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GAHC010036952020

THE GAUHATI HIGH COURT

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

Case No. : WP(C) 1197/2020

1:DULAL UDDIN
S/O LATE SAHUR UDDIN, R/O VILL-DAKHIN KOLADUBA, P.O.-JENGANI,
P.S.-JURIA, DIST-NAGAON, ASSAM, PIN-782122

VERSUS

1:THE UNION OF INDIA AND 5 ORS.

REPRESENTED BY HOME SECRETARY, MINISTRY OF HOME AFFAIRS,
NORTH BLOCK, NEW DELHI-110001

2:THE STATE OF ASSAM

REPRESENTED BY COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
HOME AND POLITICAL DEPARTMENT
CM BLOCK (3RD FLOOR)
ASSAM SECRETARIAT
GUWAHATI
DIST-KAMRUP(M)
ASSAM
PIN-781006

3:THE DEPUTY COMMISSIONER

NAGAON
DIST-NAGAON
ASSAM
PIN-782001

4:THE SUPERINTENDENT OF POLICE (B)

NAGAON
DIST-NAGAON
ASSAM
PIN-782001
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5:THE ELECTORAL REGISTRATION OFFICER

83 NO. DHING LEGISLATIVE ASSEMBLY CONSTITUENCY
C/O OFFICE OF THE CIRCLE OFFICER
DHING
P.O.-DHING
DIST-NAGAON
ASSAM
PIN-782123

6:THE STATE COORDINATOR OF NATIONAL REGISTRATION (NRC)

ASSAM
1ST FLOOR
ACHYUT PLAZA
G.S. ROAD
BHANGAGARH
GUWAHATI
ASSAM
PIN-78100

Advocate for the Petitioner : MR. O LASKAR

Advocate for the Respondent : ASSTT.S.G.I.

BEFORE
HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

ORDER
Date : 04-06-2020

Heard the learned counsel Mr. O. Laskar appearing for the petitioner. We have also
heard Mr. J. Payeng, learned Standing Counsel, FT and Standing Counsel, Border Police,
Assam, Ms. G. Hazarkia, learned counsel on behalf of A.S.G.I. as well as the NRC
Coordinator and Ms. B. Das, learned counsel for the Election Commission of India.

2. This is a petition under Article 226 of the Constitution of India by which the petitioner

has challenged the opinion dated 27.03.2019 passed by the Foreigners Tribunal, 4 th Nagaon
in F.T. Case No. 94 of 2016. By the impugned opinion the petitioner was declared a foreigner
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of post 1971 stream.

3. The Superintendent of Police (B), Nagaon had sent a reference to the Tribunal and on
the basis of the said reference the Tribunal issued Notice to the petitioner asking him to prove
his Indian citizenship.

4. The petitioner Md. Dulal Uddin entered appearance before the Tribunal and filed his
written statement. Therein he contended that his correct name is Dulla Uddin and he is the
son of Sahur Uddin. The petitioner claimed to have born at village Dakhin Koladuba under
Juria P.S. of the district of Nagaon, Assam. He married Mazida Khatun, daughter of Halim
Uddin of village No. 1 Boralimari (Uttar Baralimari) under Juria P.S. in the district of Nagaon.
According to the petitioner, at the time of filing the written statement he along with his family
have been living in the village Mikir Ati Howgaon under Doboka P.S. of the district of Nagaon.

5. The petitioner has claimed that his father’s name appeared in the voter list of 1965 and
1970.

6. In order to prove his citizenship as well as linkage with his father, the petitioner
exhibited the following documents:

i. Exhibit-1 is the voter list of 1965 bearing the name of Sahur Uddin,
the father of the petitioner.

ii. Exhibit-2 is the voter list of 1970 containing the name of Sahur Uddin.

iii. Exhibit-3 is the voter list of 1977 containing the name of Sahur Uddin.

iv. Exhibit-4 is a certificate of the Gaonbura who stated that Dulal

Uddin is the son of Late Sahur Uddin.

7. The question before the Tribunal was as to whether the petitioner is the son of Md.
Sahur Uddin.

8. On this point the only document is Ext.-4. It is the certificate of the Gaonbura for
proving the linkage between the petitioner with his projected father Md. Sahur Uddin. The
petitioner had examined the Gaonbura Nobi Hussain who issued Ext.-4. In his evidence Nobi
Hussain admitted that the National Emblem existed on the Exhibit-4.

9. The Tribunal rejected the Ext.-4 on the ground that the Gaonbura certificate is not
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admissible in evidence as because The State Emblem of India (Regulation of Use) Rules, 2007
prohibits use of State Emblem by persons other than those are specifically allowed to use it.

10. The Tribunal relied upon the decision of the Supreme Court rendered in Rupajan
Begum v. Union of India, reported in (2008) 1 SCC 578 to hold that documents like Exhibit-4
does not prove the citizenship of a person. Finally the Tribunal held that the petitioner failed
to establish his linkage with his projected father Sahur Uddin and therefore declared the
petitioner to be a foreigner.

11. We have given our anxious consideration to the matter. The petitioner seems to be 54
years old but he has not filed any voter list containing his name. So far as the Exhibit-4 is
concerned, this Court on 10.05.2018 in Bela Rani Devi @ Debnath vs. Union of India
[WP(C)5852/2016] has already held that Gaonbura certificate using State Emblem of India is
not admissible evidence.

12. Now remains the evidence of the Gaonbura without Ext.-4. At this stage his evidence is
already disconnected from Ext-4. He has stated in his evidence that the name of the father of
the petitioner is Sahur Uddin. This piece of evidence is simple oral evidence without Ext.-4. In
WP(C) 562 of 2016, this Court has already decided that oral evidence is not enough in a
proceeding under the Foreigners Act, 1946. This Court has already held that the fact in issue
in a proceeding under the Foreigners Act, 1946 has to be proved by adducing admissible
documentary evidence.

13. Under the aforesaid circumstances we have decided to agree that the petitioner has
failed to prove his linkage with his father Sahur Uddin. We have found that even at the age of
45 the petitioner is not a voter in India. He has not filed any voter list bearing his name.

14. As a writ court exercising powers under Article 226 of the Constitution of India, this
Court exercises supervisory jurisdiction. This Court has to see if any perversity has been
committed by the Tribunals. We find that the Tribunal has not committed any perversity while
declaring the petitioner to be a foreigner. We do not find any merit in this writ petition.

15. Accordingly, the writ petition is dismissed and disposed of.

JUDGE JUDGE
Comparing Assistant