Dismissed

Morjina Begum @ Marjina Khatun v. the Union of India and 5 Ors.

Gauhati HC13 Jul 2025WP(C)/4529/2024

Case brief

AI extract

What is this about?

The writ petition challenging the Foreigners Tribunal's opinion declaring the petitioner a foreigner of post-1971 stream was dismissed. The Court held that the petitioner failed to prove her linkage to parents who were citizens prior to 25.03.1971. Exhibited voter lists contained discrepancies in names and ages that were not explained, and certificates bearing the State Emblem were held inadmissib

What the court decided

AI extract

Morjina Begum @ Marjina Khatun Vs the Union of… — Writ and Judicial Review | Gauhati HC (2025)

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GAHC010175172024

2025:GAU-AS:9170-DB

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/4529/2024

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MORJINA BEGUM @ MARJINA KHATUN D/O- LATE ABDUL JALIL, W/O- ABDUL MANNAN, RESIDENT OF VILLAGE- DHARMAPUR, P.S.- SORBHOG, DIST.- BARPETA, ASSAM.

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VERSUS

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THE UNION OF INDIA AND 5 ORS REPRESENTED BY THE SECRETARY GOVERNMENT OF INDIA DEPARTMENT OF (HOME AFFAIRS), NEW DELHI, INDIA.

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2:THE STATE OF ASSAM REPRESENTED BY THE SECRETARY

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TO THE GOVERNMENT OF ASSAM

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DEPARTMENT OF HOME DISPUR

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GUWAHATI-6.

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3:THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOK ROAD

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NEW DELHI-110001.

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4:THE STATE COORDINATOR OF NATIONAL REGISTRAR OF CITIZENSHIP (NRC) ASSAM BHANGAGARH GUWAHATI DISTRICT- KAMRUP(M) ASSAM PIN- 781005. 5:THE DEPUTY COMMISSIONER BARPETA DISTRICT- BARPETA ASSAM PIN- 781301. 6:THE SUPERINTENDENT OF POLICE (B) BARPETA DISTRICT- BARPETA ASSAM PIN- 781301

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Advocate for the Petitioner : MR. B K SEN, MR. J UDDIN,MR. A. HUSSAIN,MR A K KHAN,MR F HAQUE

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Advocate for the Respondent : DY.S.G.I., SC, ECI,SC, F.T,GA, ASSAM

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BEFORE

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HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

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JUDGMENT

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Date : 14.07.2025 (K.R. Surana, J)

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Heard Mr. B.K. Sen, learned counsel for the petitioner. Also heard Ms. A. Gayan, learned CGC for the respondent no.1; Mr. G. Sarma, standing counsel for FT matters, representing respondent nos. 2, 4 and 6; Ms. P. Barua, learned standing counsel for the respondent no. 3; and Mr. P. Sarmah,

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learned Addl. Senior Govt. Advocate for respondent no. 5.

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By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 28.09.2022, passed by the learned Member, Foreigners Tribunal No. 8^th , Barpeta in F.T. Case No. 287/15 [IM(D)T Case No. 1726/02], thereby holding the petitioner, namely, Morjina Begum @ Marjina Khatun as a foreigner of post 25.03.1971 stream.

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It may be mentioned that in the proceeding before the learned Foreigners Tribunal, the name of the petitioner was spelt as Marjina Begum, but she has entered appearance and contested the proceeding by her name spelt as Morjina Begum @ Marjina Khatun.

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In her written statement, the petitioner had stated that a false case was made against the petitioner. She had stated that Abdul Goni, son of Moneruddin and Moziron Nessa were her grandparents. Her father had two wives and that Abdul Jalil, Falani Nessa and Laili Khatun were her parents, and her mother, Falani Nessa died in the year 1989. She had disclosed the names of her 13 (thirteen) brothers and sisters and stated that with Falani Nessa having 5 sons and 3 daughters and Laili Khatun having 3 sons and 3 daughters.

