Back
2025 Supreme(Online)(Gau) 3779
GAUHATI HIGH COURT
KALYAN RAI SURANA, MALASRI NANDI, JJ
MD MOKBUL ALI – Appellant
Versus
THE UNION OF INDIA – Respondent
WP(C)/2545/2025
For the Appellants/Petitioners: MR S PAUL, MR. R ALI
For the Respondents: GA, ASSAM, SC, ECI,DY.S.G.I.,SC, NRC,SC, F.T
The court affirmed that findings of fact by the Tribunal cannot be revisited in writ petitions unless there is a clear error of law, emphasizing the importance of timely evidence submission.
Headnote:(A) Constitution of India - Article 226 - Writ petition challenging the opinion of the Foreigners’ Tribunal declaring the petitioner an illegal migrant - The petitioner failed to establish the link with his projected father beyond the electoral roll of 1966 - The court emphasized that findings of fact cannot be reopened in writ proceedings unless there is an error of law apparent on the record. (Paras 12, 18)
(B) Jurisdiction of High Courts - The scope of certiorari jurisdiction is supervisory and does not extend to appellate review of factual findings - The court cannot consider documents not produced before the Tribunal. (Paras 12, 16)
Facts of the case:
The petitioner claimed citizenship based on his father's voting history and supporting documents, but the Tribunal found insufficient evidence to establish his claims, particularly regarding the continuity of his parents' existence in India.
Findings of Court:
The court upheld the Tribunal's decision, noting the lack of evidence linking the petitioner to his parents beyond the 1966 electoral roll and emphasized the petitioner's delay in challenging the Tribunal's opinion.
Issues: The main issues were the adequacy of evidence to establish citizenship and the implications of delay in filing the writ petition.
Ratio Decidendi: The court ruled that the petitioner failed to provide adequate evidence and that the Tribunal's findings were not subject to review in writ proceedings.
Result: Writ petition dismissed.
ORDER
28.05.2025 Date :
(K.R. Surana, J)
Heard Mr. S. Paul, learned counsel for the petitioner. Also heard Mr. S.P. Choudhury, learned CGC; Mr. G. Sarma, learned standing counsel for the FT matters and NRC; Ms. P. Barua, learned standing counsel for the ECI; and Mr. P. Sarmah, learned Additional Senior Govt. Advocate for the State respondent.
2. At the outset, the learned counsel for the petitioner has submitted that pursuant to order dated 16.05.2025, the cause title of the writ petition, in respect of the respondent no.4 has been amended.
3. By filing this writ petition under Article 226 of the Constitution of India , the petitioner has assailed the impugned opinion dated 31.08.2021, rd passed by the learned Member, Foreigners’ Tribunal No.3 , Morigaon in Case No. F.T. 24/2015, arising out of Reference F.T. Case No. 37/2005 dated 22.11.2005, by which the petitioner was declared as an illegal migrant who had entered into India (Assam) after 25.03.1971.
4. On perusal of the materials available on record, it is observed that on receipt of notice from the learned Tribunal, the petitioner has entered appearance and projected that he is the son of Mohmad Ali and resident of Kacharibori, and his mother is late Miyajan Bibi, who had expired about 10 (ten) years prior to the filing of the written statement. It is projected that the petitioner's father had casted his vote in 1966 from 84 No. Laharighat, LAC and he holds an Electoral Photo Identity Card (EPIC for short), and certificate by the concerned Gaonbura to assert that he is a citizen of India. It is also projected that the petitioner as well as his mother were proceeded against before the Foreigners' Tribunal. However, projecting that the petitioner and his mother were shown as husband and wife instead of son and mother. The petitioner deposed that his mother had expired 10 (ten) years back, and his grandfather was Rohman Sk. and has two paternal uncles, namely, Sultan and Romjan and he has 5 (five) brothers, namely, Abdul Ali (expired), Sobdar Ali, Hamed Ali, Motin and Asmot Ali. He also has 3 (three) sisters, namely, Jamila Begum, Jalekha Begum and Molika Begum.
5. It was also submitted that he is a voter from Jaluguti and has landed property. In support of his contention, the petitioner has exhibited the following documents, viz. (1) Gaonbura Certificate (Ext.A); (2) Gaonbura Certificate (Ext.B); (3) 1996 Voter list of parents of OP (Ext.C); (4) Birth certificate of OP-3 (Ext.D); and (5) Jamabandi copy of Hamed Ali (Ext.E).
6. The learned Tribunal, after appreciating the exhibited documents, discarded the Gaonbura certificate marked as Ext.A and Ext.B on the ground that those are supplementary documents, and their evidentiary value could be appreciated only if the primary documents were accepted for the purpose of determining the case.
7. Ext.C was the electoral roll of Mohmad Ali and Miyajan Bibi, who are the projected parents of the petitioner. The copy of jamabandi (Ext.E) was discarded as it was a post 1971 document. The electoral roll of 1997, (Ext.F and Ext.G) was not found to support the case of the petitioner as those two electoral rolls contained the name of a single voter and did not contain the names of the parents of the petitioner, who were projected to have died about 10-12 years back. Accordingly, except for the standalone voter list of 1966 (Ext.C), there was no document to link the petitioner with his projected parents.
8. The documents annexed to this writ petition reveals that while the petitioner examined himself as DW-1, he had examined one Hamed Ali as DW-2. It would be pertinent to quote the evidence of the DW-2, which includes the examination-in-chief and cross-examination:
“I am here to adduce evidence on behalf of O.P. Mokbul Ali who is my elder brother O.P. Aijul is my nephew. I am born in Kochariburi under Laharighat P.S. My grandfather name is Rahman Sk. Mothers name is Miyazan Bibi but expired 10 years back. Parents casted vote from Kochariburi in 1906.
