Gauhati High Court
Page No.# 1/14 vs The Union Of India And 6 Ors on 19 November, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/14
GAHC010123632020
2025:GAU-AS:15743
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3679/2020
SAMSUL HOQUE @ SAMSUL HAUQUE @ SHAMSUL HOQUE
S/O- LT. GHATU MIYA @ GUTU MIA, VILL- AG MANDIA, P.S. BAGHBOR,
DIST.- BARPETA, PIN- 781308
VERSUS
THE UNION OF INDIA AND 6 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, DEPTT. OF HOME, NEW
DELHI-1
2:THE STATE OF ASSAM
REP. BY THE SECY. TO THE GOVT. OF ASSAM
DEPTT. OF HOME
DISPUR
GHY-6
3:THE DY. COMMISSIONER
BARPETA
PIN- 781301
4:THE SUPERINTENDENT OF POLICE (B)
BARPETA
PIN- 781301
5:THE ELECTION COMMISSION
GOVT. OF INDIA
NEW DELHI-1
6:THE STATE CO-ORDINATOR OF NATIONAL REGISTRATION (NRC)
ASSAM
GHY-32
7:THE FOREIGNERS TRIBUNAL NO.6
Page No.# 2/14
BARPETA
REP. BY THE STANDING COUNSEL
FOREIGNERS TRIBUNAL
PIN- 78130
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
Hon'ble MRS. JUSTICE SUSMITA PHUKAN KHAUND
Advocates for the petitioner : Shri A. Roshid, Advocate.
Advocates for the respondents : Shri J. Payeng, SC, Home Deptt. & NRC
Shri P. Sarma, Addl. Sr. GA, Assam
Shri A. I. Ali, SC, ECI,
Shri G. Pegu, CGC.
Date on which judgment is reserved : 14.11.2025
Date of pronouncement of judgment : 19.11.2025
Whether the pronouncement is of the operative part of the
judgment? : NA
Whether the full judgment has been pronounced? : Yes
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 30.01.2020
passed by the learned Foreigners' Tribunal 6 th, Barpeta in F.T. Case No.
361/2015. 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.
Page No.# 3/14
2. The facts of the case may be put in a nutshell as follows:
(i) The reference was made by the Superintendent of Police (B),
Barpeta District, against the petitioner giving rise to the aforesaid F.T. Case
No. 361/2015.
(ii) 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 along with certain documents and had adduced evidence along
with 4 other DWs.
(iii) The learned Tribunal, after considering the 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 him and accordingly, the opinion
was rendered declaring the petitioner to be a foreign national post
25.03.1971.
3. We have heard Shri A. Roshid, learned counsel for the petitioner. We have
also heard Shri J. Payeng, learned Standing Counsel, Home Deptt. as well as
NRC; Shri P. Sarma, learned Addl. Sr. Govt. Advocate, Assam; Shri A. I. Ali,
learned Standing Counsel, ECI and Shri G. Pegu, learned CGC. We have also
carefully examined the records which were requisitioned vide an order dated
29.09.2020.
4. Shri Roshid, the learned counsel for the petitioner has submitted that the
petitioner could prove his case with cogent evidence and in view of the fact that
there was no rebuttal evidence, the learned Tribunal should have accepted the
said proof and accordingly hold the petitioner to be a citizen of India. In this
regard, he has referred to the evidence on affidavit of the 4 numbers of
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witnesses and also the following documentary evidence:
1. Ext A: is the certified copy of the E/Roll 1966.
2. Ext B: is the certified copy of the E/Roll 1970.
3. Ext C: is the certified copy of the E/Roll 1985.
4. Ext D: is the certified copy of the E/Roll 1997.
5. Ext E: is the certified copy of the E/Roll 1966.
6. Ext F: is the certified copy of the E/Roll 1970.
7. Ext G: is the certified copy of the E/Roll 1997.
8. Ext H: is the certified copy of the E/Roll 2010.
9. Ext I: is the Voter ID Card of Amar Ali.
10. Ext J: is the Gaon Panchayat certificate of vill: 32 no. Barbila Gaon
Panchayat.
