Aklima Begum vs The Union Of India And 5 Ors.

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GAHC010184382022

2026:GAU-AS:15643-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6051/2022
AKLIMA BEGUM
D/O- ABID ALI SHEIKH @ LATE ABED ALI,
W/O- JABBAR SHEIKH,
R/O- VILLAGE AMLOKHI DOLONI,
P.O AND P.S- HALEM,
DIST- SONITPUR (NEW BISWANATH ) , ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF
INDIA, GRIHA MANTRALAYA, NEW DELHI- 110001.
2:THE STATE OF ASSAM
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6
3:THE ELECTION COMMISSION OF INDIA
REP. BY THE CHIEF ELECTION COMMISSIONER OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI-110001
4:THE STATE COORDINATOR
NATIONAL REGISTER OF CITIZENS
ASSAM
BHANGAGARH
GUWAHATI-05
DIST- KAMRUP (M)

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5:THE DEPUTY COMMISSIONER
BISWANATH
DIST- BISWANATH
ASSAM
PIN-7984176
ASSAM
PIN-784001
6:THE SUPERINTENDENT OF POLICE (B)
BISWANATH
DIST- BISWANATH
ASSAM
PIN-7984176
ASSAM
PIN-78400
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE PRANJAL DAS

For the petitioner : Mr. S.C. Biswas, Mr. F.A. Hasan, Advocate.
For respondents : Mr. B. Sharma, CGC.
: Mr. G. Sarma, SC, FT & Border.
: Mr. P. Sarmah, Addl. Sr. Govt. Advocate.
: Mr. A.I. Ali, SC, ECI.
Date on which judgment is reserved : 08.10.2026
Date of pronouncement of judgment : 14.10.2026
Whether the pronouncement is of
the operative part of the judgment? : No
Whether the full judgment has been
Pronounced? : Yes

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JUDGMENT AND ORDER
(CAV)
(K.R. Surana, J.)
Heard Mr. S.C. Biswas and Mr. F.A. Hassan, learned counsel for the
petitioner. Also heard Mr. G. Sharma, learned standing counsel for FT and
Border matters; Mr. N. Kalita, learned counsel appearing on behalf of Mr. A.I. Ali,
learned standing counsel for ECI; Mr. B. Sharma, learned CGC for the Union of
India; and Mr. P. Sarmah, learned Addl. Senior Government Advocate for the
State.
2) By filing this writ petition under Article 226 of the Constitution
of India, the petitioner, namely, Aklima Begum, has assailed the opinion
th
30.06.2022 passed by the learned Member, Foreigners’ Tribunal 4 , Tezpur at
Gohpur in F.T. (T-4)/GPR. Case No. 1058/2016 [arising out of S.P. Ref. Case No.
– Tz(B)/98/567/GPR LAC/ dated 06.04.1998; ERO. Ref. No.-BNE.25/97/8/ dated
18.11.1997: D.C. Case No.2090/2013], by which she was declared to be a
foreigner of post 25.03.1971 stream.
3) Assailing the impugned opinion, the learned counsel for the
petitioner has submitted that the verification report on the basis of which the
reference was made was blank and therefore, it was submitted that the learned
Tribunal could not have examined the records beyond the scope of reference. It
has been submitted that the exhibited documents were not properly appreciated
by the learned Tribunal and accordingly, the impugned opinion is not
sustainable. It was further submitted that the records were casually dealt with
by the learned Tribunal as the exhibited documents do not contain the seal and
signature of the learned Tribunal. It was submitted that the LVO Report was

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blank and not properly filled-up and therefore, the investigation was not proper,
which vitiates the reference.
4) In support of his submissions, the learned counsel for the
petitioner had cited the following cases, viz., (i) Rafiq and Anr. v. Munshilal and
Anr., (1981) 2 SCC 788, (ii)Sona Kha v. Sona Khan v. Union of India & Ors.,
2021 (3) GLT 12, (iii) Santosh Das v. Union of India & Ors., 2017 (2) GLT 1065,
(iv)Thatithoi Chiru & Ors. v. Ningampao Kabui (deceased, by LRs) & Ors., AIR
1989 Gau 7.
5) Per contra, the learned standing counsel for the FT and Border
matters has made his submissions in support of the impugned opinion. In
support of his submissions, the learned standing counsel for the Border and FT
matters has cited the case of Shukurjan Nessa @ Sukurjan v. The Union of India
& Ors., W.P.(C) 245/2019, decided on 28.02.2025.
6) Considered the submissions and perused the records of the
learned Tribunal, which was called for and received.
7) On perusal of the Tribunal's records, it appears that on receipt
of notice of the proceedings, the petitioner appeared before the learned Tribunal
and had she had filed her written statement as well as her evidence-on-
affidavit on 21.01.2020. She was cross-examined on 05.02.2020. It may be
stated that on 25.02.2020, the petitioner had examined one Manowar Hussain
as DW-2, who had projected himself to be the brother of the petitioner and he
was cross-examined and discharged. The records reveal that on four occasions,
the learned Tribunal had fixed the matter for argument. Ultimately, the matter
was fixed on 22.04.2022 for passing of the opinion after hearing the learned
Assistant Govt. Pleader. However, on 20.04.2022, the petitioner appeared before

