Gauhati High Court
Page No.# 1/15 vs Union Of India And 5 Ors on 24 November, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/15
GAHC010228662018
2025:GAU-AS:15902
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7225/2018
MALLIKA BEGUM @ KHATUN
D/O- MOHARUDDIN, W/O- NAJIMUDDIN ALI, VILL- ISSAPUR, P.S- RANGIA,
DIST- KAMRUP, ASSAM
VERSUS
UNION OF INDIA AND 5 ORS.
REP. BY THE SECRETARY TO THE HOME DEPTT, GOVT OF INDIA, NEW
DELHI-
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
HOME DEPTT
DISPUR
3:SUPERINTENDENT OF POLICE(B)
KAMRUP
ASSAM
4:ELECTION COMMISSION OF INDIA
NEW DELHI
5:COORDINATOR
NRC
GUWAHATI
6:MEMBER FOREIGNERS TRIBUNAL
KAMRUP
RANGI
Page No.# 2/15
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
Hon'ble MR. JUSTICE Pranjal Das
Advocates for the petitioner : Shri D. Choudhury, Advocate.
Advocates for the respondents : Shri G. Sarma, SC, Home Deptt. & NRC
Shri P. Sarma, Addl. Sr. GA, Assam
Shri N. Kalita, Advocate,
(On behalf of Shri A. I. Ali, SC, ECI),
Ms. B. Sarma, CGC.
Date on which judgment is reserved : 17.11.2025
Date of pronouncement of judgment : 24.11.2025
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 18.08.2018
passed by the learned Foreigners' Tribunal No. 5, Kamrup in F.T. (Nal) Case No.
1180R/2016 (Corresponding Police Case No. 105/2016). 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:
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(i) The reference was made by the Superintendent of Police (B), Kamrup
District, against the petitioner giving rise to the aforesaid F.T. (Nal) Case No.
1180R/2016 (Corresponding Police Case No. 105/2016).
(ii) As per the 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 of herself, a villager of
Narayangaon and the Gaonburah of Jaljali village as DWs 1, 2 and 3
respectively.
(iii) The learned Tribunal, after considering the facts and circumstances and
taking into account 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 post 25.03.1971.
3. We have heard Shri D. Choudhury, learned counsel for the petitioner. We
have also heard Shri G. Sarma, learned Standing Counsel, Home Deptt. & NRC;
Shri P. Sarma, learned Addl. Sr. Govt. Advocate, Assam; Shri N. Kalita, learned
counsel appearing on behalf of Shri A. I. Ali, learned Standing Counsel, ECI and
Ms. B. Sarma, learned CGC. We have also carefully examined the records which
were requisitioned vide an order dated 11.10.2018.
4. Shri Choudhury, the learned counsel for the petitioner at the outset has
contended that the correct name of the petitioner is Mallika Khatun which
however was wrongly stated as Mallika Begum. He has submitted that the
petitioner could prove her 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
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regard, he has referred to the evidence on affidavit of the petitioner and
following documentary evidence:
(i) Photocopy of Annual Kheraj Patta No. 107 of year 1948-49.
(ii) Photocopy of Annual Kheraj Patta No. 93 of year 1954-55.
(iii) Photocopy of Annual Kheraj Patta No. 41 of year 1964-65.
(iv) Photocopy of Annual Kheraj Patta No. 97 of year 1967-68.
(v) Draft Chitha of Dag No. 598/116 of the year 1957-64.
(vi) Partial Voter List of 1965.
(vii) Voter List of the year 2017 of the Panchayat.
5. The learned counsel has submitted that the land document namely, the
Draft Chitha of 1957 of Dag Nos. 804/94/419 for an area of land measuring 3
Bigha 2 Katha is in the name of Mohoruddin (father of the petitioner) and his
three brothers, who are all the sons of Johoruddin. The petitioner got married
on 22.05.1995 at the age of 17 years and thereafter her name had appeared in
the Voters List of 2011 along with her husband Najimuddin. The DW 2, who is a
villager of village Narayangaon had supported the petitioner. Further, the
Gaonburah of Jaljali village had deposed as DW 3 to support the petitioner. He
accordingly submits, that there were sufficient materials from the which a
conclusion can be arrived at that the petitioner is a citizen of India.
