Kiran Raj

In a recent judgment, the Gauhati High Court Division Bench comprising Justice Kalyan Rai Surana and Justice Malasri Nandi dismissed a writ petition challenging the opinion of the Foreigners Tribunal (FT) that had declared the petitioner to be a foreigner who entered India (Assam) on or after 25.03.1971. The Bench found no error in the Foreigners Tribunal's assessment of the petitioner's evidence and stated that the proceedings were conducted in accordance with law.

The Court rejected the petitioner’s prayer to set aside the Tribunal’s decision or remand the matter for fresh consideration, holding that the evidence tendered did not sufficiently establish Indian citizenship.

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The petitioner, Fakar Uddin, a resident of Bheraldi village in Barpeta district, Assam, had challenged the opinion dated 21.08.2018 rendered by the Foreigners Tribunal No. 1st, Barpeta in F.T. Case No. 289/2016. He claimed to be an Indian citizen by birth, contending that his grandfather and father were Indian citizens, and he was born and raised in Barpeta.

To support his claim, the petitioner submitted eight documents with his written statements and two affidavits. These included multiple electoral rolls (1966, 1970, 1989, and 1997), a jamabandi (land record), birth certificate, SEBA registration certificate for his son, a Gaonburah certificate, and affidavits explaining discrepancies in names. He examined himself as DW-1 and his uncle, Jaliluddin, as DW-2.

It was argued that the Tribunal failed to evaluate the evidence properly, especially the corroborative testimony of DW-2. The petitioner also claimed that the investigating officer's report was vague, and the initial suspicion of foreign nationality was based on the petitioner's inability to produce documents during police inquiry.

The petitioner relied on Supreme Court decisions, including Md. Rahim Ali @ Abdur Rahim v. State of Assam & Ors., AIR 2024 SC 3551, and State of Haryana v. Rattan Singh, (1977) 2 SCC 491, to argue procedural irregularities and that minor name discrepancies should not invalidate otherwise credible evidence.

In response, the learned standing counsel for the FT supported the Tribunal's findings. It was contended that the petitioner attempted to link himself with individuals listed in electoral rolls by asserting name variations, which were not corroborated by official witnesses or documents.

Citing the case Anand Ghosh v. Union of India & Ors., 2017 (2) GLT 996, it was argued that the absence of reference to a specific "stream" of foreigner (under Section 6A of the Citizenship Act) in the notice did not vitiate the proceedings. The counsel also cited prior cases affirming strict requirements for proving lineage and residence before 25.03.1971.

The Tribunal's record showed that the FT issued notice based on a police report wherein the petitioner could not provide documentation during an inquiry. Upon receiving notice, the petitioner filed affidavits and supporting documents, which included electoral records where he claimed his grandfather, father, and himself were listed.

However, the Court noted that the documents were not proved as required by law. It observed, "although several documents were exhibited and marked as Ext.A to Ext.N, the contents of the said exhibits were not proved." It further stated, "The petitioner has not disclosed his whole projected family either in his written statement or in his two evidence-on-affidavits."

The Bench found that the petitioner sought to derive citizenship through his wife’s lineage, which is not permissible under the law. Further, affidavits filed to explain name discrepancies were held insufficient to establish a valid claim, referencing Basiron Bibi v. Union of India, (2018) 3 GLR 196.

On the issue of procedural fairness, the Court stated that the petitioner did not raise any objection during FT proceedings about non-disclosure of grounds or prejudice due to lack of clarity in the stream of reference. The record showed he had sufficient opportunity to present evidence and cross-examine.

The Court observed that there was no credible documentary proof establishing the petitioner’s or his ancestors' presence in India before 25.03.1971. It noted discrepancies in names across documents and held that affidavits attempting to explain these differences were not legally sufficient.

"The petitioner cannot derive his citizenship through his wife’s grandfather or father and therefore, the exhibiting of voter list of 1970 of his wife’s grandfather does not help the petitioner in any manner," the Court stated.

It held that voter lists alone do not prove familial relationships and recorded, "The voter list is not a document which can prove relationship of persons as father and son or grandfather and grandson in the absence of any other document as corroborative evidence."

On the issue of inconsistencies in electoral rolls, the Court noted the petitioner failed to prove the alleged errors by summoning officials or submitting corroborating evidence. "That there may be a spelling mistake in the electoral roll is a mere presumption," the Court remarked.

The Bench distinguished the Supreme Court’s judgment in Md. Rahim Ali @ Abdur Rahim, noting that in that case, there was supporting evidence such as prior tribunal decisions on family members and continuous presence in India, which were absent in the present case.

It also declined to accept the principle from Haidar Ali v. Union of India, 2021 (3) GLT 85, citing a prior coordinate Bench judgement in Rashminara Begum v. Union of India, (2017) 4 GLR 282, which established that written statements and compliance with procedural rules are part of FT proceedings.

The Court finally recorded, "This Constitutional Court ought not to re-appreciate the evidence... However, as the learned counsel for the petitioner had strenuously submitted... the evidence before the learned Tribunal has been examined, which is not to be cited as a precedent."

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The Division Bench concluded that the Tribunal's decision was legally and factually sustainable. The writ petition was dismissed. The order recorded:

"In light of the discussions above, this writ petition fails and is dismissed."

It further directed:

"The learned standing counsel for the FT matters shall send a downloaded copy of this order to the Superintendent of Police (Border), Barpeta."

"The Registry shall send back the records back to the Foreigners Tribunal 1st, Barpeta along with a copy of this order to be made a part of the record of F.T. Case No. 289/2016 [arising out of F.T. Ref. Case No. 25/16]."

Advocates Representing the Parties

For the Petitioner: A.R. Sikdar, N. Ahmed, S.I. Talukdar, M.M. Zaman

For the Respondents: S.P. Choudhury, J. Payeng, A.I. Ali, P. Sarmah, G. Sarma

Case Title: Fakar Uddin v. Union of India & Ors.

Neutral Citation: 2025: GAU-AS:3423

Case Number: WP(C)/8701/2018

Bench: Justice Kalyan Rai Surana and Justice Malasri Nandi

[Read/Download order]