Gauhati High Court
Page No.# 1/12 vs The Union Of India And 6 Ors on 11 September, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/12
GAHC010163692025
2025:GAU-
AS:12372-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4394/2025
HAIDAR ALI
S/O LT. ALAL UDDIN @ ALA UDDIN, VILL- NO. 1 NAHARBARI, P.S.-
MAZBAT, DIST- UDALGURI, ASSAM, PIN-
VERSUS
THE UNION OF INDIA AND 6 ORS
REPRESENTED BY THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA,
NEW DELHI-110001
2:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTION COMMISSIONER
INDIA
NEW DEELHI-110001
3:THE STATE COORDINATOR
ASSAM
NATIONAL REGISTER OF CITIZENS
BHANGAGARH
GHY-5
4:THE STATE OF ASSAM
REPRESENTED BY THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GHY-6
5:THE SUPERINTENDENT OF POLICE (B)
UDALGURI
P.S.- UDALGURI
DIST- UDALGURI
ASSAM
Page No.# 2/12
PIN-784509
6:THE DISTRICT COMMISSIONER
UDALGURI
P.S. AND DIST- UDALGURI
ASSAM
PIN-784509
7:THE SUPERINTENDENT OF POLICE (B)
DARRANG
P.S.- MANGALDAI
DIST- DARRANG
ASSAM
PIN-78412
Advocate for the Petitioner : MD. A HUSSAIN, MR. T ISLAM,MR. K ALOM
Advocate for the Respondent : DY.S.G.I., SC, NRC,SC, F.T,SC, ECI,GA, ASSAM
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MR. JUSTICE RAJESH MAZUMDAR
For the Petitioner : Shri A Hussain, Advocate.
For the Respondents : Shri G Sarma, SC, NRC & FT;
Shri HK Hazarika, GA, Assam;
Ms. K Phukan, CGC;
Shri AI Ali, SC, ECI.
Date of Hearing : 08.09.2025.
Date of Judgment : 11.09.2025.
Page No.# 3/12
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/judgment and order dated 22.03.2022 passed by the learned
Foreigners' Tribunal (2nd) Darrang, Mangaldai in F.T. Case No. 11044/2011. 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),
Udalguri District, against the petitioner giving rise to the aforesaid F.T.
Case No. 11044/2011 (Ref. FT Case No. 47/2006);
(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 on 17.11.2021 along with certain documents. Thereafter, the
petitioner had adduced evidence by himself as DW1 and by one Haleman
Nessa, who is projected to be the mother of the petitioner as DW2;
(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 him and
accordingly, the opinion was rendered declaring the petitioner to be a
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foreign national post 25.03.1971.
3. We have heard Shri A Hussain, learned counsel for the petitioner. We have also
heard Shri G Sarma, learned Standing Counsel, FT and NRC; Shri HK Hazarika, learned
Government Advocate, Assam; Ms. K Phukan, learned CGC and Shri H Kuli, learned
counsel appearing on behalf of Shri AI Ali, learned Standing Counsel, ECI. We have
also carefully examined the records which were requisitioned vide an order dated
06.08.2025.
4. Shri Hussain, the learned counsel for the petitioner has submitted that the
petitioner could prove his case with cogent evidence and therefore, the learned
Tribunal should have accepted the said proof and accordingly held the petitioner as a
citizen of India. In this regard, he has referred to the evidence on affidavit of the two
witnesses and also the following documentary evidence:
i) Certificate issued by the Gaonburah as Ext. 1;
ii) Certified copy of Voter List of 1966 of 73 No. Dalgaon LAC as Ext. 2;
iii) Electoral Voter ID Car as Ext.-3;
iv) Certificate by Gaonburah regarding DW2 as Ext.-4;
v) Electoral Voter ID Card of DW 2 as Ext.-5;
vi) Aadhaar Card of DW2 as Ext.-6;
vii) PAN Card of DW 2 as Ext.-7.
5. It may be mentioned that few other documents were annexed to the evidence
on affidavit which are as follows:
Page No.# 5/12
i) NRC Legacy data of 1951 - Annexure-A;
ii) NRC Draft List - Annexure-B;
iii) Voter List of 1958 - Annexure-C;
iv) Voter List of 1972 - Annexure-d;
v) Voter List of 1993 - Annexure-E;
vi) Voter Information Slip - Annexure-F;
vii) Voter List of 1985 - Annexure-G;
viii) Voter List of 2007 - Annexure-H.
6. He has submitted that the aforesaid materials would be sufficient to come to a
conclusion that the petitioner is a citizen of India. However, by overlooking the same
and without a proper appreciation, the impugned opinion/order has been passed
which requires interference.
7. Per contra, Shri Sarma, learned Standing Counsel, NRC & FT 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. This is mandated under
section 9 of the aforesaid Act, 1946. However, in the instant case, the petitioner
utterly failed to discharge the said burden. He further submits that the evidence of a
proceedee has to be cogent, relevant, which inspires confidence and acceptable and
only thereafter, the question of adducing rebuttal evidence may come in.
Page No.# 6/12
8. He further submits that so far as the documents are concerned, the petitioner
had failed to prove the relevant documents and only few documents have been proved
which will not discharge his burden. He has submitted that in the written statement,
there is no mention of the name of the mother and even there was no clear reference
to the names of the father and grandfather. He submits that written statement is the
basic statement of defence and the petitioner cannot go beyond the pleadings. He has
also submitted that the NRC document cannot be taken as valid piece of evidence
towards the proof of citizenship. He has also submitted that the evidence of DW2 will
not be relevant inasmuch, as the said DW2 was not mentioned as the mother of the
petitioner in the written statement.
