Judgment & Order (Cav):

Shamima Jahan, J.

1. Heard Mr. B. Islam, the learned counsel for the petitioner Also heard Ms. A. Verma, the learned Standing Counsel, Home Deptt.; Shri G. Sarma, the learned Standing Counsel, NRC; Shri P. Sarma, the learned Government Advocate, Assam and Shri A. I. Ali, learned Standing Counsel, ECI.

2. By this application filed under Article 226 of the Constitution of India, the petitioner has sought for invoking the extraordinary power under the said Article for setting aside the opinion rendered by the Foreigner’s Tribunal No. 1st, Morigaon, Assam in Case No. F.T. (C) 333/2006, corresponding to Police Reference I.M.(D)T. Case No. 555, Dated: 04.03.1986, whereby the petitioner was declared as a foreigner post 1971, stream.

3. Facts: The petitioner, in order to establish that, he is not a foreigner and he is an Indian citizen had relied on the Voters List of 1966, by which it was shown that the father of the petitioner, namely, Akkash Ali, appeared as a voter and that, the mother of the petitioner, namely, Jamiran Nessa also appeared as a voter in the said list. In the said voter list, the projected father of the petitioner was at Serial No. 43 and the projected mother of the petitioner was at Serial No. 37 and the place of residence was shown at village- Balimukh, Mozua- Pakariya, Police Station- Morigaon, in the District of Nagaon.

4. In the subsequent Voters List, i.e. the Voters List of 1970, the name of the petitioner’s projected father as well as the projected mother was shown at Serial. No. 43 & Serial. No. 37 respectively, from the same place. Thereafter, the petitioner placed the Voter’s List of 1985, wherein, the name of the petitioner appeared along with his projected father and projected mother and with his wife. However, in the said list, it was shown that the petitioner and his family members resided at a different place, i.e., village-Karchuwabori, Mouza-Manaha, P.S.- Jagiroad in the District of Nagaon. The petitioner had thereafter, placed the Voter’s List of 1989, by which, the same position continued, i.e, his name appeared along with his projected father and mother also showing his wife as a voter therein.

5. Furthermore, the petitioner has also placed the Voters List of 2005, in which the name of the petitioner is shown along with his parents as well as brothers and his wife. The place shown in the said list was the second place mentioned in the Voters Lists of 1985 and 1989. Similar is the position with regard to Voters List of 2011, which the petitioner had relied on, as well as Voters List of 2017. However, in the said 2017 Voters List the name of the petitioner was shown with his projected parents as well as his wife and his younger brother, namely, Riaj Uddin.

6. The petitioner, to establish his link with his projected father and projected mother had relied on the certificate issued by the Gaon Burah of Village- Bilimara, Karchuwabori, Mouza-Manaha, in the District of Morigaon, Assam, wherein, it was stated that the petitioner being the son of Akkash Ali and Jamiran Nessa is known to him. The petitioner has also relied on the certificate issued by the same Gaon Burah, by which it was certified that Sri Riaj Uddin is the son of the petitioner and that they are known to him. Thereafter, the petitioner relied on two certificates issued by the president of Jhargaon Gaon Panchayat and that one of them was in connection with the fact that the petitioner being the son of Akkash Ali is the inhabitant of Jhargaon, Mouza- Manaha and the other was in connection with the fact that Riyaj Uddin, son of the petitioner was also the inhabitant of the said locality.

