Page No.# 1/12 vs The Union Of India And 4 Ors
2025 Latest Caselaw 9141 Gua

Gauhati High Court

Page No.# 1/12 vs The Union Of India And 4 Ors on 9 December, 2025

Author: Sanjay Kumar Medhi

Bench: Sanjay Kumar Medhi

                                                                Page No.# 1/12

GAHC010150622018




                                                          2025:GAU-AS:17144

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

                        Case No. : WP(C)/4627/2018

         MUSSTT. BILATUN NESSA
         W/O- MD. ALAUDDIN, R/O- NAM DOBOKA GAON, P.S. DOBOKA, DIST-
         HOJAI, ASSAM



         VERSUS

         THE UNION OF INDIA AND 4 ORS.
         REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
         AFFAIRS, JAISALMER HOUSE, 26, MANSINGH ROAD, NEW DELHI- 110011

         2:THE FOREIGNERS TRIBUNAL 10TH
          NAGAON AT SANKARDEV NAGAR
          HOJAI
          DIST- HOJAI
         ASSAM

         3:THE STATE OF ASSAM
          REP. BY ITS SECY.
          DEPTT. OF HOME
          DISPUR
          GHY-6

         4:THE SUPERINTENDENT OF POLICE (BORDER)
          HOJAI
          DIST- HOJAI
         ASSAM

         5:THE DY. COMMISSIONER
          HOJAI
          DIST- HOJAI
         ASSA
                                                                           Page No.# 2/12

Advocate for the Petitioner    : MR. U DUTTA, MS A DAS

Advocate for the Respondent : ASSTT.S.G.I., SC, ELECTION COMMISSION.,SC, NRC,SC, F.T

BEFORE HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

Advocates for the petitioner : Mr. U. Dutta.

Advocate for the respondents        : Mr. M.R. Adhikari, CGC
                               Mr. J. Payeng,
                               Standing Counsel, Home
                               Deptt. & NRC,
                               Mr. A.I. Ali,
                               Standing Counsel, ECI
                               Mr. P. Sarma,
                               Junior Govt. Advocate
Date on which judgment is reserved         :     27.11.2025


Date of pronouncement of judgment          :     09.12.2025


Whether the pronouncement is of
the operative part of the judgment              :


Whether the full judgment has been
pronounced                                :     Yes




                               JUDGMENT AND ORDER (CAV)
                                                                                  Page No.# 3/12

(S.P. Khaund, J)

The extra-ordinary jurisdiction of this Court has been sought to be invoked by filing this application under Article 226 of the Constitution of India by putting to challenge the judgment and order dated 10.11.2017 passed by the learned Foreigners' Tribunal, Nagaon Court No. 10th at Sankardev Nagar, Hojai in F.T. (D) Case No. 1585/2016 corresponding to S.P.'s FT Case 74/2015. By the impugned judgment, the petitioner, who was the proceedee before the learned Tribunal, has been declared to be a foreigner post 25.03.1971.

Factual Matrix :-

2. The petitioner in this case is Musstt. Bilatun Nessa. On the basis of an enquiry, a reference was issued by the Superintendent of Police (Border), Hojai (respondent No. 4) against the petitioner and the Foreigners Tribunal registered the aforementioned FT(D) Case No.1585/2016 corresponding to S.P.'s FT Case 74/2015.

3. Notice was issued to the petitioner and it was held that notice was duly served as per Section 3(5) of the Foreigners (Tribunals) Order, 1964 (Order of 1964 for short) on the petitioner, who appeared before the Tribunal on 27.04.2016 but failed to appear thereafter and this case proceeded ex-parte against the petitioner vide order dated 24.05.2016.

4. Aggrieved by the order, the petitioner preferred a writ petition, which was registered as WP(C) No. 4506/2016 and vide order dated 08.09.2016, the matter was remanded back to the Tribunal and the petitioner, thereafter, contested the proceeding and filed her written statement. The petitioner adduced the evidence of 2 (Two) witnesses and exhibited several documents.

Arguments for the petitioner :-

5. It is contended by the learned counsel for the petitioner that the voters list dating back to 1966 and the Annual Kheraj patta of 1948, have been produced but the learned Tribunal has erroneously failed to draw lineage of the petitioner with her father, whose name is reflected in the voters' list of 1966.

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6. It is also submitted that the petitioner's father had two wives and the name of her step- mother is also reflected in the voters' list of 1966. It is contended that the petitioner has also produced the land documents but this has not been taken into consideration. The petitioner has also produced the jamabandi as the link document which has been ignored by the Tribunal.