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the learned Tribunal and filed her additional written statement as well as her
additional evidence-on- affidavit on 20.04.2022 and the learned Asst. Govt.
Pleader had cross-examined the petitioner on the same date and the matter was
re-fixed on 22.04.2022 for passing the opinion.
8) However, the opinion could not be delivered on 22.04.2022 and
the matter was again taken up on 18.06.2022 and on the said day, on a prayer
made by the petitioner, the petitioner was permitted to examine 2 (two) more
witnesses. Accordingly, on 18.06.2022, the petitioner had examined Mohammed
Akbar Hussain, the projected brother of the petitioner as DW-3, as well as one
Jigna Ram Sarmah, the LDA in Deputy Registrar’s Office as DW-4. The said DW-
3 and DW-4 were cross-examined on the same day and discharged. Accordingly,
the matter was fixed on 30.06.2022 for passing final opinion.
9) It may be stated that in her written statement, the petitioner,
apart from usual denial, had stated that she is the daughter of Abed Ali and
Raju Bala Khatun; she was born at village town Kasalukhua Panigaon, Mouza-
Town, P.S.Sadar, District-Nagaon, Assam. She had stated that the name of her
father is recorded in the voter details of 1966 and her mother's name is
recorded in the voter list of 1971 and they were permanent of the same village.
She stated that she was casting her vote and her voter details is recorded in the
voter list of Ward No. 20, Shankardev Path, P.S. Nagaon Sadar, in the district of
Nagaon and according to her PAN card, her date of birth is 01.10.1971. She had
stated that she was presently living with her husband at Amlokhi Doloni, Mouza-
P.O. and P.S.-Halem, district-Biswanath, Assam, for her husband's business
purpose. The petitioner had also referred to the voter list of 1966 and 1971 of
the petitioner and her family members; her Voter identity card; her PAN card
and legacy data in the name of the father of the petitioner. In her additional

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written statement filed on 20.04.2022, the petitioner had stated that her father’s
name is Md. Abed Ali, resident of village-Panigaon, Mouza-Nagaon, P.S. Nagaon
Sadar, District- Nagaon. The name of her husband is Md. Jabbar Seikh, resident
of village No.1, Mullapatti, Mouza-Kachamari, P.S.- Nagaon Sadar, District-
Nagaon. She had also stated that the information referred hereinbefore are in
Kabin nama (marriage certificate under Muslim Marriage Act) dated 15.02.1989
of Md. Jabbar Seikh and Aklima Begum.
10) The statements made by the petitioner in her written statement
were reiterated in her evidence-on- affidavit and the statements made in her
additional written statement were reiterated in her additional evidence- on-
affidavit. The petitioner had exhibited the following documents, viz., (a) certified
copy of voter list of 1966 and 1971 in the name of her father and mother
(Ext.i); (b) certified copy of voter list in name of her and her family (Ext.ii); (c)
her voter id card (Ext.iii); (d) her PAN Card (Ext.iv); (e) legacy data in the name
of her father (Ext.v).
11) In her cross-examination, the DW-1 had stated that her father
had 5 (five) brothers, namely, Hyder Ali, Abed Ali, Dil Mamud, Noor and Muslim.
Her name was Raju Bala. Her father had expired about 25 years back but her
mother was still alive. Her uncles have casted their vote with her father.
Originally, her father was born at Nagaon, Panigaon. She was married at
Haibargaon in Nagaon with one Jabbar Seikh. Her father did not have landed
property. Her father had casted vote and her mother was still casting her vote.
They are 8 (eight) brothers and sisters, namely, Amir Hussain, Monowar
Hussain, Sanowar Hussain, Akbar Hussain, Pyar Hussain, herself, Hazara Begum
and Babul Hussain. She had taken admission in School but she did not pursue
her studies further. She had stated that she had submitted certified copy of

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voter list of 1966, 2018, Voter id Card, PAN Card and legacy data. In her cross-
examination in respect of additional evidence, the petitioner had stated that she
was married to Jabbar Seikh of Nagaon, Dhing No.1 Mullapatty. Father of Jabbar
Seikh is Sheikh Badshah. She was married to Jabbar Seikh in the year 1989. Her
father is Abed Ali, son of Tarif Ali Seikh. Originally, she is from Nagaon,
Panigaon.
12) The records further reveal that the following documents are
available in the learned Tribunal’s records, viz., 2 (two) certified copy of voter
lists of 1966; certified copy of voter list of 2018; proved in original photocopy of
voter id card of the petitioner, bearing seal and signature of someone, who is
not the learned Member; proved in original photocopy of PAN card of the
petitioner, bearing seal and signature of someone who is not the learned
Member; proved in original photocopy of voter id card of the Manowar Hussain,
bearing seal and signature of someone who is not the learned Member. No
statement has been made in the writ petition to disclose the name and
designation of the person whose signature appears in three photocopies
referred above. It may also be stated that there are photocopies of several
other documents in the learned Tribunal’s records, but neither the original of
those documents were exhibited nor their proved in original photocopies are
marked as exhibits.
13) The learned counsel for the petitioner had submitted that the
learned Tribunal had handled the exhibited documents in a casual manner, but
on a perusal of the Tribunal’s record, it is noticed that though some of the
documents were marked as exhibits that were proved in original, but the said
documents are also not marked by giving exhibit numbers.
14) The DW-2 had claimed to be the brother of the petitioner. He

