Gauhati High Court Dismisses Challenge To Foreigner Tribunal Order | Writ Court Cannot Re-Appreciate Findings Based On Inadmissible Evidence
Sanchayita Lahkar
The High Court of Gauhati Division Bench of Justice Manash Ranjan Pathak and Justice Malasri Nandi dismissed a writ petition challenging a Foreigners Tribunal’s opinion that declared the petitioner as an illegal migrant. The Court held that it cannot substitute its view for that of the Tribunal unless the Tribunal's findings are perverse or unsupported by evidence. It stated that the documents relied upon by the petitioner did not conclusively prove Indian citizenship. Accordingly, the High Court dismissed the writ petition and declined to interfere with the Tribunal’s decision.
The petitioner filed a writ petition under Article 226 of the Constitution of India, challenging the opinion of the Foreigners Tribunal, Barpeta dated 25.02.2020, which declared her an illegal migrant from Bangladesh.
The petitioner, a resident of Joypur village in Kokrajhar district, Assam, claimed that she was born on 09.06.1967 in Namberpara village, then part of Goalpara district. In her written statement, she identified her father as Joher Ali (alias Jowaher Ali), her mother as Jinnatjan Nessa (alias Jinda Nessa), and her grandfather as Karim Miah. She stated that she had three brothers and five sisters and that her family were Indian citizens, with their names appearing in various voter lists from 1966 onwards.
According to the petitioner, she married Khalilur Rahman on 08.07.1992. After her husband's death on 31.12.1999, she continued residing in Joypur village. She relied on voter lists from 1993, 1997, 2005, 2013, and 2018 to prove her residence and citizenship.
The petitioner submitted several documents to the Tribunal. Her counsel contended that the Tribunal dismissed these documents without justification. It was also submitted that discrepancies in the names and ages in the official records were minor and attributable to clerical errors. Further, the petitioner had been marked as a 'D' (doubtful) voter due to insertion of her name without her knowledge in the voter list of villages Mechpara, Barpeta in 1997.
The respondents, including the Union of India and State authorities, opposed the petition. Counsel for the State argued that the jamabandi record and voter lists did not conclusively establish citizenship. Relying on decisions of the High Court in Nur Begum v. Union of India and Ohab Ali, they submitted that mere inclusion in revenue records or possession of electoral documents did not prove citizenship.
Further, the State pointed out discrepancies in the age and names of the petitioner and her relatives across the documents. It was contended that even if the State had not rebutted the evidence, the Tribunal was justified in rejecting inadmissible or unproven documents.
The petitioner examined herself and three other witnesses:
- DW-1: The petitioner claimed birth in 1967 but stated a different year (1972) during cross-examination. She was inconsistent regarding the number of her siblings.
- DW-2 and DW-3: Her brothers, who supported her claims, could not explain discrepancies in voter records.
- DW-4: Lat Mandal from Srijangram Revenue Circle, who stated that mutation of land in her name occurred only in 2017, without details on issuance of legal heir certificate or death details of the petitioner's father.
The Tribunal had found the evidence insufficient, noting lack of sale deeds, unexplained gaps in voter lists, inconsistent ages, and questions surrounding the death certificate. The petitioner failed to produce medical or hospital records to support the claim that her husband died in Cooch Bihar.
The Division Bench observed “the writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, being a high prerogative writ, should not be issued on mere asking."
Further, it quoted the Supreme Court in Central Council for Research in Ayurvedic Sciences v. Bikartan Das, noting “The High Court does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based."
The Court recorded that "Ext.A and Ext.B – voter lists of 1966 and 1970 show the names of Joher Ali and family from Namberpara, but there is a gap of 15 years before Ext.C – the 1985 list." No explanation was provided for the absence of intervening records.
The Bench observed, "The petitioner stated she resided in Joypur post-marriage, but there is no declaration of such shift in the documents relied upon. Ext.I – the death certificate – was issued without medical records or hospital details, rendering it of no value in the eye of law."
Regarding witness testimony, the Court noted contradictions: "DW-1 stated she was born in 1967 but later said 1972; she initially claimed to have five sisters but later mentioned only two brothers."
It further recorded, "DW-2 could not explain why his elder brother’s name disappeared from the voter list post-1970. DW-3 contradicted himself on the village where petitioner was declared doubtful voter."
With regard to documentary evidence, the Bench reiterated settled law that "jamabandi entries are for fiscal purposes and do not prove title or citizenship," referring to Guru Amarjit Singh v. Rattan Chand. Citing State of Assam v. Ohab Ali, it stated, "Burden is on the proceedee to prove citizenship through admissible and proved documents. Mere filing is insufficient."
The Court also quoted Sarbananda Sonowal v. Union of India, stating "Facts such as birth date, place, and parentage are within the personal knowledge of the person claiming citizenship, and the burden lies on them."
Referring to Rukia Begum v. Union of India, the Bench stated, "Even if the State does not object, the petitioner must prove the certificate and its contents independently."
In dealing with voter list discrepancies, the Bench cited Abdul Kuddus v. Union of India, observing that "the petitioner cannot accept only favourable parts of the voters list and reject unfavourable details like age or spelling inconsistencies."
The Court concluded, "This is not a case of perverse finding or wrong appreciation of evidence. The Tribunal's conclusion is based on the material available on record and does not call for interference."
The Division Bench concluded that the Tribunal’s finding declaring the petitioner as a foreigner was neither perverse nor unsupported by evidence. It held: "This Court exercising writ jurisdiction cannot interfere with the same."
"It is not appropriate for the High Court under Article 226 of the Constitution of India to re-appreciate the evidence and come to a different finding."
"On perusal of the impugned order in reference to the evidence on record, it cannot be said to be a case of any wrong appreciation of evidence or record of perverse finding opposed to the evidence on record."
"We do not find any merit in the writ petition and accordingly it is dismissed. There shall be no order as to costs."
"The writ petition is disposed of accordingly. Transmit the records to the Tribunal."
Advocates Representing the Parties:
For the Petitioner: Mr. K.U. Ahmed, Mr. W. Rahman
For the Respondents: Mr. J. Payeng, Standing Counsel, FT matters; Ms. S. Baruah, CGC; Mr. M. Islam for Mr. A.I. Ali, Standing Counsel, ECI; Mr. H.K. Hazarika, Government Advocate
Case Title: Jahura Khatun v. Union of India & Others
Neutral Citation: 2025:GAU-AS:7016
Case Number: WP(C)/3507/2020
Bench: Justice Manash Ranjan Pathak, Justice Malasri Nandi
[Read/Download order]
