[Cites 6, Cited by 0]
Gauhati High Court
Page No.# 1/6 vs The Union Of India And 6 Ors on 16 March, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/6
GAHC010111272019
2026:GAU-AS:3836
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3330/2019
OBIRAN NESSA @ OBI NESSA @ ABIRAN NESSA
D/O- LT AMULYA FAKIR, W/O- MD. ALEK SK @ ALEF SK., VILL- BANDOR
KHOWA,, P.O. CHALCHALIA, P.S. SARBHOG, DIST- BARPETA, PIN- 781319
VERSUS
THE UNION OF INDIA AND 6 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, DEPTT. OF HOME, NEW
DELHI-1
2:THE STATE OF ASSAM
REP. BY THE SECY. TO THE GOVT. OF ASSAM
DEPTT. OF HOME
DISPUR
GHY-6
3:THE DY. COMMISSIONER
BRPETA
PIN- 781301
4:THE SUPERINTENDENT OF POLICE (B)
BARPETA
PIN- 781301
5:THE ELECTION COMMISSION
GOVT. OF INDIA
NEW DELHI-1
6:THE STATE CO-ORDINATOR OF NATIONAL REGISTRATION (NRC)
ASSAM
GHY-32
Page No.# 2/6
7:FOREIGNERS TRIBUNAL NO.11
BARPETA
REP. BY THE STANDING COUNSEL
FOREIGNERS TRIBUNAL
PIN- 78130
Advocate for the Petitioner : MR. A ROSHID, MS. M R DEVI
Advocate for the Respondent : ASSTT.S.G.I. (R1), SC, NRC (R6),SC, ELECTION COMMISSION.
(R5),SC, F.T (R2TO4AND7)
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 16.03.2026
(K.R. Surana, J)
Heard Mr. A. Rashid, learned counsel for the petitioner. Also heard Mr.
G. Pegu, learned CGC; Mr. G. Sarma, learned standing counsel for the FT &
Border matters; Mr. A.I. Ali, learned standing counsel for the ECI; and Mr. P.
Sarmah, learned Addl. Senior Govt. Advocate for the State respondent.
2. By filing this writ petition under Article 226 of the Constitution of
India, the petitioner has assailed the impugned opinion dated 18.04.2019,
passed by the learned Member, Foreigners' Tribunal, Assam, Barpeta 11 th, in
Case No. (Bpt/11th) F.T 1318/2017, arising out of P.E. No. IM(D)T Case No.
684/04, by which the petitioner was declared to be a foreigner of post
25.03.1971 stream, by further holding that the petitioner had failed to discharge
the burden of proof that she is not a foreigner, as mandated under Section 9 of
the Foreigners Act, 1946.
Page No.# 3/6
3. In view of the order which is proposed to be passed, the contents of
the written statement, the evidence-on-affidavit tendered by the petitioner and
the discussion on the evidence on affidavit by the projected brother of the
petitioner, Kurman Ali (DW-2), and the projected sister-in-law of the petitioner,
Aimona (DW-3) are not discussed.
4. It would suffice to mention that on appearing before the learned
Tribunal, the petitioner had filed the written statement and exhibited seven
documents along with the evidence-on-affidavit being, (i) Electoral Roll of 1965
(Ext.1), (ii) Electoral Roll of 1970 (Ext.2), (iii) Electoral Roll of 1985 (Ext.3), (iv)
Electoral Roll of 1985 (Ext.4), (v) Electoral Roll of 1989 (Ext.5), (vi) Certificate
dated 21.05.2016 issued by the Gaonburah (Ext.6), and (vii) Certified copy of
the opinion dated 08.12.2016 passed in respect of the petitioner by the learned
Member, Foreigners, Tribunal No. 8th, Barpeta, in F.T. Case No. 73/2016, by
which the petitioner was declared to be not a foreigner (Ext.7).
5. The learned Tribunal has briefly referred to the exhibits and its
contents and without any discussion on any of the exhibited documents,
summarized the appreciation of evidence, discussion and the decision as
follows:
SUMMARY
1. As per terms of the Reference, OP is the D/O Lt. Amulya Fakir and W/O Alek
(Alef) Sk.