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had stated that they were 8 (eight) brothers and sisters and disclosed their
respective names. The name of his grandfather is Late Tarib. His father had five
brothers and sisters and disclosed their respective names. He had stated that all
his father’s brothers had casted their vote at Nagaon. The husband of petitioner
is Jabbar Sheikh. They went to reside at Halem for business purpose. In his
cross-examination, DW-2 had stated that his grandmother is Raju Bala. As per
his memory, his elder brother Amir Hussain had casted his vote with his father.
His father had expired in the year 1996-1997 and had lastly casted his vote in
the year 1993. He had also casted his vote with his father. His mother was still
alive and she was staying with him and still casting her vote. His father did not
have landed property. He has two children. Petitioner has 4 (four) children,
namely, Ekbal Sheikh, Imran Sheik, Alman Sheikh and Anju Sheikh (nickname)
and he did not his original name. He had stated that all the children of the
petitioner had casted their vote. The petitioner had casted vote after her
marriage, i.e. after 1983.
15) The DW-3 had stated that the petitioner is her sister. They are 8
(eight) brothers and sisters and all of them including Aklima had casted their
vote. His sister Aklima had casted vote at No.1 Mulakati, Dhing Syndicate. His
parents had casted their vote. His father had 5 (five) brothers and sisters and
disclosed their names. Abed Ali had 8 (eight) children whose names were
disclosed by DW-3. He had stated that his sister did not have any formal
education. From 1991-1992, his sister was casting her vote from Dhing Centre
after marriage and she was married in 1989. Her husband is Jabbar Seikh. In
his cross-examination, DW-3 had stated that his grandfather is Late Toyab Ali
Sheikh and grandmothers are Umarjan and Ambia. He was born in Nagaon,
Panigaon. His father had died in the year 1992 and until his death, he was

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casting his vote. His father does not have landed property. Originally, they are
from Panigaon, Nagaon and her sister was given marriage at Dhing and after
marriage, his sister had casted vote. The neighbour of petitioner’s husband are
Late Makbul and Hoku at Dhing. The husband of the petitioner has 5 (five)
brothers, namely, Sattar, Jabbar, Rezak, Kadir and he did not remember the
other name. The petitioner has 4 (four) children and the age of the elder is 32.
At Panigaon, they all brothers used to reside and all had casted vote.
16) Sri Jigna Ram Sarmah, the DW-4 had stated in his examination-
in- chief that on receiving summons he had appeared before the Tribunal. The
Kabil nama is of Nagaon Sadar Kazi, which was finally submitted to their office
and the record of submission of Kabil nama is brought by him before the
learned Tribunal. The name of Md. Abdul Jabbar Skeikh, son of Sheikh Badshah
of village- No.1 Mullapatti, Mouza- Kachomari, Dist. Nagaon is there in the
record which he had brought. Another name, Musstt. Aklima Begum, daughter
of Abed Ali, village- Panigaon Mouza/P.S.- Nagaon, Dist. Nagaon, is shown
according to the record and the serial number is 69/1989 and the Kabil was
registered on 15.02.1989. In his cross-examination, the DW-4 had stated that
the Kabil nama, which he had brought shows the name of Abdul Jabbar Sheikh.
The signature of the bride Aklima Begum as well as the signature of her
guardian was not there in the record which he had brought before the learned
Tribunal.
17) Thus, none of the exhibited documents have been proved in
accordance with law. No attempt has been made to exhibit the contents of the
exhibited documents. It is also seen that the petitioner had not disclosed her
relationship with names which appear in the voters list of 1966 and 2018. The
petitioner had made no attempt to produce and exhibit any document from

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where one can get the family of the petitioner’s (i) projected grandfather; (ii)
projected father; and (iii) her own family. The petitioner is not an Income Tax
payee and the petitioner had not exhibited any IT return, if any, submitted by
the petitioner before the Income Tax Department. Moreover, PAN Card and voter
id card are not pre-1971 document and therefore, does not conclusively prove
that the name of the relation of the petitioner, as disclosed therein are in any
manner related to her and that is not how relationship is proved. The petitioner
did not make any attempt to prove her application, based on which voter id card
and PAN card had been issued.
18) This Court, in the case of Md. Babul Islam v. Union of India &
Ors., W.P.(C) 3547/2016, decided on 09.05.2018, had held that EPIC and PAN
Card is not a valid piece of evidence in absence of supporting evidence and it
was further held that they were post reference document. Moreover, it was also
held that if date of birth is known to the petitioner, it should have been
mentioned in the written statement.
19) Though the petitioner had examined her projected brothers as
DW-2 and DW-3, but the petitioner had made no attempt to either prove that
the DW-2 and DW-3 had casted their vote with her father or to prove that she
had casted her vote with DW-2 and DW-3. In the said context, it may be stated
that entries made in the voter list would only prove that the person whose name
appears in a particular voter list was a voter of that year from the village
concerned, but mere entries in the voter list is not sufficient to prove
relationship between voters of two distinct and separate voter list. It is well
known that voter lists are available in public domain and there is no statutory
bar for anyone to obtain any particular voter’s certified copy. Therefore,
relationship of the petitioner with her projected father and projected brothers

