Allowed

Abdus Chattar @ Sattar Ali v. the Union of India and 7 Ors.

Gauhati HC5 May 2026WP(C)/4308/2019

Case brief

AI extract

What is this about?

A writ petition challenging a Foreigners' Tribunal opinion declaring the petitioner a post-25.03.1971 stream foreigner. The High Court found the Tribunal had cross-examined the petitioner itself in the absence of State counsel, an impermissible procedure, set aside the opinion and remanded for fresh opinion, with bail conditions for the petitioner.

What the court decided

AI extract

Abdus Chattar @ Sattar Ali Vs the Union of India and 7 Ors. — Quashing and FIR | Gauhati HC (2026)

Page No.# 1/15

GAHC010135432019

2026:GAU-AS:6320

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

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Case No. : WP(C)/4308/2019

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ABDUS CHATTAR @ SATTAR ALI D/O- LT MAHEJ ALI, VILL- NO.6 JAMDOHA, P.S. MANIKPUR, DISTBONGAIGAON, ASSAM, PIN- 783392

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VERSUS

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THE UNION OF INDIA AND 7 ORS. REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI-1

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2:THE ELECTION COMMISSION OF INDIA NEW DELHI-1

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3:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-6

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4:THE ASSAM CO-ORDINATOR OF NRC BHANGAGARH ASSAM GHY-5 5:THE DY. COMMISSIONER DIST- BONGAIGAON

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ASSAM PIN- 783392

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6:THE SUPERINTENDENT OF POLICE (B) DIST- BONGAIGAON

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ASSAM

PIN- 783392

7:THE OFFICER-IN-CHARGE MANIKPUR P.S. DIST- BONGAIGAON ASSAM PIN- 783392

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8:DEWAN ABDUR RAHIM ADVOCATE BONGAIGAON BAR ASSOCIATION P.O. P.S. AND DIST- BONGAIGAON ASSAM PIN- 78339

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BEFORE

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HON’BLE MR. JUSTICE SANJAY KUMAR MEDHI

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HON’BLE MRS. JUSTICE SHAMIMA JAHAN

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Advocate for the petitioner(s): Mr.H.R. Ahmed

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Advocate for the respondent(s):Mr.G.Sarma,

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SC Home Department

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Mr.P. Sarma, GA, Assam,

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Mr.N.Kalita,

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Mr A.I. Ali, SC, ECI

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Date on which judgment was reserved : 28.04.2026

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Date of pronouncement of judgment : 06.05.2026

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Whether the pronouncement is of the :

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operative part of the judgment? : NA

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Whether the full judgment has been : Yes

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pronounced?

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JUDGMENT AND ORDER (CAV)

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(Shamima Jahan, J.)

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Heard Mr. H.R. Ahmed, learned counsel appearing for the petitioner. Also heard Mr. G. Sarma, learned Standing Counsel, Home Department, Mr. P. Sarma, learned Government Advocate, Assam, and Mr N Kalita, learned counsel representing Mr. A. I. Ali, learned Standing Counsel for the ECI.

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By this application filed under Article 226/227 of the Constitution of India, the petitioner has challenged the legality and validity of the opinion dated 31.10.2018, passed by the learned Member, Foreigners’ Tribunal No. 1, Bongaigaon, Assam, in FT Case No. BNGN/FT/521/07, corresponding to IM(D)T Case No. 164 of 2005, whereby the petitioner was declared a foreigner of post25.03.1971 stream.

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FACTS

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The petitioner had stated that he was born and brought up at VillageShoilbari (Mulbari), PS-North Salmara, in the district of Goalpara, Assam, and that he is the son of Late Mahej Ali and Jarina Bewa, and that he is permanently residing at Village No. 6, Jamdoha, P.S.-Manikpur, in the district of Bongaigaon along with his family members.

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The petitioner further stated that in the voters’ list of 1970, his parents’ names were recorded as Mahej Ali, son of Taher Ali and Jarina Khatun at Serial No. 43 and 44, respectively, at Village-350 Malbari Balarchar, under Abhayapuri (SC) LA 42. He further stated that his father’s name was recorded in Final

