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2026 Supreme(Online)(Gau) 16647
GAUHATI HIGH COURT
Sanjay Kumar Medhi, Pranjal Das, JJ
Rabiyel Hussain – Appellant
Versus
Union of India – Respondent
WP(C)/6342/2019
Important Points
Subject
Constitutional Law - Citizenship and Administrative Law
Act Referred
Headnote
(B) Evidence - Pleadings - Variance - Rule against variance between pleading and proof - Documents like certificates and land records require proof of both authenticity and content - Failure to disclose material facts in initial pleadings precludes reliance on evidence at the trial stage. (Paras 12, 13, 14, 29)
Facts of the case:
The petitioner challenged the opinion rendered by a tribunal declaring them to be a foreigner. The petitioner argued that sufficient evidence, including electoral rolls and land documents, was provided to establish citizenship and that the tribunal failed to consider these records. The respondent contended that the onus of proof, as mandated by statute, was not discharged and that the pleadings were vague and inconsistent with the evidence presented.
Findings of Court:
The court found that the petitioner failed to discharge the burden of proof under the relevant statute. The court noted significant inconsistencies between the documented evidence and the statements made in the pleadings. Furthermore, the court observed that documents such as local certificates were not duly proven by the issuing authority, and other records failed to establish a clear link to the claim of citizenship.
Issues: The main issues were whether the tribunal misapplied the burden of proof and whether the writ court could interfere with the findings of fact regarding citizenship status.
Ratio Decidendi: The court affirmed that in proceedings concerning citizenship, the burden of proof is absolute and lies on the proceedee. The writ court’s role is confined to the decision-making process. Since the petitioner failed to establish a consistent case in the pleadings, and the documents presented were either unproven or inconsistent, the tribunal’s decision-making process was found to be sound.
Result: Petition dismissed.
For the Appellants/Petitioners: A Hussain, A S Ahmed
For the Respondents: A. Verma, P. Sarma, N. Kalita, A.I. Ali, J. Sarma, Asstt.S.G.I.
| Table of Content |
|---|
| 1. case initiation and procedural background. (Para 1 , 2 , 3) |
| 2. arguments regarding burden of proof and evidentiary requirements. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18) |
| 3. supervisory role of the high court in certiorari jurisdiction. (Para 19 , 22 , 23 , 30) |
| 4. burden of proof lies on the proceedee under section 9 of the foreigners act. (Para 20 , 21 , 24 , 31) |
| 5. evidence must be pleaded and documented consistently to prove citizenship. (Para 25 , 26 , 27 , 28 , 29) |
| 6. dismissal of petition due to failure to discharge burden of proof. (Para 32 , 33 , 34) |
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 22.02.2019 passed by the learned Member, Foreigners’ Tribunal No. 2, Bongaigaon at Abhayapuri, Assam in Case No. BNGN/FT/Case No. 70/2011 (Ref. BNGN P.E. No. 238/2010). 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), Bongaigaon, against the petitioner giving rise to the aforesaid Case No. BNGN/FT/Case No. 70/2011.
(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 along with certain documents and 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 A. Hussain, learned counsel for the petitioner. We have also heard Ms. A. Verma, learned Standing Counsel, Home Department; Shri P. Sarma, learned G.A., Assam, Shri N. Kalita, learned counsel appearing on instructions of A.I. Ali, learned Standing Counsel, Election Commission of India and Ms. J. Sarma, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 04.12.2019.
4. Shri Hussain, 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 following documentary evidence:-
(i) Ext-1 is the voter list of 1966,
(ii) Ext-2 is the voter list of 1970,
(iii) Ext-3 is the voter list of 1985,
(iv) Ext-4 is the Final Patta,
(v) Ext-5 is the voter list of 1997,
(vi) Ext-6 is the voter list of 2006,
(vii) Ext-7 is the original copy of land document,
(viii) Ext-8 is the voter list of 2014,
(ix) Ext-9 is the land document,
(x) Ext-10 is the Bank Passbook,
(xi) Ext-11 is the Gaon Panchayat certificate,
(xii) Ext-12 is the Jamabandi.
5. The learned counsel for the petitioner has submitted that in the voters lists of 1966 and 1970, the name of his grandparents had figured and in the year 1970, his grandfather had expired. The next voters list relied upon is of 1985 having the name of his parents followed by the voters list of 1997. The next voters list is of the year 2006 having the name of the petitioner along with his mother. It has been submitted that in the year 2004, his father had expired. The next voters lists relied upon are of the years 2014 and 2017 having the names of the mother, the petitioner, and his wife.
6. The learned counsel petitioner had relied upon a Jamabandi containing his name with two others, namely, Surma Khatoon and Sukiya Khatoo