7. Apart for the said documents, the petitioner had filed his written statement dated 15.12.2006, stating inter alia that his father was living at village-Karchuwabori, under Police Station-Jagiroad and that, he is the son of Akkash Ali and he was born in the said village. He further stated that his father’s name appeared in the Voters List of 1965, vide Serial. No. 38 under Bokani (S.C) LAC and that, his name appeared in the Voters List of 1989 as well as in the Voters List of 2005 and also that he had one son and one daughter. The petitioner, thereafter, had filed an additional written statement on 08.06.2018, by which, he stated that the Enquiry of the Superintendent of Police, (Border), Morigaon was based on false information, and that, he is the son of Akkash Ali and that his family was original resident of Village Balimukh, P.S.-Morigaon, in the District of Nagaon, and that, due to financial constraints his family shifted to the nearby village of Karchuwabori. He reiterated the statements made in the first written statement to the effect that his father was in the Voters List of 1966, as well as in 1970. He also stated that petitioner was born and brought up at Balimukh and that, he casted his vote in 2005 with his parents at Karchuwabori. He also stated that, thereafter, he had regularly voted as could be seen from the subsequent voters list. He, as such, stated that the authority did not verify the documents placed by him and the case was decided against him mechanically.

8. The petitioner has also submitted that he filed his evidence on affidavit before the learned tribunal and in the said affidavit, he had reiterated, the statements made by him in his two written statements.

9. Submissions: Mr. B. Islam, the learned counsel for the petitioner submitted that the father and mother of the petitioner appeared in the Voters Lists of 1966 and 1970 from the same place, i.e., village-Balimukh, Mouza- Pakaria, in the District of Nagaon, and that, in the Voters List of 1985, the name of the petitioner appeared along with his parents and also in the subsequent Voters Lists of 1989, 2005, 2011 as well as 2017. The learned counsel submitted that although, initially the parents of the petitioner was from a different place but due to financial problems, the petitioner and his family shifted to Karchuabori and therefore, in the subsequent voters list the names appeared from the said place. He however, fairly, submitted that the certificates issued by the Gaon Burah as well as the President of Gaon Panchayat, were not proved in accordance with law.

10. He further, tired to establish the linkage of the petitioner with his parents by showing the aforesaid Voters Lists of 1966 and 1970. To substantiate his argument, he placed a judgment delivered by this court in “Abdul Matali @ Mataleb Vs. Union of India”, reported 2015 (2) GLT 617; by which it was held that the case of the proceedee cannot be rejected on the ground of some anomalies regarding the names and ages of the proceedee and his parents.

11. On the other hand, Ms. A. Verma, the learned Standing Counsel for the FT & Border Matters, submitted that age discrepancy is writ large, not in one voters list but in a number of them. She submitted that the petitioner did not place voters list before 1985, although, he was eligible to vote much before the said year.

12. She further stated that, in the instant case the IMDT reference was made in the year 1986 and the case was registered in the year 2006 and the opinion was given in the year 2019. She as such submitted that the petitioner could not have voted post 1986, as has been shown in the instant case. She also submitted that the petitioner did not cull out the names of other family members of his projected parents. She relied on a judgment of this court delivered in “Basiron Bibi Vs. Union of India” reported in (2018) (1) GLT 372;, by which, this court had distinguished the judgment passed in “Abdul Matali” (Supra) placed by the learned counsel for the petitioner.

13. Analysis and Findings: At the outset, this court would like to examine the voter’s list submitted by the petitioner. The first voters list placed by the petitioner was the Voters List of 1966, wherein, the petitioner has stated that the name of his projected father, namely, Akkash Ali was at Sl. No. 43 and his projected mother was at Serial. No. 37 and the place of residence mentioned in the said voters list was village-Balimukh, Mouza-Pakaria in the District of Nagaon. In the subsequent voters list, i.e., Voters List of 1970, the projected father and the projected mother of the petitioner appeared as voters at Serial. No.43 and Serial. No. 37, respectively from the same place. However, it is seen that the age mentioned in the said voters list in respect of the projected father and projected mother of the petitioner was same, i.e., the projected father was 35 years of age and projected mother was 22 years of age in both the voters list.

14. However, after a gap of 15 years, the petitioner placed a Voters List of 1985, by which, it was shown that the name of the petitioner appeared with his projected parents along with his wife and in the said voters list, the age of the said petitioner was stated to be 35 years. The place of residence of the petitioner along with his projected parents and his wife was stated to be village- Karchuwabori, Mouza-Manaha, in the District of Nagaon. The house number from where, his projected parents appeared as voters was also different. It was House No. 9, whereas, in 1985 Voters List, it was House No. 143. Thereafter, in the Voters List of 1989, the age of the petitioner was shown as 30 years and his name was shown along with his projected parents and his wife in the said voters list from the new place.