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can only be proved by supporting cogent, reliable and admissible evidence,
which the petitioner had failed to prove. Though the mother of the petitioner is
alive, but proof of her name appearing in the voter list is not disclosed. In fact,
in her written statement, the petitioner had not disclosed the name of her
mother.
20) Therefore, the evidence of the DW-1, DW-2 and DW-3 are not
found to help the petitioner in any manner whatsoever.
Lack of signature in Kabin Nama:
21) The Kabin Nama (also spelt as Kabil nama at a few places)
produced by the DW-4 before the learned Tribunal, admittedly, did not contain
the signature of the petitioner and her guardians. Under the Assam Moslem
Marriage Act, 1935 and Assam Moslem Marriage Rules, 1936, the marriage
register must contain the signature of the groom and the bride. As per Rule 51
of the Assam Moslem Marriages and Divorces Registration Rules, 1935, a
Moslem Registrar or other officer whom the District Registrar may depute can
only produce the marriage register to prove the same before a Court of law.
Thus, the defect in the kabin nama, which does not contain the signature of the
petitioner and not proved in accordance with law, renders the document as
inadmissible in evidence. Thus, the evidence of the DW-4 also does not help the
petitioner to establish her case in any manner whatsoever. Thus, as the DW-4
was an LDA of the Office of the Deputy Registrar, Nagaon and not the Moslem
Registrar or person authorized by the District Registrar, did not exhibit his
authority to exhibit the marriage register. Nonetheless, be that as it may, as per
his evidence, the Kabin nama, brought by him did not contain the signature of
the bride, Aklima Begum and her guardian was not there. Rule 31 of the Assam
Moslem Marriages and Divorces Registration Rules, 1935, requires person who,

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by Section 10 of the Assam Moslem Marriages and Divorces Registration Act,
1935, are required to sign the register if the entries are admitted to ne correct.
Section 10 of the Assam Moslem Marriages and Divorces Registration Act, 1935
prescribes the persons who may sign the entries made in the Moslem Marriage
Register, which includes the parties to the marriage, and if the parties are minor,
the entries are required to be signed by their lawful guardians. Thus, the
Marriage Register and the entries therein are not found to be proved in
accordance with the prescription of the Assam Moslem Marriages and Divorces
Registration Act, 1935 and Rules framed thereunder.
Blank LVO Report:
22) One of the submissions was to the effect that the LVO report
was blank and not properly filled up, for which there was no proper
investigation, which had vitiated the proceedings and consequently, the
impugned opinion. The said issue is taken up.
23) In this case, the reference was made by the Superintendent of
Police (Border), Sonitpur, Tezpur (now Biswanath), on receipt of communication
bearing no. BNE.25/97/7 dated 18.11.1997, issued by the Electoral Registration
Officer, 78 No. Gohpur L.A.C., whose name is disclosed in Form-VII, available in
the Tribunal’s record, which is accompanied with a three page Local Verification
Report (Annexure-A) by the Local Verification Officer. In the said LVO Report
dated 27.09.1997, it has been mentioned at two places against serial no. 6 to 16
as ‘nil”. The same is suggestive of the fact that no documents produced by the
petitioner during field verification.
24) Therefore, this is not a case where any enquiry was made under
the provisions of Foreigners Act, 1946 or Rules framed thereunder, where

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investigation is done under the authority of the Superintendent of Police
(Border). The jurisdictional Superintendent of Police (Border) is the prescribed
authority to make reference before the Illegal Migrants (Determination) Tribunal
constituted under the erstwhile Illegal Migrants (Determination by Tribunals)
Act, 1983 and Rules framed thereunder.
25) Therefore, in this case, the E.R.O., 78 Gohpur LAC had addressed
the reference to the Chairman, Illegal Migrants (Determination) Tribunal,
Sonitpur, Tezpur. On receipt of the same, the police authority had opened a case
diary on 16.03.1998, to fill-up the Form-VII under the IM(DT) Act. Accordingly,
the Form-VII was sent to the Superintendent of Police (Border), Sonitpur,
Tezpur. Accordingly, the Superintendent of Police (Border), Sonitpur, Tezpur, who
is the prescribed authority to submit reference, had forwarded the reference
made by the E.R.O., 78 Gohpur LAC, Biswanath, to the Chairman, IM(D)T,
Sonitpur, Tezpur, vide memo no, Tz(B)/98/567/GPR LAC/ dated 06.04.1998.
26) 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. This Bench is 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

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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
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

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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.
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,

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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
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

Page No.# 17/28
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
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.

