Kiran Sarkar @ Kiran Baishya Vs the Union of India and 5 Ors.

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GAHC010173292019

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2026:GAU-AS:8591

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

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Case No. : WP(C)/5631/2019

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KIRAN SARKAR @ KIRAN BAISHYA D/O- LATE HEMENDRA BAISHYA, W/O- JATINDRA SARKAR @ JATIN SARKAR, R/O- VILL- SARUPATGAON, P.S- CHARIDUAR, DIST- SONITPUR, ASSAM

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VERSUS

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THE UNION OF INDIA AND 5 ORS THROUGH THE SECRETARY TO THE GOVT OF INDIA, MIN OF HOME AFFAIRS, GRIHA MANTRALAYA, SHASTRI BHAWAN, TILAK MARG, NEW DELHI- 110001

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2:THE STATE OF ASSAM THROUGH THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM HOME AND POLITICAL DEPTT DISPUR GUWAHATI- 781006 3:THE ELECTION COMMISSION OF INDIA REP BY THE CHIEF ELECTION COMMISSIONER OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI- 110001

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4:THE STATE COORDINATOR NRC ASSAM BHANGAGARH GUWAHATI- 781005

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5:THE DEPUTY COMMISSIONER

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SONITPUR P.O- TEZPUR DIST- SONITPUR ASSAM PIN- 784001 6:THE SUPERINTENDENT OF POLICE (B) SONITPUR P.O- TEZPUR DIST- SONITPUR ASSAM PIN- 78400

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Advocate for the Petitioner : MR. S C BISWAS, MR. F A HASSAN,MS. S F MAITAI,MS A BORAH

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Advocate for the Respondent : ASSTT.S.G.I., SC, NRC,SC, ELECTION COMMISSION.,SC, F.T

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BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY HONOURABLE MR. JUSTICE PRANJAL DAS

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JUDGMENT & ORDER (CAV)

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Date on which judgment is reserved : 04.06.2026 Date of pronouncement of judgment : 12.06.2026 Whether the pronouncement is of the : No. operative part of the judgment ? Whether the full judgment has been : Yes pronounced?

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( Pranjal Das, J )transcripti

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Heard Mr. F.A Hassan, learned counsel for the petitioner. Also heard Mr. G. Sarma, learned Standing Counsel, Home Deptt., and NRC for the respondent nos. 2, 4 & 6; Mr. N. Kalita, learned Standing Counsel, ECI for the respondent no. 3; Mr. S.S Roy, learned CGC for the respondent No.1 and Mr. P. Sarma, learned State counsel for the respondent No.5.

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2. The petitioner, namely Kiran Sarkar , has filed this writ petition invoking the jurisdiction of this Court under Article 226 of the Constitution of India - aggrieved by the order/opinion dated 18.01.2019 passed by the learned Member, Foreigners Tribunal No. 7, Sonitpur, Balipara, in Case No. FTDC No. 439 of 2016, (arising out of Reference No. TZP(B)/1065/97, dated 15.05.1998).

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3. By the impugned order/opinion, the learned Tribunal, answering the reference against the petitioner held that she is a foreigner who illegally came into India on or after 25.03.1971.

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4. Before proceeding further, the facts in brief may be noted herein below:

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The petitioner was marked as a D-voter and her case forwarded by the Superintendent of Police (Border), Sonitpur to the Foreigners Tribunal at Tezpur for determination of her nationality on the premise that she was suspected to be a foreign national. Accordingly, the petitioner as proceedee, faced a proceeding before the learned Foreigners Tribunal, as narrated above.

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5. Upon receiving the reference, the learned Foreigners Tribunal noticed the proceedee and she appeared to file a written statement. During the proceeding, 4(four) witnesses were adduced by the petitioner, being herself as DW-1, her mother as DW-2, Headmaster as DW-3, and one assistant from Sub-Registrar Office as DW-4. As part of her evidence, she also adduced 15 documents which were marked as Exhibits A to Exhibit O . However, upon perusing her materials and evidence, the learned Foreigners Tribunal was pleased to answer the reference against the petitioner. Hence, the instant writ petition.

