Gauhati High Court
WP(C)/5839/2025 on 12 November, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/11
GAHC010216892025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
CASE NO. WP(C)/5839/2025
Beauti Begum ...Petitioner
-Versus-
The Union of India and Ors. ... Respondents
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
Hon'ble MRS. JUSTICE SUSMITA PHUKAN KHAUND
Advocate for the petitioner : Shri S.A. Ahmed, Adv.
Advocates for the respondents : Shri G. Sarma, SC- Home Dept. & NRC
Shri P. Sarma, Add. Sr. GA
Ms. S. Katakey, SC, ECI
Shri M.R. Adhikari, CGC.
Date on which judgment is reserved : 11.11.2025
Date of pronouncement of judgment: 12.11.2025
Whether the pronouncement is of the operative part of the
judgment? : NA
Whether the full judgment has been pronounced? : Yes
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Judgment & Order
(S.K. Medhi, 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 opinion rendered vide impugned order dated 24.04.2019
passed by the learned Foreigners Tribunal Jorhat in F.T.G (D) 474/2010. By the
impugned opinion, the petitioner who was the proceedee before the learned
Tribunal has been declared to be a foreigner post 25.03.1971. As per the
projection made in the petition, the aforesaid order is an ex parte one.
2. The facts of the case may be put in a nutshell as follows:
(i) The reference was made by the Referral Authority against the
petitioner giving rise to the aforesaid F.T.G (D) 474/2010.
(ii) The learned F.T., Jorhat had issued notice to the proceedee on
21.01.2019 whereafter she had appeared before the learned Tribunal on
08.02.2019. As per requirement u/s 9 of the Foreigner's Act, 1946 to
prove that the proceedee is not a foreigner, the petitioner had filed the
written statement on 28.02.2019 along with certain documents.
Thereafter, though at least 5 dates were fixed for filing of evidence on
affidavit, neither the petitioner nor her counsel had appeared and
accordingly on 24.04.2019, the impugned order has been passed.
(iii) The learned Tribunal after noticing the aforesaid facts and
circumstances and taking into account of the provisions of Section 9 of the
Foreigners Act, 1946 had come to a finding that the petitioner as opposite
party had failed to discharge the burden cast upon her and accordingly,
the opinion was rendered declaring the petitioner to be a foreign national
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post 25.03.1971.
3. We have heard Shri S.A. Ahmed, learned counsel for the petitioner. We have
also heard Shri G. Sarma, learned Standing Counsel, Home Department & NRC,
Assam, Ms. S. Katakey, learned Standing Counsel, Election Commission of India
and Shri P. Sarma, learned Additional Senior Government Advocate, Assam and
Shri M.R. Adhikari, learned CGC. We have also carefully examined the records of
the Tribunal which were requisitioned vide order dated 13.10.2025. It may
however be mentioned that while notice was issued on the said date, the issue
of maintainability on the ground of inordinate delay in approaching the Court
was kept open.
4. Shri Ahmed, the learned counsel for the petitioner has contended that the
default in appearance of the petitioner was on account of the fault on the part
of her counsel. It is submitted that the engaged lawyer did not inform the
petitioner about the dates. He has however submitted that the written
statement was indeed filed on 28.02.2019, whereafter, there was no
appearance.
5. He has submitted that the presence of the petitioner could have been
secured by the learned Tribunal by which the petitioner could have been given
an effective opportunity to defend her case. He has also submitted that on
25.05.2025, the police had come in search of the petitioner and only thereafter,
the petitioner could know about the impugned opinion.
6. The learned counsel has further submitted that the documents which are
available and annexed to the writ petition would ex facie demonstrate her
citizenship. Though in exercise of certiorari jurisdiction, this Court is not required
to look into any materials which were not placed before the decision making
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authority whose decision is the subject matter of challenge, in the interest of
justice, we have given our consideration to the materials which have been
sought to be relied upon by the petitioner and enclosed in the writ petition. In
this connection, the Voters List of 1966 has been referred containing the name
of one Hafizuddin, who is claimed to be the grandfather of the petitioner. She
has also enclosed Voters List of the year, 1970 containing the names of one
Hafizotddin (aged 39 years), Ramjan, son of Hafizot, (aged about 36 years) and
Nizamatddin, son of Hafizot (aged about 22 years). In paragraph 9 of the writ
petition, the aforesaid Ramjan has been described to be the paternal uncle of
the petitioner. In the Voters List of 1985, names of one Nizamuddin and
Rosemahi (projected parents of the petitioner) find mention. The name of the
petitioner has appeared for the first time in a Voter List of 1997 which, however
is not along with the names of her parents and it is submitted that the other
names are those of the husband and other members of the in-laws family. A
school certificate has also been enclosed wherein the date of birth of the
petitioner has been stated to be 03.04.1980. There is no information as to in
which period the petitioner was a student of that school and when she had left
the school as a student of Class IV. We have also noted that the certificate has
been issued on 12.02.2019 which is after appearance of the petitioner before
the learned Tribunal pursuant to the notice received by her.
