Gauhati High Court
Dabir Rahman @ Dabibur Rahman vs The Union Of India And 5 Ors on 21 May, 2026
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/14
GAHC010130382019
2026:GAU-AS:7086
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4272/2019
DABIR RAHMAN @ DABIBUR RAHMAN
S/O- LT JASIM UDDIN @ JASI SHEIKH, VILL- GASBARI, P.S. SIPAJHAR,
DIST- DARRANG, ASSAM, PIN- 784145
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NEW DELHI- 110001
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-6
3:THE DY. COMMISSIONER
DARRANG
DIST- DHUBRI
PIN- 784145
4:THE ELECTION COMMISSION OF INDIA
NEW DELHI- 110001
5:THE STATE COORDINATOR
NATIONAL REGISTER OF CITIZENS (NRC)
ASSAM
GHY-5
6:THE SUPERINTENDENT OF POLICE (B)
DARRANG
DIST. DARRANG
Page No.# 2/14
PIN- 78414
Advocate for the Petitioner : MR H R A CHOUDHURY, MR. J M SULAIMAN,MR. A
MATIN,MRS H AHMED
Advocate for the Respondent : ASSTT.S.G.I., SC, NRC,SC, ELECTION COMMISSION.,SC, F.T
BEFORE
Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI
Hon’ble MR. JUSTICE Pranjal Das
Advocate for the petitioner : Shri JM Sulaiman
Advocates for the respondents : Ms. A. Verma, SC- Home Deptt. & NRC,
Shri P. Sarma, GA, Assam;
Shri N. Kalita, for ECI.
Ms. B. Sarma, CGC.
Date on which judgment is reserved : 13.05.2026 Date of pronouncement of judgment : 21.05.2026
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 21.07.2018
passed by the learned Foreigners Tribunal No.4 th, Darrang, Mangaldai in F.T. 4th
Case No. 83/SPR/2017 and FT Case No.5022/2011 (Ref. FT Case No.1193 dated
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15.12.2010). 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) A reference was made by the Superintendent of Police (B), Darrang
District, against the petitioner giving rise to the aforesaid F.T. 4 th
Case No. 83/SPR/2017 and FT Case No.5022/2011.
(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 08.03.2018 along with certain documents and had also
adduced evidence.
(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 JM Sulaiman, learned counsel for the petitioner. We
have also heard Ms. A. Verma, learned Standing Counsel, Home Department &
NRC; Shri P. Sarma, learned GA, Assam, Shri N. Kalita, learned counsel on
behalf of Shri A.I. Ali, learned Standing Counsel, Election Commission of India
and Ms. B. Sarma, learned CGC. We have also carefully examined the records
which were requisitioned vide an order dated 21.08.2019.
4. Shri Sulaiman, the learned counsel for the petitioner has submitted that
the petitioner could prove his case with cogent evidence and in view of the fact
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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 his evidence adduced as DW1 and also the following
documents:
(i) Ext-1 – Xerox copy of Voter List of 2018;
(ii) Ext-2 – Xerox copy of voter ID.
(iii) Ext-3 – certified copy of Voter List of 1997;
(iv) Ext-4 – Legacy Data Code 120-0037-2518;
(v) Ext-5 – certified copy of Voter List of 1966;
(vi) Ext-6 – certified copy of Voter List of 1971;
(vii) Ext-7 – Gaonburah Certificate;
(viii) Ext-8 – NRC application acknowledgment receipt.
5. The learned counsel has submitted that in the written statement, all
material disclosures were made. He has submitted that in the Voters List of
1966, name of his parents were enlisted, namely, Jasi Seikh (father) and Moujan
Nessa (mother). The next Voter List is of the year 1971 and it is contended that
the same contains the name of his parents, namely, Jasimuddin (father) and
Matujan (mother) along with her brother, Tabibar Rahman. Reference have also
been made to the Voters Lists of 1989 and 1993. The next Voters List is of the
year 1997 containing the name of the petitioner and his wife followed by the
Voters List of 2018.
6. The learned counsel for the petitioner has relied upon a Gaonburah
Certificate dated 29.06.2012 and has contended that the linkage has been
proved with his father.
7. The learned counsel accordingly submits that in view of the availability of
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the aforesaid materials, the impugned opinion could not have been rendered
against the petitioner and therefore, the same requires interference.
