Chabiya @ Sabiya Begum @ Sabia Nessa vs The Union Of India And 6 Ors on 25 May, 2026

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    Gauhati High Court

    Chabiya @ Sabiya Begum @ Sabia Nessa vs The Union Of India And 6 Ors on 25 May, 2026

    Author: S.K. Medhi

    Bench: Sanjay Kumar Medhi

                                                                   Page No.# 1/17
    
    GAHC010173462019
    
    
    
    
                                                              2026:GAU-AS:7180
    
                          THE GAUHATI HIGH COURT
      (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
    
                             Case No. : WP(C)/5513/2019
             CHABIYA @ SABIYA BEGUM @ SABIA NESSA
             W/O- BACHU MIYA @ BADSHA, D/O- LATE MOWAB ALI @ NOWAB ALI @
             NOBAB ALI, VILL- HARIHAKUCHI (SARIAHKUCHI), P.S- SARTHEBARI,
             DIST- BARPETA, ASSAM
    
    
             VERSUS
    
             THE UNION OF INDIA AND 6 ORS
             REP. BY SECRETARY TO THE GOVT OF INDIA, THE MIN OF HOME
             AFFAIRS, NEW DELHI
    
             2:THE STATE OF ASSAM
              REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
              HOME DEPTT, DISPUR, GUWAHATI- 06
    
             3:THE DIRECTOR GENERAL OF POLICE (ADMN)
             ASSAM, ULUBARI, GUWAHATI- 07
    
             4:THE DEPUTY COMMISSIONER OF POLICE (B)
              BARPETA, ASSAM
    
             5:THE SUPERINTENDENT OF POLICE(B)
              BARPETA, DIST- BARPETA
             ASSAM
    
             6:ELECTION COMMISSION OF INDIA
              NEW DELHI- 01
    
             7:COORDINATOR
              NRC ASSAM, ACHYUT PLAZA
              BHANGAGARH
              GHY- 0
                                                                                     Page No.# 2/17
    
    
    
                                          BEFORE
                       HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
                          HON'BLE MR. JUSTICE PRANJAL DAS
    
    Advocate for the petitioner          : Shri P. A. Ahmed, Advocate.
    
    Advocates for the respondents        : Ms. A. Verma, SC- Home Deptt.

    Shri G. Sarma, SC, NRC;

    Shri P. Sarma, GA, Assam;

    SPONSORED

    Shri N. Kalita, Advocate;

    (on behalf of Shri A. I. Ali, SC, ECI).

    Shri S. S. Roy, CGC.

    Date on which judgment is reserved    : 14.05.2026
    Date of pronouncement of judgment     : 25.05.2026
    
    

    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 17.11.2018
    passed by the learned Member, Foreigners Tribunal III, Barpeta in F.T. Case
    No.1192(III) of 2013 declaring the petitioner as a foreigner u/s 2 (a) of the
    Foreigners’ Act, 1946. 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.

    Page No.# 3/17

    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. 1192 (III)/2013.

    (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 23.03.2018 along with certain documents and adduced
    evidence through 5 nos. of 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
    accordingly, the opinion was rendered declaring the petitioner to be
    a foreign national post 25.03.1971.

    3. We have heard Shri P. A. Ahmed, learned counsel for the petitioner. We
    have also heard Ms. A. Verma, learned Standing Counsel, Home Department;
    Shri G. Sarma, learned Standing Counsel, 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 and Shri S. S. Roy,
    learned CGC. We have also carefully examined the records which were
    requisitioned vide order dated 30.10.2019.

    4. Shri Ahmed, 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
    Page No.# 4/17

    regard, he has referred to the evidence of the 5 nos. of DWs and also the
    following documentary evidence.

    (i) Ext-A – Certified copy of voter list 1966.

    (ii) Ext-B – Certified copy of voter list 1970.

    (iii) Ext-C – Certified copy of voter list 1985.

    (iv) Ext-D – Certified copy of voter list 1989.

    (v) Ext-E – Certified copy of voter list 1997.

    (vi) Ext-F – Elector Photo Identity Card of 2013.

    (vii) Ext-G – Gaonburah Certificate.

    (viii) Ext.-H – Gaon Panchayat Certificate.

