Back
THE GAUHATI HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
KALYAN RAI SURANA, SUSMITA PHUKAN KHAUND, JJ.
Md. Abdul Hussain @ Abdul Hasen S/o Late Samsher Ali @ More Ali - Appellant
Versus
The Union Of India And Ors. - Respondent
WP(C) No. 2609 of 2019
Decided On : 24-04-2026
| Table of Content |
|---|
| 1. procedural history and initial facts of the citizenship challenge. (Para 1 , 2 , 3) |
| 2. summary of testimonial evidence, exhibits, and arguments presented before the tribunal. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15) |
| 3. legal standard: burden of proof under section 9, foreigners act, and requirement for consistency in evidence. (Para 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28) |
| 4. final order dismissing the writ and affirming the tribunal order. (Para 29 , 30 , 31) |
JUDGMENT AND ORDER :
(K.R. Surana, J.)
Heard Mr. K. Lahkar, learned counsel for the petitioner. Also heard Ms. K. Phukan, learned CGC appearing for respondent No.1; Mr. A.I. Ali, Advocate, learned standing counsel for Election Commission of India, respondent no.2; Mr. G. Sarma, Advocate, standing counsel for FT and Border matters, representing respondent nos. 3, 4, 5 and 7; and Mr. H.K. Hazarika, learned Govt. Advocate representing respondent no.6.
2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Md. Abdul Hussain @ Abdul Hasen, has challenged the opinion dated 21.11.2018, passed by the learned Member, nd Foreigners Tribunal- 2, Morigaon, Assam, in. Case No. F.T. (D) 410/11 [arising out of Police Ref. D/N Case No. 3 dated 15.12.1997; E.R.O. Ref. No. LDB/ERO/81/95/3 dated 31.10.1997], thereby declaring him to be a foreigner, who had entered into Assam on or after 25.03.1971.
3. The Tribunal’s records reveals that on 05.06.2018, the petitioner had filed petition no. 507 dated 05.06.2018, praying for amalgamation of the said case with F.T.(C) 138/12, where the petitioner is a party. The prayer was allowed. Accordingly, on 11.06.2018, the petitioner had filed his written statement.
4. In brief, in his written statement, the petitioner had stated that the Verification Officer, without proper enquiry had submitted his report and the allegation was false and against the principles of natural justice. The name of his father is Late Samser Ali and the people also call him More Ali, but in the notice the name of his father is wrongly mentioned as More Ali instead of Samser Ali. He was born and brought up at village- Patuakata, under Laharighat P.S. His father, Samser Ali had casted his vote in 1966 and 1970 from 84 No. Laharighat LAC from village- Patuakata, Dist. Morigaon. His father, Samser Ali, died in the year 1970. The name of his mother is Phulbanu Bibi and she had casted her vote in the year 1975 and 1985 from 81 No. Laharighat LAC and in the said years, his name was wrongly entered in the voter list as Oser Ali and Osan instead of Abdul Hussain. Then, when he had applied for correction of his name, he was marked as ‘D’ voter from the year 1997 till date. The petitioner had reserved his right to file an additional written statement, if required.
5. In support of his defence, the petitioner had filed his evidence- on-affidavit. In his evidence-on-affidavit, he had reiterated the statements made in his written statement. It was also stated that the case was proceeded against him and his wife, Musstt. Jyotshna Begum and he has no children called Rafiqul Islam and Yasamina Begum as mentioned in the case. In FT(D) 410/2011, his name is mentioned as Abdul Hasen instead of Abdul Hussain. He had stated that he and his wife Musstt. Jyotshanara Begum are Indian citizens.
6. There appears to be a discrepancy in the marking of exhibits, as stated in the evidence-on-affidavit compared to the marking of exhibits in the original exhibited documents. The comparative list of exhibits are as under:-
| Exhibit no. | Document as per Evidence-on – affidavit. | Marking of exhibit nos. in exhibited document, available in the Tribunal’s record. |
| Ext.A | Voter list of 1966 containing the name of Samsher Ali and other family members. | Voter list of 1975, containing names of Jubaid Khatun; Aa. Sum; and User Ali. |
| Ext.B | Voter list of 1970 containing the name of Samsher Ali and other family members. | Voter list of 1970, |
The court upheld the Tribunal's decision declaring the petitioner a foreigner due to insufficient evidence of citizenship, emphasizing the importance of credible documentation.
In citizenship determination proceedings, the burden of proof lies on the individual to establish ancestral linkage through consistent, corroborated documentary evidence. Mere production of documents....
The burden lies on the petitioner to provide reliable evidence establishing citizenship, which was not met, leading to the declaration of foreign status.
The burden of proof lies on the petitioner to establish citizenship, which was not met due to insufficient evidence linking her to her claimed lineage.
Point of Law : 12, 16. Under Section 9 of Foreigners' Act, 1946, burden is on proceedee to prove that she is not a foreigner, but a citizen of India and this burden never shifts.
The burden of proof lies with the petitioner to establish citizenship through credible evidence, and discrepancies in documentation can lead to a declaration of foreign nationality.
Point of Law : Merely because of certain discrepancy in the name would not render a person to be liable to be declared as a foreigner.
Citizenship requires establishing a direct, consistent bloodline linkage to an ancestor present before the specified cut-off date. Documentary evidence, such as voters' lists and residential certific....
Merely because documents were collected by petitioner during pendency of reference, it cannot be a ground to ignore same as documents have to be examined as regards the genuineness, authenticity, rel....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