11. Ext K: is the certified copy of the E/Roll 2010.
12. Ext L: is the school certificate of Basiran Nessa.
13. Ext M: is the school certificate of Mahinur Khatun.
14. Ext N: is the Birth Certificate of Rakibul Hussain.
15. Ext O: is the Voter ID Card of Rukiya Khatun.
16. Ext P: is the Gaonburha's certificate of vill: Agmandia, Bhairarpam.
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17. Ext Q: is the Gaonburha's certificate of vill: Agmandia, Bhairarpam.
18. Ext R: is the Gaonburha's certificate of vill: Agmandia, Bhairarpam.
19. Ext S: is the Gaonburha's certificate of vill: Dakreswar, Belortari, Goroimari
Habi, Goremari Pather.
20. Ext T: is the ID Card of Hazarat Ali.
21. Ext U: is the certified copy of the E/Roll 1989.
22. Ext V: is the certified copy of the E/Roll 1997.
23. Ext W: is the land document.
24. Ext X: is the Voter ID Card of Talebar Rahman.
25. Ext. Y: is the certified copy of the E/Roll 2010.
5. The learned counsel has submitted that apart from the Voters List of 1966,
1970 and 1985 pertaining to the father of the petitioner, a certificate was also
issued by the Gaonburah (DW 2) which was duly exhibited. The brother of the
petitioner, Talebar Rahman had also adduced evidence as DW 3 to support the
petitioner and all these were not properly considered. Further, DW 3 had proved
a Sale Deed of land of the year 1981 along with Khajana receipt of the year
2010 and a Jamabandi. However, without considering the evidence in the proper
prospective, the impugned opinion has been passed. The learned counsel for
the petitioner further submits that there was no effective cross examination by
the prosecution side of the said witnesses who had deposed and therefore, such
evidence ought to have been accepted.
Page No.# 6/14
6. Per contra, Shri Payeng, learned Standing Counsel, Home Department as
well as NRC has categorically refuted the stand taken on behalf of the petitioner.
He submits that a proceeding under the Foreigners Act, 1946 and the
Foreigners (Tribunals) Order, 1964 relates to determination as to whether
the proceedee is a foreigner or not. Therefore, the relevant facts are especially
within the knowledge of the proceedee and accordingly, the burden of proving
citizenship rests absolutely upon the proceedee, notwithstanding anything
contained in the Evidence Act, 1872 and this is mandated under Section 9 of the
aforesaid Act, 1946. However, in the instant case, the petitioner utterly failed to
discharge the burden. It is also submitted that rebuttal evidence is not
mandatory in every case and would be given only if necessary. He further
submits that the evidence of a proceedee has to be cogent, relevant, which
inspire confidence and acceptable and only thereafter, the question of adducing
rebuttal evidence may come in.
7. He further submits that so far as the documents relied upon by the
petitioner are concerned, a part of the same cannot be relied upon and the
document as a whole is to be read. As regards the Voters List of 1966, 1970 and
1985 pertaining to the father of the petitioner, those do not establish any link
with him. It is submitted that the certificate of the Gaonburah dated 23.02.2015
(Ext. P) has been given in a letter head with the National Emblem which is not
permitted in law and even otherwise, the contents have not been proved in
accordance with law. The said Gaonburah as DW 2 could not even state the
names of the parents of the petitioner and also failed to submit any
contemporaneous records to support the certificate. In this regard, he has relied
upon a judgment of this Court in the case of Jalaluddin Vs Union of India
[Order dated 11.06.2018 in WP(C)/7677/2016 and 7698/2016]. In the said case,
Page No.# 7/14
it has been laid down that the contents of a certificate are required to be proved
from the records. As regards the projected brother (DW 3), he has submitted
that neither in the written statement nor in the evidence-in-chief of the
petitioner as DW 1, has he disclosed of having any brother. In any case, no
linkage could be proved by DW 3 and the land documents sought to be brought
on record are inconsistent. He has also submitted that in the written statement,
the petitioner did not make any reference to any land documents.
8. By drawing the attention of this Court to the impugned opinion, the learned
Standing Counsel has submitted that no leave was taken from the learned
Tribunal to introduce new documents which were not mentioned in the written
statement or even in the evidence by the petitioner as DW 1. In any case, the
descriptions of the land in the documents submitted are inconsistent and not
matching with each other and are in different villages. He has also highlighted
that though the father of the petitioner has been projected to have expired, the
petitioner who is the son does not known when his father had expired.