27) The said judgment by the learned Single Judge was affirmed by
the Division Bench of this Court by judgment and order dated 29.07.2019,
passed in the case of Sayam Uddin v. The Union of India & Ors., W.A. 170/2019.
28) It may be mentioned that the references pending before the
Illegal Migrants (Determination) Tribunals in the State were transferred by the
Supreme Court of India to the Foreigners Tribunal vide directions issued in the
case of Sarbananda Sonowal v. The Union of India & Ors., (2005) 5 SCC 665.
The said fact has been stated in para-1 of the impugned opinion. Hence, this
Court would refrain from making any observations on the LVO Report in this
case because the Foreigners Tribunals would have no power or jurisdiction to
remand the reference back to the Superintendent of Police (Border) for a fresh
enquiry by the LVO/ERO, because the transfer was made pursuant to the
directions passed by the Supreme Court of India, as referred hereinbefore.
29) Therefore, the challenge to the proceeding before the learned

Page No.# 18/28
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 said point is answered
accordingly.
Notice served on petitioner contains two distinct accusations, firstly, that she
entered into India (Assam) between 01.01.1966 and 24.03.1971 and secondly,
that she had entered into India (Assam) after 25.03.1971:
30) The learned counsel for the petitioner had submitted that the
notice/summons issued to the petitioner by the learned Tribunal contained
allegation that the petitioner was a foreigner of period between 01.01.1966 and
24.03.1971 and she was also alleged to be a foreigner of post 15.03.1971. In
this regard, by citing the case of Sona Kha @ Sona Khan (supra), it was
submitted that the reference was answered beyond the reference without
putting the petitioner to notice of the real charge against her.
31) In the said regard, it would be appropriate to mention that
However, while issuing notice, the learned Tribunal had failed to strike the
period of entry of the petitioner “between 01.01.1966 and 24.03.1971” and
“after 25.03.1971”. The petitioner did not take such a plea in her written
statement and therefore, this point appears to have been taken up for the first
time in this writ petition. Be that as it may, under the provisions of the
Foreigners Act, 1946, a reference can only be made as to whether or not a
person is a foreigner within the meaning of Section 2(a) of the Foreigners Act,
1946. Upon reading Paragraph 2(1) of the Foreigners (Tribunals) Order, 1964, it
is discernible that a reference is made to a Tribunal for its opinion whether a
person is a foreigner within the meaning of Section 2(a) of the Foreigners Act,

Page No.# 19/28
1946. Thus, if no reference is made, the Foreigners Tribunals cannot assume
jurisdiction, but only after the reference is made, the Tribunal would have to
confine itself to the terms of reference and render its opinion. This Court in the
case of Aziz Miya @ Md. Aziz Mia v. Union of India & Ors., 2023 (4) GLT 246,
had held that the provisions of Paragraph 2 of the Foreigners (Tribunals) Order,
1964 make it explicit that it is the jurisdictional Superintendent of Police
(Border),is the empowered authority to take a decision based upon the report of
the inquiry or any further materials that may be available as to whether a
person concerned is required to be referred to a Tribunal for its opinion as to
whether he is a foreigner or not.
32) As regards non-mentioning and/or wrong mentioning of the
stream when the suspected foreigner had entered illegally into India (Assam), it
would be appropriate to refer to the decision of this Court in the case of Ananda
Ghosh v. Union of India & Ors., 2017 (2) GLT 996, which is quoted below:-
10. Question for consideration is whether such a finding of the Tribunal would
stand vitiated by non-mentioning in the two notices issued to the petitioner that
the allegation against him was of being a foreigner who had illegally entered into
India (Assam) after 25.03.1971?
11. As already noticed above, the reference made by the Superintendent of
Police to the Tribunal was specific. Petitioner was a Bangladeshi national who had
illegally entered into India (Assam) after 03.25.1971. Prima facie, it was the
mistake of the Tribunal not to have specifically mentioned this in the two notices
issued to the petitioner. However, from the materials on record. Tribunal came to
the conclusion and thereafter rendered its opinion that petitioner was a foreigner
who had illegally entered into India (Assam) after 25.03.1971. The reference was
answered accordingly.
12. In a recent decision of this Court in the case of Mustt. Abiran Nessa Vs.
Union of India (W.A. 200/2016), decided on 27.3.17, it has been held that wrong
mentioning of the foreigners’ stream as classified under Section 6A of the
Citizenship Act. 1955 to which the noticee belongs would not vitiate the
proceeding before the Tribunal or consequential order passed by the Tribunal if the

