Gauhati High Court
Page No.# 1/18 vs The Union Of India And 5 Ors on 18 December, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/18
GAHC010119382018
2025:GAU-AS:17588
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3783/2018
LALU SHEIKH @ MALU SHEIKH
S/O. LT. ASKER ALI @ AKSER ALI, VILL. SHIMLABARI PART-II, P.O.
RANGAPANI, P.S. MERERCHAR, DIST. BONGAIGAON, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, SHASTRI BHAWAN, TILOK MARG, NEW DELHI
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY.
3:THE DY. COMMISSIONER
BONGAIGAON
P.O. AND DIST. BONGAIGAON
ASSAM
4:THE SUPDT. OF POLICE (B)
BONGAIGAON
P.O. AND DIST. BONGAIGAON
ASSAM
5:THE ELECTION COMMISSIONER OF INDIA
NEW DELHI
6:THE ASSAM STATE CO-ORDINATOR OF NRC
BHANGAGARH, GUWAHAT
Page No.# 2/18
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MRs. JUSTICE SUSMITA PHUKAN KHaUND
Advocates for the petitioner : Shri M. H. Talukdar.
Advocates for the respondents : Ms. A. Verma, SC- Home Dept. & NRC
Shri P. Sarma, Addl. Sr. GA - Assam Shri A I Ali, SC - ECI Shri RKD Choudhury, Dy. SGI.
Date on which judgment is reserved : 24.11.2025 Date of pronouncement of judgment : 18.12.2025 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 02.02.2018 passed by the learned Foreigners' Tribunal No. 2, Bongaigaon, Abhayapuri in F.T. Case No. 3336/2008. 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:
Page No.# 3/18
(i) The reference was made by the Superintendent of Police (B), Morigaon District, against the petitioner giving rise to the aforesaid F.T. Case No. 3336/2008.
(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 dated 23.02.2015 along with certain documents and had claimed to be an Indian Citizen. He had adduced evidence as the sole DW.
(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 M. H. Talukdar, learned counsel for the petitioner. We have also heard Ms. A. Verma, learned Standing Counsel, Home Department & NRC, Assam; Shri AI Ali, learned Standing Counsel, Election Commission of India; Shri P. Sarma, learned Additional Senior Government Advocate, Assam and Shri CKS Baruah, learned CGC.
4. Shri Talukdar, 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 and also the following documentary evidence-
i. Voter List, 1966 : Exbt -i
ii. Voter List, 1970 : Exbt - ii
Page No.# 4/18
iii. Voter List, 1985 : Exbt - iii
iv. Pan Card :Exbt- iv
v. Voter List, 1997 : Exbt - v
vi. Voter List, 2014 : (Exbt - vi
vii. Voter Identity Card :Exbt. vii
viii. Bank Pass Book : Exbt. - viii
ix. Affidavit : Exbt. -ix
x. Voter ID of mother of OP :Exbt.-x
5. The learned counsel has drawn the attention of this Court to the voter lists of 1966 containing the name of his grandfather, father and mother followed by the voter lists of 1970 containing the name of his father and mother. The petitioner claims to be enlisted in the voters list of 1985 where his name appears as Malusheikh son of Askeb Ali along with another name - Khayrun Nessa. He has also relied upon a voters list of 1997 wherein his name appears as Lalu Sheikh, son of Aksher Ali and the name of his wife as Sahera Khatun. He has also relied upon the EPIC of the mother. The petitioner has also relied upon an affidavit executed by him on the aspect of discrepancy of the two names of his father.
6. The learned counsel for the petitioner has submitted that an application was submitted for time for allowing the mother of the petitioner to adduce evidence. However, such evidence could not be given due to flood and accordingly, another date was given. However, even on this said date, the affidavit could not be filed due to ailment of the mother. The learned counsel is critical of the fact that no further chance was granted to adduce evidence Page No.# 5/18 through his mother.
7. The learned counsel has submitted that the petitioner, as DW1 was not cross-examined and there was no rebuttal evidence. Therefore, his evidence ought to have been accepted. He accordingly submits that the impugned opinion is unsustainable in law and liable to be interfered with.
8. In support of his submission, the learned counsel for the petitioner has placed reliance on the case of Gangabhavani v. Rayapati Venkat Reddy reported in (2013) 15 SCC 298 and the following observations have been pressed into service "18. In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased."
9. He has also relied upon the case of State of Assam vs. Moslem Mondal reported in (2013) 1 GLT 809 on the aspect of rebuttal evidence and the case of Sirajul Hoque vs. State of Assam reported in (2019) 5 SCC
534.
10. Per contra, Ms. Verma, learned Standing Counsel, Home Department & NRC has categorically refuted the stand taken on behalf of the petitioner. She 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 Page No.# 6/18 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. She 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.
11. The learned Standing Counsel has submitted that to discharge the burden of proof, the first requirement of a proceedee is to disclose all the relevant facts in the written statement. However, in the WS filed on 23.02.2015 by the petitioner, there is no disclosure regarding the grandparents, mother and the siblings of the petitioner. Nothing has been stated as to when and where the petitioner was born. There is no explanation regarding the discrepancies in the name of his projected father, mother and their age in the voters lists. There was no statement that the mother of the petitioner would give evidence. There is no explanation regarding the change in the address and the shifting has not been stated at all in the written statement. She has highlighted that in the voters lists of 1966 and 1970, the address was village Simlabari Part-I whereas in the voters lists of 1985 the village is Simlabari Part-II. She has argued that there has been a pick and choose of voters lists to suit the interest of the petitioner.
12. So far as the deposition is concerned, Ms. Verma, the learned Standing Counsel has submitted that the petitioner as DW did not state anything relevant so as to discharge his burden. The documents do not create any linkage with his projected parents. As regards the allegation that the mother was not given a fair Page No.# 7/18 opportunity to adduce evidence, the learned Standing Counsel has highlighted that from the date of such rejection till rendering of the opinion almost two years had elapsed and no steps were taken in the meantime by the petitioner. By relying upon the decision of this Court in the case of Momin Ali Vs. UoI & Ors. reported in 2017 (2) GLT 1076, she has submitted that there cannot be any variance between the written statement and the evidence and the same would not amount to a valid discharge of the burden of the proof. Reliance has also been placed in the case of Saru Sheikh Vs UoI reported in (2017) 4 GLR 295 wherein it has been laid down that all disclosures are required to be made in the written statement. She has also relied upon the case of Basiron Bibi Vs UoI reported in 2018 (1) GLT 372 wherein it has been laid down that documents proved by a proceedee are to be taken as a whole.
13. The learned Standing Counsel 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. She 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 order dated 13.06.2018.
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 Page No.# 8/18 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 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 Page No.# 9/18 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 materials and evidence 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.
18. It is seen that in the written statement filed on 23.02.2015 by the petitioner, there is no disclosure of the relevant facts. As pointed out, there is no disclosure of the names of the grandparents, parents and siblings. It has not been stated as to where and when the petitioner was born.
19. In this connection, one may refer to the case of Sarbananda Sonowal v. Union of India, reported in (2005) 5 SCC 665, wherein the Hon'ble Supreme Court has laid down the following requirements:
Page No.# 10/18 "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."
20. On the same issue, a Coordinate Bench in the case of Saru Sheikh (supra) has made the following observations:
"13. Having noticed the above background, we may now examine the stand taken by the petitioner before the Tribunal in the written statement. It goes without saying that in a proceeding before the Foreigners' Tribunal, written statement is the basic statement of defence of a proceedee. Having regard to the mandate of Section 106 of the Evidence Act and Section 9 of the Foreigners Act, it is incumbent upon a proceedee to disclose all such facts which are specially within his or her knowledge having a material bearing on his claim to be a citizen of India at the first instance itself i.e., in the written statement.
Page No.# 11/18 Such facts are thereafter required to be proved by adducing cogent and reliable evidence. Failure to disclose such material facts may lead to drawing of adverse inference against the proceedee. In the written statement so filed, petitioner did not disclose his date or year of birth. Consequently, there was no disclosure regarding his age. He also did not disclose the place where he was born. ..."