7. It is submitted on behalf of the petitioner that the note in the jamabandi depicts that there was an error in recording the name of Montaj A li and the petitioner's father's name Mostan Ali has been corrected.

8. The remaining part of the argument on behalf of the petitioner shall be discussed at the appropriate stage.

Arguments for the respondents :-

9. Per contra, learned counsel for the Home Department and NRC, Mr. J. Payeng, laid stress in his argument that the written statement is opaque. The petitioner has not mentioned about her step-mother in the written statement. The Annual Kheraj Patta, marked as Exhibit-2, reflects the name of the petitioner's father as Montaj Ali, whereas the petitioner's father's name figures as Mostan Ali in the voters' list of 1966, marked as Exhibit-1. There is a correction in the jamabandi, but this correction was not required as the correction was made on 05.05.2016, after registration of this case on 31.03.2016. Even then, it is noticed in the jamabandi marked as Exhibit-3 that the petitioner's father's name although corrected to Mostan Ali, the name of her grandfather in the jamabandi is not similar to the name of the petitioner's projected grandfather. The remark column on Exhibit-3 depicts that the petitioner's grandfather's name is Mashrar and not Asrob Ali as projected by the petitioner.

10. It is further contended that although the petitioner has mentioned in her cross- examination that her father passed away when she was only three years old, yet, her father's name appears in the jamabandi, which was printed in the year 2016.

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11. It is further submitted that the petitioner has given her present age as 46 (Forty Six) years which denotes that her date of birth would be 1972 and the jamabandi reveals that the land was inherited by the petitioner in the year 1976, which is not possible as she was a minor in the year 1972.

Analysis, reasons and decision:

12. We have heard Shri U. Dutta, learned counsel for the petitioner. Also heard Shri J. Payeng, learned Standing Counsel, Home Deptt. & NRC; Shri P. Sarma, learned Additional Senior Government Advocate, Assam; Shri A.I. Ali, learned Standing Counsel, ECI and Shri M.K. Adhikari, learned CGC.

13. When a person is detected to be a foreigner under Section 6-A(b)(c) of the Citizenship Act, 1955, the onus is cast upon the person to discharge his burden under Section 9 of the Foreigners Act, 1946 (for short "the Act of 1946").

In this case, it is apparent that the petitioner has failed to discharge her burden under Section 9 of the Act and the impugned order requires no interference. In an effort to discharge her burden under Section 9 of the Act of 1946, the petitioner adduced the evidence of two witnesses, including her evidence as DW-1 and the evidence of her projected brother Motiur Rahman as DW-2. She has exhibited only one voter's list of 1966 reflecting her father's name to establish that her father was a citizen of India prior to 1971. The petitioner has exhibited voters lists from 1997 to 2010, which reflects her projected brother's name and this is not relevant to this case. The petitioner tried to trace back her lineage with her father, whose name appears in the voters list of 1966, with the help of the Annual Khiraj Patta marked as Exhibit-2, the jamabandi marked as Exhibit-3, and the aforementioned voters lists, including the name of her projected brother. She has also exhibited the residential certificate used by the Gaon Panchayat Secretary of Nilbagan Gaon as Exhibit-8, the certificate issued by the local Gaon Burha of Nilbagan Gaon as Exhibit-9, and a certificate issued by the Secretary of the Nilbagan Gaon Panchayat as Exhibit-10.

14. Through her written statement, the petitioner has stated as follows:

i) She was born and brought up in village Methigaon under the Murajhar Police Station.

Page No.# 6/12

ii) Her marriage was solemnized to Md. Allauddin, son of late Moyob Ali, in the year 1986.

iii) Her father had two wives and her mother's name is Nessa Khatun, whereas her father's name is Mostan Ali.

iv) Her father's name figures in the voters list of 1966 as Mostan Ali, son of Asrob Ali @ Asrob, of 93 Hojai LAC.

v) Her father's name was recorded in the Annual Khiraj Patta as Mantaj Ali.

vi) The petitioner's name has been recorded in the jamabandi as the legal heir of Mostan Ali in the year 1976 along with her brother Motiur Rahman's name.

15. Thereafter, the petitioner elaborately described all the voters lists from 2005 up-to 2014, figuring her brother Motiur Rahman's name as the son of Mostan Ali. In her written statement, the petitioner has also mentioned the residential certificate/Exhibit-8, the certificate of Gaon Burha/Exhibit-9 and certificate concerning her marriage as Exhibit-10. This written statement of the petitioner has been substantiated and reiterated by her evidence-in- chief.