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6. In the written statement, the petitioner has stated that she was born and brought up at village Pakbil within the jurisdiction of Rangapara Police Station in the district of Sonitpur, Assam, India, and therefore, a citizen of India by birth. She further stated that her father was one Hemendra Baishya @ Hemendra Chandra Baishya , who was also a permanent president of village Pakbil mentioned above and that his name figured in the electoral roll of 1971 and 1997 of No. 74, Rangapara LAC. She further stated that her father purchased landed properties in the same village Pakbil in 1953 by executing registered Sale Deed bearing Registration No. 964828 dated 09.03.1953. It is stated by the petitioner that she was married with one Jatindra Sarkar on 05-08-1970 and thereafter, started residing at his village at village Sarupatgaon in the district of Sonitpur, and that later her name was enlisted in the voters list of No. 74, Rangapara LAC. The petitioner stated that she is not a foreigner, and that the reference was made falsely

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and baselessly.

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7. The petitioner also submitted an additional written statement stating that her grandfather's name was Gyanendra Baishya , who had two sons being Naresh Chandra Baishya and her father Hemendra Baishya . She stated that her mother's name was Subhadra Baishya , who was also known as Shobharani Baishya and that her parents had five children, including herself. It is stated that after the death of her mother, her father married one Moina Baishya and thereafter, one Manthara Baishya , and had issues from the said wives as well. The petitioner contended in her additional written statement that her father's name was recorded as a voter of No. 74, Rangapara LAC in 1976, 1985, 1989, 1993, 1997 and 2005 before he expired in 2011.

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8. Mr. F.A Hassan, learned counsel for the petitioner, submits that the petitioner is a citizen of India, having been born and brought up in the country. It is submitted that her name appeared in the voters list of Rangapara LAC in 1989, along with her husband, in the area pertaining to her matrimonial house. It is submitted by the learned counsel that in 1953 itself, her father Hemendra Baishya had a land sale transaction, in support of which relevant documents have been submitted. Her father's name also appeared in the voters list of 1971 of Rangapara LAC. It is submitted that there is no reason why the testimony of her mother as DW2 should be disbelieved.

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9. It is submitted by the learned counsel for the petitioner that in support of the land sale document, DW4 has adduced evidence in favour of the petitioner. It is submitted that even in 1985, the name of the petitioner appeared in the voters list, though along with her husband, it appeared in 1989.

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10. On the other hand, Mr. G. Sharma, the learned Standing counsel for respondent Nos. 2 and 4 submits that the school certificate adduced in evidence by the petitioner suffers from multiple infirmities, as a result of which the same cannot be taken into consideration.

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11. Mr. Sharma, the learned counsel for the respondents submits that linkage documents are inadequate and the petitioner has failed as a proceedee to show link documentary evidence with her projected ancestor.

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12. In support of his contentions, Mr. Sharma, the learned counsel for the respondent Nos. 2 and 4, refers to the decision of Khudeja Khatoon -versus- Union of Indian & Others, reported in 2018 (3) GLT 347 .

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13. The petitioner, Kiran Sarkar , adduced evidence before the learned Tribunal as DW-1, in which she stated that she was born and brought up at village Pakbil in Sonitpur district of Assam and her date of birth was 7^th August, 1958. She stated about her admission in Netaji Vidyapith Primary School, Balipara, where she studied up to Class B (Ka) in 1964 and she has exhibited as Exhibit A , a school certificate dated 20^th April 2018, issued by the Headmaster of the school. DW-1 stated that her grandfather's name was Gyanendra Baishya and he had two sons, Naresh Chandra Baishya and her father Hemendra Baishya . She further stated in her deposition that her mother's name is Subhadra Baishya and that her parents had five issues, including herself. DW-1 testified about her father marrying Moina Baishya subsequently and then a third marriage with Manthara Baishya and that he had issues from all the wives. DW-1 testified about her father's name being Hemendra Baishya , who was also known as Hemendra Chandra Baishya . He was a permanent resident of village Pakbil in Sonitpur district of Assam. She stated that her father along with his brother Naresh Chandra Baishya and maternal uncle Dinesh Chandra Baishya purchased land from one Pyari Mohan Choudhury and Nabin Chandra Choudhury of the same village on 9^th March, 1953 by a registered Sale Deed No. 828 of the same date. She exhibited the same document as Exhibit B . She stated that her father's name was enlisted in the NRC of 1971 and exhibited the relevant document as Exhibit C . She also stated about her father's name figuring in the voters list of 1971 of No.74 Rangapara LAC at Sl. No. 111, but that her father's name was recorded in that voters list as Hemendar Baishya , son of Gyanendar, instead of Hemendra Baishya and father's name being Gyanendra Baishya . She exhibited a digitally certified copy of the said as Exhibit E . She also exhibited as part of her evidence the subsequent voters list of 1976, 1985, 1989, 1993, 1997, 2005 as Exhibit F, Exhibit G, Exhibit H, Exhibit I, Exhibit J and Exhibit K respectively. All these voters list pertaining to No. 74 Rangapara LAC.