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Khatian Form No. VII, as Mahej Ali under Khatian No. 57, Village-Malbari, in the district of Goalpara. He, thereafter, stated that in the voters’ list of 1985, his name was recorded as a voter along with his mother, under 34 Abhayapuri North LAC. He also relied on the Jamabandi, wherein it was shown that he was one of the owner of a plot of land under Dag No. 155, Patta No. 09, and in the said Jamabandi, his name was shown as Chattar Ali, son of Mahej Ali. The petitioner also relied upon the family Ration Card, issued by the Inspector of Food and Civil Supplies, Bongaigaon, wherein his name was recorded along with other family members. Thereafter, he relied on the certificate issued by the Secretary of Bhandara Gaon Panchayat, where he was shown to be the son of Mohej Uddin of Village-Jamdoha in the district of Bongaigaon. He also stated that there are some spelling mistakes in the name of his grandfather, father and mother, and that there were also some anomalies with regard to the age, but the same may be ignored and they may be considered as one and the same person. However, he stated that the Superintendent of Police (B), Bongaigaon, doubted his citizenship and on the basis of the report of the ERO, the SP(B) referred the case to the learned Foreigners’ Tribunal, which was subsequently registered and a notice was issued by the Foreigners’ Tribunal to the petitioner.

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On receipt of the notice, the petitioner submitted his written statement on 3^rd of May, 2016, stating, inter alia, that his father’s name was Mahaz Ali @ Mahej Ali @ Mayej Ali, and that his father’s name appeared in the NRC 1951, vide Serial No. 2, House No. 4, at Village-Malbari, in the district of Goalpara. He further stated in the written statement that his father’s name appeared in the voters’ list of 1970. He then stated that his name appeared in the voters’ list of 1985 and that he was an absolute owner and possessor of a plot of land under Bijni Revenue Circle and that he also obtained a Ration Card.

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Thereafter, the petitioner submitted his evidence-on- affidavit, wherein, he made similar statements as that in the written statement and further stated that his actual and correct name is Sattar Ali and that in some documents, his name was wrongly reflected as Abduz Chattar, and that Sattar Ali and Abduz Chattar is one and the same person. He also stated that the same is in respect of his father, whose name was wrongly spelt in few documents. This petitioner was thereafter cross-examined and during his cross-examination, he stated that he does not remember his date of birth as well as his birth place and the names of his grandparents. He, thereafter stated that his father had two brothers, but he did not know about the sisters of his father, and that he has four brothers and one sister. He also stated that he married Lal Bhanu Nessa in the year 1985 and has four sons and one daughter out of the wedlock. He also stated that he did not know as to which LAC his parents voted and that in 1995 voters’ list, he could not say whose names were inserted in the same. He also stated that he did not know the Schedule of land, Class of land, Dag number and Patta number mentioned in the Jamabandi, which he had placed before the Court.

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The petitioner stated that in the written statement as well as in his evidence, he has exhibited many documents, which are mentioned as follows:-

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i) Exhibit-A: photocopy of NRC 1951.

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ii) Exhibit-B: voters’ list 1970.

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iii) Exhibit-C: voters’ list of 1985.

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iv) Exhibit-D: Jamabandi copy.

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v) Exhibit-E: Ration card.

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vi) Exhibit-F: Tax Receipt.

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vii) Exhibit-G: Notice for Application for Electoral Roll.

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viii) Exhibit-H: Enumeration receipt for electoral roll.

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ix) Exhibit-I: Panchayat certificate.

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These are the pleadings set out by the petitioner to establish his citizenship.

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The learned Foreigners’ Tribunal considered the case of the petitioner along with the said documents and vide its opinion dated 31.10.2018, rejected the case of the petitioner by declaring him as a foreigner of post-25.03.1971 stream, mainly on the following grounds:-

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i) Since the petitioner could not give his date of birth or year of birth and could not place the next of kin certificate as well as any PRC certificate, the petitioner’s case could not be considered.

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ii) Exhibit-B being a translated copy of the Electoral Roll and on the proceedee’s inability to state as to which LAC his parents voted, in his cross-examination, the said exhibit was rejected.

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iii) On similar ground, Exhibit-C was also rejected.

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iv) Although the petitioner placed the Final Khatian being in the name of his grandfather, but in the cross-examination he stated he did not know the schedule or the identification of the land.

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v) On the same ground, the copy of the Jamabandi was also not

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accepted.

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On these grounds, the Tribunal gave its opinion as aforesaid.

