Page No.# 1/18 vs The Union Of India And 6 Ors
2025 Latest Caselaw 7362 Gua

Gauhati High Court

Page No.# 1/18 vs The Union Of India And 6 Ors on 17 September, 2025

Author: S.K. Medhi

Bench: Sanjay Kumar Medhi

                                                                   Page No.# 1/18

GAHC010132822020




                                                              2025:GAU-AS:12760

                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/3939/2020

         IMAN ALI
         S/O- BBUR ALI @ BABURALI @ BABUR ALI SHEKH, R/O- VILL- BALAJANI
         CHECHAPANI (DURGAPUR), P.O. KAKOIJANA, P.S. ABHAYAPURI, DIST.-
         BONGAIGAON, ASSAM



         VERSUS

         THE UNION OF INDIA AND 6 ORS.
         REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
         AFFAIRS, NEW DELHI-1

         2:THE ELECTION COMMISSION
          INDIA
          REP. BY THE CHIEF ELECTION COMMISSION
          INDIA
          NEW DELHI-01

         3:THE STATE OF ASSAM
          REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
          HOME DEPTT.
          DISPUR
          GHY-06

         4:THE STATE CO-ORDINATOR
          NRC
         ASSAM
          BHANGAGARH
          GHY-5
          PIN- 781005

         5:THE DY. COMMISSIONER
          BONGAIGAON
                                                                                  Page No.# 2/18

               ASSAM
               PIN- 781

               6:THE SUPERINTENDENT OF POLICE (B)
                BONGAIGAON
                DIST.- BONGAIGAON
               ASSAM

               7:THE OFFICER-IN-CHARGE
               ABHAYAPURI P.S.
                DIST.- BONGAIGAON
               ASSA

Advocate for the Petitioner       : MR. J AHMED, MR. Z RAHMAN

Advocate for the Respondent : ASSTT.S.G.I., SC, ELECTION COMMISSION.,SC, NRC,SC, F.T

BEFORE Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI HON'BLE MR. JUSTICE RAJESH MAZUMDAR

Advocates for the petitioner : Shri J. Ahmed

Advocates for the respondents : Shri J. Payeng, SC- Home Dept. Shri G. Sarma, SC-NRC Shri P. Sarma, Addl. Sr. GA - Assam Shri H. Kuli, R. - ECI Shri B. Chakravarty, CGC

Date of hearing : 09.09.2025 Date of Judgment : 17.09.2025

Judgment & Order (S.K. Medhi, J.)

The extra-ordinary jurisdiction of this Court has been sought to be invoked Page No.# 3/18

by filing this application under Article 226 of the Constitution of India by putting to challenge the opinion rendered vide impugned order dated 09.09.2020 passed by the learned Foreigners' Tribunal No. 2, Bongaigaon in F.T. Case No. BNGN/FT/Case No. 1391/2007 (Ref- BNGN FT Case No. 92/2005). 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), Bongaigaon District, against the petitioner giving rise to the aforesaid BNGN/FT/Case No. 1391/2007.

(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 07.04.2016 along with certain documents and had claimed to be an Indian Citizen by birth.

(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 J. Ahmed, learned counsel for the petitioner. We have also heard Shri J. Payeng, learned Standing Counsel, Home Department, Assam; Shri H. Kuli, learned counsel appearing on behalf of Shri A.I. Ali, learned Standing Counsel, Election Commission of India; Shri P. Sarma, learned Additional Senior Government Advocate, Assam and Shri B. Chakravarty, learned Page No.# 4/18

CGC.

4. Shri Ahmed, 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 three numbers of witnesses and also the following documentary evidence.

         i.    Electoral Roll, 1959 (Exbt -1)

        ii.    Voter list of 1959 (Exbt - 2)

       iii.    Voter list of 1971 (Exbt - 3)

       iv.    Voter list of 1997 (Exbt - 4)

       v.     Voter list of 2010 (Exbt - 5)

       vi.     Voter list of 2011 (Exbt - 6)

     vii.     Voter list of 2015 (Exbt - 7)

     viii.    Voter Identity Card (Exbt - 8)

       ix.     Affidavit (Exbt - 9)

       x.       Sale deed (Exbt - 10)

5. Shri Ahmed, the learned counsel for the petitioner 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 without any difficulty. He has added that so far as DW1 is concerned, there was no cross-examination at all. He has contended that the learned Tribunal has erred in law in not accepting the translated copies of voter list. He has clarified Page No.# 5/18

that all such voter lists are certified copies which are valid evidence. He has further submitted that under Order 3(1) of the Foreigners' (Tribunal) Order, 1964, grounds are to be given followed by a reasonable opportunity which was not done in the instant case.