Page No.# 20/28
materials on record discloses that the noticee actually belongs to the stream of
foreigners which has been ultimately held to be so by the Tribunal. Wrong
mentioning of the stream of foreigners to which the noticee belongs contrary to
the reference made by the State would not vitiate the order passed by the Tribunal
and would not confer any undue advantage to a proceedee or enable a proceedee
to improve his status. It was held as follows:-
"10. Thus, materials on record, as found by the learned Single Judge,
disclosed that appellant was a foreigner who had illegally entered into India
(Assam) from the specified territory after 25.03.1971. The reference was also
made accordingly.
11. It is trite that non-mentioning or wrong mentioning of a provision would
not invalidate an order if such an order can be traced to a valid source. In
such a situation, Court would examine whether the order in question has any
legal sanctity and whether it can be traced to a valid source of power. If it
can be traced to a valid source of law, wrong mentioning of the provision of
law in the order impugned would be immaterial.
12. By applying the same analogy, it can also be said that wrong
mentioning of the foreigners stream as classified under Section of the
Citizenship Act, 1955, as amended, to which the noticee belongs would not
vitiate the proceeding or the consequential order passed by the Tribunal if
materials on record disclose that the notices actually belongs to the stream of
foreigners, which has been ultimately held to be so by the Tribunal. Such
wrong mentioning contrary to the materials on record or contrary to the
reference made would not confer any undue advantage to a proceedee or
enable a proceedee to improve his/her status. Therefore, on this count, we
cannot condemn the order passed by the Tribunal which has been rightly
affirmed by the learned Single Judge.
13. Having regard to the above, we have no hesitation to hold that when
the reference was as to whether petitioner was a foreigner belonging to the
post 25.03.1971 stream, non-mentioning of the same or wrong-mentioning
of the stream of foreigners to which the petitioner belongs in the notices
would not vitiate the ultimate conclusion reached by the Tribunal that
petitioner was a foreigner of post 25.03.1971 stream. Since the reference
was answered in favour of the State, it ought to be and has rightly been
answered in the above manner. As a matter of fact, this issue was not even
raised by the petitioner in his written statement possibly because he was fully
aware that the allegation against him was of being a foreigner belonging to
the post 25.03.1971 stream. Therefore, this ground urged on behalf of the

Page No.# 21/28
petitioner stands rejected. However, before moving on to the next ground,
we would like to observe that the Tribunal ought to have been careful while
issuing the notices. We hope and expect that such mistakes would not be
repeated in future.”
33) In the same context, it would be relevant to quote paragraph
nos. 10, 12, 13 and 21 of the case of Rukia Begum Barbhuiya v. Union of India
& Ors., 2023 (1) GLT 1208.
10. A reading of Rule 2(1) of the Foreigners Tribunal Order 1964 makes it
discernible that 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 constituted for the purpose. The statutory provision of Rule 2(1)
makes it explicit that the reference to be made by a Tribunal would be the
question as to whether a person is or is not a foreigner within the meaning of the
Foreigners Act 1946. Section 2(a) of the Foreigners Act 1946 defines foreigner to
mean a person who is not a citizen of India. In other words, going by the meaning
given to the expression foreigner under Section 2(a) of the Foreigners Act 1946 a
reference made to the Tribunal would be as to whether the person concerned is a
citizen of India or he is not a citizen of India.
*
12. A reading of the provisions of Section 6-A makes it explicit that it is a
special provision as to citizenship of persons covered by the Assam Accord and the
core provisions of Section 6-A are that a person who may have entered the State
of Assam from the specified territory prior to 01.01.1966 shall be deemed to be a
st
citizen of India from the 1 day of January, 1966. The further provision is that such
persons who entered the State of Assam from the specified territory after
01.01.1966, but before 25.03.1971 from the specified territory, and has been
detected to be a foreigner, shall register himself with the Foreigners Registering
Authority of the district concerned and upon having been registered shall be
debarred of any voting rights for a period of ten years, but otherwise retaining all
such other rights that a citizen of India may be bestowed with under the
provisions and further that upon expiry of the period of ten years, even the voting
rights would be restored back. In case of persons, who had entered the State of
Assam from the specified territory on or after 25.3.1971, such persons are to be
declared as foreigners.
13. In view of the provisions of Section 6-A of the Citizenship Act 1955.
Clause 2(1) of the Foreigners (Tribunal) Order, 1964 would now have to be

Page No.# 22/28
understood that once a reference is made, the reference would be whether the
person concerned is or is not a foreigner, meaning thereby, whether the person
concerned is a foreigner, who had entered the State of Assam from the specified
territory on or after 25.03.1971 or he is a person who belongs to any of the other
categories i.e., a person who entered the State of Assam from the specified
territory before 01.01.1966 or between 01.01.1966 and 25.03.1971. No other
meaning can be attributed to the reference under Clause 2(1) of the Foreigners
Tribunal Order 1964 i.e. whether a person is or is not a foreigner within the
meaning of the Foreigners Act 1946. We further take note that even if a reference
is made by setting up a question whether the person had entered the State of
Assam from the specified territory between 01.01.1966 and 25.03.1971, the
reference would have to be understood to be a reference under Clause 2(1) of the
Foreigners Tribunal Order 1964 i.e., as to whether he is a foreigner or not. If the
reference is worded whether the person concerned, is a person who had entered
the State of Assam from the specified territory between 1.1.1966 and 25.03.1971,
in order to arrive at any such conclusion that the reference itself is faulty inasmuch
as the decision of the Tribunal upon the materials on record would be that the
person concerned had entered the State of Assam from the specified territory on
or after 25.03.1971, in such circumstance, the only situation that can be envisaged
is that the Tribunal first arrives at a conclusion of its own that the person
concerned had entered the State of Assam from the specified territory on or after
25.03.1971, meaning thereby that the reference itself had been answered by the
Tribunal. After having answered the reference, it would be an inconceivable
situation that merely because the reference is worded whether the person had
entered the State of Assam from the specified territory between 01.01.1966 and
25.03.1971 it has to be referred back to the referral authority to make a fair
reference now putting up a question whether the person concerned had entered
the State of Assam on or after 25.03.1971. In such situation, as the matter would
have to be referred back only after a final decision has been arrived at and now if
the reference is again made with a corrected expression in the questions framed,
the same may lead to further complications that the subsequent reference would
be barred by the principles of res judicata inasmuch as it would be a subsequent
reference on the same issue between the same set of parties where an earlier
decision had already been arrived at. It is noticed that in Falani Bibi (supra) the
aforesaid aspect of the further implication of a corrected reference being again
made had not been gone into and from such point of view, it can be said that the
view taken therein would be per in curiam of the further consequences of a fresh
reference being made.
*

Page No.# 23/28
21. We further add that going by the statutory provisions of Clause 2(1) of
the Foreigners Tribunal Order 1964 any reference would have to be understood to
be a reference to the Tribunal on the question whether the person so referred is a
foreigner or not within the meaning of Foreigners Act, 1946, where again foreigner
is given the meaning of a person who is not a citizen and again where a citizen is
defined under the Citizenship Act 1955. ”

34) In light of above, the Court is of the considered opinion that
when the case of Sona Kha @ Sona Khan (supra) was decided, the earlier
precedent of this Court in the case of Ananda Ghosh (supra), and Safiqul Islam
@ Md. Abikul Islam v. Union of India & Ors., 2019 (4) GLT 55 were not brought
to the notice of this Court.
35) In the case of Sona Kha @ Sona Khan (supra), the reference did
not allege the petitioner therein to be an illegal migrant. Rather, the Enquiry
Report was to the effect that the petitioner in the said case was not an illegal
migrant. Yet, the Superintendent of Police (Border), Baksa, had forwarded the
case to the Foreigners Tribunal, Baksa, Tamulpur. Under such distinguishable
facts and circumstances, this Court, in the case of Sona Kha @ Sona Khan
(supra), had held that the learned Tribunal would have to satisfy itself about the
existence of grounds before proceeding to consider the case on merits about
the citizenship. Thus the facts of the instant case is distinguishable for which the
ratio of the case of Sona Kha @ Sona Khan (supra), cannot be applied.
36) The case of Santosh Das (supra), cited by the learned counsel
for the petitioner is also distinguishable on facts. In the said case, reference was
made under the erstwhile Illegal Migrants (Determination by Tribunals) Act,
1983. After the said Act was declared as ultra vires, by the Supreme Court of
India in the case of Sarbananda Sonowal v. Union of India & Ors., (2005) 5 SCC
665, the reference were transferred to Foreigners Tribunals from the erstwhile

Page No.# 24/28
IM(D)T. In that case, the police reference was that the petitioner had entered
into India between 01.01.1966 and 25.03.1971. Under the said circumstances,
the said case was decided. But in the present case, the reference was not made
under IM(DT) Act, but under Foreigners Act, 1946. Therefore, the reference has
to be answered in terms of Section 2(a) of the Foreigners Act, 1946. Hence, the
case of Santosh Das (supra), is not found to help the petitioner.
37) Hence, in a reference proceeding that has been registered
before the Foreigners Tribunals, the learned Tribunal has to answer the
reference in accordance with the mandate of Section 2(a) of the Foreigners Act,
1946, which does not make any distinction between a foreigner of stream of
01.01.1966 and 24.03.1971 and a foreigner who had entered India after
25.03.1971.
38) The reference to the stream appears in Section 6-A(3) of the
Citizenship Act, 1955. Thus, the proceedee must disclose that he or she fulfills
the conditions prescribed under Section 6-A(1)(d) and Section 6-A(2) of the
Citizenship Act, 1955. It is only after the Foreigners Tribunal renders an opinion
that a person has entered into India between 01.01.1966 and before
25.03.1971 (i.e. on 24.03.1971) from the specified territory, only they will
become entitled to register themselves under Section 6-A(3)(c) of the
Citizenship Act, 1955.
39) Thus, the mention made in the summons/ notice, accusing the
petitioner to be a foreigner of stream between 01.01.1966 and 24.03.1971 and
stream of 25.03.1971, is not found to prejudice the petitioner in any manner in
light of the definition of foreigner as provided under Section 2(a) of the
Foreigners Act, 1946 read with Paragraph 2(1) of the Foreigners (Tribunals)
Order, 1964.

Page No.# 25/28
Non marking of exhibit documents as Exhibits:
40) As mentioned hereinbefore, in her evidence-on- affidavit, the
petitioner had given the mark of Ext.(i) to two documents, i.e. the voter list of
1966 and 1970. The petitioner had referred to certified copy of voter list in her
name and the name of her family members as Ext. (ii), but she had not
disclosed the year of the voter list and the names of her family members. She
had also referred to a legacy data in the name of her father as Ext.(v), but no
disclosure was made regarding the year of the legacy data. No document was
referred as exhibit in the petitioner’s additional evidence- on- affidavit. Thus, the
record reveals that the petitioner and her learned counsel had made no attempt
to have any documents marked as exhibits by obtaining the signature of the
learned Member. The petitioner had also not disclosed in her written statement
about her relationship with all 4 (four) voters whose name appear in the voter
list of 1966 (Ext.i). In the said regard, the learned counsel for the petitioner, by
citing the case of Thatithoi Chiru & Ors. (supra) had sought to bring home the
point that when certified copies of public documents are on record and not
returned, the same is not required to be proved by calling witnesses and
moreover, it was held that the documents were not considered by the Court as
they were not marked as exhibits, were ordered to be marked as exhibits and
numbered.
41) However, in this case, the petitioner has not been able to show
that the learned Tribunal had refused any prayer made by the petitioner to mark
an exhibited document as exhibits. The Tribunal’s record reveals that two
certified copies of voter list of 1966is available. However, the petitioner had not
referred to the names contained in those two voters’ lists either in her written
statement or in her evidence-on- affidavit. In the context of cases before the

Page No.# 26/28
Foreigners Tribunals, it has been held in a catena of judgments that pleadings
made in the written statement have to be proved by cogent, reliable and
admissible evidence. In this regard, reference may be made to the case of Saru
Sheikh v. Union of India & Ors., (2017) 4 GLR 295. It has also been held by this
Court in the case of Momin Ali v. Union of India & Ors., 2017 (2) GLT 1076, that
variance between pleadings and evidence is not permissible. It has also been
held in the case of Ayesha Khatun v. Union of India & Ors., (2017) 3 GLR 820,
that non-disclosure of material facts in the written statement will lead to
adverse presumption. The petitioner had admitted in her cross-examination that
she had submitted voter list of 1966, 2018, her voter id card and her PAN Card.
It may be mentioned that the cited case of Rafiq and Anr. (supra), is not an
authority on the point that if there was a lacuna in the pleadings and evidence
of the petitioner on her failure to exhibit any document, such lacuna can
subsequently be allowed to be filled up.
42) The case of Rafiq and Anr. (supra) was cited on the point that a
party should not suffer on account of lapses or omission on part of the learned
counsel. However, the said case is not found to help the petitioner in any
manner whatsoever because neither before the learned Tribunal and nor in this
writ petition before this Court the petitioner has made any allegation accusing
her engaged learned counsel of committing any professional misconduct, lapses
or omission whatsoever. Thus, the said plea is found to have no substance.
43) As mentioned hereinbefore, in this case, the petitioner has not
been able to discharge her burden under Section 9 of the Foreigners Act, 1946,
to prove her link with the voters whose name appears in the exhibited voter lists
of 1966 (Ext.i). There is a huge gap of 52 years between the exhibited voter list
of 1966 (Ext.i) and voter list of 2018 (Ext.ii). Thus, the petitioner has not been

Page No.# 27/28
able to prove that her projected grandparents and/or parents were ordinary
residents of Assam and continuously resided in Assam, which is the requirement
under Section 6A(2) of the Citizenship Act, 1955, which is the requirement of
the special provisions for the State of Assam. The said provisions are special to
the State of Assam and not applicable to the rest of the Country.
44) Thus, the submissions made by the learned counsel for the
petitioner is not found to help the petitioner in this case.
45) As none of the documents were marked as exhibits, the same
were liable to be rejected at the outset, but as the citizenship right of the
petitioner has been questioned, the said documents, though not exhibited, have
been examined. The learned Tribunal is also found to have appreciated and
discussed the documentary exhibits.
46) In light of the discussions above, the challenge to the impugned
opinion fails and the writ petition is dismissed. Consequently, the consequences
of the opinion dated 30.06.2022 passed by the learned Member, Foreigners’
th
Tribunal 4 , Tezpur at Gohpur in F.T. (T-4)/GPR. Case No. 1058/2016 [arising
out of S.P. Ref. Case No. Tz(B)/98/567/GPR LAC/ dated 06.04.1998; ERO. Ref.
No.BNE.25/97/8 dated 18.11.1997: D.C. Case No.2090/2013], by which the
petitioner, namely, Aklima Begum was declared to be a foreigner of post
25.03.1971 stream, would follow.
47) Interim bail granted to the petitioner by order dated 16.09.2022,
passed in this writ petition is recalled and revoked.
48) The Registry shall return the learned Tribunal’s record together
with a copy of this order, to be made a part of the record by the said learned
Tribunal for future reference.

Page No.# 28/28
49) Under the circumstances, there shall be no order as to cost.

JUDGE JUDGE
Munna
Kumar
Digitally signed by Munna Kumar
Date: 2026.10.14 17:56:08 +05'30'
Comparing Assistant Private Secretary