8. Per contra, Ms. A. Verma, the learned Standing Counsel, Home
Department 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 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.
9. The learning Standing Counsel has further submitted that the written
statement is the basic document which is supposed to lay down the foundation
of the case of the proceeding and the written statement in the instant case
lacks details and is vague. There is no date or year of the births of the petitioner
and there is no details of the family members. In this connection, she has relied
upon the following observations made by the Hon’ble Supreme Court in the case
of Sarbananda Sonowal vs. Union of India reported in (2005) 5 SCC 665:
“17. 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.
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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. Some times the place of
birth of his grand parents 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.”
10. She has also relied upon the case of Rashminara Begum Vs. UoI
reported in 2017 (4) GLT 346 in the context of a written statement.
11. The learned Standing Counsel has submitted that there is not a single
document which would establish the citizenship of the petitioner. The Voters List
of 1997 would show that the petitioner was 45 years of age at that time and
there is no Voter List of previous years containing his name. No link could be
established with his projected father and the certificate issued by the
Gaonburah, by no means, could be deemed as a proof of citizenship, more so,
when the Gaonburah himself has not been examined. She has submitted that
use of national emblem on such certificate is unauthorized.
12. In support of her submission that a certificate has to be proved from
contemporaneous records, the learned Standing Counsel has relied upon the
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judgment passed in the case of Romila Khatun Vs. Union of India reported
in 2018 (4) GLT 373 and the following observations have been pressed into
service:
“20. It is trite that documentary evidence would have to be proved on the basis
of the record and the contemporaneous record must substantiate and prove the
contents of the document. Proof of document is one thing and proof of contents
is another. Not only the document would have to be proved but its contents
would also have to be proved. That apart, the truthfulness of the contents of the
document would also have to be established from the record. A document or the
contents of the document cannot be proved on the basis of personal knowledge.
…”
13. She has also drawn the attention of this Court to the case of Nur Begum
vs. Union of India and Ors. reported in 2020 (3) GLT 347 wherein certain
observations regarding exercise of Certiorari jurisdiction have been made which
read as follows:
“9. On the available materials, we find that the Tribunal rendered
opinion/order upon due appreciation of the entire facts, evidence and
documents brought on record. We find no infirmity in the findings and opinion
recorded by the Tribunal. We would observe that the certiorari jurisdiction of
the writ court being supervisory and not appellate jurisdiction, this Court would
refrain from reviewing the findings of facts reached by the Tribunal. No case is
made out that the impugned opinion/order was rendered without affording
opportunity of hearing or in violation of the principles of natural justice and/or
that it suffers from illegality on any ground of having been passed by placing
reliance on evidence which is legally impermissible in law and/or that the
Tribunal refused to admit admissible evidence and/or that the findings finds no
support by any evidence at all. In other words, the petitioner has not been able
Page No.# 8/14to make out any case demonstrating any errors apparent on the face of the
record to warrant interference of the impugned opinion.”
14. She has also relied upon the case of the Hon’ble Supreme Court in
Rupjan Begum vs. Union of India reported in (2018) 1 SCC 579, wherein
it has been laid down that a certificate has to be proved on two aspects, firstly,
the authenticity of the same and secondly, the authenticity of the contents.
15. The learned Standing Counsel has accordingly submitted that the writ
petition be dismissed and the interim order be vacated.
16. The learned counsel for the rest of the respondents have supported the
submissions advanced on behalf of the Home Deptt. & NRC and have prayed for
dismissal of the writ petition. They have submitted 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. It is
submitted that there is no procedural impropriety or illegality in the decision
making process and therefore, the instant petition is liable to be dismissed.
They have further submitted that the procedure adopted for adjudication of a
reference by a Foreigners Tribunal is summary in nature and there is also a time
frame for completion. It is also submitted that there is a question of national
security by the unabated influx of foreign nationals and before any action is
taken, the proceedee is given an opportunity whereby he or she is required to
prove the citizenship through cogent, credible and acceptable evidence.
17. The rival submissions made have been duly considered and the materials
placed before this Court including the records of the Tribunal have been
carefully perused.
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18. With regard to the aspect of burden of proof as laid down in Section 9 of
the Act of 1946, the law is well settled that the burden of proof that a
proceedee is an Indian citizen is always on the said proceedee and never shifts.
In the said Section, there is non-obstante clause that the provisions of the
Indian Evidence Act would not be applicable. For ready reference, Section 9 is
extracted hereinbelow-
“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.”