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SUBMISSIONS:

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Mr M U Mahmud, learned counsel for the petitioner submitted that in the voters’ list of 1970, the names of the father and mother were enlisted as voters, and in the final khatian, the father of the petitioner was shown as the owner of a plot of land. He further submitted that in the 1985 voters’ list, the name of the petitioner appeared along with his mother and in the said voters’ list, he is shown as the son of Mahej Uddin along with other brothers. He further submitted that in the copy of the Jamabandi, it is reflected that the petitioner, son of Mahej Ali, inherited a plot of land and further that the petitioner had a Ration Card in his favour. He also submitted that the Secretary of Bhandara Gaon Panchayat had given a certificate that the petitioner, son of Mahej Uddin, is personally known to him. The main ground of challenge raised by the learned counsel is that the cross-examination of the petitioner was done by the Court, which is impermissible in law, and to substantiate his argument, he had shown in the opinion of the learned Tribunal that no advocate for the State was present during the hearing. He had also argued that it was the fault of the lawyers of the petitioner who had not called relevant witnesses, i.e., the mother as well as the Secretary of the Panchayat. He relied on Section 50 of the Evidence Act, wherein it is provided that any member of the family can depose facts which are in their special knowledge and that the said facts would become relevant. Mainly on these two grounds, the learned counsel for the petitioner prayed for remanding the matter back to the Tribunal.

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On the other hand, Ms. A. Verma, learned Standing Counsel appearing for FT matters, submitted that the voters’ list of 1970, which was relied on by the petitioner is a translated copy of the electoral roll and the same is not admissible in evidence. She further submitted that the names of the projected father of the petitioner are differently spelled in five documents, placed by the petitioner, and that the name of the mother had also changed in different voters’ lists. She also submitted that by reading the original Jamabandi, it could be discerned that Sattar Ali had purchased a plot of land at a much later stage and that it is not inherited by him at a very later stage, and as such, the said document cannot be relied upon by the petitioner. She also stated that in the written statement, the petitioner had not mentioned about his mother or his other siblings, and as such, he states that the petitioner. has failed to establish his link with his mother or father. To substantiate her argument, she has placed reliance on a Judgment delivered on 10.04.2018, in Isiran Nessa –Vs- Union of India , by this Court in WP(C) No. 2460 of 2016 , wherein it was held that translated copies of voters’ list cannot be construed as certified copies. It was also held that too many material contradictions render the case of the petitioner improbable and also that without examining the authors of the certificate, the same cannot be relied upon.

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ANALYSIS AND FINDINGS

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It is a settled position of law that NRC certificates are not admissible piece of evidence. Further, it is seen that in the 1970 voters’ list which is exhibited as Exhibit-B, the name of the projected father is shown as Mahej Ali and mother’s name was shown as Jarina Khatun from House No. 11 and they were stated to have voted for Abhayapuri (SC) LA 42. Thereafter, in the year 1985, the

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petitioner’s name is shown to have appeared in the voters’ list of that year, along with his projected mother from House No. 54, for the Abhayapuri North LAC. It is seen in the said list that the name of the mother was changed from Jarina Khatun to Jobina Bewa. Further, it has not been stated anywhere by the petitioner as to the fact relating to the death of his father. It is also seen that in the said voters’ list of 1985, the petitioner is shown to be the son of Mahej Uddin, whereas in the voters’ list of 1970, the name of his projected father was Mahej Ali. Accordingly, it is seen that petitioner could not place any voters’ list along with his father, and that he had made an attempt by placing a voters’ list wherein his name was shown as A. Sattar with his projected mother whose name was different. Similarly, the name of his projected father was also different in both the voters’ lists. Furthermore, in the Final Khatian which is relied on by the petitioner and which was exhibited as Exhibit-D, the name of the holder was shown as Mahej Ali Sk, which again does not come to the rescue of the petitioner as it cannot have the potentiality to establish the link of the petitioner with his projected father.

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Further, petitioner had tried to establish the link by submitting the Jamabandi, wherein , an attempt was made to show that the land held by Late Mahej Ali devolved on him, but the original copy of the said Jamabandi was not legible and on a further careful reading, the learned Standing Counsel could make out that the land was purchased by the petitioner to which the learned counsel for the petitioner could not clarify the same in his favour. As such, the said contents of the Jamabandi could not be relied upon by the Court. Furthermore, in the Ration Card, relied upon by the petitioner, his father’s name was written as Mahesh Ali, which again does not corroborate with other documents. Although the petitioner had stated in his evidence that the name of

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his father was wrongly spelled in a number of documents, and the same may be considered as one and the same person, however, the said contention would not suffice in absence of any other materials on record. It will also not be out of context to mention herein that the Ration Card cannot establish the linkage of the petitioner with his father. The petitioner had further relied on the Certificate issued by the Secretary of the Gaon Panchayat, wherein the petitioner was shown as the son of Mahej Uddin, but in absence of the author of the said certificate being examined as defence witness, the said Certificate has no value according to the law laid down. As such, it is seen that discrepancy in the names, place of voting as well as age is not in one place, but in number of places in the instant case.