2. Nationality of the OP's deceased father is not known nor is his presence in Assam
on or before 01-01-1966 proved.
3. Date of birth and place of birth in r/o OP's linkage persons as appear in Exts. 1 &
2, who are her two elder brothers and a sister-in-law also not proved; however,
their presence in Assam prior to 01-01-1966 vide Ext-1 has been proved and
therefore, they are deemed citizens of India U/S 6A(2) Citizenship Act 1955.
4. OP was 40 years old in 1985 and was therefore born some time in 1945 and was
Page No.# 4/6
a major by 01-01-1966.
5. OP's date of birth and place of birth or her presence in Assam on or before 01-01-
1966 not proved.
6. OP's earliest recorded presence in Assam alongwith her son, Khalil Rahman and
daughter-in-law, Jahanara Begum was 1985 vide Ext-3 which is a post 1971 period
document.
7. OP has not discharged the burden of explaining as to why her name was not
enrolled in the voters' lists at least of 1970, alongwith the names of her linkage
persons or elsewhere separately.
8. On the premises no reliance can be placed on Ext-7.
9. In absence of documentary support, the evidence of all the DW's also stand
rejected.
6. The petitioner had exhibited as Ext.7, the previous opinion dated
08.12.2016, passed by the learned Member, Foreigners, Tribunal No. 8 th,
Barpeta, in F.T. Case No. 73/2016, the settled law that the principles of res
judicata apply in the proceedings of the Foreigners' Tribunal, for which the
decision of the Supreme Court of India in the case of Abdul Kuddus v. Union of
India, (2019) 6 SCC 604 may be referred to. The said decision of the Supreme
Court of India was followed by this Court in the case of Jahir Ali v. Union of
India, (2021) 3 GLR 105: 2021 (2) GLT 596.
7. Under the circumstances, by merely observing that on the premises
no reliance can be placed on Ext.7 is wholly unsustainable. Moreso, as the
learned Tribunal, on the basis of Ext.1 has held that the presence of the
petitioner's two elder brothers and sister-in-law are found in Ext.1, and
therefore, they were deemed to be the citizens of India under Section 6A(2) of
the Citizenship Act, 1955.
8. Accordingly, the ground on which Ext.7 was discarded is not based on
a correct appreciation of the facts and law relating to res judicata as discussed
Page No.# 5/6
hereinbefore.
9. Accordingly, the impugned opinion dated 18.04.2019, passed by the
learned Member, Foreigners' Tribunal, Assam, Barpeta 11 th, in Case No.
(Bpt/11th) F.T 1318/2017, arising out of P.E. No. IM(D)T Case No. 684/04 is
found vitiated by incorrect appreciation of the Ext.7 for failure on part of the
learned Tribunal to discuss Ext.7 under the principles of res judicata, which is
squarely applicable in the proceedings of the Foreigners' Tribunal. Resultantly,
the Court is inclined to pass the following orders:
i. The impugned opinion dated 18.04.2019, passed by the
learned Member, Foreigners' Tribunal, Assam, Barpeta 11 th, in Case
No. (Bpt/11th) F.T 1318/2017, arising out of P.E. No. IM(D)T Case
No. 684/04 is hereby set aside.
ii. The petitioner, who is duly represented by her learned counsel,
is directed to appear before the learned Member, Foreigners'
Tribunal, Assam, Barpeta 11th on 30.04.2026 without fail and by
producing a certified copy of the order, await further orders from the
said learned Tribunal.
iii. It is made clear that if the petitioner does not appear before
the said learned Tribunal shall have the liberty to treat the petitioner
as absent on call and pass such order as may be deem fit and
proper.
10. The writ petition stands partly allowed to the extent as indicated
above.
11. There shall be no order as to cost.
Page No.# 6/6
12. The records are to be sent back expeditiously along with a copy of this
order to the concerned Tribunal.
JUDGE JUDGE
Comparing Assistant
