Page No.# 1/10 GAHC010174042019 2026:GAU-AS:9361 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5393/2019 ALAL UDDIN @ ALLAL UDDIN S/O- LT NEMAT ALI, R/O- PACHIM SINGIMARI, P.S. RUPAHIHAT, DIST- NAGAON, ASSAM VERSUS THE UNION OF INDIA AND 5 ORS. REP. BY THE SECY. TO THE GOVT. OF INDIA, DEPTT. OF HOME AFFAIRS, NEW DELHI-110001 2:THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI- 110001 3:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM DEPTT. OF HOME DISPUR GHY-6 4:THE DY. COMMISSIONER NAGAON P.O. AND P.S. NAGAON DIST- NAGAON ASSAM 5:THE SUPERINTENDENT OF POLICE (B) NAGAON P.O. AND P.S. NAGAON DIST- NAGAON ASSAM Page No.# 2/10 6:THE STATE COORDINATOR NRC G.S.ROAD BHANGAGARH GHY-0 Advocate for the Petitioner : MD. S HUDA, MR. N HOQUE Advocate for the Respondent : ASSTT.S.G.I., SC, ELECTION COMMISSION.,SC, NRC,SC, F.T BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SHAMIMA JAHAN ORDER Date : 26.06.2026 (K.R. Surana, J) Heard Mr. N. Hoque, learned counsel for the petitioner. Also heard Mr. M.R. Adhikari, learned CGC for respondent no.1; Mr. A.I. Ali, learned standing counsel for respondent no.2; Mr. G. Sarma, learned standing counsel for the FT, Border matters and NRC for respondent nos. 2, 5 and 6; Ms. R.B. Borah, learned Junior Govt. Advocate for respondent no.4. 2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Md. Alal Uddin Ali @ Alal Uddin, has assailed the opinion dated 23.10.2017, passed by the learned Member, Foreigners Tribunal 3rd, Nagaon, in F.T. Case No. N.F.T.(No.3) 57/2016, corresponding to F.T. Case No. 451/03. By the said opinion, the reference was answered in favour of the State and against the petitioner, thereby declaring him to be a foreigner of post 25.03.1971 stream. 3) Upon service of notice, the petitioner had entered appearance Page No.# 3/10 in the proceeding and filed his written statement of defence, wherein apart from making usual denial that he is a foreigner and the case was without any basis, the petitioner had stated that the name of his elder brother was enlisted in the voter list of 1965 of village- Paschim Singimari, in the District of Nagaon, under No. 90 Kaliabor LAC the name of his father was enlisted in the voter list of 1970 of village- Paschim Singimari, in the District of Nagaon, under No. 90 Kaliabor LAC. His own name was enlisted in the voter list of 2005, 2011 and 2014 of village- Paschim Singimari, in the District of Nagaon, under No. 88 Samaguri LAC. Accordingly, it was prayed that the case against the petitioner be dismissed. 4) In support of his defence, the petitioner had examined himself as OPW-1 on 11.01.2017. In his examination-in-chief, he had stated that he was the O.P. of the case His father is Nemot Ali, grandfather is late Noser Ali. Mother’s name is Musst. Ayesha Khatun. He was born and brought up at village- Paschim Singimari, P.S. Rupahihat, where his father was also born. His father had cast his vote in 1970. He had cast his vote since 1997. He had not studied in School. His father had no land but he has 3 katha land in his name and he was not a foreigner. In his cross-examination, the petitioner had stated that Afruja Begum was his wife. Ajmal Ahmed is his neighbour. Nemot Ali died about 20 years ago. His father had no landed property and stayed on other’s land. Keramot Ali is his father’s brother. His father had four brothers who have all died and they were also voters in that locality and they lived as an adjacent neighbour and at present their successors are possessing land. No other F.T. Case is pending in his family. At present he had casted his vote in the last election. He had denied the suggestion that he was deposing falsely. Page No.# 4/10 5) The learned Tribunal, upon examining the pleadings and evidence, observed that the petitioner had filed his written statement on 24.06.2016 and he had examined himself as on 11.01.2017, but failed to prove any document regarding voter’s lists or for his stay in India. Accordingly, it was held that merely by filing, documents cannot be proved. Accordingly, it was held that the petitioner had failed to discharge his burden to prove that he is not a foreigner and an Indian. Consequently, the petitioner was declared to be a foreigner of post 25.03.1971. 6) The learned counsel for the petitioner had submitted that the petitioner had all the relevant documents to prove his defence that he was not a foreigner but an Indian citizen, but the petitioner was not given correct advice by his learned counsel and therefore, he could not prove any document in support of his defence. Accordingly, it was submitted that for ends of justice, the petitioner may be given one opportunity to exhibit documents to prove his defence. It was submitted that if such an opportunity was not granted, an Indian citizen would become a foreigner. 7) Per contra, the learned standing counsel for the FT, Border matters and NRC had made his submission in support of the impugned opinion. 8) Perused the Tribunal’s records and considered the pleadings and evidence of the petitioner and also perused the writ petition and documents appended to. 9) As per the provision of Section 9 of the Foreigners Act, 1946, the burden is on the suspect/proceedee to prove that he is not a foreigner but a citizen of India. Page No.