7. The petitioner has also relied upon a certificate by the Gaonburah which
however does not bear any date. The Gaonburah is of Sibangpar (Diyong
Range) and the contents are not clear.
8. The learned counsel for the petitioner has accordingly submitted that she
was deprived from an opportunity to contest the case which proceeded ex parte
and therefore, the instant petition may be allowed and the matter be remanded
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back for a fresh adjudication on merits.
9. Per contra, Shri G. Sarma, learned Standing Counsel, Home Department
and NRC has, at the outset emphatically refuted the primary contention made
on behalf of the petitioner that the order dated 24.04.2019 of the learned
Tribunal is an ex parte order. It is submitted that notices were duly served
whereafter, the petitioner had also filed her written statement on 28.02.2019
and thereafter, had taken time to file the evidence on affidavit. However, there
was continuous default thereafter and only after giving adequate opportunity,
the learned Tribunal had passed the order dated 24.04.2019.
10. The learned Standing Counsel further submits that even the attempt to
convince this Court in support of her citizenship is absolutely perfunctory and
without any basis. It is submitted that there is no acceptable link document with
the parents of the petitioner and the certificate by the School and the
Gaonburah are not relevant. It is also submitted that under clause 3(8) of the
Foreigners Order of 1964, a prescription of time is given for filing of written
statement and evidence on affidavit and the same cannot be an endless
exercise.
11. In support of his submissions, Shri Sarma, the learned Standing Counsel
has placed reliance upon an order dated 16.07.2025 passed by a Coordinate
Bench in WP(C)/2930/2025 (Md. Mazid Ali vs. Union of India & Ors.) in which,
this Court had taken into consideration the principle of "delay defeats
equity".
12. Ms. S. Katakey, learned Sanding Counsel, Election Commission of India
has endorsed the submission of the learned State Counsel and supported the
impugned opinion. She has also relied upon certain judgments and has opposed
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the writ petition.
13. The submissions advanced by the learned counsel for the rival parties
have been duly considered and the materials placed on record including the
TCRs have been carefully perused.
14. As observed above, apart from the submissions advanced on behalf of the
petitioner on the aspect that the impugned opinion is an ex parte one, we have
also prima facie considered the documents which have been presented with the
petition. We are however reminded of the limitations to be exercised by us in
certiorari jurisdiction.
15. Before embarking to adjudicate the issue involved vis-a-vis the
submissions and the materials on record, we are reminded that a Writ Court in
exercise of jurisdiction under Article 226 of the Constitution of India would
confine its powers to examine the decision making process only. Further, the
present case pertains to a proceeding of a Tribunal which has given its findings
based on the facts. It is trite law that findings of facts are not liable to be
interfered with by a Writ Court under its certiorari jurisdiction.
16. Law is well settled in this field. The Hon'ble Supreme Court, after
discussing the previous case laws on the jurisdiction of a Writ Court qua the writ
of certiorari, in the recent decision of Central Council for Research in
Ayurvedic Sciences and Anr. Vs. Bikartan Das & Ors [Civil Appeal No.
3339 of 2023] has laid down as follows:
"49. Before we close this matter, we would like to observe something
important in the aforesaid context: Two cardinal principles of law
governing exercise of extraordinary jurisdiction under Article 226 of the
Constitution more particularly when it comes to issue of writ of certiorari.
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50. The first cardinal principle of law that governs the exercise of
extraordinary jurisdiction under Article 226 of the Constitution, more
particularly when it comes to the issue of a writ of certiorari is that in
granting such a writ, the High Court does not exercise the powers of
Appellate Tribunal. It does not review or reweigh the evidence upon which
the determination of the inferior tribunal purports to be based. It
demolishes the order which it considers to be without jurisdiction or
palpably erroneous but does not substitute its own views for those of the
inferior tribunal. 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.
51. The second cardinal principle of exercise of extraordinary jurisdiction
under Article 226 of the Constitution is that in a given case, even if some
action or order challenged in the writ petition is found to be illegal and
invalid, the High Court while exercising its extraordinary jurisdiction
thereunder can refuse to upset it with a view to doing substantial justice
between the parties. Article 226 of the Constitution grants an
extraordinary remedy, which is essentially discretionary, although founded
on legal injury. It is perfectly open for the writ court, exercising this
flexible power to pass such orders as public interest dictates & equity
projects. The legal formulations cannot be enforced divorced from the
realities of the fact situation of the case. While administering law, it is to
be tempered with equity and if the equitable situation demands after
setting right the legal formulations, not to take it to the logical end, the
High Court would be failing in its duty if it does not notice equitable
consideration and mould the final order in exercise of its extraordinary
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jurisdiction. Any other approach would render the High Court a normal
court of appeal which it is not."