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Further it is not required to go into the contention of the petitioner that the then lawyer of the petitioner did not call witnesses to depose. The other ground that the Court having cross-examined the petitioner in place of State Counsel, is amenable to get the case remanded to the Tribunal, this Court gives the following findings-

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(i) A bare perusal of the opinion rendered by the Foreigners’ Tribunal reflects that for the State there was no Advocate, as can be discerned from the Cause Title of the said opinion. On scrutinizing the records, it is seen that the petitioner has submitted his written statement on 03.05.2016, and had submitted documents to establish his citizenship as mentioned above.

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(ii) Thereafter, on 07.10.2016, the petitioner had submitted his evidence-on-affidavit. The learned Tribunal vide order dated 07.11.2016, had held that the petitioner had filed his affidavit of evidence and thereby fixed the matter on 18.01.2017 for hearing on the case as well as for cross-examination.

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However, on the said day, i.e., on 18.01.2017, as well as in the subsequent days, the matter was adjourned for one reason or the other and that finally, on 31.10.2018, it is stipulated in the order that the petitioner was present in person and was examined as OPW No. 1.

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(iii) It was further stipulated in the said order that the petitioner had refused to adduce any more evidence. The learned Tribunal, thereafter, heard the learned counsel for the opposite party and decided to pass the opinion then and there itself, but due to strike of the staff, the learned Tribunal deferred its decision and that later in the day, the Tribunal passed its opinion, which is impugned in the instant case.

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(iv) Although the learned Tribunal had stated in its opinion that OPW No. 1 was examined, but on noticing the examination of the OPW No. 1, which was recorded on 31.10.2018, makes it abundantly clear that the statement given by the petitioner was in the nature of cross-examination. The very first line in the deposition of the petitioner reflected the following statement-“I shall state truth and only truth- OSA XXX”, which shows the same was in the nature of crossexamination without any iota of doubt. It was not written by the learned Tribunal that the said statement was given pursuant to his examination under Section 165 of Evidence Act.

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(v) In the order passed by the learned Tribunal, it was simply written that OPW No. 1 was examined. Furthermore, on a previous occasion, as stated above, the learned Tribunal had fixed the case for cross-examination after the petitioner had filed his evidence-on-affidavit. Furthermore, the perusal of the deposition recorded on 31.10.2018 also makes it clear that it was in the form of cross-examination. As such, it is noticed that the State counsel was not present

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and that it was the Court who had cross-examined the petitioner.

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(vi) This Court, in Sakina Khatun -Vs- Union of India; reported in 2025 (5) GLT 1059, had held that cross-examination conducted by the Court is not a proper procedure and on the said ground, the case was remanded to the learned Tribunal for re-hearing. The relevant part of the said Judgment is reproduced hereinbelow:-

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“15. Turning our attention to another aspect of the proceedings conducted by the learned. Tribunal, we are pained to see that the Cross-examination of all the DWs were conducted "through Court". We have gone through the order sheets of the relevant dates viz. 10.4.2017 (1stcross of DW-1) 29.8.2017, (2nd cross of DW-1), 16.11.2017 (cross of DW-2) and 24.1.2018 (cross of DW-3). The presence of the Govt. Pleader/Assistant Government Pleader is not disclosed in the said orders. The impugned order dated 26.3.2017 does not record the presence of the Govt. Pleader/Assistant Government Pleader. In very similar circumstances, a co-ordinate Bench of this Court, by order dated 05.3.2025 in WP(C) 6587/2024, held that the only plausible view would be that the learned. Tribunal had embarked on the crossexamination of the DWs and that such practice was held impermissible for a quasi judicial authority.

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Having given our anxious attention to the proceedings conducted by the learned Tribunal, we are left with no option but to hold that the proceedings in FT Case No. 340/2016 suffers from procedural illegalities and the manner in which the proceedings were conducted do not inspire the confidence of the Court that the proceedee had faced a fair and impartial adjudication by the learned. Tribunal. In such view of the matter, the present writ petition is disposed of by setting aside the order dated 13.6.2017, which had allowed amendments to the WS and the affidavit filed as evidence in chief of DW-1 and also by setting aside the opinion rendered by the learned. Tribunal on 26.3.2018 (wrongly typed in the order as 26-3-2017). The matter is remanded back to the learned. Tribunal to render a fresh opinion in accordance with

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law and by taking into account the relevant pleadings and exhibits already available on record but by ignoring the amended written statement and amended evidence- onaffidavit filed by the DW-1. The cross examination of the DWs which was already conducted, having been found to be faulty, opportunity of cross examination shall be granted to the State, if so prayed for.”