# 5/10 10) In his written statement, the petitioner had not disclosed (a) the names of (i) his grandparents, (ii) siblings, if any, of his grandparents, (iii) parents, (iv) siblings of his father, if any, (v), his own siblings; (b) the respective place of birth of above relations; (c) if the date of birth is not available, then at least the year of birth; (d) date or year of death of parents. However, in his examination-in-chief, the petitioner had disclosed the name of his parents and grandfather. However, no documentary exhibits were proved in support of the statements made by the petitioner in his written statement and examination-in- chief. 11) In the case of Rashminara Begum v. Union of India & Ors., 2017 (4) GLT 346, this Court had held that material facts pleaded would have to be proved by adducing cogent and admissible evidence. Moreover, in the case of Ayesha Khatun v. Union if India, (2017) 3 GLR 820, this Court had held that failure to disclose material facts would lead to adverse presumption. 12) The learned counsel for the petitioner had made repetitive oral prayer to examine the documents annexed to the writ petition. In this regard, the learned standing counsel for the FT, Border matters and NRC had opposed the prayer on the ground that the Court is exercising certiorari jurisdiction while examining the impugned opinion, where the Court is not exercising appellate or revisional jurisdiction and therefore, the examination by the Court would be limited to see if the impugned opinion was vitiated by any perversity whatsoever. In this regard, reliance has been placed on the decision of the Supreme Court of India in the case of Central Council for Research in Ayurvedic Sciences v. Bikartan Das, 2023 INSC 733: (2023) 0 Supreme(SC) 763. Paragraph 77 thereof, on which reliance was placed is quoted below:- Page No.# 6/10 “77. The purpose of certiorari, as we understand, is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non- exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law committed by them in the exercise of powers vested in them under the statute. The accepted rule is that where a Court has jurisdiction it has a right to decide every question which crops up in the case and whether its decision is correct or otherwise, it is bound to stand until reversed by a competent Court. This Court in G. Veerappa Pillai v. Messrs Raman and Raman Ltd. Kumbakonam, Tanjore District and Others, (1952) 1 SCC 334 observed: “26. Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made.” 13) The Court is bound by the ratio laid down in the said decision by the Supreme Court of India. Nonetheless, as the issue is related to claim of citizenship of the Country, which is of grave importance, the Court had examined the documents annexed to the writ petition. It is reiterated at the cost of repetition that in his written statement, the petitioner had pleaded that his elder brother was enlisted in the voter list of 1965 of village- Paschim Singimari, in the District of Nagaon, under No. 90 Kaliabor LAC the name of his father was enlisted in the voter list of 1970 of village- Paschim Singimari, in the District of Nagaon, under No. 90 Kaliabor LAC. On a perusal of the voter list of 1965, it is seen that the said voter list contains one entry and the voter is Keramot Ali, name of father is Naser. In the voter list of 1970, there are 5 (five) following voters, viz., (i) Ahed Ali, relation name- Naser, age 45 years; (ii) Keramot Ali, Page No.# 7/10 relation name- Naser, age- 48 years; (iii) Arimat Nessa, relation name- Naser, age 40 years; (iv) Nemat Ali, relation name- Naoser, age- 30 years; (v) Mahab Ali, relation name- Naoser, age 25 years. Thus, the name of father of projected elder brother Keramot Ali, being Naser, is found to be different from Naoser, which is the name of projected father of the petitioner. Thus, the voter list of 1965 and 1970 negates the pleadings made by the petitioner in his written statement. 14) In this writ petition, the petitioner has annexed the photocopies of (a) voter list of 1970; (b) voter list of 1965; (c) voter list of 2005; (d) voter list of 2011; (e) voter list of 2014. None of the said exhibited voter’s lists are sufficient to establish that Keramot Ali, whose name appears in the voter list of 1970, is the elder brother of the petitioner, namely, Alal Uddin, whose name appears for the first time in the voter list of 2005. Thus, upon examination of the documents annexed to this writ petition, the learned counsel for the petitioner, prima facie, could not show the existence of the members of the family of the petitioner. Without establishing the existence of the projected mother of the petitioner, the birth of the petitioner within the territory of India and to Indian parents cannot be held to be established and/or proved by the petitioner. 15) Thus, though while exercising certiorari jurisdiction, it is impermissible for the Court to appreciate the documents annexed for the first time in a writ petition, without filing and proving the same before the Foreigners Tribunal having original jurisdiction. