Gauhati High Court
Hussain Ali vs The Union Of India And 3 Ors on 19 December, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/18
GAHC010133202017
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3865/2017
HUSSAIN ALI
S/O- LATE ASTULLAH SHEIKH @ ASADULLAH SHEIKH, R/O- VILL-
BAMUNDANGA PART-II, P.O- MARKULA, P.S- BAGUAN, DIST- GOALPARA,
ASSAM, PIN- 783120
VERSUS
THE UNION OF INDIA and 3 ORS.
REP. BY THE MIN OF HOME AFFAIRS, NEW DELHI-01
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
DEPTT.
OF HOME
DISPUR
GHY-6
3:THE SUPERINTENDENT OF POLICEB
GOALPARA
P.O AND DIST- GOALPARA
ASSAM
PIN- 783101
4:THE DEPUTY COMMISSIONER OF GOALPARA
P.O
P.S AND DIST- GOALPARA
ASSAM
PIN- 783101
Page No.# 2/18
5:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY ITS CHIEF COMMISSIONER NIRVACHAN SADAN
ASHOKA ROAD, NEW DELHI-110001
6:THE DISTRICT ELECTION OFFICER
GOALPAR
Advocate for the Petitioner : MR.A R SIKDAR, MR.M H TALUKDAR
Advocate for the Respondent : GA, ASSAM, ASSTT.S.G.I.
BEFORE HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI HON'BLE MR. JUSTICE PRANJAL DAS Advocate for the petitioner : Shri A.R. Sikdar, Advocate.
Advocate for the respondents : Shri G. Sarma, S.C., Home Deptt. & NRC;
Shri H.K. Hazarika, Jr. Govt. Advocate, Assam;
Shri A.I. Ali, SC, E.C.I &
Shri R.K.D. Choudhury, C.G.C.
Date on which judgment is : 18.11.2025
Reserved.
Date of pronouncement of : 19.12.2025.
Judgment.
Whether the pronouncement : NA.
is of the operative part of the
judgment?
Whether the full judgment : Yes.
has been pronounced?
Page No.# 3/18
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 the impugned judgment dated 26.12.2016 passed by the learned Foreigners' Tribunal (4 th) Goalpara in F.T. Case No. 283/2015 (ERO Case No. 656 88/38). 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), Goalpara District against the petitioner giving rise to the aforesaid F.T. Case No. 283/2015 (DRO Case No. 65688/38);
(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.
(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 him and accordingly, the opinion Page No.# 4/18 was rendered declaring the petitioner to be a foreign national post 25.03.1971.
3. We have heard Shri A.R. Sikdar, learned counsel for the petitioner. We have also heard Shri G. Sarma, learned Standing Counsel, Home Deptt. & NRC; Shri H.K. Hazarika, learned Jr. Govt. Advocate, Assam; Shri M. Islam, learned counsel appearing on instructions of Shri A.I. Ali, learned Standing Counsel, ECI and Shri R.K.D. Choudhury, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 22.06.2017.
4. Shri Sikdar, 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 held the petitioner to be a citizen of India. In this regard, he has referred to the evidence on affidavit of the petitioner and following documentary evidence:
(1) Xerox certified copy of electoral Roll of 1966 (Grand Parents); (2) Xerox certified copy of electoral Roll of 1979 (Grand Parents+ Father+ Step Mother);
(3) Xerox certified copy of electoral Roll of 1985 (Parents); (4) Xerox certified copy of electoral Roll of 1993 (Mother); (5) Xerox certified copy of electoral Roll of 1997 (Mother); (6) Xerox certified copy of electoral Roll of 2005 (Mother+ Proceedee) and (7) Xerox certified copy of electoral Roll of 2015 (Mother+ Proceedee).
5. The learned counsel for the petitioner has submitted that in the written statement filed on 29.12.2015, he had stated about his grandparents and that Page No.# 5/18 they were citizens of India birth. The names of grandparents of the petitioner appeared in the Voters List of 1966 as Kamal Ali Sheikh and Aysha Nessa. Such names also appeared in the Voters Lists of 1970 and 1979. He has also relied upon the Voters List of 1985 containing the name of his father and one Rahimon Nesa and thereafter Voters Lists of 1993 and 1997 containing the name of Rahimon Nesa. The name of the petitioner finds place in the Voters List of 2005 though it is prefixed with 'D'.
6. The learned counsel for the petitioner has submitted that evidence was adduced by the petitioner and there was no rebuttal evidence. In this connection, reliance has been placed on the decision of the Hon'ble Full Bench in the case of State of Assam Vs. Moslem Mondal, reported in (2013) 1 GLT 809, more particularly, the observations made in paragraph 117.3. He has submitted that the strict rules of evidence shall not apply in a proceeding of this nature and in this regard, he has relied upon a judgment dated 27.02.2020 passed in WP(C)/4116/2019 (Idris Ali Vs. Union of India). He has also submitted that the report of the Local Verification Officer (LVO) was blank and, therefore, the proceeding could not have initiated by the learned Tribunal. He has relied upon the decision in the case of Amina Khatun Vs. Union of India, reported in 2022 (4) GLT 102. He accordingly submits, that there were sufficient materials from which a conclusion can be arrived at that the petitioner is a citizen of India.
7. 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 Page No.# 6/18 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 inspires the confidence and is acceptable and only thereafter, the question of adducing rebuttal evidence may arise.
