Gauhati High Court
Sahar Vanu Nessa vs The Union Of India And 6 Ors on 26 May, 2026
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/15
GAHC010149322019
2026:GAU-AS:7257
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4087/2019
SAHAR VANU NESSA
W/O HANNAN ALI
R/O VILLAGE PUB MAHCHARA
P.S. TARABARI
DISTRICT BARPETA
ASSAM.
VERSUS
THE UNION OF INDIA AND 6 ORS.
REPRESENTED BY THE HOME SECRETARY
MINISTRY OF HOME AFFAIRS
GOVERNMENT OF INDIA
NORTH BLOCK
CENTRAL SECRETARIAT
NEW DELHI- 110001.
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
HOME DEPARTMENT
ASSAM SECRETARIAT
DISPUR
GUWAHATI- 781006.
3:THE ADDL. DIRECTOR GENERAL OF POLICE (BORDER) ASSAM
ASSAM POLICE BORDER ORGANISATION
SRIMANTAPUR
GUWAHATI- 7810032.
4:THE DEPUTY COMMISSIONER
Page No.# 2/15
BARPETA DISTRICT
P.O.
P.S. AND DISTRICT BARPETA
ASSAM
PIN- 781301.
5:THE SUPERINTENDENT OF POLICE (BORDER)
BARPETA
ASSAM POLICE BORDER ORGANISATION
BARPETA
P.O.
P.S. AND DIST.- BARPETA
ASSAM- 781301.
6:THE STATE CO-ORDINATOR
NATIONAL REGISTRAR OF CITIZENS
ASSAM
DISPUR
GUWAHATI- 781006.
7:THE ELECTION COMMISSION OF INDIA
NEW DELHI
PIN- 110001.
------------
Advocate for : MR. A GOYAL
Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 6 ORS.
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
Hon'ble MR. JUSTICE PRANJAL DAS
Advocate for the petitioner : Shri A. Goyal
Advocates for the respondents : Ms. A. Verma, SC- Home Deptt & NRC,
Shri P. Sarma, GA, Assam;
Shri N. Kalita, for ECI.
Date on which judgment is reserved : 18.05.2026
Date of pronouncement of judgment : 26.05.2026
Page No.# 3/15
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 13.03.2019
passed by the learned Foreigner’s Tribunal No.7, Barpeta in F.T. Case No.
458/2016 [corresponding to R/IM(D)T Case No. 8234/98]. 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), Barpeta
District, against the petitioner giving rise to the aforesaid F.T. Case
No. 458/2016.
(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 17.07.2017 along with certain documents and adduce
evidence through 3 DWs.
(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 her and
Page No.# 4/15accordingly, the opinion was rendered declaring the petitioner to be
a foreign national post 25.03.1971.
3. We have heard Shri A. Goyal, 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 appearing on
behalf of Shri A.I. Ali, learned Standing Counsel, Election Commission of India.
We have also carefully examined the records which were requisitioned vide an
order dated 29.07.2019.
4. Shri Goyal, the learned counsel for the petitioner has submitted that the
petitioner could prove her 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 adduced by the petitioner as DW1 and
two other witnesses, namely, DW2 – Gaonburah and DW3 – brother and also
the following documentary evidence.
(i) Ext-A – certified copy of the Voter List of 1966;
(ii) Ext-B – certified copy of the Voter List of 1970;
(iii) Ext-C – certified copy of the Voter List of 1997;
(iv) Ext-D – certified copy of the E/Roll of 2016;
(v) Ext-E – photocopy of the Elector Photo Identity Card of
Mafajjan Khatun Bidhaba;
(vi) Ext-F – certified copy of the Voter List of 1997;
(vii) Ext-G – certified copy of the E/Roll of 2016;
(viii) Ext-H – Elector Photo Identity Card of Abdul Mazid;
(ix) Ext-I – Gaonburah certificate dated 17.07.17;
(x) Ext-J – Gaonburah certificate dated 31.07.17;
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(xi) Ext-L – photocopy of the PAN Card;
(xii) Ext-1 – Photo copy of the E/Roll of 1997.
5. The learned counsel for the petitioner has submitted that in the written
statement, all material disclosures were made. It is submitted that in the Voters
Lists of 1966 and 1970, the names of her father and stepmother were enlisted.
The next Voters List is of the year 1997 containing the names of her parents.
Another Voters List of 1997 has been relied upon containing the names of the
brother and sister followed by a similar Voters List of the year 2005. The
petitioner has also relied upon two Certificates given by the Gaonburah who had
also deposed as DW2. Further, the brother of the petitioner Abdul Mazid had
deposed as DW3.