6. Per contra, Shri G. Sarma, 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
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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 inspires confidence and is
acceptable and only thereafter, the question of adducing rebuttal evidence may
arise.
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 land documents including the
Draft Chitha, which allegedly relates to the purported father of the petitioner,
there is not even a single document to link the petitioner with her purported
father. So far as the Voters List of 2011 having the name of the petitioner is
concerned, the same apart from being wholly irrelevant for the adjudication of
the present case as it is not of the relevant period, there is also no mention of
the name of the purported father. He has in fact also submitted that the
Nationality of the purported father also appears to the doubtful and the so
called NRC has been issued by an organisation which is not authorised. As
regards the oral evidence of DW 2 and DW 3, the learned Standing Counsel has
submitted that such evidence cannot be held to be conclusive in absence of
acceptable documentary evidence. He has also highlighted the evidence of DW
3 wherein he has stated that he had never met the father of the petitioner and
did not maintain any register for recording births and deaths. He has also
admitted that the certificate (Ext.10) was issued on the basis of personal
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knowledge.
8. 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, it has been laid down that the contents of a
certificate are required to be proved from the records.
9. The learned Standing Counsel has 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
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. Reliance has also been placed on a judgment of this Court dated
07.05.2018 passed in WP(C)/1073/2016 [Md. Abdul Kuddus Vs Union of India]
wherein the following observations were made:
"15. Exhibit-Ka (1) is a certificate issued by the Gaonburah on 02.08.2010. He
certified that A Kuddus was son of late A Kadir and that he was a resident of
Botalimari village. Father was voter of Lahorighat constituency. A Kaddus was
born in Botalimari village but shifted his residence to village Sarar Pathar village.
Though the Gaonburah deposed as DW-2, he did not bring the official register
or record to prove the contents of Exhibit-Ka(1). Therefore, the contents of
Exhibit-Ka (1) cannot be said to have been proved. It is trite that documentary
evidence has to be proved on the basis of the contemporaneous record and not
on the basis of personal knowledge through oral testimony. From the document
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as well as from the deposition of the Gaonburah, what transpires is that the
certificate was issued without reference to any official record. ..."
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.
3339 of 2023] has laid down as follows:
Page No.# 8/15
"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 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
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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 land documents are
concerned, pertaining to the projected father, there is no link established with
the petitioner. The Voter List which the petitioner has relied upon is of the year
2011 in which also there is no mention of the name of her projected father. It
has been disclosed that the petitioner got married on 22.05.1995 at the age of
17 years which will not absolve the petitioner from discharging her burden of
proof that she is the daughter of the projected father Mohoruddin. We have
noticed that even for the projected father there is not a single Voter List till the
year 1979 which itself raises serious doubts. We find force in the contention
advanced on behalf of the respondents regarding the unauthorised issuance of
the NRC by the Zamiat Ulema Hind. We have also noticed that while the
petitioner claims to have born at Narayangaon in the district of Nalbari, the DW
3 is from Jaljali Village in the district of Kamrup and the contents of the
certificate clearly appear to have been inserted in a mechanical manner on
dotted lines. 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.
16. 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 Vs
Union of India reported in 2017 (2) GLT 1076 (supra), the following has
been laid down:
"12. This written statement of the petitioner was wholly inadequate and did not
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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. 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."
18. On the serious issue of influx which is country facing, certain observations
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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 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
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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
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
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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 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
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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 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 18.08.2018 passed by the learned Foreigners'
Tribunal No. 5, Kamrup in F.T. (Nal) Case No. 1180R/2016 (Corresponding Police
Case No. 105/2016) 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.
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23. The records of the aforesaid F.T. (Nal) Case No. 1180R/2016
(Corresponding Police Case No. 105/2016) be returned to the learned
Foreigners' Tribunal No. 5, Kamrup forthwith, along with a copy of this order.
JUDGE JUDGE
Comparing Assistant
