Gauhati High Court
WP(C)/1546/2020 on 21 November, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/14
GAHC010047282020
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C)/1546/2020
Abdul Jabbar @ Abdul Jubbar ...Petitioner
-Versus-
The Union of India and Ors. ...Respondents
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
Hon'ble MR. JUSTICE PRANJAL DAS
Advocate for the petitioner : Shri A. Ali, 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 assisted by Shri
M. Islam, Advocate.
Shri R.K.D. Choudhury, DSGI.
Date on which judgment is reserved : 18.11.2025
Date of pronouncement of judgment : 21 .11.2025
Whether the pronouncement is of the operative part of the judgment? : NA
Whether the full judgment has been pronounced? : Yes
Page No.# 2/14
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 29.04.2019
passed by the learned Foreigners' Tribunal 5 th, Darrang, Mangaldoi in F.T. (V)
Case No. 2355/2016. 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.
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),
Darrang District, against the petitioner giving rise to the aforesaid F.T. (V)
Case No. 2355/2016.
(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 also adduced evidence
as DW1 along with another witness DW2.
(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. Ali, learned counsel for the petitioner. We have also
heard Shri J. Payeng, learned Standing Counsel, Home Deptt. & NRC; Shri P.
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Sarma, learned Addl. Sr. Govt. Advocate, Assam; Shri A. I. Ali, learned Standing
Counsel, ECI assisted by Shri M. Islam, learned counsel and Shri R.K.D.
Choudhury, learned Dy.SGI.
4. Shri Ali, 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 petitioner and also
the following documentary evidence:
(i) Ext 1: Voter Lists of 1965.
(ii) Ext 2: NRC of 1966.
(iii) Ext 3: Voter Lists of 1997
(iv) Ext 4: Voter Lists of 2014
(v) Ext 5: Voter ID Card of Projected father
(vi) Ext 6: Voter ID Card of Projected mother.
(vii) Ext. 7:Voter ID Card of the petitioner
(viii)Ext. 8:Voter ID Card of the projected brother
(ix) Ext. 9: Voter ID Card of the wife of the petitioner
(x) Ext. 10: Land document in the name of the petitioner
(xi)Ext. 11: Legacy Data Code of 1966
(xii)Ext. 12: Legacy Data Code 2015
(xiii) Ext. 13: Gaonburah Certificate
(xiv) Ext. 14: Affidavit regarding age correction
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Two other documents were produced which are:
(i) Voter Lists of 2008 of 68 No. Dalgaon LAC (Annexure-A).
(ii) Voter Lists of 2019 of 68 No. Dalgaon LAC (Annexure-B).
5. The learned counsel has submitted that in the Voter List of 1965, the name
of the father of the petitioner appears which is also supported by the NRC of
1966. Thereafter, in the Voter List of 1997, the name of the father of the
petitioner including that of the petitioner have appeared. He submits that the
other Voter List of subsequent years have been duly proved including the EPIC
of the petitioner as well as jamabandi of a plot of land in the name of the
petitioner wherein name of his father also appears.
6. He has submitted that the aforesaid documents which were supported by
the petitioner deposing as DW1 along with evidence of the father as DW2 have
not been properly appreciated by the learned Tribunal leading to passing of the
impugned opinion. He accordingly submits that the present writ petition be
allowed and the impugned opinion be set aside.
7. Per contra, Shri Payeng, the learned Standing Counsel, Home Department
and 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
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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.
8. 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 Lists of 1965 and
1997 are concerned, the names contained therein are distinct and different and
cannot be said to be of the same person so far as the projected father of the
petitioner is concerned. He has also submitted that there is no explanation
regarding lack of any such Voter Lists for the long period of more than 30 years
from the year, 1965 to 1997. Even, thereafter, the next Voters List is of the year
2014 which is after more than 17 years. He submits that the other documents
are not relevant for the adjudication of the issue at hand. As regards the Voter
Lists of 1997 and 2014, he has submitted that though the same contain the
name of the petitioner with his projected father, it would not be a conclusive
proof as there are inconsistencies. In this regard, he has relied upon a judgment
of a Coordinate Bench of this Court reported in 2023 (4) GLT 246 [Aziz Miya
Vs. Union of India] where the following observations have been made:
"15. We are constrained to observe that a mere claim by a suspected
person by referring to a voters' list claiming a person therein to be his
father is not a conclusive proof and that by doing so, the person has
discharged the burden that he is not a foreigner. This is because there is
also a further requirement to prove that the person who is reflected in the
voters' list relied upon is actually the father of the person who makes the
claim the claim will have to be substantiated with further
material/materials acceptable in law."