6. The learned counsel has accordingly contended that the petitioner could
discharge her burden towards establishing her citizenship and submits that in
view of the availability of the aforesaid materials, the impugned opinion could
not have been rendered against the petitioner and therefore, the same requires
interference.
7. Per contra, Ms. 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,
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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.
8. 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 are 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.
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
Page No.# 7/15person 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.”
9. She has contended that there is not a single documentary evidence to
show the linkage of the petitioner with her projected parents. She has also
highlighted that in the Voters List of 1997, the age of her projected mother was
60 years and there is no explanation why her mother was not enlisted in any
previous Voters List. She has also submitted that though one Bahaton Nessa
was projected to be the stepmother whose name was there in the Voters Lists
of 1966 and 1970, suddenly the name disappeared without any explanation. It
is also submitted that the Gaonburah, as DW2 had clearly admitted that he was
not aware of the Executive Instructions pertaining to the authority to issue such
Certificates. It is also contended that the evidence of the DW3, the projected
brother would be of no relevance in absence of any documentary support.
10. In support of her submission that a certificate has to be proved from
contemporaneous records, the learned Standing Counsel has relied upon the
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
Page No.# 8/15would 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.
…”
11. 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
to make out any case demonstrating any errors apparent on the face of the
record to warrant interference of the impugned opinion.”
12. She has also relied upon the case of the Hon’ble Supreme Court in
Rupajan 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,
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the authenticity of the same and secondly, the authenticity of the contents.
13. The learned Standing Counsel has accordingly submitted that the writ
petition be dismissed and the interim order be vacated.
14. 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.
15. 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.
16. 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
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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.”
17. 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.
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
Page No.# 11/15set 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.”
18. 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.
19. 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.
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
Page No.# 12/15reweigh 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.”
20. 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
disclose the following:
(i) his date of birth;
Page No.# 13/15
(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.
21. So far as the Voters Lists are concerned, those of the years 1966 and
1970 contains the name of the projected father – Abed Ali Seikh and the
stepmother Bahaton Nessa. However, there is an inexplicable gap of 27 years
with the next Voters List which is however from a different district altogether.
The earlier Voters List of the years 1966 and 1970 were from Singlipara in the
district of Goalpara whereas the Voters List of 1997 is of the district of Barpeta.
There is also change in the name of the projected father from Abed Ali Seikh to
Abed Ali. Even if the change in the name of the projected father is overlooked,
what is astonishing is that the age of the projected mother in the Voters List of
1997 is 60 years. There is no explanation regarding the fact as to why the
mother of the petitioner was not enlisted in any previous Voters Lists in spite of
the fact that she was aged 60 years in the year 1997. There is no explanation as
to why the name of the projected stepmother did not reflect in the Voters List of
1997. So far as the other Voters List of the year 1997 is concerned, the same
contain the names of the projected brother and sister which is similar in the
Voters List of 2005.
22. So far as the two Certificates by the Gaonburah are concerned, the same
were sought to be proved by the Gaonburah as DW2. However, in response to
certain clarifications sought for by the learned Tribunal, he had admitted that he
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was not aware of the Executive Instructions of the Assam Land and Revenue
Regulations, 1886. He has further admitted that there was no book number on
the Certificates and he did not know the grandparents of the petitioner’s mother.
He had also admitted that the Certificates were issued on the basis of a
photocopy of the electoral roll produced before him and, on his own accord
used the State Emblem.
23. There is not a single document to support the claim of the petitioner to be
a citizen of India. In this connection, we find force in the contention advanced
by the learned Standing Counsel who has relied upon the case of the Hon’ble
Supreme Court in Rupajan Begum (supra).
24. In the case of Sufia Khatun Vs. UoI, [WP(C) /3961/ 2019 decided
on 16.09.2019], the following observations have been made by a Coordinate
bench in the context of a Gaonburah Certificate and evidence adduced, which
we respectfully endorse:
“6. … Therefore, the entries made in the Gaonbura’s Certificate appears to
be based on faulty knowledge of the DW-3 and not based on any public
records maintained by his office in regular course of duty attached to his
office. The Executive Instructions appended to the Assam Land and
Revenue Regulation, 1886, does not cast any duty to the Gaonbura to
maintain record of citizens born in the Lot under his charge or register
containing names of females in Lot under his charge who are married to
persons outside the Lot under his charge.”
25. In view of the aforesaid facts and circumstances, we are of the opinion
that the impugned order dated 13.03.2019 passed by the learned Foreigner’s
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Tribunal No.7, Barpeta in F.T. Case No. 458/2016 [corresponding to R/IM(D)T
Case No. 8234/98] does not call for any interference.
26. 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.
27. The records be returned to the concerned Foreigners Tribunal forthwith,
along with a copy of this order.
JUDGE JUDGE Comparing Assistant