16. The learned counsel for Home and NRC matters has drawn the attention of this court to the jamabandi marked as Exhibit-3, wherein it has been stated that the jamabandi reflecting the petitioner's name as the legal heir of Mostan Ali is not a document linking the Annual Khiraj Patta marked as Exhibit-2 as her father's name is shown as Mantaj Ali, son of Asrob in Exhibit-2, and in Exhibit-3/jamabandi, her father's name is shown as Mostan Ali, son of Mashrar Ali. This discrepancy has not been reflected in the written statement. The correction of the petitioner's father's name by the Circle Officer vide order dated 05.05.2016 in the jamabandi is not relevant. It is true that the petitioner's father's name was corrected from Mantaj Ali to Mostan Ali, but the fact still remains that Mostan Ali's father's name was not corrected, and it figures as Mashrar Ali in the jamabandi, which is marked as Exhibit-3.

17. This argument of the learned Standing Counsel for the Home Department is relevant to this case. However, the petitioner has given her age as 46 years, and the petitioner would have been a minor when her name was mutated as a legal heir of Mostan Ali in the year 1976, and her name may appear in a Jamabandi, but a minor is only legally debarred from entering into any contract. Thus, this contention is not relevant.

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18. The certificates issued as residential certificate by the Secretary of Nilbagan Gaon Panchayat and the Gaonburah of Nilbagan, Mouza- Nanati and the certificate of migration of the petitioner to the new village after her marriage were not proved by contemporaneous records. The Gaon Panchayat Secretary as well as the Gaonbura were not produced as witnesses. The petitioner has adduced the evidence of her projected brother, whose name figures as Matibur Rahman, in Exhibit- 3 and Exhibit -4, whereas his name figures as Matiur Rahman in Exhibit- 5, Exhibit- 6 and Exhibit -7. In Exhibit- 4, Matibur Rahman father's name figures as Mantan Ali and not Mustan Ali of Mouza Namati. The age of Matibur Rahman in Exhibit- 5 is shown as 36 years in 1997 and after 8 years i.e. in 2005 his age is shown as 55 years instead of 44 years. The voters list of petitioner's brother is not relevant to establish her lineage with her father, Mustan Ali, moreso when there are discrepancies in the father's name and age surfacing in the voters list. Matiur as DW-2 was also not cross-examined. The evidence is too few and far between.

19. Even after considering the documents post 1971, no evidence could be deciphered to establish the lineage of the petitioner with her father whose name is reflected in the voters list of 1966. Although the petitioner has mentioned about the Jamabandi in her written statement, she has not disclosed the names of her siblings in her written statement, except the name of her brother Matiur Rahman, whom she has produced as a witness. She has not even disclosed the name of her stepmother in her written statement. In an omnibus manner she has stated in her evidence that the names of other legal heirs of Mastan Ali appears in the Jamabandi in the year 1976 relating to a parcel of land appertaining to PP No. 141 and Dag No. 57 and 58 of Matigaon Kissam. On failure of the petitioner to disclose the names of her siblings appearing in Exhibit- 3, the petitioner has failed to discharge her burden under Section 9 of the Foreigners Act, 1946. The Exhibit- 3 Jamabandi reveals several names as heirs of Mastan Ali @ Mantaj Ali namely;-

Habibur Rahman Barbhuiya ,

Matibur Rahman, Page No.# 8/12

Sabejan Bibi,

Samsun Nessa,

Alatun Nessa,

Elatun Nessa,

Bilatun Nessa (petitioner)

20. Surprisingly, the petitioner has mentioned only Matibur Rahman @ Matiur as her brother, and she has evaded to disclose the names of the other legal heirs appearing in Exhibit-3, Jamabandi.

21. It has been observed by the Hon'ble Supreme Court in the case of Sarbananda Sonowal-vs-Union of India in WP (C) No. 131/2006 reported in (2005) 5 SCC 665 that:-

"26. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Some times the place of birth of his grand parents may also be relevant like u/s 6-A(1)(d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

22. Reverting back to this case it is held that the petitioner has failed to disclose the name of all her siblings, the name of her step mother and grandmother in accordance with the underlying policy of Section-106 of the Evidence Act.

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23. She has failed to discharge her burden under Section 9 of the Foreigners Act, 1946. It is also apt to reiterate that the petitioner has failed to establish the linkage of the voters list of 1966 with the certificates issued by the Secretary of the Gaon Panchayat as well as the certificate issued by the Gaon Burah of the present place of residence of the petitioner to which she has shifted after her marriage. Notwithstanding the fact that the State Emblem has been embossed on two certificates Exhibit-8 and Exhibit-9, issued by the Gaon Panchayat Secretary and the Gaonburah, the petitioner has also failed to produce the Gaonburah and Secretary of the Gaon Panchayat as witnesses.