21. As regards the voters list of 1966 and 1970, this Court has however noticed that there is a discrepancy in the name of the projected mother of the petitioner. So far as the Voters list of 1985 is concerned where the name of the petitioner has been claimed to be enlisted, the name of his father has been shown to be Askeb Ali and the name of his mother appears as Khayrun Nessa. However, in the voters list of 1966 and 1970, the name of the father of the petitioner has been shown to be Asker Ali and Akser Ali respectively. While there may be an argument that Asker Ali has been wrongly spelt as Akser Ali, the same cannot be similar to Askeb Ali. Further, there is a gross discrepancy with the name of the projected mother including her age. In the year 1966 her name is shown as Ayron Khatun, aged 30 years, in 1970, it is shown as Mayron Khatun, 34 years and in 1985, as Khayrun Nessa, aged 40 years. So far as the discrepancy in the name of the father of the petitioner is concerned in different voters list, the petitioner has sought to execute an affidavit. Apart from the fact that such affidavit that a person is known by more than one name is required to be executed by the same person which is to be followed by other formalities of publication including one in the official gazette, even if such technicalities are overlooked, the affidavit has been executed on 11.07.2016 i.e. much after filing of the written statement where there was no such explanation given.
22. So far as the plea that the mother of the petitioner was not given a fair chance to adduce evidence, we have noted that a fair opportunity was indeed Page No.# 12/18 granted and what is of importance is that even the examination-in-chief was not filed and it is not a case that the mother could not be present for the cross- examination. In this regard, the case of Bijoy Das Vs. Union of India reported in 2018 (3) GLT 118 may be relied upon wherein the following observations have been made:
"17. It is trite that mere filing of written statement and oral testimony in a proceeding under the Foreigners Act, 1946 would not be enough. The fact-in-issue would have to be proved by the proceedee by adducing documentary evidence which are admissible and relevant. The two documents filed by the petitioner were not proved in any manner whatsoever and therefore the assertion of the petitioner that he being the son of Bipul Das, who was a citizen of India, was therefore a citizen of India was not proved."
23. It is settled law that in matters of the present nature, the insistence on discharging the burden of proof by a proceedee is a mandatory requirement. We are also of the opinion that such requirements are in sync with the objectives of the scheme of the Statute and the seriousness of the matter involving influx of illegal migrants in the country. The gravity of the issue was itself highlighted by the Hon'ble Supreme Court in the case of Sarbananda Sonowal (supra), wherein the following observations have been made-
"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.
Page No.# 13/18 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 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;
Page No.# 14/18 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."
24. 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 involving the State of Assam which is facing a serious issue of influx of illegal migrants. The same read 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."
25. The settled law in the scheme of the present status 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 Page No.# 15/18 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."
26. 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 Page No.# 16/18 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."
27. 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.
28. The learned counsel for the petitioner had relied upon the case of Sirajul Hoque (supra) wherein the following observations were made:
"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 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 Page No.# 17/18 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."
29. A reading of the aforesaid observation would however show that there was only one minor discrepancy concerning the letter F and M in the name of the grandfather of the proceedee in that case and all other aspects were consistent. On the other hand, in the present case, the inconsistencies are so prominent and glaring that the same cannot be overlooked.
30. The case of Gangabhavani (supra) will not come to any aid of the petitioner. Apart from the case being connected with a criminal trial, the exposition is with regard to the aspect of neutral witness vis-à-vis an interested witness. The reliance upon the case of Moslem Mondal (supra) would also not come to the aid of the petitioner in view of the fact that in spite the opportunities granted the petitioner, as a proceedee could not discharge his burden through cogent, acceptable and trustworthy materials and evidence.
31. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 02.02.2018 passed by the Foreigners' Tribunal No. 2, Bongaigaon, Abhayapuri in F.T. Case No. 3336/2008 does not call for any interference. Accordingly, this writ petition being devoid of merits stands Page No.# 18/18 dismissed. The interim order passed earlier stands vacated.
32. The actions consequent upon the opinion rendered by the learned Tribunal would follow in accordance with law.
33. The records of the aforesaid F.T. Case No. 3336/2008 be returned to the learned Foreigners Tribunal No. 2, Bongaigaon, Abhayapuri forthwith along with a copy of this order.
JUDGE JUDGE Comparing Assistant