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(vii) In yet another decision, this Court in Md Sahjahan Ali -Vs- Union of India and Others, being WP(C) No. 4496 of 2018, delivered a Judgment, stating, inter alia, that the Court examining the witness orally in absence of Government pleader, is a wrong procedure and the matter requires remanding it back to the Tribunal. The relevant findings are reproduced below:-

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“15. Upon perusal of the record, we take note of the fact that the proceeding was taken up by the learned Tribunal on 9 (nine) dates between 01.12.2018 and 21.05.2018. However, the presence of A.G.P. is not recorded in any of the daily orders. The examination-in-chief of the three DWs were recorded by the learned Tribunal and thereafter, instead of cross-examination of the said DW nos. 1, 2 and 3 by the State, the said witnesses were orally examined by the learned Tribunal. The evidence of the DW nos. 1, 2 and 3, could not be shaken during examination by the learned Tribunal.

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Thus, it appears that the learned Member, Foreigners’ Tribunal 2nd, Nagaon, acted both as a prosecutor and the Judge in the same proceeding. This violates the principles of natural justice.

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Accordingly, the Court has no hesitation to set aside the impugned opinion dated 25.05.2018, passed by the learned Member, Foreigners’ Tribunal 2nd , Nagaon in F.T. Case No. 820/2011, bearing S.P. Ref. IMDT Case No. 393/2002 against the petitioner, Sahjahan Ali. Resultantly, the matter is remanded back to the said learned Tribunal for a fresh decision.

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It is further seen in the said Judgment noted above that this Court had given a direction to the State Government in the Home Department to ponder

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upon the said question and to take up appropriate remedial measures. The Court had further requested the learned Standing Counsel for the Home Department to send the copy of the said order to the concerned authority who is in charge of Foreigners’ Tribunal matters.

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(viii) Therefore, it is noticed in the instant case that the petitioner being examined by the Court, which is clear that the same was in the nature of crossexamination, was not the proper procedure, rather the same was illegal, and as such, the case be remanded to the learned Tribunal.

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In such view of the matter, the present petition is disposed of by setting aside the opinion rendered by the learned Tribunal on 31.10.2018. The matter is remanded back to the learned Tribunal to render a fresh opinion, in accordance with law and by taking into account, the relevant pleadings and exhibits already available on record. The cross-examination of the petitioner, which was already conducted is incorrect and the opportunity of cross-examination should be given to the State.

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The Registry shall return back the records to the learned Tribunal immediately along with a copy of this order.

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The petitioner shall appear before the learned Tribunal with the certified copy of this order on or before 29.05.2026, without requirement of any further notice.

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Further, it is expected that the learned Tribunal will expeditiously render its opinion on the basis of the materials available on record, preferably within a period of 2(two) months from the date of receipt of the records or date of appearance of the proceedee, whichever is earlier.

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Since the matter has been remanded back, the observations on merit mentioned above should not influence the learned Tribunal.

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The petitioner is also directed to appear before the Superintendent of Police (Border), Bongaigaon, within 20 days from the date of receipt of the certified copy of this order, and furnish a bail bond of Rs. 5,000/- with one solvent surety of the like amount to the satisfaction of the said authority.

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Further the Superintendent of Police (Border), Bongaigaon, is directed that on appearance of the petitioner within the period indicated above, the biometrics of iris of both eyes, the finger prints of both hands and the photographs of petitioner shall be obtained, whereafter, he shall be allowed to remain on bail.

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On failure of the petitioner to appear before the Superintendent of Police (Border), Bongaigaon, and before the learned Foreigners’ Tribunal within the time allowed, the bail order would be revoked by efflux of time, without any further order of the Court. Thereupon, it would be open to the Superintendent of Police (Border), Bongaigaon, to secure the presence of the petitioner before the learned Tribunal for rendering fresh opinion in the presence of the petitioner.

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The writ petition is allowed to the extent, as indicated above.

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No order as to cost(s).

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JUDGE JUDGE

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Comparing Assistant

Abdus Chattar @ Sattar Ali v. the Union of India and 7 Ors.

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Abdus Chattar @ Sattar Ali v. the Union of India and 7 Ors.

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