Sanchayita Lahkar

The Gauhati High Court Division Bench comprising Justice Kalyan Rai Surana and Justice Malasri Nandi has dismissed a writ petition challenging the Foreigners Tribunal's order declaring the petitioner as a foreigner. The Court held that the petitioner failed to discharge the burden of proof under Section 9 of the Foreigners Act, 1946. Consequently, the Court upheld the Tribunal's decision and directed the transmission of case records back to the Tribunal without any order as to costs.

The petitioner filed an application under Article 226 of the Constitution of India, challenging the order dated 28.02.2023 passed by the learned member of the Foreigners Tribunal 4th, Nagaon, Juria, Assam, in F.T. Case No.130/2016 (corresponding to Police Reference “D” Case No.2990/98), which declared the petitioner as a foreigner.

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The petitioner claimed to be a citizen of India by birth and contended that she inadvertently did not submit her voter list before the Tribunal but had submitted other relevant documents linking her with her projected parents. It was further asserted that her father’s name appeared in the voter lists of 1966 and 1970, and that her elder siblings had also cast their votes in their respective constituencies.

Despite producing documents such as the school certificate, migration certificate, and land documents to establish linkage with her father, the Tribunal declared her a foreigner. The petitioner submitted a written statement affirming her Indian citizenship and permanent residence in Jamuguri village, Nagaon district, Assam. She asserted that she was born and brought up in Bherbheri village under Batadrava Police Station, Nagaon district, Assam.

She further claimed that her grandfather's name was Akadil Sheikh, and her parents were Muslem Uddin and Majida Khatun. The petitioner married Abdul Rashid on 01.01.1996. The petitioner produced documentary evidence, including Ext.I (voter list of 1966), Ext.II (voter list of 1970), Ext.III (Periodic Khiraj Patta), Ext.IV (Jamabandi), Ext.V (Panchayat Certificate), and Ext.VI (Affidavit). Mainul Hoque, the petitioner’s projected brother, deposed as DW-2, and his testimony was similar to the petitioner’s.

The petitioner's counsel argued that she is 50 years of age, originally from Bherbheri village, and that the name of her father appeared in the voter lists of 1966 and 1970. It was also argued that her parents and elder brother appeared in the voter lists of 1989, 1997, and 2011. The petitioner submitted that the Secretary of Dhupaguri Gaon Panchayat issued a certificate confirming her permanent residence and marriage, and that land documents supported her claims of ownership with family members. A school certificate from Dhupaguri Kalani Basti M.E. School was also produced, stating her date of birth as 2nd February 1970.

Despite these submissions, the Tribunal held that the petitioner failed to discharge her burden under Section 9 of the Foreigners Act, 1946. The petitioner appealed to the High Court, seeking to set aside the Tribunal’s order or alternatively remand the matter for fresh adjudication.

The respondents argued that the petitioner did not come with clean hands and had exhibited only six documents, which were insufficient to establish her citizenship. They contended that the petitioner failed to prove her relationship with her projected parents and did not demonstrate that she had ever cast a vote in India. The respondent counsel cited precedents, including Rukia Begum Vs. Union of India (2018) 4 GLT 763, to support the argument that documentary evidence must be duly proved and cannot rely solely on oral testimony.

The Court recorded that "the petitioner has submitted that her mother and elder brothers have cast votes in the years 1989, 1997, and 2011 but the said voter lists were not exhibited before the Tribunal.”

It further stated, "According to the petitioner, the Headmaster of Dhupaguri Kalani Basti M.E. School issued a certificate showing her date of birth as 2nd February 1970 but all such documents were not proved before the Tribunal."

The Court noted that the voter lists of 1966 and 1970 (Ext. I and Ext. II) show the name of one Muslem Uddin, son of Akdil. However, it observed that "no documents are available in the record connecting the petitioner with her projected parents, Muslem Uddin and Majida Khatun."

Relying on the judgment in Bijay Das Vs. Union of India (2018) 3 GLT 118, the Court recorded that "mere filing of written statements and oral testimony are not sufficient to prove the citizenship of a person, as necessary documentary evidence is required to be proved in support of the oral evidence."

The Court examined Ext. III, a periodic khiraj patta, and noted that "it is not reflected in the order of Circle Officer whether the name of the petitioner along with the aforesaid persons were entered in the jamabandi by right of inheritance or purchase." It also raised concerns regarding the identity of Muslem Ali and Muslem Uddin, stating, "It is also not known whether Muslem Ali and Muslem Uddin is one and the same person."

Addressing the Panchayat certificate (Ext. V), the Court held that such certificates have no statutory sanctity, citing Manowara Bewa Vs. Union of India WP(C) 2634/2016, stating "no reliance can be placed on a certificate of residence and relationship issued by the Secretary Gaon Panchayat...as such certificate has no statutory sanctity being beyond the mandate of Assam Panchayat Act, 1994."

The Court applied the precedent of Rupjan Begum Vs. Union of India (2018) 1 SCC 578, stating that "a certificate issued by Gaon Panchayat Secretary, by no means establishes the claim of citizenship. It is only a link document which has to be supported by other evidence."

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It concluded that "the version of the petitioner suffers from multiple material contradictions rendering the same highly improbable." The Court finally held that "the petitioner has failed to discharge her burden as required under Section 9 of the Foreigners Act, 1946."

The Court recorded, "In view of the above, the Court does not find any merit to interfere with the opinion as rendered by the Tribunal. Hence, the writ petition is dismissed. There shall be no order as to costs."

The Bench further directed that "the case records be transmitted to the Tribunal."

Advocates Representing the Parties:

For the Petitioner: Mr. S. Hussain, A. Jubaria, Mr. H. Rahman

For the Respondents: Mr. G. Sarma, Standing Counsel, F.T.; Mr. M.R. Adhikari, CGC; Mr. M. Kalita for Ms. P. Barua, Standing Counsel, ECI; Mr. P. Sarmah, Additional Senior Government Advocate, Assam.

Case Title: Musstt Moriom @ Moriom Nesa Vs. The Union of India and 6 Ors.

Neutral Citation: 2025: GAU-AS:6038-DB

Case Number: WP(C)/305/2025

Bench: Justice Kalyan Rai Surana, Justice Malasri Nandi

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