15. The name of the projected mother in the Voters List of 1989, was also spelt differently as Jafiran, whereas, in the earlier voters list, the name of the projected mother was Jamiran. It is unknown, as to why, the petitioner was shown to be of a lesser age in 1989 voters list then shown in 1985 voters list. Moreover, the age of the petitioner, by calculating his age as shown in the affidavit appended in the instant writ petition would be in 1957 and by considering the said year of birth, the petitioner becomes eligible to vote in the year 1977/1978, but the petitioner has not produced the voters list before 1985, where his name should have been included in the erstwhile voters list. Furthermore, in the Voters List of 2005, it is shown that the petitioner had a brother namely, Momin Ali, who was shown to be of 49 years of age as on 2005. However, the name of Momin Ali did not find place in the earlier voters list. In the said list, another brother of the petitioner was also mentioned, namely, Tamir Ali, whose age was shown to be 35 years but again, his name was not shown in any of the previous voters list. In 2011 Voters List, however, the same position continued but in the subsequent voters list of 2017, the name of the brothers namely, Momin Ali and Tamir Ali did not find place in the same. The said discrepancies were noticed in the said voters list placed by the petitioner.

16. The petitioner had relied on the certificate issued by the Gaon Burah as well as by the president of Gaon Panchayat but the said certificates were not proved by calling the authorities, who had issued the same. It is no res integra that production of documents is not sufficient proof to the link of the proceedee with his family members, unless the author of the said documents was examined and the said documents stand proved. In the instant case, there is only one DW and the petitioner himself had adduced his evidence in the form of the said defense witness.

17. Apart from the discrepancies noted in the voters list, there appear other discrepancies in the instant case also. In the first written statement filed by the petitioner on 15.12.2006, he stated that his father, namely, Akkash Ali was living in the village, i.e. Karchuwabori and that, he was born and brought up in the said village but in the subsequent written statement, he stated that the family of the petitioner was the original resident of Village-Balimukh, Mouza-Pakaria in the District of Nagaon and that they shifted to the other village called Karchuabori. He further stated in the second written statement that he was born and bought up at Balimukh in the District of Nagaon. It is also seen from the Voters Lists of 1966 and 1970, that the projected parents of the petitioner were from the Village-Balimukh, Mouza-Pakaria in the District of Nagaon. Similarly, in his statement before the learned Tribunal, he stated that he was born and brought up in village Balimukh, in the District of Nagaon and that, his family had shifted to the other village of Karchuabori.

18. In the case of “Sirajuddin Hoque Vs. State of Assam” reported in (2019) 5 SCC 534; the Hon’ble Supreme Court held that, one single discrepancy in the name of the grandfather of the proceedee cannot be considered as fatal, in view of no discrepancies with regard to other names and facts. The relevant portion is quoted herein below:

                   “3. We have heard learned Counsel for both sides extensively and have gone through the documents produced by the Appellant ourselves. On a perusal of the same, we find that a number of documents have been relied upon by the Appellant starting with a voters' list of his grandfather Kematullah in village Sotobashjani. There is no doubt that the great grandfather's name Amtullah appears as Amtullah throughout the document. Equally, there is no doubt about the father's name which appears as Hakim Ali throughout. The only discrepancy found is that in some of the documents Kefatullah later becomes Kematullah. However, what is important to note is that his father's name Amtullah continues as Amtullah and the other family members associated continued as such. Also produced are NRC Registration details of the year 1971 of the grandfather who is noted to be Kefatullah in this document. Other voters lists are then produced where the letter F becomes the letter M with other family names remaining the same. In fact, the Appellant has himself produced a document of 1981 from the Income Tax Department giving his Permanent Account Number. Apart from these documents, certain other later documents have also been produced including photo identity cards issued by the Election Commission of India and identity cards issued to his brother including voters lists in which the Appellant's name appears.”

19. In the instant case, there is not one discrepancy that can be seen but there are many discrepancies both in the voters list as well as in the statements of the petitioner. In the voters list as has been stated above, the place from where the projected parents of the petitioner voted in the years 1966 and 1970 was different along with the house nos. and in the subsequent voters list, both were different. Another discrepancy was seen in the said Voters Lists of 1966 and 1970, to the effect that the age of the projected parents of the petitioner remained the same both in 1966 and 1970. Although the petitioner stated that, due to financial constraints his family shifted to the new place but the said fact was not stated in his first written statement. Further, there were no voters list from the year 1970 to 1985, showing the status of the petitioner as well as his projected parents as electors or as voters and after a gap of 15 years, the petitioner had given the voters list, showing his name along with his projected parents from a different village and from a different house no. and the age projected in respect of the petitioner was 35 years, which shows that his name should have been with his projected parents before the said list.

20. Thereafter, the age discrepancy was again seen in the Voters List of 1989, wherein, the age of the petitioner was shown to be of a lesser age, i.e., 30 years. Further, in the subsequent voters list, the brothers of the petitioner were shown to be the voters but then again, their name disappeared in the rest of the voters list. The name of the projected mother of the petitioner had also undergone changes in the said voters list as stated above.

21. There appears no documents apart from the voters list to established the link of the petitioner with his family members whose name should appear before the cut of date of 25.03.1971. Further, it is seen in the Voters Lists of 1966 and 1970, that apart from the names of the projected parents of the petitioner, there were other members of the family of the parent of the petitioner. However, the petitioner had not mentioned the relation of the said members with him in any of his statements. He has rather not mentioned the names of his siblings as well as other family members in his statements. He had only stated about his daughter and son in the same. It is a trite law that in order to establish linkage, documentary evidence is required and in the instant case, the documentary evidences produced by the petitioner have many discrepancies questioning its authenticity and few documents were not even proved.

22. Further, as the learned counsel for the petitioner relied on the judgment of “Abdul Matali” (Supra) and as pointed out by the learned counsel for the FT Matters, that the said judgment has been distinguished, this court states here that in the said judgment of “Basiron Bibi”(Supra), this court had held that discrepancies in the voters list done by the officials of the Election Commission cannot be considered in favour of the proceedee. It was further held that, the proceedee cannot not insist that only that portion of the voters list, which are in his or her favour should be accepted and those portions going against his or her should be over looked.

23. Further, in “Nur Begum Vs. Union of India” reported in (2020) Volume 3 GLT 347; this court had held as follows:

                   “6. The statement of D.W. 2 i.e. Jahurun Begum, who claimed to be the mother of the petitioner, cannot be relied upon in the absence of any documents showing her relationship, either to the projected grandfather, father or to the petitioner herself. Oral testimony of D.W. 2 alone, sans any documentary support, cannot be treated as sufficient to prove linkage or help the cause of the petitioner. Surprisingly, the petitioner failed to produce a single voter list in her name even until the age of 50 years. We would reiterate that in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 the evidentiary value of oral testimony, without support of documentary evidence, is wholly insignificant. Oral testimony alone is no proof of citizenship. The evidence of D.W. 2, thus, falls short of being considered as cogent, reliable and admissible evidence, so much so, to establish linkage of the petitioner to the projected grandfather, grandmother and father. The petitioner utterly failed to prove her linkage to Indian parents relatable to a period prior to the cut-off date of 25.03.1971 through cogent, reliable and admissible documents.”

24. In view of the discrepancies mentioned above, which is not one in number, but so many as well as due to lack of prove of other documents, this courts finds it fit that the instant petition be dismissed. No order to costs.

25. The petition is disposed of.

26. Records be sent back forthwith along with a copy of the order.