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2026 Supreme(Online)(Gau) 16648
GAUHATI HIGH COURT
Sanjay Kumar Medhi, Pranjal Das, JJ
Kad Bhanu – Appellant
Versus
Union Of India – Respondent
WP(C)/8259/2019
Important Points
Subject
Constitutional Law - Citizenship and Immigration
Act Referred
Headnote
(B) Writ of Certiorari - Scope and Ambit - Supervisory jurisdiction of High Court excludes acting as an appellate court - Factual findings by specialized tribunal are not open to review unless shown to be perverse, illegal, or resulting from a flawed decision-making process - Mere disagreement with the findings of fact does not warrant judicial interference. (Paras 15, 22, 23)
(C) Evidence - Documentary proof - Contents of self-serving documents must be substantiated by contemporaneous records - Official notices issued for identification purposes cannot be construed as substantive proof of lineage or family relationship. (Paras 14, 27)
Facts of the case:
The petitioner challenged an order declaring them a foreigner. The petitioner relied on various documents, including electoral rolls and certificates, asserting they established their identity and lineage. However, the tribunal found these documents to be inconsistent, lacking the necessary corroboration to link the petitioner to the claimed parentage.
Findings of Court:
The court determined that the tribunal correctly applied the principles governing the burden of proof. It held that the provided documents failed to form a cohesive chain of evidence, and that the procedure adopted by the tribunal was consistent with the law and requirements of natural justice.
Issues: The central questions addressed were whether the burden of proof was properly discharged by the petitioner, whether the evidentiary documents provided sufficed to prove citizenship, and the scope of judicial review over factual findings made by the tribunal.
Ratio Decidendi: The court maintained that the statutory burden of proof remains strictly on the individual. absent, direct, and verified documentation linking the person to their ancestors, the tribunal’s finding of foreign nationality is valid, and the court will not substitute its own view on evidence when operating within its narrow supervisory writ jurisdiction.
Result: Petition dismissed.
For the Appellants/Petitioners: S. Islam
For the Respondents: J. Payeng, R.B. Bora, A.I. Ali, A.K. Dutta
| Table of Content |
|---|
| 1. summary of procedural background and nature of the challenge to the foreigners tribunal opinion. (Para 1 , 2 , 3) |
| 2. petitioner's argument regarding documentary evidence and previous court findings involving family members. (Para 4 , 5 , 6 , 7) |
| 3. respondent's contentions on the absolute burden of proof under section 9 of the foreigners act. (Para 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18) |
| 4. jurisprudential principles concerning the burden of proof and limited scope of judicial review via certiorari. (Para 19 , 20 , 21 , 22 , 23) |
| 5. evaluation of evidentiary deficiencies, failure to establish linkage, and the insufficiency of notice contents as proof of identity. (Para 24 , 25 , 26 , 27 , 28) |
| 6. final confirmation of the tribunal's order and dismissal of the writ petition. (Para 29 , 30 , 31) |
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 30.07.2019 passed by the learned Foreigners Tribunal no.III, Barpeta in F.T. Case No. 20(III) of 2017 arising out of Ref. F.T. Case No. 111/16. 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. 20(III) of 2017 arising out of Ref. F.T. Case No. 111/16
(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 28.11.2017 along with certain documents and adduced evidence through 4 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 S. Islam, learned counsel for the petitioner. We have also heard Shri J. Payeng, learned Standing Counsel, Home Department & NRC; Ms. R.B. Bora, learned GA, Assam, Shri A.I. Ali, learned Standing Counsel, Election Commission of India and Shri A.K. Dutta, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 21.04.2020.
4. Shri Islam, 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 DWs and also the following documentary evidence.
(i) Ext. A is the certified copy of Voter List 1966.
(ii) Ext. B is the certified copy of Voter List 1970
(iii) Ext. C is the certified copy of Voter List 1985.
(iv) Ext. D & E are certified copies of Voter Lists 1997 & 2010.
(v) Ext. F & G are the Gaonburah Certificates.
(vi) Ext. H. is the certified copy of Voter List 1966
(vii) Ext. I is the certified copy of Voter List 1970
(viii) Ext. J is the certified copy of Voter Lists 1997
(ix) Ext. K is the certified copy of Voter Lists 2010
(x) Ext. L is the Elector Photo Identity Card
(xi) Ext. M is the School Certificate.
(xii) Ext. N is the Gaonburah Certificate
(xiii) Ext. O is the name & age declaring affidavit.
5. The learned counsel for the petitioner has submitted that in the written statement, all material disclosures were made. It is submitted that the Voters List of 1966 contains the name of her father Himmat Ali along with her uncle – Sahab Ali and aunt – Asata
