Sanchayita Lahkar

The Division Bench of the Gauhati High Court, comprising Justice Kalyan Rai Surana and Justice Malasri Nandi, declined to interfere with the ex parte order passed by the Foreigners’ Tribunal, Bajali, which had declared the petitioner a foreigner who illegally entered India after 25.03.1971. The Court stated that sufficient opportunities had been provided to the petitioner to establish her citizenship but she had failed to do so, thereby affirming the Tribunal’s decision.

The petitioner, a woman residing in the Hilapukhuri village of Barpeta District, Assam, approached the High Court seeking to set aside the ex parte order dated 30.05.2023 passed by the Foreigners' Tribunal, Bajali in FT Case No. 1250/2017 (arising out of IM(D)T Case No. 95/2002). The Tribunal had declared her a foreigner of the post-25.03.1971 stream.

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It was stated that the petitioner lived with her two children in her matrimonial home, while her husband resided separately with his second wife. Upon receiving the Tribunal’s notice, she claimed to have informed her husband, who assured her of taking necessary steps, including engaging an advocate. She alleged that her husband took possession of all relevant documents and later informed her that he had misplaced the notice.

According to the petitioner, due to her inability to recall the case number, she failed to determine the proceedings' status until her son engaged another advocate. By then, she had been declared a foreigner ex parte and was taken into custody pursuant to the Tribunal's order.

The petitioner argued that the proceedings were initiated without fair investigation and referenced the Supreme Court’s decision in Sarbananda Sonowal v. Union of India [(2007) 1 SCC 174], which held that while the burden of proof lies on the proceedee, the State has an initial responsibility to collect materials of doubt. She also referred to State of Assam v. Moslem Mandal [(2013) 1 GLT 809], where it was recorded that failing to give the proceedee an opportunity to establish their citizenship at the investigation stage violates Article 21 of the Constitution.

She submitted that she was born on 18.06.1979 at village Barbala and had studied at Kamalpur L.P. School. Her name was present in electoral rolls from 1993 onwards in her marital village. The names of her grandparents and parents were allegedly recorded in electoral rolls dating back to 1966, 1970, 1985, 1989, 1997, 2005, 2010, and 2018.

A certificate issued by the village gaonburah was also placed on record, certifying her as the daughter of Hazrat Ali.

The Court acknowledged that the petitioner had received the Tribunal’s notice and had even acknowledged it by signing the process server’s report dated 12.05.2023. The Tribunal had directed her to appear on 15.05.2023 and again on 22.05.2023. The order was passed ex parte on 30.05.2023 due to her repeated absence.

The Division Bench stated: "From the judgment itself, it appears that a report was furnished by the process server on 12.05.2023 stating that notice was served upon the petitioner at the given address which was acknowledged by the petitioner by putting her signature thereon."

It was observed that the case was not one where the Tribunal failed to provide opportunities. The Court noted: "Sufficient opportunities were granted to the petitioner to establish her claim which she utterly failed to do so."

Further, the Court stated that in proceedings under the Foreigners Act, 1946 and the Foreigners (Tribunal) Order, 1964, the burden of proof lies solely on the petitioner regardless of whether the matter proceeds ex parte: "The relevant fact being especially within the knowledge of the petitioner, as such, the burden of proving citizenship absolutely rests upon the petitioner."

The Division Bench clarified that High Courts exercising writ jurisdiction under Article 226 are limited to intervening only where there is jurisdictional error, denial of hearing, or violation of natural justice principles. The Court noted: "None of the above grounds exists in the present case."

The Court also took note of the documents submitted with the writ petition but declined to consider them since they had not been produced before the Tribunal despite sufficient opportunity.

It further recorded: "We also hold that the documents enclosed in the present writ petition cannot be looked into, those not having been proved before the Tribunal at the first instance, despite sufficient opportunities being afforded."

Additionally, the Court remarked on the claim that the petitioner was helpless, noting that the affidavit was filed by her literate son who signed in English: "Under such backdrop, it cannot be said that the petitioner was helpless at the relevant time to take steps in a proper way."

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In addressing the equitable considerations, the Court quoted the Supreme Court’s decision in Central Council for Research in Ayurvedic Sciences v. Bikartan Das [(2023) SCC Online SC 996]: "The High Court 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 petition was dismissed, upholding the Tribunal’s order. The Division Bench held: "We find no merit in the present petition. Accordingly, the writ petition is dismissed and the order/opinion of the Tribunal is affirmed."

The Court also stated on the petitioner’s plea for bail: "Situated thus, the petitioner is not entitled for bail."

All records were directed to be transmitted back to the Tribunal.

Advocates Representing the Parties

For the Petitioner: M. Ahmed, S.W. Hussain, A.K. Kanu

For the Respondents: Ms. B. Sarma (CGC); Mr. M. Kalita for ECI; Ms. A. Verma (FT Matters); Mr. P. Sarma (Addl. Senior Govt. Advocate)

Case Title: Mazeda Begum @ Mazida Khatoon v. The Union of India and 5 Ors.

Neutral Citation: 2025: GAU-AS:5598

Case Number: WP(C)/429/2025

Bench: Justice Kalyan Rai Surana and Justice Malasri Nandi

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