Abdul Rahman Vs Union of India and 4 Ors.

ASSAM ACHYUT PLAZA (1ST FLOOR) BHARALUPAR BHANGAGARH GUWAHATI- 781005. 5:DEPUTY COMMISSIONER KAMRUP (M) DIST. KAMRUP ASSAM 6:DEPUTY COMMISSIONER OF POLICE (BORDER) CITY GUWAHATI. 7:THE OFFICER-IN-CHARGE GEETANAGAR POLICE STATION GUWAHATI DIST. KAMRUP ASSAM PIN - 781021

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Advocate for the Petitioner : MR. D R GOGOI, MS. S E AHMED

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Advocate for the Respondent : ASSTT.S.G.I., GA, ASSAM,SC, ECI,MR. D BARUAH,MS. A VERMA,SC, NRC

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BEFORE

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HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SHAMIMA JAHAN

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ORDER

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Date : 08.12.2025 (K.R. Surana, J)

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Heard Ms. S.E. Ahmed, learned counsel for the petitioner. Also heard Ms. R. Devi, learned CGC; Mr. A.I. Ali, learned standing counsel for the ECI; Mr. G. Sharma, learned standing counsel for the FT matters and NRC; and Mr. H. K. Hazarika, learned Junior Govt. Advocate for respondent.

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By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned opinion dated 05.01.2019, passed by the learned Member, Foreigners’ Tribunal, Kamrup (M) 3^rd , Guwahati-03, in F.T. Case No. 30/2017, by which the petitioner was declared as an illegal migrant.

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Upon registration of the proceedings, the petitioner was served with a notice to appear in the proceedings. Accordingly, the petitioner had appeared before the said learned Tribunal and submitted his written statement. Moreover, in support of his defence, the petitioner has examined himself as DW-1.

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In the written statement, the petitioner had stated he is a citizen of India by birth and permanent resident of Ward No. 2, Gauripur, under SubDivision- Dhubri (Sadar) in the District of Dhubri and he is a voter of No. 24 Gauripur Assembly Constituency and he has Electoral Photo Identity Card (EPIC for short). His father is Gedu Sheikh, who is also a permanent resident of the same locality and to show that the petitioner’s father cast his vote in the year 1966 and 1970, certified copy of the electoral roll for the said years and the EPIC of the petitioner were annexed to the written statement. It was stated that the name of all family members of the petitioner appeared in the electoral roll for the year 1997 from the same No. 24 Gauripur Assembly Constituency. The name of the petitioner’s father appeared in the voter detail under the legacy data code for the year 1971. The certified copy of the electoral roll for the year 1997 and the voter detail of the father of the petitioner for the year 1966 and 1971 were annexed to the said written statement as Annexure-4A, 4B, 5 and 5A respectively. He also claimed that his

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grand-father Anat Sheikh has ancestral property bearing Patta No. 1277 in Gauripur in the District of Dhubri, which was not yet partitioned. The relevant land documents were annexed as Annexure-6 and 7 respectively. Accordingly, the petitioner prayed that the proceedings against him be dismissed.

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In support of his defence, the petitioner had examined himself as DW-1 and had exhibited his Elector Photo Identity Card (EPIC for short) as Ext. 1, his PAN card as Ext.2, wherein the name Abdul Rahman appears as son of Gedu Sheikh. The petitioner had exhibited the electoral roll of the year 1966 and 1970 as Ext. 2A and 3A respectively which discloses that the concerned No. 24 Gauripur LAC is Gedu Sheikh, son of Anat Sheikh. The petitioner had exhibited the electoral roll of the year 1997 as Ext.4A showing him as voter under 24 Gauripur LAC which contains the name of Amina Bewa, wife of Gedu Sheikh , Fajle Rahman, son of Gedu Sheikh, Abdul Rahman, son of Gedu Sheikh, Piyar Banu Bibi, wife of Abdul Rahman and Sabdul Rahman, son of Gedu Sheikh. The petitioner had exhibited the NRC of the year 1966 and 1971 of vill- 106 Gauripur Ward No. 2 containing the name Gedu Sheikh son of Anat Sheikh at Ext.5 and Ext.6. The petitioner had exhibited the Khatian No. 8 of Village Gauripur Town Part-II, Dist- Dhubri in the name of Anat Sheikh, son of Ibrahim as Ext. 7 and Ext. 8 and the certified copy of the Draft Chitha of vill-Gauripur Town Part-II, Dist-Dhubri was exhibited as Ext.9.

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The learned Tribunal had discarded the EPIC (Ext.1) as it is not a proof of citizenship and it was held that the same was required to be corroborated by other substantive evidence to prove citizenship. Similarly, the PAN card (Ext.2) and the name of the petitioner were discarded as the same was not a valid piece of evidence and the same was not proved by the

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authority concerned. The electoral roll of 1966 and 1970, which contains the name of a single person, namely Gedu Sheikh, was held to be of no conclusive opinion to be drawn in the absence of name of other family members and the name of Amina Bewa, wife of Gedu Sheikh was conspicuous by her absence Ext.4A. As the next electoral roll exhibited by the petitioner was of the year 1997, the learned Tribunal found a gap of 27 (twenty seven) years between the last voters’ list of 1970 and the next voters’ list of 1997. Accordingly, it was held that there was no continuous existence of the ancestors of the petitioner, which is an essential ingredients to prove citizenship of a person. As the NRC process was being updated, the NRC of the year 1966 and 1971 (Ext.5 and Ext.6) was also discarded as not being admissible for any purpose. The entries made in Ext.7, Ext.8 and Ext.9, the Khatian and the Chitha were discarded, being a document of post 25.03.1971. Accordingly, the learned Tribunal found and held that the petitioner had miserably failed to discharge his burden of proof and accordingly, the petitioner was held to be an illegal migrant of post 25.03.1971 stream.

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The learned counsel for the petitioner has stressfully submitted that the NRC of 1966 and 1971 along with the voters list of 1966 and 1971, which disclosed the name of Gedu Sheikh, the projected father of the petitioner, as son of Anat Sheikh, which was duly proved that the parents and grandparents of the petitioner were ordinary citizens of India (Assam) from the year 1966. Accordingly, it is submitted that the entries made in the land documents, which were duly exhibited as Ext. 7, Ext.8 and Ext.9, further cemented the claim of the petitioner that the petitioner was a citizen of India whose ancestry existed in the Country since 1966, which is before the cut-off date of 25.03.1971. Accordingly, it is submitted that if the Court finds that this

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documents were insufficient, one opportunity be granted to the petitioner to prove his citizenship by remanding the matter back for a fresh adjudication before the learned Tribunal.

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Per contra, the learned standing counsel for the FT and Border matters has made his submissions in support of the impugned opinion and has prayed for dismissal of the writ petition.

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Considered the materials available in the writ petition and also carefully considered the materials available in the records of the learned Tribunal. Also carefully considered submissions made by the learned counsel for the petitioner and the learned standing counsel for the FT and Border matters.

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Insofar as the rejection of the EPIC and PAN card, which were exhibited as Ext.1 and Ext.2 respectively by the petitioner, this Court in the case of Md. Babul Islam Vs. Union of India and Ors., WP(C) 3547/2016, disposed of by judgment and order dated 09.05.2018, held that EPIC and PAN card are not a valid pieces of evidence in absence of any supporting evidence. Moreover, it was held that date of birth was known by the petitioner, it would have been mentioned in the written statement. Insofar as the NRC is concerned, which was exhibited as Ext.5 and Ext.6 respectively, this Court in the case of Abdul Mojid @ Mojid Ali Vs. Union of India and Ors., 2019 (2) GLT 45, had held that the NRC extract produced to prove domicile in India is inadmissible in evidence and moreover, the judgment and order passed by this Court in Bhanbhasa Seikh Vs. Union of India, 1970 Assam LR 206, was approved. It may be stated that an extract of the NRC was merely a printout of the data which is available in the portal of the Assam State Coordinator of

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National Registration, which is nothing but a voter detail and as per this content of the said document, it is an image which is generated by the website of the State Coordinator of NRC. Therefore, the said document, being a print out obtained from a web-portal, is inadmissible in evidence as both the documents were introduced in evidence without being supported by any certificate being issued under the provisions of Sections 65B of the Evidence Act, 1872. The said documents were not proved by calling from the original concerned authorities. Therefore, an NRC extract is nothing but a secondary evidence and therefore, inadmissible in evidence.

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In so far as the electoral roll of 1966 and 1970 is concerned the same only contents the name of Gedu Sheikh, son of Anat Sheikh. Thus, the said documents do not contain the description of the entire family of Gedu Sheikh or Anat Sheikh. Therefore, the voter list of 1966 and 1970, which was exhibited as Ext. 2A and 3A respectively, not showing the entirely family, cannot be a proof that the person whose names is entered in Ext. 2A and 3A is the father of the petitioner. The petitioner, in his written statement has not disclosed the names of his parents, grand-parents and the place of his birth or the year of birth. Therefore, the sudden appearance of the name of Amina Bewa, Fajle Rahman, Abdul Rahman, Piyar Banu Biwi and Sabdul Rahman without any pleadings in the written statement, does not inspire confidence in the Court as to the said document being a proof to establish a relationship between the petitioner and his projected father merely on the basis of entries made in the certified copy of the electoral roll of the year 1997 which was proved as Ext. 4A.

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In this regard, it may be stated that in paragraph no. 26 of the case

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of Sarbananda Sonowal Vs. the Union of India and Ors., (2005) 5 SCC 665 : (2005) 0 Spreme (SC) 873, in the context of Section 9, the Supreme Court of India has held as to what are the material facts and the burden of proof in the context of Section 9 of the Foreigners Act, 1946. The said paragraph no. 17 is quoted hereinbelow:-

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“17. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Some times the place of birth of his grand parents may also be relevant like u/s 6-A(1)(d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

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In the case of Rashminara Begum Vs. Union of India, 2017 (4) GLT 346, this Court has held that material facts would have to be proved by cogent and admissible evidence and in the case Ayesha Khatun Vs. Union of India, (2017) 3 GLR 820, this Court has held that failure to disclose material facts would lead to adverse presumption. Both the cases are relevant because the petitioner has not disclosed the names of his parents, grandparents and siblings in his written statement.

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In respect of land documents which were exhibited as Ext.7, Ext.8 and Ext.9, it is seen that the said documents are post 25.03.1971. The learned counsel for the petitioner could not show that the entries made in the Khatian and the Draft Chitta could be related back prior to 25.03.1971.

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Insofar as the said documents are concerned, as the learned counsel for the petitioner had laid more stress on the said documents, it is seen that the said documents, having not shown to be prior to 25.03.1971, cannot said to be whose entry relate back to the said period. Ext.7 is the certificate no. 19 issued under the Assam Temporary Settled Areas Tenancy Act with reference to the Khatian No. 8 of vill-Gauripur Town Part-II under Mouza-Dhubri, which contains the name of Anant Sheikh. The year of the entry is not mentioned in the said document. The petitioner has not produced any document to project that the entries made in Ext.7 were prior to 25.03.1971. In respect of Ext.8, the same is again a Tenancy Katcha Khatian. The katcha khatian, vide its nomenclature, relates to only a temporary khatian or a khatian which has not attained finality. Therefore, though said documents contains the name of Anat Sheikh, in the absence of any material that the entries made therein relate to a period prior to 25.03.1971, the same is not found to help the petitioner in any manner. Ext. 9 is a copy of certified copy of a Draft Chitha. Once again a draft is merely a draft and is not final document in any respect. The learned counsel for the petitioner has not been able to show that a Draft Chitha would be admissible in evidence as a document relating to land record. Be that as it may, though the entries made in the Draft Chitha does not contain any date, but in column no. 11 there appears to be an illegible signature with a date of 29.06.1989 and the copy was prepared on 03.10.2017. Therefore, the petitioner has failed to show that entries made in the copy of the Draft Chitta can be related prior to the cut-off date of 25.03.1971.

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Under this circumstances, the finding recorded by the learned Tribunal cannot be said to be either illegal, not sustainable or perverse. The opinion of the learned Tribunal is not found to be vitiated by taking into

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consideration any extraneous materials and it could not be shown that the opinion rendered by the learned Tribunal is vitiated by non-appreciation either the pleadings or the evidence on record, or by incorrect appreciation of the pleadings and record.

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In light of above, as the petitioner has not been able to make out a case. Accordingly, the impugned opinion dated 05.01.2019, passed by the learned Member, Foreigners’ Tribunal, Kamrup (M) 3^rd , Guwahati-03, in F.T. Case No. 30/2017, does not call for any interference in this writ petition.

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