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14. In para 20 of her evidence on affidavit, DW1 testified about her marriage with Jatindra Sarkar on 05.08.1970 and after marriage she was known as Kiran Sarkar @ Kiran Bala Sarkar and that her name was recorded in the voters list of 1989 along with her husband with regard to No. 74 Rangapara LAC. In this regard, she has exhibited as Exhibit L , a certificate issued by the Secretary, Balipara Gaon Panchayat dated 10.07.2015. She also exhibited a voters list of 1989 as Exhibit M and voters list of 2005 as Exhibit N . She exhibited as Exhibit O , electoral voters identity card in her name but stated that her name, was mentioned therein as Sarakar instead of

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Sarkar and husband's name mentioned as Jatindra Sarakar , instead of Jotindra Sarkar . She reiterated in her evidence on affidavit that she was an Indian citizen by birth and not a foreigner.

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15. In the writ petition filed by the petitioner and in the original case record received from the learned Tribunal, no cross-examination of DW-1 could be found. Further, no question put by the Tribunal to DW-1 was also found in these records.

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16. Proceeding further, Shubhadra Baishya @ Shobharani Baishya , stated to be the mother of the petitioner, adduced evidence as DW-2 in which she testified about the petitioner being her daughter, who was born and brought up at village Pakbil in the district of Sonitpur and that her date of birth was 07.08.1958.

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17. DW-2 also testified about her daughter studying in Netaji Vidyapith Primary School, Balipara till 1964. She testified about her husband's name being Hemendra Baishya and that they have five children, including the petitioner. She has also stated about her husband contracting marriage with two other women, namely Moina Baishya and Manthara Baishya , from whom he had issues as well.

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18. DW-2 also stated about the purchase of landed property by her husband, his brother and maternal uncle from Piyari Mohan Choudhury and Nabin Chandra Choudhury of the village Pakbil on 09.03.1953. DW-2 stated about her husband's name figuring in the NRC of 1971 pertaining to Assam and also in the voters list of 1971 of No. 74 Rangapara LAC. She also stated about her husband's name figuring in the voters list of the said LAC in 1976, 1985, 1989, 1993, 1997 and 2005. She stated that in the said voters list of 1989, her name was also recorded along with her husband. DW-2 testified about the petitioner's marriage with Jatindra Sarkar on 05.08.1970. She stated about voters I-card in her name dated 01.10.2013 with regard to No. 74 Rangapara LAC, which she exhibited as Exhibit P . DW-2 stated that her daughter Kiran Sarkar @ Kiran Bala Sarkar is not a foreigner and that she is a citizen of India. No any crossexamination or questions put by the Tribunal with regard to DW-2 is available in the original case record as well as in the writ petition filed by the petitioner.

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19. As mentioned above, the petitioner as DW-1 as part of her evidence exhibited as Exhibit A , a school certificate where she purportedly studied till 1964. In this regard, the Headmaster of the school adduced evidence as DW-3 and he adduced evidence on 20.08.2018 stating that he was the present Headmaster of the school and that he had issued the said certificate being Exhibit A . He stated that as per the school records, Kiran Baishya , daughter of Hemendra

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Baishya , was a student of that school, who studied in Class B (Ka) in 1964 and left the school on 02.03.1964. As per the school register, her date of birth was 07.08.1958. He exhibited his signature as Exhibit A(1) . He exhibited the admission register of the school of year 1964 as Exhibit R . On query by the Tribunal, he admitted that against the name of petitioner Kiran Sarkar , signature of the Headmaster - in the column for Headmaster’s signature - does not exist. Upon being asked as to how he issued the school certificate pertaining to the year 1964 without the signature of the headmaster as DW-3 was appointed only in 1985 - he answered in the negative stating that he does not know.