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9. The learned Standing Counsel has also submitted that the evidence of the
projected father as DW2 cannot be accepted in absence of any supporting
documents, more so, when there is gross inconsistency in the name of the
projected father said to have appeared in the Voter List of 1965. He has also
submitted that while in the Voter List of 1965, the age of the projected father
was 65 years, in the Voter List of 1997, the age of the projected father, instead
of increasing correspondingly has, to the contrary, decreased to 58 years. 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 projected mother, without link
document cannot be accepted. A similar view has been laid down in the case of
Asia Khatoon Vs Union of India & Ors. [Judgment dated 21.11.2019 in
WP(C)/4020/2017] wherein the evidence of a projected 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
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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.
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
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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
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 Lists of 1965 and
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1997 are concerned, there is absolutely no similarity in the name of the
projected father of the petitioner. While in the Voter List of 1965, the name of
the projected father has been written as Ahizuddin, son of Eyajuddin, in the
Voter List of 1997, the name of the projected father has been given as M.
Rahimuddin, son of Riyajuddin. Further, as noted above, while the age of the
father in the year 1965 was stated to be 65 years, in 1997, the age had reduced
to 58 years. If the Voter List of 1965 is to be omitted, there is not a single
document to support the claim of citizenship of the petitioner as all other
documents are of a subsequent period. As regards the NRC of 1966, containing
the name of the projected father, such NRC will not have any evidentiary value
towards grant of citizenship. Further, as noted above, there is no explanation
regarding the lack of documents, mainly, Voters List for the long period of more
than 30 years from 1965 to 1997 and thereafter, about 17 years from 1997 to
2014.
16. As regards the projected father who had deposed as DW 2, such
deposition could not have much relevance in absence of documentary evidence,
more so, when the documents relating to the projected father are themselves
apparently doubtful. We have also noted that the petitioner, in his written
statement has not mentioned the essential information like his date of birth,
place of birth, any fact regarding shifting etc. It is a settled law that material
facts are required to be pleaded in the written statement and cannot be
introduced later. 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
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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. With regard to the Gaonburah Certificate, this Court in the case of
Jalaluddin vs. Union of India [order dated 11.06.2018 in WP(C)/7677/2016
and 7698/2016] has been laid down the contents of the certificate has to be
proved from the contemporaneous records.
18. 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. Certain observations
made by the Hon'ble Supreme Court in the case of Sarbananda Sonowal Vs.
Union of India reported in (2005) 5 SCC 665 are required to be reminded
which are as follows:
"32. The foremost duty of the Central Government is to defend the
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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 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
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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."
In Introduction to International Law by J.G. Starke (Chapter 18) it is said
that the war in its most generally understood sense is a contest between
two or more states primarily through their armed forces, the ultimate
purpose of each contestant or each contestant group being to vanquish
the other or others and impose its own conditions of peace. With the
passage of time, the nature of war itself has become more distinctly
clarified as a formal status of armed hostility, in which the intention of the
parties, the so-called animus belligerendi may be a decisive factor. The
modern war may involve not merely the armed forces of belligerent states
but their entire population. In Essays on Modern Law of War by L.C.
Green the author has said that in accordance with traditional international
law, "war is a contention between two or more States through their armed
forces, for the purpose of overpowering each other and imposing such
conditions of peace as the victor pleases.". The framers of the
Constitution have consciously used the word "aggression" and not "war"
in Article 355."
19. 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
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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."
20. 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
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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."
21. In view of the aforesaid facts and circumstances, we are of the opinion
that the impugned order dated 29.04.2019 passed by the learned Foreigners'
Tribunal, 5th, Darrang, Mangaldoi in F.T. (V) Case No. 2355/2016 does not call
for any interference. Accordingly, this writ petition being devoid of merits stands
dismissed.
22. The actions consequent upon the opinion rendered by the learned Tribunal
would follow, in accordance with law.
23. The records of the aforesaid F.T. (V) Case No. 2355/2016 be returned to
the learned Foreigners' Tribunal 5th, Darrang, Mangaldoi forthwith along with a
copy of this order.
JUDGE JUDGE
Comparing Assistant
