amongst others, had held the author of the certificate would have to prove the
certificate on the basis of school register. Therefore, the rejection of the said
document as a proof of link of the petitioner with his projected father cannot be
said to be held to be perverse.
26) The learned counsel for the petitioner had submitted that
Mohiruddin Sheikh, the father of the petitioner was examined as DW-2.
Therefore, the oral evidence of DW-2, admitting the petitioner to be his son
could not have been ignored or discarded and therefore, the impugned opinion
was perverse. In this regard, on the point as to whether by oral evidence,
citizenship can be proved, is well settled. In the case of Basiron Nessa v. Union
of India & Ors., 2018 (4) GLT 692, this Court had held that documentary
evidence must be proved from record and not solely by oral testimony. This
Court has also held in the case of Bijoy Das v. Union of India & Ors., (2018) 4
GLR 599, 2018 (3) GLT 118, that it is trite that mere filing of written statement
and oral testimony in a proceeding under Foreigners Act, 1946 would not be
Page No.# 19/21
enough. The fact-in-issue would have to be proved by the proceedee by
adducing documentary evidence which is admissible and relevant. Thus, the oral
evidence of DW-2 cannot be said to be a sufficient evidence to prove that the
petitioner has been able to link himself with Mahruddin Sheikh, whose name is
recorded in the voter list of 1970 (Ext.C), or with Pashan Sheikh, whose name is
recorded in the voter list of 1966 (Ext.B). Moreover, the oral evidence of the
DW-2 also does not prove that he is the same person whose name appears in
the voter list of 1970 (Ext.C) and in the voter list of 2015 (Ext.N).
27) Thus, though the petitioner had exhibited 15 (fifteen) documents
as exhibits, the same does not appear to help the petitioner to establish that he
has been able to discharge his burden as required under Section 9 of the
Foreigners Act, 1964 to prove that he is not a foreigner but an Indian Citizen.
28) The Supreme Court of India, in the case of Central Council for
Research in Ayurvedic Sciences & Anr. v. Bikartan Das, (2023) 16 SCC 462 ,
observed and held as under: -
48. Before we close this matter, we would like to observe something important in
the aforesaid context:
Two cardinal principles of law governing exercise of extraordinary jurisdiction
under Article 226 of the Constitution more particularly when it comes to issue
of writ of certiorari.
49. The first cardinal principle of law that governs the exercise of extraordinary
jurisdiction under Article 226 of the Constitution, more particularly when it comes
to the issue of a writ of certiorari is that in granting such a writ, the High Court
does not exercise the powers of Appellate Tribunal. It does not review or reweigh
the evidence upon which the determination of the inferior tribunal purports to be
based. It demolishes the order which it considers to be without jurisdiction or
palpably erroneous but does not substitute its own views for those of the inferior
tribunal. The writ of certiorari can be issued if an error of law is apparent on the
face of the record. A writ of certiorari, being a high prerogative writ, should not be
issued on mere asking.
Page No.# 20/21
50. The second cardinal principle of exercise of extraordinary jurisdiction under
Article 226 of the Constitution is that in a given case, even if some action or order
challenged in the writ petition is found to be illegal and invalid, the High Court
while exercising its extraordinary jurisdiction thereunder can refuse to upset it with
a view to doing substantial justice between the parties. Article 226 of the
Constitution grants an extraordinary remedy, which is essentially discretionary,
although founded on legal injury. It is perfectly open for the writ court, exercising
this flexible power to pass such orders as public interest dictates & equity projects.
The legal formulations cannot be enforced divorced from the realities of the fact
situation of the case. While administering law, it is to be tempered with equity and
if the equitable situation demands after setting right the legal formulations, not to
take it to the logical end, the High Court would be failing in its duty if it does not
notice equitable consideration and mould the final order in exercise of its
extraordinary jurisdiction. Any other approach would render the High Court a
normal court of appeal which it is not."
29) On the point of when certiorari jurisdiction it would be also
relevant to refer to paragraph nos. 20 to 23 of the case of Hari Vishnu Kamath
v. Ahmad Ishaque, AIR 1955 SC 233: (1954) 0 Supreme(SC) 175, decided by
the Constitution Bench of the Supreme Court of India, where it had been held
that “… An error in the decision or determination itself may also be amenable to
a writ of certiorari but it must be a manifest error apparent on the face of the
proceedings, e.g., when it is based on clear ignorance or disregard to the
provisions of law. In other words, it is a patent error which can be corrected by
certiorari but not a mere wrong decision.”
30) In this case in hand, the petitioner has not been able to establish
that the learned Tribunal had committed any patent error in appreciating the
pleadings and evidence on record, or that it considered extraneous materials or
that the decision was based on ignorance of law or in disregard to the
provisions of law.
31) In the light of the discussions made hereinbefore, the Court
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finds no material to hold that the opinion assailed in this writ petition is bad on
facts or in law. The learned counsel for the petitioner could not show that the
said opinion was perverse on any count whatsoever. Therefore, this challenge
fails and consequently, this writ petition is dismissed.
32) The consequences of opinion dated 28.02.2019, passed by the
learned Member, Foreigners Tribunal No.4, Kamrup (M), Guwahati, in FT Case
No. FT[K(M)-4] 1077/2017, arising out of F.T. Case No. 842/2016, would follow.
33) The Registry shall return back the learned Tribunal’s records
along with a copy of this judgment and order, so that the learned Tribunal may
make it a part of the record.
34) The learned Standing Counsel for the respondents shall also
transmit a downloaded copy of this order to the respective respondent
authorities.
35) The parties are left to bear their own cost.
JUDGE JUDGE .
Digitally signed by Champak Rajbongshi
Date: 2026.06.30 13:11:12 +05'30'
Comparing Assistant Private Secretary