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2026 Supreme(Online)(Gau) 16649
GAUHATI HIGH COURT
Sanjay Kumar Medhi, Pranjal Das, JJ
Mucha Ali – Appellant
Versus
Union of India – Respondent
WP(C)/8486/2019
Important Points
Subject
Constitutional Law - Citizenship and Immigration
Act Referred
Headnote
(B) Writ jurisdiction - Scope - In exercising extraordinary jurisdiction, the court acts in a supervisory capacity, not as an appellate authority. Interference is limited to cases of jurisdictional error or manifest perversity in the decision-making process, rather than re-evaluating factual evidence. (Paras 20, 21).
(C) Evidence - Documentary proof - Requirement to establish consistency and linkage. Mere production of identity records is insufficient if they contain unexplained discrepancies regarding kinship, name, or age, and fail to substantiate the required lineage. (Paras 23, 25).
Facts of the case:
A petition was filed challenging an order of a tribunal that declared the subject a foreigner. The petitioner relied on various electoral rolls and local records to establish Indian citizenship, which the tribunal rejected due to lack of internal consistency and failure to prove familial linkages.
Findings of Court:
The tribunal correctly identified the failure of the subject to discharge the mandatory burden of proof. The documentary evidence presented suffered from significant contradictions, rendering the claims of ancestry and citizenship unsubstantiated.
Issues: The main issues were the assessment of the legal burden of proof in citizenship matters and the permissible scope of judicial interference regarding the factual findings of a specialized tribunal.
Ratio Decidendi: When special legislation places the burden of proof on the individual to establish citizenship, failure to provide consistent identity documentation or prove specific familial ties results in the rejection of that claim, as writ courts are restricted to reviewing the legality of the decision-making process rather than re-weighing evidence. Result : Petition dismissed and interim order vacated.
For the Appellants/Petitioners: J Ahmed, R Begum, A Hussain
For the Respondents: A Verma, A Phookan, N Kalita, A I Ali, P R Choudhury, H Gupta
| Table of Content |
|---|
| 1. jurisdiction to challenge foreigners' tribunal opinion. (Para 1 , 2 , 3) |
| 2. petitioner reliance on documentary evidence and case law. (Para 4 , 5 , 6 , 7) |
| 3. respondent arguments on burden of proof and evidentiary standards. (Para 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16) |
| 4. writ court scope and the burden of proof under section 9. (Para 17 , 18 , 19 , 20 , 21) |
| 5. evaluation of evidence and failure to establish citizenship. (Para 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32) |
| 6. final order of dismissal. (Para 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 10.10.2018 passed by the learned Member, Foreigners’ Tribunal No. 2nd, Morigaon, Assam in F.T. Case No.07/2017. 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), Morigaon, against the petitioner giving rise to the aforesaid F.T. Case No. 07/2017.
(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 through two 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 him and accordingly, the opinion was rendered declaring the petitioner to be a foreign national post 25.03.1971.
3. We have heard Shri J. Ahmed, learned counsel for the petitioner. We have also heard Ms. A. Verma, learned Standing Counsel, Home Department; Ms. A. Phookan, learned GA, Assam, Shri N. Kalita, learned counsel appearing on instructions of A.I. Ali, learned Standing Counsel, Election Commission of India and Ms. P.R. Choudhury, learned counsel appearing on instructions of Shri H. Gupta, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 04.05.2020.
4. Shri Ahmed, 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 translated copy of voter list of 1966,
(ii) Ext-2 is the translated copy of voter list of 1970,
(iii) Ext-3 is the translated copy of voter list of 2005,
(iv) Ext-4 is the translated copy of voter list of 2018,
(v) Ext-5 is the copy of Jamabandi,
(vi) Ext-6 is the Gaonburah certificate.
5. The learned counsel for the petitioner has submitted that in the voters list of the year 1966, the name of his father appears followed by the voters list of 1970 where the name of his father along with the names of three uncles appears. Another voters list of 2005 has been relied upon containing the name of his father along with him. This voters list, however, was not produced or proved in the Tribunal. Reliance has been placed upon the voters list of 2018 containing the names of the parents, the petitioner and few others. A Jamabandi in the name of A. Hekim has also been relied upon followed by a certificate by the Gaonburah. Reliance has also been placed on voters lists 1989, 1993, 1997, 2010 and 2015.
6. The learned counsel for the petitioner has also submitted that the evidence of the witnesses was not rebutted and therefore, the same have to be considered. In this connection, reliance has been placed upon the case of Sujab