9. Shri Sarma, learned Standing Counsel has placed reliance upon the following
case laws:
i) Rashminara Begum Vs. UOI, reported in 2017 (4) GLT 346 and
ii) Nur Begum Vs. Union of India, reported in 2020 (3) GLT 347.
10. The case of Rashminara (supra) has been cited to bring home the contention
that a proceedee is required to disclose in the written statement all relevant facts
having a material bearing on his/ her claim to citizenship of India which is the basic
statement of defence. For ready reference, the relevant part is extracted herein below:
"25. Written statement is the basic statement of defence of a proceedee before
the Foreigners Tribunal. Keeping in mind the mandate of Section 9 of the
Foreigners Act,1946, it is incumbent upon the proceedee to disclose at the first
instance itself i.e., in his written statement all relevant facts specially within his
knowledge having a material bearing on his claim to citizenship of India.
Material facts pleaded in the written statement are thereafter required to be
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proved by adducing cogent and reliable evidence. It is also trite that a party
cannot traverse beyond the pleadings made in the written statement."
11. In the cases of Nur Begum (supra), the following has been laid down:
"6. The statement of DW-2 i.e. Jahurun Begum, who claimed to be the mother
of the petitioner, cannot be relied upon in the absence of any documents
showing her relationship, either to the projected grandfather, father or to the
petitioner herself. Oral testimony of DW-2 alone, sans any documentary
support, cannot be treated as sufficient to prove linkage or help the cause of
the petitioner. Surprisingly, the petitioner failed to produce a single voter list in
her name even until the age of 50 years. We would reiterate that in a
proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals)
Order, 1964 the evidentiary value of oral testimony, without support of
documentary evidence, is wholly insignificant. Oral testimony alone is no proof
of citizenship. The evidence of DW-2, thus, falls short of being considered as
cogent, reliable and admissible evidence, so much so, to establish linkage of the
petitioner to the projected grandfather, grandmother and father. The petitioner
utterly failed to prove her linkage to Indian parents relatable to a period prior to
the cut-off date of 25.03.1971 through cogent, reliable and admissible
documents."
12. The rival contentions have been duly considered. The records of the learned
Tribunal placed before this Court have been carefully perused.
13. With regard to the aspect of burden of proof as laid down in Section 9 of the Act
of 1946, the law is well settled that the burden of proof that a proceedee is an Indian
citizen is always on the said proceedee and never shifts. In the said Section, 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:
Page No.# 8/12
"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."
14. In this connection, the observations of the Hon'ble Supreme Court in the case of
Fateh Mohd. Vs. Delhi Administration, reported in AIR 1963 SC 1035 which followed
the principles laid down by the Constitutional Bench in the case of Ghaus Mohammad
Vs. Union of India, reported in 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 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)
Page No.# 9/12
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."
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 & 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 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
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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."
17. The principal ground of challenge is that the documents have not been properly
appreciated and accordingly, the impugned opinion/order is liable to be set aside.
18. This Court has however noted that the petitioner has failed to prove the relevant
documents in the proceeding. As noted above, though as many as 15 nos. of
documents were mentioned in the evidence, only 7 nos. of documents have been
proved. Out of the said documents which had been proved, there is only one Voter
List of 1966 which has been projected to contain the name of one Alauddin as the
father of the petitioner. There is no other voter list proved to bring a linkage with the
said Alauddin. Certain documents though annexed, those have not been proved which
Page No.# 11/12
includes the Voter Lists of 1971, 1985, 1993, 1997, 2006 and 2025. In any case, the
age of the said Alauddin is not consistent in the different documents and the voter list
where the name of the petitioner appears is of the year 1997 where his age is shown
to be 35 years. Though the Voter Lists of 1985 and 1993 have been annexed, there is
no mention of the name of the petitioner along with his projected parents. In fact, no
voter list prior to 1997 containing the name of the petitioner has been brought to the
record in spite of the fact that at least, from the year 1983, the petitioner was a voter
by assuming that the minimum age of voting at that time was 21 years. This Court
has also noticed that while in the Voter List of 1985, the age of the projected father of
the petitioner was 50 years and age of the projected mother of the petitioner was 40
years, in the Voter List of 1993, the age was shown as 70 and 62 years, respectively.
Further, in the Voter List of 1997, the age of the projected father remained as 70 years
while the age of the projected mother reduced to 55 years. This Court has also
noticed that in the PAN card of the petitioner, the name of the father has been written
as "Lal Uddin". Further, in the said PAN Card, the date of birth of the petitioner has
been stated as 12.05.1973 which is wholly inconsistent with the age recorded in the
Voter List of 1997 as 35 years.
19. In view of the aforesaid facts and circumstances, we are of the opinion that the
learned Tribunal had taken the relevant factors into consideration while passing the
impugned opinion/judgment and order dated 22.03.2022 passed in F.T. Case No.
11044/2011 which appears to be reasonable and does not call for any interference.
The writ petition being devoid of any merit is accordingly dismissed.
20. The actions consequent upon the opinion rendered by the learned Tribunal
would follow, in accordance with law.
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21. The records of the F.T. Case No. 11044/2011 be returned to the learned
Foreigners' Tribunal (2nd) Darrang, Mangaldai forthwith along with a copy of this order.
JUDGE JUDGE
Comparing Assistant