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20. With regard to the Sale Deed exhibited by the petitioner as Exhibit B , one Sri. Gagan Baniya , Head Assistant, Sub-Registrar Office Tezpur, adduced evidence as DW-4 stating that a Sale Deed bearing No. 828 dated 09.03.1953 was registered in the Office of the Sub-Registrar Tezpur by the executants Pyari Mohan Chowdhury, Naveen Chandra Chowdhury in favour of Hemendra Chowdhury, Narendra Chandra Baishya and Dinesh Chandra Baishya . He stated in his deposition that he had produced at the time of deposition the volume register and compared the Sale Deed No. 828 of 1953 with the volume register and found the contents of the sale deed to be correct as per the volume register. In cross-examination and queries by the Tribunal, he stated that he was appointed in 1989 and transferred to that particular Sub-Registrar Office in Tezpur in 2017 only. Upon being asked as to how he knew and how he could identify the signature of the Sub-Registrar Office of the year 1953, he admitted that he did not have knowledge of the signature of the Sub-Registrar Office.

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21. We have perused the pleadings of the writ petition, the impugned order/opinion, the evidence and documents exhibited before the Tribunal during the proceeding and other relevant materials. We have considered the submissions of the learned counsels on both the sides and considered the decisions cited at the Bar.

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22. In a reference proceeding before the Foreigners' Tribunal as per the governing Law, the proceedee has to discharge the burden of proof under section 9 of the Foreigners' Act 1946 in proving by preponderance of probability that she is not a foreign national who had come illegally into Assam after 25.03.1971.

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23. In a catena of decisions rendered by this court, the law has now crystallized that such a burden has to be discharged by the proceedee through cogent evidence, including essentially documentary evidence by which he/she has to show his or her linkage with an ancestor who was

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an Indian citizen.

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24. In the instant case, the petitioner has exhibited as Exhibit B , the voters' list of 1971, where one Hemendar Baishya figures against Sl. No. 111 and his father's name indicated as Gyanendar. It has been stated in evidence of DW1, the petitioner, that the name was wrongly written as Hemendar instead of Hemendra and grandfather's name was wrongly written as Gyanendar, instead of Gyanendra . In the voters' list of 1976 pertaining to the same LAC, i.e., No. 74 Rangapara LAC, Hemendra Baishya is indicated against Sl. No. 133 and is indicated as the son of Gyanendra . Therefore, even if the purported discrepancy of names of the voters' list of 1971 is overlooked, it would only mean that one Hemendra Baishya , son of Gyanendra was present in India in the said year and was in all probability an Indian citizen.

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25. In all these voters' lists, the said Hemendra Baishya figures with regard to the No. 74 Rangapara LAC and his father's name is indicated as Gyanendra . In the voters' list of 1997 and 2005, the name is mentioned as Hemendra Chandra Baishya . What is important to note that in none of these voters' lists exhibited by the petitioner, the name of the petitioner Kiran Sarkar appears together along with the said Hemendra Baishya . As per the exhibited documents, the petitioner's name figures in the voters' list of the same LAC in 1989 along with her husband, though purportedly his name was wrongly recorded as Matinder Sarkar instead of Jatinder Sarkar . The age indicated against the name Kiran Bala Sarkar is 32 years. It is somewhat strange that the name of the petitioner figures in the exhibited voters' list for the first time in 1989 at the age of 32 years, which is several years after she attained the age of franchise. In the subsequent voters' list of 2005 also, her name appears with her husband and her name is indicated as Kiran Sarkar . In the 2005 voters' list, the name of her husband is mentioned as Jatindra Sarkar . From the point of view of building a linkage through the voters' list, figuring of the name of the petitioner in the voters' list along with her husband post 25.03.1971 would not help her case. What was important is figuring of her name, along with one of her ancestors who was an Indian citizen prior to 25.03.1971. As already mentioned, her projected father, Hemendra Baishya , figures in the voters' list of 1971 and in the several voters' list thereafter. But in none of these voters' lists, the name of Hemendra Baishya appears together with the petitioner. In the original records, Exhibit B , Sale Deed, is stated to be proved in original. However, the learned Tribunal in the impugned order/opinion has stated that a photocopy of a registered Sale Deed was exhibited as Exhibit B . On the back side of Exhibit B , the names of Hem Chandra Dutta , son of late Dayaram Dutta , is mentioned, though the names of Piyari

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Mohan Chowdhury and Navin Chandra Chowdhury are also mentioned. The learned Tribunal cast some doubts on this aspect of the matter and discarded the said documentary evidence.

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26. We have carefully perused the Exhibit B , Sale Deed, and find that the names of Hem Chandra Dutta , son of late Dayaram Dutta , is mentioned on the back side of the Sale Deed. In the initial portion of the document, however, the name of Hemendra Chandra Baishya also finds mention. The Sale Deed is dated 9^th March, 1953 and therefore, overlooking the discrepancies, even if this Sale Deed is accepted, it would only show the said Hemendra Chandra Baishya to be an Indian citizen prior to 25^th March 1971, rather than showing any linkage with the petitioner Kiran Sarkar , which is what is required from her point of view. As regards the Exhibit L, the certificate issued by the Secretary of the Balipara Gaon Panchayat on 10^th July 2015, the learned Tribunal was not convinced by this piece of documentary evidence as well.

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27. We have carefully perused the said Exhibit L . The certificate is dated 10^th July 2015, as stated above, and it mentions the marriage of Kiran Baishya with Jatindra Sarkar on 5^th May, 1970. Thus, the certificate was issued about 45 years after the marriage of the petitioner. The issuing authority has not appeared to prove this certificate, nor are there any contemporaneous materials to show that such certificate was issued. For such a document to become acceptable, there has to be materials to show as to how the person issuing the certificate in July 2015 was aware of the marriage of the person concerned in August, 1970. Therefore, in our considered opinion, Exhibit L , the certificate regarding marriage of the proceedee, does not help her case.

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28. Regarding the voters' ID of the petitioner and her mother exhibited by her, it is well settled that such documents are not stand-alone proof of citizenship. In this context, reference may be made to the decision in Md. Babul Islam -versus- State of Assam , in WP(C) No. 3547/2016, vide judgment & order dated 09.05.2018. The relevant paragraph-20.2 is reproduced herein below;

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“ 20.2 In so far Exhibit-7 Elector Photo Identity Card is concerned, besides not being proved, it is a post 25.03.1971 document. Besides, merely producing such an identity card in the absence of supporting evidence would not be proof of citizenship.”

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29. We next take up the school certificate exhibited as Exhibit Q . The same was issued by the

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Headmaster of the said school on 20.04.2018. The certificate mentions about the petitioner studying in that school and leaving the same. However, the admission register exhibited as Exhibit R suffers from several infirmities in our considered view. Firstly, the name which was written there, pertaining to the petitioner, is mentioned as Kiran Bala Sarkar . Subsequently, the words Bala and Sarkar were struck off and over that, the word Baishya is written. Secondly, we also find that with regard to the column pertaining to the signature of the Headmaster, no signatures are available and the said column is blank. In this case, the Headmaster of the school had issued the certificate with regard to a purported student of the school who had left the school in March, 1964.

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30. Obviously, the issuing Headmaster was not the Headmaster at the relevant time in 1964. Therefore, the admission register of 1964 on the basis of which the certificate was issued assumes considerable significance. In this context, the aforementioned infirmities in the admission register exhibited as Exhibit R dilutes and almost nullifies the certificate exhibited as Exhibit Q . The infirmities in the admission register Exhibit R - by way of overwriting, striking off of names and no signatures in the column for signature of Headmasters - cannot simply be overlooked. Therefore, we do not find any error on the part of the learned Tribunal in discarding this evidence.