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The petitioner had stated that (i) the name of her father appeared in NRC details of 1951 at Sarbhog Town, Mouza- Titapani, DistrictBarpeta, vide Legacy Data Code 120-0001-5645; (ii) the name of her grandparents appeared in the voter list of 1966 at Village- (380) Chakla Part-II, P.S. Abhayapuri in the District of Goalpara; (iii) her father’s name appeared in the voter list of 1966 at Village- Balapathar, Mouza- Titapani, District- Kamrup (now Barpeta); (iv) the name of her parents appeared in the voter list of 1970

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at Village- (380) Chakla Part-II, P.S. Abhayapuri in the District of Goalpara (now Bongaigaon); (v) the name of her father appeared with her grandparents in the voter list of 1989 at Village- (94) Chakla Part-II, P.S. Abhayapuri in the District of Goalpara (now Bongaigaon); (vi) the name of her father and step-mother Laili Khatun appeared in the voter list of 1997 at Village- (94) Chakla Part-II, P.S. Abhayapuri in the District of Bongaigaon. It was stated that she was born in the year 1986 and brought-up in Village Chakla Part-II and that she had studied in Pub-Nowagaon Primary School and left the school after passing Class-IV in the year 1997 and as per her school register, her age was 11 years as on 01.01.1996.

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The petitioner had further stated that she was married to Abdul Mannan, son of Miyaullah of Village- Dharmapur in the year 2000, when she attained puberty. The Secretary, Namberpara Chakla Gaon Panchayat had issued a certificate dated 06.04.2018, stating that Morjina Begum is the daughter of Late Abdul Jalil of Village- Chakla Part-II, P.S. Abhayapuri in the District of Bongaigaon. The petitioner has also stated that she has three daughters and one son.

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It may be stated that the petitioner has stated about the discrepancy of age of her grandparents and parents in some of the voter lists and regarding the discrepancy in the spelling of the name of her step-mother, and in her own spelling in her daughter’s birth certificate.

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The petitioner, in support of her defence, has examined herself as DW-1 and vide her evidence-on-affidavit, she had reiterated the statements made in her written statement and she had exhibited the following documents, viz., (i) voter list of 1966 containing the name of her projected father (Ext.A);

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(ii) voter list of 1970 (Ext.B); (iii) voter list of 1989 (Ext.C); (iv) voter list of 1997 (Ext.D); (v) school certificate (Ext.E); (vi) Certificate dated 06.04.2018 issued by Secretary, Numberpara Chakla Gaon Panchayat (Ext.F); (vii) certificate dated 16.03.2018, issued by Secretary, Haldiya Gaon Panchayat (Ext.G); (viii) voter list of 2017 (Ext.H); (ix) Elector Photo Identity Card issued by Election Commission of India (Ext.I); (x) HSLC Certificate of petitioner’s daughter (Ext.J); and (xi) HSLC certificate of petitioner’s daughter (Ext.K).

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The petitioner has also examined 4 (four) other witnesses, namely, Jalu Miya, son of Late Jalil Bepari @ Abdul Jalil (DW-2), Abdul Gafur, Retired Headmaster of Pub Nowagaon L.P. School (DW-3); Abdul Malek Miya, son of Late Jalil Bepari @ Abdul Jalil (DW-4); and Dalimon Nessa, President of 54 No. Haldiya Gaon Panchayat (DW-5).

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The learned counsel for the petitioner has submitted that the learned Foreigners Tribunal had disregarded the substantive evidence of the petitioner and her other four witnesses and due to certain minor discrepancies in the spelling of the parents and grandparents of the petitioner, their age, etc., the witnesses were disbelieved.

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The learned counsel for the petitioner has placed reliance on the entries made in the jamabandi of the land owned by her father, where the name of the petitioner and her siblings are recorded in the land revenue record. Moreover, reliance is placed on certain un-exhibited documents, like the voter list of 2005, 2015, 1997, 2007, 2014, 2017, and Panchayat certificate dated 03.07.2015, and it was submitted that the petitioner has other documents which prove that the petitioner is not a foreigner.

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Per contra, the learned standing counsel for the FT matters has

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made his submissions in support of the writ petition.

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Considered the submissions and perused the Tribunal’s records, which were called for and received.

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At the outset, it may be stated that as per the order dated 18.09.2024, passed in this writ petition, it has been recorded that the learned counsel for the petitioner had submitted that Ext.E and Ext.F produced by the petitioner were not considered by the learned Tribunal while passing the final opinion, which was negated by this Court by holding that the learned Tribunal had sufficiently dealt with those two exhibits. The above leaves the Court to consider the remaining evidence and 9 (nine) remaining exhibited documents.