19. 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 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.
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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.”
20. 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.
21. 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 and 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.
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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 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.”
22. In the instant case, the written statement is absolutely vague and
apparently, has not met the requirements, as laid down by the Hon’ble Supreme
Court in the case of Sarbananda Sonowal (supra). There is a requirement to
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disclose the following:
(i) his date of birth;
(ii) place of birth;
(iii) name of his parents;
(iv) their place of birth and citizenship.
Further, there may be a requirement to give the details of the
grandparents. It has been stated that all these facts would necessarily be within
the personal knowledge of the person concerned and not of the authorities of
the State.
23. So far as the Voters Lists of 1966 and 1971 are concerned, apart from the
fact that the same would not serve as link documents, it is found that there are
lots of inconsistencies. In the Voter List of 1966, the names of the parents were
Jasi Seikh (father) and Moujan Nessa (mother) and the village was Bhelenganari
Part No.54. On the other hand, in the Voter List of 1971, the names are
Jasimuddin (father) and Matujan (mother), there is also a change in the village
to No.3 Nangli Char. Further, though the same contains the name of a projected
brother, Tabibar Rahman, it is seen that the said projected brother was 27 years
of age in 1971 and therefore, it was necessary for his name to be featured in
the earlier Voters List especially, in the List of 1966 along with his parents.
Though the Voters Lists of 1989 and 1993 have been referred, those have not
been exhibited.
24. The Voters List which has been exhibited with the name of the petitioner
is of the year 1997 wherein his age has been depicted as 45 years and his
father’s name as Jashim. The name of the village is also different which is
Puthimari Chapori (PT). What is intriguing is the fact that though in 1997, the
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petitioner was aged 45 years why Voters List of earlier years did not contain his
name and have not been proved. As regards the Voters List of 2018, the same is
not a certified copy. It is also noted that there is inordinate and unexplained
delay in the Voters List produced and exhibited. As noted above, the first Voters
List wherein the name of the petitioner finds place is of the year 1997 and the
previous Voters List which has been relied upon is of the year 1971 and the
huge gap of more than 25 years remains unexplained. Even thereafter, the
Voters List produced, though uncertified is of the year, 2018 which is after a gap
of about two decades.
25. So far as the Gaonburah Certificate dated 29.06.2012 is concerned, apart
from the fact that there is unauthorized use of the National Emblem, the
Certificate itself was not proved by the Gaonburah which is required under the
law. Therefore, the same cannot be construed as proof. We also find force in the
contention advanced on behalf of the respondents that the written statement is
vague and we endorse the requirement of law as laid down earlier in the case of
Rashminara Begum (supra), which is reproduced hereunder:
“25. Written statement is the basic statement of defence of a proceedee
before the Foreigners Tribunal. Keeping in mind the mandate of Section 9
of the Foreigners Act,1946, it is incumbent upon the proceedee to disclose
at the first instance itself i.e., in his written statement all relevant facts
specially within his knowledge having a material bearing on his claim to
citizenship of India. Material facts pleaded in the written statement are
thereafter required to be proved by adducing cogent and reliable
evidence. It is also trite that a party cannot traverse beyond the pleadings
made in the written statement.”
26. In the case of Bijoy Das Vs. UOI reported in2018 (3) GLT 118, this Court
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has laid down that in proceedings of this nature, oral evidence alone would not
be enough and such evidence is required to be supported and corroborated by
documentary evidence and contemporaneous records. However, in this case, the
same has not been able to be done by the petitioner. We are of the view that
the petitioner as proceedee had failed to discharge his burden to prove his
citizenship.
27. In view of the aforesaid facts and circumstances, we are of the opinion
that the impugned order dated 21.07.2018 passed by the learned Foreigners
Tribunal No.4th, Darrang, Mangaldai in F.T. 4th Case No. 83/SPR/2017 and FT
Case No.5022/2011 (Ref. FT Case No.1193 dated 15.12.2010) does not call for
any interference.
28. The writ petition accordingly stands dismissed. Interim order passed
earlier stands vacated. The actions consequent upon the opinion rendered by
the learned Tribunal would follow in accordance with law.
29. The records be returned to the concerned Foreigners Tribunal forthwith,
along with a copy of this order.
JUDGE JUDGE Comparing Assistant