          (ix)    Ext. I - Affidavit.
          (ix)    Ext.-J - Elector Photo Identity Card of 2013.
          (x) Annexure-1 - Copy of NRC details of 1951
    
    
    

    5. The learned counsel for the petitioner has submitted that in the written
    statement, all material disclosures were made. He has submitted that the
    petitioner was born in the year 1960 and her marriage was in the year 1994. He
    has referred to the Voters List of 1966 containing the name of her father as
    Mowab Ali. He has also referred to the Voters List of the year 1970 containing
    the names of her parents and grandmother. It is submitted that due to river
    erosion, the family had to shift to village Kaltoli and in the Voters List of 1985,
    the names of the father and two siblings had appeared under village Kaltoli.

    6. The next voters list is of the year 1989 containing the names of the
    parents, one brother and sister-in-law followed by the Voters List of 1997
    wherein there is an addition of another brother and a different sister-in-law.

    Reference is also made to the Voters List of 1994 with the name of the
    petitioner.

    Page No.# 5/17

    7. The learned counsel for the petitioner has also relied upon the Gaonburah
    Certificate dated 10.05.2017 read with the deposition by the Gaonburah as DW

    5. It is highlighted that the DW 5 had deposed that he has been the Gaonburah
    since 1975 and since the certificate had disclosed the link with the father, the
    petitioner had discharged her burden. Similar submission had also been made in
    respect of the certificate of the Gaon Panchayat dated 10.06.2015 read with the
    evidence of the Panchayat Secretary as DW 4.

    8. In support of his submission, the learned counsel for the petitioner has
    relied upon the following decisions:

    i. AIR 1959 SC 914 (Dol Gobinda Paricha Vs. Nimai Charan
    Misra and Ors.)

    ii. (2008) 4 SCC 75 (Bant Singh and Anr. Vs Niranjan Singh
    (Dead) by LRS
    . And Anr.)

    iii. (2019) 5 SCC 534 (Sirajul Hoque Vs. State of Assam and
    Ors.
    )

    iv. 2021 (4) GLT 664 (Sujab Ali (Md) Vs. Union of India & Ors.)

    v. 2021 (3) GLT 85 (Haidar Ali Vs. Union of India & Ors.)

    9. The cases of Dol Gobinda (supra) and Bant Singh (supra) have been
    cited in the context of the evidence adduced by the DW 2 (mother) and DW 3
    (brother) and has submitted that evidence of family members on the
    relationship cannot be discarded.
    The case of Sujab Ali (supra) is on the same
    subject.
    The case of Haider Ali (supra) is on the aspect of the presentation of
    the written statement and also evidence to be adduced by a proceedee.
    The
    case of Sirajul Hoque (supra) has been cited in which the Hon’ble Supreme
    Page No.# 6/17

    Court had held that minor inconsistencies in the Voters Lists can be ignored.

    10. The learned counsel for the petitioner accordingly 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.

    11. Per contra, Ms. Verma, the learned Standing Counsel, Home Department
    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 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.

    12. 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 totally vague. There is no date or year of the birth of the
    petitioner and the date of her marriage. There are no details of the family
    members. In this connection, she has relied upon the following observations
    Page No.# 7/17

    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
    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.”

    13. She has submitted that since it can be deduced that the year of birth of
    the petitioner was about 1960, there should have been a Voters List containing
    her name in the year about 1981. She has further submitted that in the Voters
    List of 1966 relied upon, the mother’s name is missing which raises a serious
    doubt on the relationship claimed. From 1970 to 1985 quo the Voters lists
    produced, there is a long gap which is unexplained. In the written statement,
    there is name of only one brother whereas it appears from other materials that
    there are three brothers and two sisters. She has submitted that the Voters List
    Page No.# 8/17

    relied upon are not relevant by which the petitioner has discharged her burden.
    So far as the Gaonburah Certificate is concerned, she has submitted that
    admittedly, the same has been issued on the basis of a Voters List of the year
    1997 furnished by the petitioner and that the petitioner had shifted to that
    village only in the year 1985. It is also submitted that the Gaon Panchayat
    Certificate is not relevant. She has pointed out that there is a disclaimer at the
    foot of the certificate itself that the same was issued only for the purpose of
    NRC. She has submitted that the oral evidence of the projected brother and
    mother without any documentary support would not be relevant, as have been
    held by a number of decisions of this Court.

    14. 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
    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.
    …”

    15. 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
    Page No.# 9/17

    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.”

    16. 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,
    the authenticity of the same and secondly, the authenticity of the contents.

    17. The learned Standing Counsel has accordingly submitted that the writ
    petition be dismissed and the interim order be vacated.

    18. The learned counsel for the other 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
    Page No.# 10/17

    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.

    19. 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.

    20. 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.”

    Page No.# 11/17

    21. 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
    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.”

    22. 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.# 12/17

    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.