9. The learned Standing Counsel has submitted that all material facts are
required to be pleaded in the written statement and no new case can be taken
up at the stage of evidence. In this connection, he has relied upon the decision
of this Court in the case of Momin Ali Vs Union of India reported in 2017
(2) GLT 1076. He has also submitted that in a case of present nature, all
evidence are to be supported by documents and in this regard, he has relied
upon the case of Bijoy Das Vs Union of India reported in 2018 (3) GLT
118. He has also relied upon the case of Nur Begum Vs Union of India
reported in 2020 (3) GLT 347 wherein it has been laid down that even the
evidence of a purported mother, without link document cannot be accepted. A
similar view has been laid down in the case of Asia Khatoon Vs Union of
Page No.# 8/14
India & Ors. [Judgment dated 21.11.2019 in WP(C)/4020/2017] wherein the
evidence of a purported father was held to be unacceptable in absence of any
link document.
10. The learned Standing Counsel further submits that this Court in exercise of
its Certiorari jurisdiction does not act as an Appellate Court and it is only the
decision making process which can be the subject matter of scrutiny. He submits
that there is no procedural impropriety or illegality in the decision making
process and therefore, the instant petition is liable to be dismissed.
11. The learned counsel for the other respondents have supported the views
of the learned Standing Counsel and have added that the impugned opinion is
an elaborate one which takes care of every aspect and accordingly, there is no
scope for any interference.
12. The rival contentions have been duly considered. The records of the
learned Tribunal placed before this Court have been carefully perused.
13. 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.
14. 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.
Page No.# 9/14
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.
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
Page No.# 10/14
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
jurisdiction. Any other approach would render the High Court a normal
court of appeal which it is not."
15. The principal ground of challenge is that the documents have not been
properly appreciated and without there being any rebuttal evidence, the
depositions made on behalf of the petitioner should have been deemed to be
accepted. We have however noticed that so far as the Voters List of 1966, 1970
and 1985 are concerned, those pertain to the projected father of the petitioner.
There is no explanation of the long gap from 1970 to 1985 regarding the
projected father. The petitioner is also unaware as to when his father had died
which is very strange and defies the reasoning of a common man. Even if it is
assumed that the date or month of such death is forgotten, in the instant case
the petitioner has stated that sometime between 1985 to 1997 his father had
expired which is a very unusual. Though the petitioner had produced a Voter
List of the year 2011 where his name purportedly appears, the same is a
document post 1971 which would not have relevance in the adjudication of the
present case.
16. As regards the projected brother who had deposed as DW 3, the petitioner
in his written statement or even in his examination-in-chief did not even make a
whisper regarding any such brother. Furthermore, DW 3 has been seen to be
introducing new documents in the proceedings which were not mentioned in the
written statement. It is a settled law that materials fact are required to be
Page No.# 11/14
pleaded in the written statement and cannot be introduced out of the blue. We
also find force in the contention advanced by the learned Standing Counsel that
the records do not reveal that any such leave was taken from the learned
Tribunal to introduce new documents. In the case of Momin Ali (supra), the
following has been laid down:
"12. This written statement of the petitioner was wholly inadequate and did not
disclose any material facts. As noticed above, it was the allegation of the State
that petitioner was a foreigner. Therefore, as per mandate of Section 9 of the
Foreigners Act, 1946, it was the bounden duty of the petitioner to have
disclosed all material facts which were specifically within his knowledge in the
written statement but he did not do so. Petitioner neither mentioned his date of
birth nor his age. He was silent regarding the name of his mother and identity
of his grandparents - both paternal and maternal. He did not mention anything
about his brothers and sisters or about his marital status. On the basis of such a
written statement, it cannot be said that petitioner had stated anything
substantial to show that he was not a foreigner but a citizen of India.
13. It is a settled proposition of law that where a party fails to set up a case
in his pleadings, he would be debarred from adducing evidence in his support at
the stage of trial. As a matter of principle, variance between pleading and proof
is not permissible."
17. Nonetheless, in the interest of substantial justice, a cursory glance with
the documents pertaining to the land would show that there is gross
inconsistency in the land of the documents, both in its area and descriptions. In
fact the villages are also not matching.