8. The learned Standing Counsel has further submitted 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, he has submitted that there are gross discrepancies and inconsistencies in the names of the grandparents qua the Voters Lists of 1966, 1970 and 1979. The Voters List of 1979 is not even a certified copy. The projection that the name of the father of the petitioner appears in the Voters Lists of 1979 and 1985 is also highly doubtful as there is a gross discrepancy with regard to the age. There is not even a single document of the contemporaneous period to establish linkage of the petitioner with his parents. He has emphasized that the Voters Lists of 1979, 1993, 1997, 2005 and 2015 are not certified copies and cannot be taken as valid evidence.
9. On the argument made that the report of LVO is blank, the learned Standing Counsel has submitted that the police report is not the basis of the reference and it is on the basis of the report of the Electoral Registration Officer (ERO). He has submitted that the LVO report had actually found in the original Page No.# 7/18 records of another case and in any event, no prejudice, whatsoever was caused to the petitioner in defending himself. He has emphasized that there is no requirement to have elaborate grounds stated in the notice. He has highlighted the aspect that at the time of filing of the writ petition, the declared age of the petitioner was 39 years and there is not a single document of the petitioner with his projected father. The learned Standing Counsel has placed reliance on a judgment dated 28.02.2025 passed in WP(C)/245/2019 (Shukurjan Nessa Vs. Union of India) and the judgment dated 08.03.2018 passed in WP(C)/3805/2016 (Dukhu Miah Vs. Union of India). On the aspect that it is not necessary for the notice to state elaborate grounds, reliance has been placed on the judgment of State of Assam Vs. Ohab Ali , reported in 2018 (4) GLT 360. He has also submitted that in the case of Borhan Ali Vs. Union of India [WP(C)/7669/2016, disposed of on 08.06.2018], it has been laid down that uncertified copy of voters list cannot be deemed as admissible evidence.
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.
Page No.# 8/18
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 & 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 Page No.# 9/18 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.
Page No.# 10/18
16. So far as the Voters Lists of 1966, 1970 and 1979 are concerned with the projection that the same contain the names of the grandparents of the petitioner, there are discrepancies in the names. While in the Voters List 1966, the name of the grandparents appeared as Kamal Ali Sheikh and Aysha Nessa, respectively, in the subsequent Voters Lists of 1970 and 1979, the names appeared as Kamaluddin:Ayesha and Kamal Uddin:Aysha Khatun. The Voters List of 1979 also allegedly contains the name of the father of the petitioner as Asatullah, however, the said voters list is not a certified copy. It may, however, be mentioned that the age of the father was shown as 28 years. The next Voters List is of the year 1985 containing the name of the father of the petitioner as Asatullah Sheikh whose age is 63 years and another name as Rohimon Nesa. The Voters Lists of 1993, 1997, 2005 and 2015 are not certified copies. Be that as it may, the name of the petitioner appeared for the first time in the Voters List of 2005 where his age was declared as 27 years. However, there is no explanation as to why his name was not there in earlier voters lists.
17. 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 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 Page No.# 11/18 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."
18. In the instant case, it is seen that though the petitioner has mentioned about the discrepancies in the Voters Lists of 1979 and 1985, there is no explanation, as such. The written statement is silent regarding the fact as to why the name of the father of the petitioner was not reflected in the voters list after 1985 apart from the fact that there is no explanation regarding the absence of even a single document to link the petitioner with his father.
19. Regarding the argument made that the report of LVO is blank, this Court finds force in the argument advanced by the learned Standing Counsel, Home & NRC that the police report is not the basis of the reference and it is on the basis of the report of the ERO and in any event, no prejudice, whatsoever was caused to the petitioner in defending himself. We are also of the opinion that there is no requirement to have elaborate grounds stated in the notice.
20. 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 Page No.# 12/18 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."
21. On the serious issue of influx which is country facing, 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 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.
Page No.# 13/18 (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 Page No.# 14/18 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 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 Page No.# 15/18 "aggression" and not "war" in Article 355."
22. 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."
23. In this connection, the observations 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 Page No.# 16/18 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."
24. The reliance placed by the learned counsel for the petitioner in the case of Idris Ali (supra) will not come to any aid wherein, it has been laid down that strict rules of evidence shall not apply to an FT proceeding. In any case, we are of the opinion that the aspect of how to discharge the burden of proof under Section 9 of the Foreigners Act has been lucidly explained by the Hon'ble Supreme Court in the aforementioned decisions. With regard to the reliance upon paragraph 117.3 of the case of Moslem Mondal (supra), upon a reading of the same, it is only seen that it was observed that there was no rebuttal evidence, however, no ratio has been laid down. We are of the opinion that rebuttal evidence is not a sine qua non for declaring a proceedee as a foreigner. The aforesaid opinion is aided by the decision of the Hon'ble Supreme Court in the case of Sarbananda Sonowal (supra) wherein, it has been laid down that Page No.# 17/18 rebuttal evidence only when necessary. For ready reference, the relevant observations are extracted hereinbelow:
"26. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
25. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned opinion dated 26.12.2016 passed by the learned Foreigners' Tribunal (4th) Goalpara in F.T. Case No.283/2015 (ERO Case No. 656 88/38) does not call for any interference. Accordingly, this writ petition being devoid of merits stands dismissed. The interim order stands vacated.
26. The actions consequent upon the opinion rendered by the learned Tribunal Page No.# 18/18 would follow, in accordance with law.
27. The records of the aforesaid F.T. Case No.283/2015 (ERO Case No. 65688/38) be returned to the learned Foreigners' Tribunal (4th) Goalpara forthwith, along with a copy of this order.
JUDGE JUDGE Comparing Assistant