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On a perusal of the written statement filed by the petitioner before the learned Tribunal, it is seen that the petitioner has named her 13 siblings including herself as (1) Jarina Khatun, (2) Jalu Miya, (3) Malek Miya, (4) Saiful Miya, (5) Mokibul Hussain, (6) Morzina Begum, (7) Mofida Begum, (8) Jahangir Miya, (9) Hazrat Miya, (10) Mamtaz Miya, (11) Rofiqul Islam, (12) Romesa Khatun, and (13) Robiul Islam. The petitioner has stated about the names of only those projected family members, whose names appear in the exhibited document. Thus, while Abdul Malek Miya had appeared as DW-4, but in paragraph 6 of her written statement, the petitioner has named her sibling no. 3 as Malek Miya and not Abdul Malek Miya. Thus, apart from disclosing the name of her grand-parents, parents including step-mother, siblings, husband and her own children, the petitioner has not disclosed about the existence of any other relatives.

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However, in her evidence-on-affidavit, the petitioner is found to have disclosed the names of her projected two uncles and one uncle’s wife,

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which were not introduced in the petitioner’s written statement. Though the petitioner did not plead in her written statement regarding shifting of members of the family of her grandparents’ family, but the DW-2 had stated in his evidence-on-affidavit, that he had shifted with his family after purchasing land in village- Nowagaon.

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On appreciating the evidence of DWs, it is seen that the school certificate (Ext.E); Certificate dated 06.04.2018 issued by Secretary, Numberpara Chakla Gaon Panchayat (Ext.F); and (vii) certificate dated 16.03.2018, issued by Secretary, Haldiya Gaon Panchayat (Ext.G) contain the State Emblem of Lion Pillar of Asoka affixed on the said documents, which has rendered the said exhibits as inadmissible. In this regard, if one needs an authority on the point, the case of Afuja Begum @ Afruja Begum v. Union of India & Ors., W.P.(C) 7340/ 2016, decided by the Division Bench of this Court on 19.04.2018, may be referred to. Moreover, in the case of Monowara Bewa @ Manora Bewa v. Union of India & Ors., W.P.(C) 2634/2016, decided 28.02.2017, the Secretary, Gaon Panchayat, had mentioned that the said certificate was issued on the basis of evidence placed before him and accordingly, it was held that such a certificate has got no statutory sanction, rather such a certificate would be contrary to the mandate of the Assam Panchayat Act, 1994 and Citizenship (Registration of Citizens and Issue of National Identity Card) Rules, 2003, besides opposed to national interest. It was also held that such a certificate would be a private document in which event the author of the document would have to come and testify to prove the truthfulness of the contents of the said document. In this case, the authors of the said Ext.E. Ext.F and Ext.G did not bring any record to prove the contents of their respective

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certificates. Nonetheless, it is reiterated that as those exhibits contain the State Emblem affixed thereon, the said exhibits have been rendered as inadmissible in evidence. In the said regard, the Division Bench of this Court, in the case of Sajeda Khatun v. Union of India & Ors., 2018 (4) GLT 696, has held that the author of the relevant certificate was not authorized to use under Rule 10(2) of the State Emblem of India (Regulation use) Rules, 2007 framed under State Emblem of India (Prohibition of Improper Use) Act, 2005, further holding that such unauthorized use of State Emblem has rendered the certificate wholly inadmissible in evidence.

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Thus, if these three documents, viz., the school certificate (Ext.E); Certificate dated 06.04.2018 issued by Secretary, Numberpara Chakla Gaon Panchayat (Ext.F); and (vii) certificate dated 16.03.2018, issued by Secretary, Haldiya Gaon Panchayat (Ext.G) are excluded, no other document exhibited by the petitioner is found to be sufficient to prove the link that the petitioner is the daughter of a person, who is a citizen of India prior to 25.03.1971 stream.

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The NRC of 1951 has not been exhibited by the petitioner. Moreover, the said document is not an admissible evidence of the person being a citizen of India. In the case of Abdul Mojid @ Mojid Ali v. UoI, 2019 (2) GLT 45, the Division Bench of this Court, while approving the earlier decision rendered in the case of Bhanbhasa Seikh v. UoI, 1970 Assam LR 206, had held that the NRC extract produced to prove domicile in India is inadmissible in evidence.