17. The principal ground of challenge is by citing the default of the lawyer.
However, it is seen that the explanations / pleadings made in this regard in
paragraph 4 are wholly insufficient and vague. This Court has noticed that not
to talk about any complaint in the Bar Council against the concerned lawyer,
even the name of the lawyer has not been mentioned.
18. As regards the reliance upon the documents made on behalf of the
petitioner, this Court is of the view that when documents submitted by her in
her written statement were not proved by the petitioner before the learned
Tribunal in accordance with law, the said documents cannot be looked into by
this Court as that would amount to dispensing the requirement of proof of
documents. In a proceeding under the Foreigners Act, 1946 and the Foreigners
(Tribunals) Order, 1964 for determination as to whether the proceedee is a
foreigner or not, the relevant facts being especially within the knowledge of the
proceedee and therefore, the burden of proving citizenship absolutely rests
upon the proceedee, notwithstanding anything contained in the Evidence Act,
1872. This is mandated under Section 9 of the aforesaid Act, 1946.
19. Be that as it may, even the documents annexed to this writ petition do not
inspire confidence. As mentioned above, there is not even a single link
document of the petitioner with her parents and even in the Voters List of her
parents and grandfather, there are apparent discrepancies. Though an
explanation was given that the name Ramzan appearing in the Voters List of
1970 is that of the name of the grandmother of the petitioner which was
wrongly depicted as "s/o Hafizot", the same will not come to the aid of the
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petitioner as no connection could be demonstrated with them. This Court has
also noted that though there were four nos. of siblings of the petitioner, even
their names were not found together with the names of the projected parents in
any of the Voters List.
20. This Court in the case of Ijjat Ali Vs. Union of India [Order dated
12.10.2020 in WP(C)/8361/2019] has laid down that a proceeding before
the Foreigners' Tribunal cannot be an endless exercise. The relevant part of the
aforesaid judgment is extracted hereinbelow-
"Having regard to the undisputed facts, as above, we find that sufficient
opportunities had been granted to the petitioner to establish his claim as
not being foreigner or to refute the allegation that he had illegally entered
into the territory of India after 25.03.1971. In this context, we may
observe that although the procedure of identification and for declaring an
individual to be a foreign national cannot be relegated to a mechanical
exercise and that fair and reasonable opportunity must be afforded to a
proceedee to establish claim that he/she is a citizen of India, however,
such grant of opportunity cannot be enlarged to an endless exercise. A
person who is not diligent and/or is unmindful to take steps to safeguard
his interest, he does so at his own risk and peril."
21. In the case of Sajiran Nessa Vs. UOI [Order dated 05.01.2021 in
WP(C)/1293/2020] meaning of sufficient opportunities qua a proceedee
before a Foreigners' Tribunal have been explained. For ready reference, the
relevant part is extracted hereinbelow-
"Having regard to the facts, as above, we find that sufficient opportunities
had been granted to the petitioner to establish her claim as not being a
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foreigner or to refute the allegation that she had illegally entered into the
territory of India after 25.03.1971. In this context, we may observe that
although the procedure of identification and for declaring of an individual
to be a foreign national cannot be relegated to a mechanical exercise and
that fair and reasonable opportunity must be afforded to a proceedee to
establish claim that he/she is a citizen of India, however, such grant of
opportunity cannot be enlarged to an endless exercise. A person who is
not diligent and/or is unmindful to take steps to safeguard his/her
interest, he/she does so at his own risk and peril. In the instant case
several opportunities were granted to the petitioner to establish her claim,
which she utterly failed to do so. In this context, we may observe that in a
proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals)
Order, 1964, the primary issue for determination is whether the proceedee
is a foreigner or not. The relevant fact being especially within the
knowledge of the proceedee, as such, the burden of proving citizenship
absolutely rests upon the proceedee, notwithstanding anything contained
in the Indian Evidence Act, 1872. This is mandated under section 9 of the
aforesaid Act, 1946. The said position would not change even in an ex-
parte proceeding before the Tribunal as the burden never shifts but
continues to be upon the proceedee. In a situation where no evidence is
adduced or the burden is not discharged, the only option left to the
Tribunal would be to declare the proceedee to be a foreigner, based on
the grounds of reference upon which appropriate proceeding was
initiated, where notice was issued and duly served upon the proceedee. In
the instant case, the petitioner utterly neglected to participate/contest in
the proceedings."
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22. In view of the aforesaid facts and circumstances, we are of the opinion
that the impugned order dated 24.04.2019 passed by the learned Foreigners
Tribunal Jorhat in F.T.G (D) 474/2010 does not call for any interference.
23. Accordingly, this writ petition being devoid of merits stands dismissed.
24. The actions consequent upon the opinion rendered by the learned
Tribunal would follow, in accordance with law.
25. The records of the said F.T.G (D) 474/2010 be returned to the learned
Foreigners Tribunal Jorhat, forthwith along with a copy of this order.
JUDGE JUDGE
Comparing Assistant