6. The learned counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court reported in AIR 2024 SC 3551 [Md. Rahim Ali @ Abdur Rahim Vs. Union of India] with regard to the observations made qua Section 9 of the Foreigners' Act, 1946. He has also referred to Section 50 of the Indian Evidence Act on the aspect of opinion on relationship and has relied upon a judgment of this Court in the case of Md. Sujab Ali Vs. Union of India reported in 2021 (4) GLT 664 and paragraph 21 is pressed into service, which reads as follows:

"19. The impugned order of the Tribunal also does not refer to the evidences adduced on behalf of the proceedee/petitioner. As has been held by the Apex Court in Dolgobinda Paricha (supra) in respect of Section 50 of the Evidence Act that there are three essential requirements to Section 50 of the Evidence Act namely, (1) there must be a case where the court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfill the condition laid down in the later part of the section."

7. Reliance has also been placed on the case of Sirajul Haque Vs. Union Page No.# 6/18

of India reported in (2019) 5 SCC 534 on the observations made on shifting residence and discrepancies of age.

8. Per contra, Shri J. Payeng, learned Standing Counsel, Home Department 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.

9. The learned Standing Counsel further submits that so far as the document relied upon by the petitioner is concerned, a part of the same cannot be relied upon and the document as a whole is to be read. He has submitted that except for Ext. 1 which is the Voter Lists of 1959 of the projected parents, there are no other Voter Lists of subsequent period. The NRC document of 1959, apart from having a discrepancy in the name of the projected father, cannot be treated as an evidence to prove citizenship. Coming to the written statement, he has submitted that there is no mention of any Voter Lists from 1971 to 1997 and also regarding the existence of any brother and cousin of the petitioner. It also does not disclose when the father / mother of the petitioner had died. There is also no common Voter Lists of the petitioner with either of the projected father Page No.# 7/18

or mother. He has submitted that oral statements made by a proceedee would not be enough to prove citizenship and further that mere enrolment in a Voter List of 1997 when the petitioner was aged 38 years will not prove his citizenship.

10. Countering the argument that the proceeding was initiated on mere suspicion, Shri Payeng, learned Standing Counsel has contended that in the notice itself the grounds were mentioned and therefore, there was no requirement to furnish the ground separately. He submits that there was an enquiry report based on which the notice was issued and such report is in the form of a Case Diary, the copy of which cannot be given to a proceedee. He has further submitted that the aforesaid issue was not raised in the written statement and otherwise also stands answered in the case of Sarbananda Sonowal Vs. Union of India reported in (2005) 5 SCC 665 where the erstwhile IM(D)T Act was declared ultra vires. The following observations made by a 3 Judges Bench of the Hon'ble Supreme Court in the aforesaid case have been pressed into service:

"41. Another important enactment, whose provisions have been superseded by Section 4 of the IMDT Act, is The Passport (Entry into India) Act, 1920. Sub-section (1) of Section 3 of this Act conferred power upon the Central Government to make rules requiring that persons entering India shall be in possession of passports and for all matters ancillary or incidental to that purpose. Sub-section (2) of this Section says that without prejudice to the generality of the powers conferred by sub-

section (1), the rules may prohibit the entry into India or any part thereof of any person who has not in his possession a passport issued to him and also prescribe the authorities by whom passports must have been issued Page No.# 8/18

or renewed and the conditions which they must comply for the purposes of the Act. Sub-section (3) lays down that the rules made under this Section may provide that any contravention thereof or of any order issued under the authority of any such rule shall be punishable with imprisonment for a term which may extend to three months or with fine or with both. Section 4 says that any officer of police not below the rank of Sub-Inspector and any officer of the customs department empowered by a general or special order of the Central Government in this behalf may arrest without warrant any person who has contravened or against whom a reasonable suspicion exists that he has contravened any rule or order made under Section 3. Section 5 provides that the Central Government may, by general or special order, direct the removal of any person from India who, in contravention of any rule made under Section 3 prohibiting entry into India without passport, has entered therein, and thereupon any officer of the Government shall have all reasonable powers necessary to enforce such direction. By virtue of the power conferred by this Act, all such nationals of Bangladesh, who have entered India without a passport, could be arrested without a warrant by a police officer not below the rank of Sub-Inspector. The Central Government also had the power to direct removal of any such person who had entered India in contravention of a rule made under Section 3 prohibiting entry into India without a passport. However, Section 4 of the IMDT Act has stripped the Central Government of its power of removal of such person from India and also the power of arrest of such person without warrant possessed by a police officer of the rank of Sub-Inspector or above.