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31. Another reason for discarding the certificate by the learned Tribunal was that it bore on its top the Ashoka emblem, which was not permissible to be used in such certificates. The learned Tribunal also referred in this context to the decision of this Court in Jainaluddin -versus- Union of India , in WP(C) No. 3071/2016 , vide judgment & order dated 03.04.2018. The relevant extracted paragraphs thereof may be reproduced herein below:

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“ In so far Ext-8 is concerned, on the face of it, we have grave doubts about the genuineness of this document. Nowhere, it is stated whether Borangatoli Primary School was a Government school or a private school. But, in this certificate, the State Emblem of India is embossed at the top. As per the State Emblem of India (Regulation of Use) Rules, 2007 framed by the Central Government in exercise of the powers conferred by Section 11 of the State Emblem of India (Prohibition of Improper Use) Act, 2005, more particularly, Rule 5 thereof, use of the official emblem is restricted to the authorities specified in Schedule-I. Rule 10 makes the restriction more specific. It says that no person, including former Ministers, former Members of Parliament, former Members of Legislative Assemblies, former Judges and retired Government officials (other than those authorized under the Rules) shall use the emblem in any manner.

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Sub-Rule (2) of Rule 10 clearly provides that no Commission or Committee, Public Sector Undertaking, Bank, Municipal Council, Panchayat Raj Institution, non-governmental organization, University (other than those authorized under the Rules) shall use the emblem in any manner. Schedule-I to the Rules contains a list of constitutional and statutory authorities, ministries or departments of the Central Government, State Governments or Union Territory Administrations and other Government functionaries which may use the emblem.

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Therefore, it is evident that Headmaster of a Primary School is not authorized to use the State Emblem of India in any certificate issued by the said authority. This itself makes this document inadmissible in evidence ……………………… ..”

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(emphasis added)

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32 . Thus, upon considering the evidence, including the documentary evidence in its entirety, we find that while there are documents to indicate that Hemendra Baishya @ Hemendra Chandra Baishya , was an Indian citizen prior to 25^th March 1971, but the said Hemendra Baishya , who is the projected father of the petitioner herein, does not have any link documentary evidence with the petitioner. To put it alternatively, the petitioner has not been able to adduce documentary evidence which passes the test of admissibility and proof to show her linkage with the said Hemendra Baishya .

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33. As already mentioned, there are no voters list where the name of the petitioner appears together with Hemendra Baishya . There are also no voters list, where the name of the petitioner figures together with Subhadra Baishya @ Subharani Baishya, her projected mother. In any case, the name of Subhadra, the projected mother of the petitioner, appears for the first time in the voters list of 1985 along with Hemendra Baishya .

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34. For the reasons narrated above, the certificate of the Gaon Panchayat Secretary regarding marriage of the petitioner, being Exhibit L , fails to pass the test of acceptable documentary evidence towards such linkages. The Sale Deed exhibited as Exhibit B suffers from infirmities and even if that is overlooked, it only figures the name of Hemendra Baishya and does not build the necessary linkage with the petitioner, Kiran Sarkar @ Kiran Baishya . As already discussed, the school certificate cannot be accepted because of the multiple infirmities found in the admission register extract on the basis of which the certificate was issued. Therefore, even the

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school certificate has to be discarded, even if the aspect of the name discrepancy in the Sale Deed is overlooked.

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35. Consequently, in the backdrop of the above discussion, we come to the inevitable conclusion that during the proceeding before the learned Tribunal, the petitioner proceedee could not show any satisfactory link documentary evidence with her projected father Hemendra Baishya or even her projected mother Subhadra Baishya . Hence, there is no infirmity in the impugned opinion.

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36. Accordingly, the impugned Judgment and Opinion dated 18.01.2019 passed by the learned Member, Foreigners Tribunal No. 7, Sonitpur, Balipara, in Case No. FTDC No. 439 of 2016, (arising out of Reference No. TZP(B)/1065/97, dated 15.05.1998) is hereby upheld and confirmed .

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37. Before parting, it may be mentioned herein that despite the dismissal of the writ petition, if the petitioner applies before the concerned authority seeking the benefit of the Citizenship Amendment Act 2019, the same may be considered and necessary orders passed in accordance with law.

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38. The writ petition stands dismissed and disposed of, subject to the above observations.

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39. The interim order dated 06.11.2019 shall stand vacated.

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40. Return the original case record.

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JUDGE JUDGE

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Comparing Assistant

Kiran Sarkar @ Kiran Baishya v. the Union of India and 5 Ors.

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Kiran Sarkar @ Kiran Baishya v. the Union of India and 5 Ors.

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