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In respect of the voter list of 1966 (Ext.A), the said exhibit contains a single entry of A. Jalil, name of father is A. Gani and the name of the

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said voter is in Village- Balapathar, Mouza- Titapani, Sub-Division- Barpeta and he is a voter of 51, Jania LAC. No explanation is tendered by the petitioner as to why the names of other family members are not available in the said voter list. However, in the voter list of 1970 (Ext.B), it contains 9 (nine) names, but they are voters of 42, Abhayapuri (S.C.) LAC, who are voters at Village- (380) Chakla Part-II, Sub- Division and District- Goalpara. There is no pleading about shifting of the voter in the voter list of 1966. Thus, the petitioner has failed to prove that the voter in Ext.A is the same person whose name appears as A. Jalil Sheikh, son of A. Goni in the voter list of 1970 (Ext.B). The name of first voter is Abdul Goni, son of Late Mogan Khan, aged 40 years. The age discrepancy of the said voter in the two voter list and discrepancy in spelling of the name of the said voter is ignored for the time-being.

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The voters list of 1989 (Ext.C) contains 6 names. In the said voter list, the name of first voter is A. Goni Miya, son of Monoruddin, aged 102 years. The name of third voter is A. Zalil Miya, son of A. Goni Miya, aged 66 years. Thus, there is an apparent mismatch of the name of first voter in the voter list of 1970 (Ext.B) with the name of first voter is the voters list of 1989 (Ext.C). The age discrepancy of the first and third voter in the voters list of 1989 (Ext.C) and discrepancy in spelling of the name of the said two voters is ignored for the time-being. The 4^th , 5^th and 6^th voters in the said voters list are (i) Laili Khatun, wife of A. Zalil Miya, aged 25 years; (ii) Jalu Miya, son of A. Zalil Miya, aged 25 years; (iii) Kalu Miya, son of A. Jalu Miya, aged 22 years. In paragraph 5 of the written statement, the petitioner has specifically pleaded that her mother, namely, Falani Bibi had died in the year 1989. In the voters list of 1997 (Ext.D) name of three voters appears, they are (i) Abdul Jalil, son of A. Goni,

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aged 55 years; (ii) Laial Begum, wife of A. Jalil, aged 38 years; and (iii) Saiful Miah, son of A. Jalil, aged 20 years. There are no other family members in the said voter list.

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The voters list of 2017 (Ext.H) contains the name of the petitioner and her husband. Moreover, the HSLC certificate of Shajeda Khatun (Ext.J) and HSLC certificate of Majeda Khatun (Ext.K). However, the said Ext.H. Ext.J and Ext.K are not relevant for the purpose of establishing the link of the petitioner with her projected father.

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The DW-2, namely, Jalu Miya, had exhibited voter list of 1997 (Ext.M), the name of the first voter is Jalu Miah, son of Jalil Miah, aged 30 years, of Village- 93- Nowagaon, Dist. Bongaigaon. In the said voters list there are four names, but from the entries contained in the said voter list, it cannot be established that Jalu Miya, son of A. Zalil Miya, aged 25 years, whose name appears in the voters list of 1989 (Ext.C) is the same person whose name appears in the voter list of 1997. In paragraph 5 of his evidence-on- affidavit, the DW-2 is found to have contradicted the pleadings of the petitioner by stating that Falani Nessa had died in the year 2017, whereas, as per the written statement, Falani Nessa had died in 1989. In paragraph 4 of his evidence-onaffidavit, DW-4 has stated that his mother Falani Nessa died on the year 1989. Thus, the evidence of DW-2 being contradictory to the evidence of DW-1 and DW-4, is not found to help the petitioner in any manner.

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Abdul Gafur, who had deposed as DW-3 is the Retired Headmaster of Pub Nowagaon L.P. School. He had retired on 31.12.2013. He had issued school certificate (Ext.E). As discussed hereinbefore, the said certificate contains State Emblem, which makes the said document inadmissible

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in evidence. Be that as it may, though DW-3 had brought the counterfoil of Ext.E, purportedly after making application before the current Headmaster, but he is not the custodian of the School record and he had not proved any document by which the Headmaster of the said School had handed over the certificate counterfoil to the DW-3. The said witness has admitted that the said certificate was a duplicate certificate issued on 21.10.2011, but the record of the originally issued certificate was not produced or proved. Moreover, in reply to the Tribunal’s query, he had replied that he had not brought the admission register. He had also stated that he had written the date of birth of the petitioner after calculating himself and he does not know when the petitioner got admission and he also does not know when the original certificate was issued. In this regard, we may refer to the decision of the Supreme Court of India in the case of Birad Mal Singhvi v. Anand Purohit, 1988 (Supp.) SCC 604, wherein it has been held that the date of birth recorded in school certificate or school register would have no evidentiary value unless the person who furnished the information regarding the date of birth or parents are examined. It was further held that besides, the author of the certificate would have to prove the certificate on the basis of school register. Thus, the school certificate (Ext.E) has not been proved in accordance with law. The said document, thus, has not been proved on the basis of school register.

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DW-4, namely, Abdul Malek Miah (Kalu Miya) had reiterated the statement of DW-1. He had exhibited his Electoral Photo Identity Card as Ext.N. In paragraph 4 of his evidence-on-affidavit, DW-4 has stated that his mother Falani Nessa died on the year 1989. He has stated that that he had separated from his family and his name appears in the voter list of 1997 in Village-

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Nowagaon. Thus, the evidence of DW-4 is also not found to help the petitioner.

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The evidence of DW-5, namely, Dalimon Nessa also does not help the petitioner. She is the former President of 54 No. Haldiya Gaon Panchayat, who had issued Panchayat Certificate (Ext.G). She had deposed that at the time of issuing Ext.G, she had verified the voter identity card of the petitioner and except the voter identity card, she had not verified any other document. She had come to the Tribunal without any record. In the case of Monowara Bewa @ Manora Bewa v. Union of India & Ors., W.P.(C) 2634/2016, decided on 28.02.2017, the Secretary, Gaon Panchayat, had mentioned that the said certificate was issued on the basis of evidence placed before him. In light of such evidence, it was held that such a certificate has got no statutory sanction, rather such a certificate would be contrary to the mandate of the Assam Panchayat Act, 1994 and Citizenship (Registration of Citizens and Issue of National Identity Card) Rules, 2003, besides opposed to national interest. It was further held that such a certificate would be a private document in which event the author of the document would have to come and testify to prove the truthfulness of the contents of the said document. Thus, the evidence of DW-5 is not found to help the petitioner in any manner.

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Therefore, even if the discrepancies in the name and age of the voters in the exhibited documents are ignored, the petitioner has failed to establish her link with projected parents who are Indian citizens. Therefore, in the considered opinion of the Court, the petitioner has failed to demonstrate that the opinion rendered by the learned Tribunal is perverse or is vitiated by any reason whatsoever.

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Though the learned counsel for the petitioner had referred to

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land revenue record, but as the said document was not an exhibited document, the Court, while exercising certiorari jurisdiction, is not sitting in appeal over the opinion impugned in this writ petition and therefore, no material, which had hitherto not been exhibited before the learned Tribunal can be looked into and examined and appreciated by this Court.

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In her written statement, the petitioner had not disclosed the names of all family members of her projected grand-parents. The petitioner has not pleaded about purported shifting of her parental family and shifting of DW-4 out of her parental home. Though the Court has ignored the discrepancies in the name and age of voters in the exhibited voters lists, but it would not be out of place to refer to the decision of the Division Bench of this Court in the case of Basiron Bibi v. Union of India & Ors., 2018 (1) GLT 372, where it has been held that when a voter list proved in evidence by petitioner, she then cannot insist that only that portion of voter list which favours her be read and portions which go against her be over-looked. This is not how a piece of evidence is to be examined. In that aspect, the previous decision in the case of Abdul Matali @ Matleb v. Union of India, 2015 (1) GLT 617, was distinguished. The said decision in the case of Basiron Bibi (supra), is binding on this coordinate Bench and accordingly, it is held that discrepancy in the way the name is spelt and discrepancy in the age recorded in the voter list has to be explained by some other contemporaneous record, which has not been done by the petitioner.

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It may be mentioned that in this case, on 03.12.2003, the reference against the petitioner was made by the Superintendent of Police (Border), Barpeta before the then Illegal Migrants (Determination) Tribunal. Pursuant to the orders passed by the Supreme Court of India, in the case of

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Sarbananda Sonowal v. The Union of India, (2005) 5 SCC 665, the proceedings before the Illegal Migrants (Determination) Tribunal were transferred before the Foreigners Tribunals for disposal.

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Accordingly, the challenge to the impugned opinion dated 28.09.2022, passed by the learned Member, Foreigners Tribunal No. 8^th , Barpeta in F.T. Case No. 287/15 [IM(D)T Case No. 1726/02] fails and resultantly, the writ petition is dismissed.

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The consequences of the said opinion shall follow.

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The Registry shall send back the Tribunal’s record along with a true copy of this order to be made a part of the record.

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JUDGE JUDGE

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Comparing Assistant

Morjina Begum @ Marjina Khatun v. the Union of India and 5 Ors.

Case brief

What is this about?

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Morjina Begum @ Marjina Khatun v. the Union of India and 5 Ors.

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