Page No.# 9/18

42. The above discussion leads to irresistible conclusion that the provisions of the IMDT Act and the Rules made thereunder clearly negate the constitutional mandate contained in Article 355 of the Constitution, where a duty has been cast upon the Union of India to protect every State against external aggression and internal disturbance. The IMDT Act which contravenes Article 355 of the Constitution is, therefore, wholly unconstitutional and must be struck down."

11. He has submitted that the case of Sirajul Hoque (supra) relied upon by the petitioner is distinguishable on facts. In the said case, the discrepancy was minor and all other entries in the Voter Lists were found to be consistent.

12. He has also relied upon the judgment of this Court in the case of Dukhu Miah Vs. Union of India [judgment dated 08.03.2018 in WP(C)/3805/2016], the relevant observations being extracted hereinbelow:

"21. The issue raised by the petitioners was also raised in WP(C) No.

2613/2016 (Aysha Khatun vs Union of India), decided on 03.10.2016. This Court held as follows:-

'Firstly, a notice is given to the noticee to make her aware of the

proceeding registered against her, in this case, a proceeding under the Foreigners' Act, 1946. Though under Clause 3(1) of the Foreigners' (Tribunals) Order, 1964, it is mentioned that the show cause notice should be accompanied by a copy of the main grounds on which the allegation had been made, it is open to the Foreigners' Tribunal to endorse a remark or to mention in the show cause notice itself the reason for issuing the show cause notice. The use of the expression "copy of the main grounds" as appearing in Clause 3(1) Page No.# 10/18

should be understood to mean disclosure of the ground(s) in the show cause notice. As pointed out above, these grounds can be incorporated in the show cause notice itself as those need not be elaborate. After all, the objective of issuing notice is to inform the noticee before hand about registration of the proceeding. Reverting to the facts of the present case, it has already been noticed that in the show cause notice, it was mentioned that as per reference of the Superintendent of Police, Bongaigaon petitioner was suspected to be a foreigner having illegally entered into India/Assam from East Pakistan/Bangladesh whereafter the reference was registered. This itself is the ground for issuance of the show cause notice.

Secondly, it is evident that no prejudice has been caused to the petitioner by alleged non-furnishing of a copy of the grounds. Petitioner had filed the written statement along with documents way back on 19.10.2013 taking the stand as indicated above. Almost three years thereafter the related petition was filed by the petitioner alleging non-furnishing of copy of grounds and seeking a copy of the same, which was rejected by the Tribunal. From the above, it is more than evident that petitioner was in no way prejudiced by non- furnishing of a separate copy of the grounds. If the petitioner is not prejudiced, which is to be demonstrated by way of pleadings which is absent in the present case, the Court would not intervene in a pending proceeding before the Tribunal in exercise of its writ jurisdiction under Article 226 of the Constitution of India. A mere procedural lapse would not give rise to any cause of action to a proceedee facing a proceeding before the Foreigners' Tribunal under Page No.# 11/18

the Foreigners' Act, 1946 to move the writ court at an interlocutory stage. The writ court would certainly apply the test of prejudice and if it finds that petitioner has not suffered any prejudice, no interference would be called for and certainly not at an interlocutory stage. In fact, not to speak of prejudice being caused to the petitioner, petitioner herself has stated in the writ petition that this was an idea introduced to her by her new counsel and as advised by him, she had raised this issue at this belated stage.

Furthermore, question of framing a preliminary issue on this point does not arise as the Tribunal is not adjudicating a suit; it is a proceeding where opinion of the Tribunal is sought for following a summary proceeding.

On a thorough consideration of the matter, we do not find any good reason to interfere with the pending proceeding at this stage. Writ petition is dismissed."

13. Shri Payeng has also relied upon the judgment of the Hon'ble Supreme Court in the case of Central Council for Research in Ayurvedic Sciences and Anr. Vs. Bikartan Das & Ors [Civil Appeal No. 3339 of 2023] to contend 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.

14. The rival contentions have been duly considered. We have also carefully examined the records of the learned Tribunal which were requisitioned vide an Page No.# 12/18

order dated 08.01.2021.

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 case of Central Council for Research in Ayurvedic Sciences (supra) 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 Page No.# 13/18

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 without there being any rebuttal evidence, the depositions made on behalf of the petitioner should have been deemed to be accepted. It is specifically submitted that the petitioner as DW1 was not even cross-examined. The second leg of argument is on the aspect of grounds which, according to the petitioner are required to be cited in the notice.

18. As regards the first contention, it is seen that the only Voter List which Page No.# 14/18

has been exhibited is of the year 1959 containing the names of the projected father and mother of the petitioner. The next document is NRC of 1959 containing the name of the projected father of the petitioner. Apart from the fact that NRC may not be construed as a conclusive proof of citizenship, there are discrepancies in the name of the projected father from the Voter List of 1959. The next document is a Voter List of 1971 containing the name of the projected mother. There is no statement made in the written statement when the father of the petitioner had passed away which may be a reason for not having his name in the Voter List of 1971. The first Voter List where the name of the petitioner appears is of 1997 when he was aged 38 years. Assuming that the minimum age for voting at that time was 21 years, the name of the petitioner should have been there in the Voter Lists from the year 1980 onwards. Not a single Voter List from 1980 to 1997 has been produced containing the name of the petitioner and no explanation worth its name has been given. Though a frail argument was advanced that the petitioner had shifted from place to place, the same would not stand to reason as to why the Voter List of that area did not contain the name of the petitioner for a long period of 17 years. The Voter List with the name of the petitioner having a linkage with his parents of the concerned period would be crucial which is missing in the present case.

19. The next argument is that the deposition of the petitioner as DW1 was unchallenged and therefore, is required to be accepted. 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-

Page No.# 15/18

"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 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 Page No.# 16/18

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. The requirement of adducing of rebuttal evidence would only arise when a proceedee discharges his / her burden of proof by cogent, reliable and acceptable evidence and in this case, the said burden has not been discharged. As observed above, there is no acceptable document which could prove a citizenship of the petitioner.

22. The case of Sirajul Haque (supra) is distinguishable in facts inasmuch as, in the said case the affidavit of declaration was given by the deponent for his own aliases. On the other hand, in the instant case, the affidavits are with regard to the change of name of the projected father and not of the deponents. Moreover, in the said case of Sirajul Haque (supra), the inconsistency was minor which is revealed from the discussions appearing in paragraph 3 of the judgment, which reads as follows:

"3. There is no doubt that the great grandfather's name Amtullah appears

as Amtullah throughout the document. Equally, there is no doubt about the father's name which appears as Hakim Ali throughout. The only discrepancy found is that in some of the documents Kefatullah later Page No.# 17/18

becomes Kematullah. However, what is important to note is that his father's name Amtullah continues as Amtullah and the other family members associated continued as such. Also produced are NRC Registration details of the year 1971 of the grandfather who is noted to be Kefatullah in this document. Other voters lists are then produced where the letter F becomes the letter M with other family names remaining the same. In fact, the appellant has himself produced a document of 1981 from the Income Tax Department giving his Permanent Account Number. Apart from these documents, certain other later documents have also been produced including photo identity cards issued by the Election Commission of India and identity cards issued to his brother including voters lists in which the appellant's name appears."

23. The case of Md. Rahim Ali (supra) has been relied upon by the petitioner. We have carefully gone through the aforesaid judgment. It however appears that though the case of Sarbananda Sonowal I (supra) which is a judgment of a Larger Bench was considered, the relevant observations on the point do not appear to have been brought to the notice of the Hon'ble Court while deciding the case of Md. Rahim Ali (supra). The relevant observations made in the case of Sarbananda Sonowal I (supra) have already been extracted above. The argument advanced by Shri Ahmed, learned counsel would amount to adopting the procedure of the IM(D)T Act which has already been declared ultra vires.

24. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 09.09.2020 passed by the learned Foreigners' Tribunal No. 2, Bongaigaon in F.T. Case No. BNGN/FT/CASE NO 1391/2007 (Ref- BNGN FT Case No. 92/2005) does not call for any interference. Accordingly, this Page No.# 18/18

writ petition being devoid of merits being dismissed.

25. The actions consequent upon the opinion rendered by the learned Tribunal would follow in accordance with law.

26. The records of the aforesaid F.T. Case No. BNGN/FT/CASE NO 1391/2007 (Ref- BNGN FT Case No. 92/2005) be returned to the learned Foreigners Tribunal No. 2, Bongaigaon forthwith along with a copy of this order.

                             JUDGE                         JUDGE

Comparing Assistant