24. It has been held by this Court in Jalaluddin-Versus-Union of India and Ors. reported in 2018 SCC OnLine Gau 2040 that :-

"24. It is to be borne in mind that the contents of the certificate would have to be proved from the record though the author of the certificate may prove the document through oral evidence. But oral evidence de hors record cannot prove contents. Contents of a document based on record cannot be proved from personal knowledge. Therefore, contents of Ext-A cannot be said to have been proved.

25. There is one more aspect which we have noticed. The State Emblem of India is embossed in the middle of the expression Assam Government. Under rule 10(2) read with the Schedule to the State Emblem of India (Regulation of Use) Rules, 2007 framed by the Central Government in exercise of the powers conferred by section 11 of the State Emblem of India (Prohibition of Improper Use) Act, 2005, a Gaonburah is not authorized to use the State Emblem of India in any manner. Therefore, embossing of the State Emblem of India in the certificate is unauthorized. Such unauthorized use of the State Emblem of India has rendered Ext-A inadmissible in evidence. Thus, Ext-A was not only not proved but also inadmissible in evidence."

25. In this case at hand, the Gaonburah and the Secretaries of the Gaon Pachayat were not produced as witnesses who could have established a linkage to the voters list of 1966 with the help of contemporaneous records. In addition, the discrepancies in the ages and names of the petitioner's brother, father and grandfather were not properly explained by the petitioner while discharging her onus under Section 9 of the Act of 1946.

26. The seriousness of the problem of the influx of illegal migrants in the State was highlighted by the Hon'ble Supreme Court in the case of Sarbananda Sonowal (supra) which had gone to make the following observations:

Page No.# 10/12

"32. The foremost duty of the Central Government is to defend the borders of the country, prevent any trespass and make the life of the citizens safe and secure. The Government has also a duty to prevent any internal disturbance and maintain law and order. Kautilya in his masterly work "The Arthashastra"

has said that a King had two responsibilities to his State, one internal and one external, for which he needed an army. One of the main responsibilities was Raksha or protection of the State from external aggression. The defence of the realm, a constant preoccupation for the king, consisted not only of the physical defence of the kingdom but also the prevention of treachery, revolts and rebellion. The physical defensive measures were the frontier posts to prevent the entry of undesirable aliens and forts in various parts of the country. (Arthashastra by Kautilya - translated by Shri L.N. Rangarajan, who was in Indian Foreign Service and ambassador of India in several countries - published by Penguin Books - 1992 Edn. - page 676). The very first entry, namely, Entry 1 of List I of the Seventh Schedule is "Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination of effective demobilization". In fact entries 1 to 4 of List I of Seventh Schedule mainly deal with armed forces. Article 355 of the Constitution of India reads as under :-

355. Duty of the Union to protect States against external aggression and internal disturbance. - It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution."

The word "aggression" is a word of very wide import. Various meanings to the word have been given in the dictionaries, like, "an assault, an inroad, the practice of setting upon anyone; an offensive action or procedure; the practice of making attacks or encroachments; the action of a nation in violating the Page No.# 11/12

rights especially the territorial rights of another nation; overt destruction; covert hostile attitudes."

The word "aggression" is not to be confused only with "war". Though war would be included within the ambit and scope of the word "aggression" but it comprises many other acts which cannot be termed as war. In Kawasaki v. Bantahm S.S. Company 1938 (3) All ER 80, the following definition of "war" as given in Hall on International Law has been quoted with approval :-

"When differences between States reach a point at which both parties resort to force, or one of them does acts of violence, which the other chooses to look upon as a breach of the peace, the relation of war is set up, in which the combatants may use regulated violence against each other, until one of the two has been brought to accept such terms as his enemy is willing to grant."

27. Before parting with this case record, it is also held that the certificate marked as Exhibit-9 to substantiate the petitioner's marriage with Md. Allauddin and her migration from Methigaon, the place of her birth to Doboka, cannot be considered to be a marriage certificate per se.

28. In the wake of the foregoing discussions, it is thereby held that the challenge to the impugned opinion fails and resultantly, this writ petition is dismissed. Accordingly, the consequences of the impugned order dated 10.11.2017 passed by the learned Foreigners'

Tribunal, Nagaon Court No. 10th at Sankardev Nagar, Hojai in F.T. (D) Case No. 1585/2016 corresponding to S.P.'s FT Case 74/2015, thereby holding the petitioner above-named as a foreigner of post 25.03.1971 stream, shall follow. Interim order stands vacated.

29. There shall be no order as to costs.

30. The Registry shall send back the Tribunal's record along with a copy of this judgment and order, to be made a part of the record by the learned Tribunal for future reference.

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JUDGE JUDGE

Comparing Assistant