18. The Gaonburah had deposed as DW 2 in support of the petitioner and had
also given a certificate on 23.02.2015. Though the certificate appears to have
Page No.# 12/14
been given in a letter head having the National Emblem which is not permitted
in law, notwithstanding the said aspect, even the contents are inadmissible as
evidence. The said DW 2, could not even state the names of the parents of the
petitioner. As noted above, in the case of Jalaluddin (supra) it has been laid
down the contents of the certificate has to be proved from the
contemporaneous records.
19. The scope of oral evidence in a proceeding of this nature is absolutely
circumscribed which is in sync with the objective of the scheme of the Act. The
grave and serious issue of influx of illegal migrants in the country in general and
in the State of Assam in particular is well accepted and such issue has to be
dealt with in an appropriate manner. However, at the same time a balance has
to be struck with the individual liberty of a genuine citizen. In this connection,
we may remind ourselves to the opening remarks made by the Hon'ble Supreme
Court in the case of Assam Sanmilita Mahasangha & Ors. vs Union of
India reported in (2015) 3 SCC 1 which reads as follows:
"A Prophet is without honour in his own country. Substitute 'citizen' for 'prophet'
and you will get the gist of the various writ petitions filed under Article 32 of the
Constitution of India assailing Section 6A of the Citizenship Act."
20. The settled law in this field is that the burden of proof that a proceedee is
an Indian citizen is always on the said proceedee and the said burden never
shifts. The said procedure is clearly laid down in Section 9 of the Act of 1946
and there is non-obstante clause that the provisions of the Indian Evidence Act
would not be applicable. For ready reference, Section 9 is extracted
hereinbelow-
"9. Burden of proof.--If in any case not falling under Section 8 any
question arises with reference to this Act or any order made or direction
Page No.# 13/14
given thereunder, whether any person is or is not a foreigner or is or is
not a foreigner of a particular class or description the onus of proving that
such person is not a foreigner or is not a foreigner of such particular class
or description, as the case may be, shall, notwithstanding anything
contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such
person."
21. In this connection, the observation of the Hon'ble Supreme Court in the
case of Fateh Mohd. Vs. Delhi Administration [AIR 1963 SC 1035] which
followed the principles laid down by the Constitutional Bench in the case of
Ghaus Mohammad Vs. Union of India [AIR 1961 SC 1526] in the context
of Foreigners Act, 1946 would be relevant which is extracted hereinbelow-
"22. This Act confers wide ranging powers to deal with all foreigners or
with respect to any particular foreigner or any prescribed class or
description of foreigner for prohibiting, regulating or restricting their or his
entry into India or their presence or continued presence including their
arrest, detention and confinement. The most important provision is
Section 9 which casts the burden of proving that a person is not a
foreigner or is not a foreigner of such particular class or description, as
the case may be, shall lie upon such person. Therefore, where an order
made under the Foreigners Act is challenged and a question arises
whether the person against whom the order has been made is a foreigner
or not, the burden of proving that he is not a foreigner is upon such a
person. In Union of India v. Ghaus Mohd. the Chief Commissioner of Delhi
served an order on Ghaus Mohammad to leave India within three days as
he was a Pakistani national. He challenged the order before the High
Page No.# 14/14
Court which set aside the order by observing that there must be prima
facie material on the basis of which the authority can proceed to pass an
order under Section 3(2)(c) of the Foreigners Act, 1946. In appeal the
Constitution Bench reversed the judgment of the High Court holding that
onus of showing that he is not a foreigner was upon the respondent."
22. In view of the aforesaid facts and circumstances, we are of the opinion
that the impugned order dated 30.01.2020 passed by the learned Foreigners'
Tribunal, 6th, Barpeta in F.T. Case No. 361/2015 does not call for any
interference. Accordingly, this writ petition being devoid of merits stands
dismissed.
23. The actions consequent upon the opinion rendered by the learned Tribunal
would follow, in accordance with law.
24. The records of the aforesaid F.T. Case No. 361/2015 be returned to the
learned Foreigners' Tribunal 6th, Barpeta forthwith along with a copy of this
order.
JUDGE JUDGE
Comparing Assistant