    23. 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
    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
    Page No.# 13/17

    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.”

    24. In the instant case, the written statement is 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) date of birth,

    (ii) place of birth,

    (iii) name of the 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.

    25. So far as the Voters Lists are concerned, there are numerous
    inconsistencies both in the names and age. While the name of the projected
    father in the Voters Lists of 1966 and 1970 was Mowab Ali, in the Voters List of
    1985, the name is Nobab Ali Mia. The age of the father in 1970 was stated as
    Page No.# 14/17

    39 years whereas in the year 1985 it is 65 years which is inconsistent.

    26. There is not even a single Voters List of the petitioner with her projected
    parents or siblings despite the fact that the petitioner claims to have been born
    in the year 1960. We also find that Voters Lists are selectively produced before
    the learned Tribunal and there is no regularity or continuity. It may be
    mentioned that after the Voters List of 1970, the next Voters List is of the year
    1985. Similarly, there is a long gap between the Voters Lists of 1989 and 1997.
    There is no explanation with regard to the disappearance of existing names in
    the Voters Lists and entry of new names. The Voters List of 1994 is not relevant
    as the same is not even a certified copy.

    27. So far as the Gaonburah Certificate dated 10.05.2017 is concerned though
    the same was sought to be proved by the DW 5, he had clearly stated that the
    same was issued on the basis of a Voters List of 1997 produced by the
    petitioner. It also reveals that neither the issue register nor the
    contemporaneous records were produced and proved. Similarly, so far as the
    certificate dated 10.06.2015 by the Gaon Panchayat was concerned, DW 4, the
    Secretary of the Gaon Panchayat had deposed that the certificate was issued by
    the earlier Secretary, who had retired. No issue register or contemporaneous
    records were proved in connection with the said certificate. It is settled law that
    certificates of the aforesaid nature are required to be proved by
    contemporaneous records as the issue is of immense public importance
    touching upon the national security.

    28. In the case of Sufia Khatun Vs Union of India [WP(C)/3961/2019
    disposed of 16.09.2019] the following observations have been made by a
    Page No.# 15/17

    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.”

    29. The petitioner as DW 1 had replied to the question put by the learned
    Tribunal that names of the siblings were not stated in the written statement.
    Similarly, DW 2, the projected uncle had responded to the Tribunal that the
    names of the three sons and three daughters were not mentioned in the chief
    examination. Further, DW 3, the projected brother had admitted that though
    they were three brothers and three sisters, he had mentioned only one brother’s
    name in his affidavit.

    30. So far as the case law relied upon by the petitioner, the cases of Dol
    Gobinda (supra) and Bant Singh (supra) of the Hon’ble Supreme Court were
    in the context of Section 50 of the Indian Evidence Act. The subject matter of
    those two cases was entirely different from the present subject matter which is
    on the determination of foreigners. As discussed above in details, the burden of
    proof in a case of the present nature is on the proceedee and Section 9 starts
    with a non obstante clause vis-à-vis the Indian Evidence Act.

    Page No.# 16/17

    31. So far as the case of Haider Ali (supra) is concerned, the observations
    made therein appear to be not in consonance with the law laid down by the
    Hon’ble Supreme Court in the case of Sarbananda Sonowal (supra). The
    Hon’ble Supreme Court, in clear terms has laid down the necessity of putting up
    the defense by a proceedee which has to be understood to be in the form of a
    written statement followed by credible and acceptable evidence and the
    requirement of rebuttal evidence would come only when necessary.
    The case of
    Sirajul Hoque (supra) is clearly distinguishable on facts and in fact the Hon’ble
    Supreme Court had made an observation that all other aspects were consistent
    except the name of the grandfather of the proceedee which varied from
    “Kematullah” to “Kefatullah”.

    32. In the case of Momin Ali vs Union of India reported in 2017 (2) GLT
    1076, a Coordinate Bench had made the following observations which we
    endorse:

    “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 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.

    Page No.# 17/17

    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.”

    33. In the case of Bijoy Das vs UOI reported in 2018 (3) GLT 118, this Court
    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 her burden to prove her
    citizenship.

    34. In view of the aforesaid facts and circumstances, we are of the opinion
    that the impugned order dated 17.11.2018 passed by the learned Foreigners
    Tribunal III, Barpeta in F.T. Case No. 1192 (III) of 2013 does not call for any
    interference.

    35. 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.

    36. The records of the learned Tribunal be returned forthwith, along with a
    copy of this order.

                                   JUDGE                             JUDGE
    
    
    Comparing Assistant
     



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