Page No.# 1/6 GAHC010049032020 2026:GAU-AS:13786 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/1627/2020 RAMJAN TALUKDAR @ RAMJAN ALI S/O LT. JAIN UDDIN TALUKDAR, VILL. BILORTARY, P.S. KALGACHIA, DIST. BARPETA, ASSAM VERSUS THE UNION OF INDIA AND 5 ORS. REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, TRILOK MARG, NEW DELHI-1 2:THE ELECTION COMMISSIONE OF INDIA REP. BY THE CHIEF ELECTION COMMISSIONER NEW DELHI-110001 3:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM HOME DEPTT. DISPUR GUWAHATI-6 4:THE DEPUTY COMMISSIONER BARPETA DIST. BARPETA P.O. BARPETA ASSAM PIN-781301 5:THE SUPERINTENDENT OF POLICE (B) BARPETA DIST. BARPETA P.O. BARPETA ASSAM PIN-781301 Page No.# 2/6 6:THE STATE COORDINATOR OF NATIONAL REGISTER OF CITIZENS BHANGAGARH GUWAHATI ASSAM PIN-78100 Advocate for the Petitioner : MR. N UDDIN, MS. K JAIN,MR. M ISLAM Advocate for the Respondent : ASSTT.S.G.I., SC, NRC,SC, ECI,SC, F.T B E F O R E Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI HON’BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND Advocate for the petitioner : Shri N. Uddin Advocates for the respondents : Ms. A. Verma, SC- Home Deptt.& NRC, Ms. RB Bora, GA, Assam; Shri AI Ali, SC-ECI. Ms. L. Devi, CGC. Date on which judgment is reserved : NA Date of pronouncement of judgment :16.09.2026 Whether the pronouncement is of the operative part of the judgment? : NA Whether the full judgment has been pronounced? : Yes Judgment & Order (S.K. Medhi , J.) This instant application under Article 226 of the Constitution of India has been filed putting to challenge an opinion dated 28.10.2019 passed in Page No.# 3/6 (Bpt/11th) F.T 1468/2017 by the learned Foreigners Tribunal 11th, Barpeta, whereby the petitioner has been declared to be a foreigner post-1971. 2. The primary ground of challenge is that there are documentary evidences which would establish that the petitioner is an Indian citizen whose name had figured in the voters list of 1970 and this aspect has been ignored by the learned Tribunal. 3. We have heard Shri N. Uddin, learned counsel for the petitioner. We have also heard Ms. A. Verma, learned Standing Counsel, Home & NRC; Shri A.I. Ali, learned Standing counsel, ECI;Ms. R.B. Bora, learned Government Advocate, Assam and Ms. L. Devi, learned CGC. 4. Shri Uddin, the learned counsel for the petitioner has submitted that upon receipt of notice from the learned Foreigners Tribunal, he had filed the written statement and had adduced evidence through two numbers of witnesses, namely himself as DW-1 and his brother as DW-2. Regarding the documentary evidence, the petitioner had relied upon the voters list of 1966 containing the names of his father and mother. It is contended that his namehad figured in the voters list of 1970along with his parents. Subsequent voters list of 1985 has also been relied upon containing the name of the petitioner. The learned Tribunal, vide the impugned opinion has however held that the petitioner could not establish his citizenship and has accordingly declared him to be a foreigner post1971. 5. Shri Uddin, the learned counsel for the petitioner has submitted that when there is documentary evidence pertaining to the petitioner himself in the form of a voters list of the year 1970, such opinion could not have been rendered. He has also highlighted the aspect that in the Reference, no stream was Page No.# 4/6 mentioned, and yet the learned Tribunal has held the petitioner to be a foreigner post1971. 6. Per contra, Ms. Verma, the learned Standing Counsel, by referring to the report of the LVO and the referral order, has submitted that there was a prima facie satisfaction recorded on the aspect of the citizenship of the petitioner and accordingly, the matter was referred for adjudication. With regard to the voters list of 1970 containing the name of the petitioner with his parents, she has submitted that there is no documentary evidence to show continuous stay after the said year of 1970. She has, however, fairly submitted that there are documentary evidence of the year 1985, which, however, is after a considerable length of time. 7. The learned counsel for the other respondents have endorsed the submissions advanced by the learned Standing Counsel, Home Department and has prayed for dismissal of the writ petition. 8. With regard to the aspect of burden of proof as laid down in Section 9 of the Foreigners Act of 1946, the law is well settled that the burden of proof that a proceedee is an Indian citizen is always on the said proceedee and never shifts. In the said Section, there is non-obstante clause that the provisions of the Indian Evidence Act would not be applicable. For ready reference, Section 9 is extracted herein below: “9. Burden of proof.—If in any case not falling under Section 8 any question arises with reference to this Act or any order made or direction given there under, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class Page No.# 5/6 or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.” 9. In the instant case, it is seen that though the petitioner had proved the voters list of 1966, the same did not contain his name, but had contained the names of his parents. However, in the voters list of the year 1970, the name of the petitioner appears with his parents. The petitioner has also proved voters list of 1985 containing his name. The petitioner had adduced evidence through himself and his brother. Though, it is a settled law that oral evidence of a projected brother cannot be the sole basis for declaration of a proceedee as a citizen, in the instant case, we have found that there is a voters list of 1970 which contains the name of the petitioner. When the presence of the petitioner in India is established by such a voters list, we are of the view that the learned Tribunal could not have rendered the opinion to declare the petitioner a foreigner post 1971. 10. We have however verified from the records and have not been able to find out any linkage by documentary evidence with his parents to establish that the petitioner was in India prior to 1966. However, his presence in India in 1970 is established, as discussed above. 11. In view of the aforesaid discussions, we are of the view that the impugned opinion is unsustainable so far as it declares the petitioner a foreigner post1971. The impugned opinion is accordingly set aside. 12. We, however, observe that since there is no documentary or acceptable evidence to establish the fact that the petitioner was in the soil of India prior to 1966, his declaration as foreigner would be in the stream of 1966 to 1971. Page No.# 6/6 13. With the aforesaid observations, the instant writ petition stands allowed. 14. The petitioner would take consequential steps which is prescribed in law. 15. The records be sent back to the learned Tribunal forthwith. JUDGE JUDGE Comparing Assistant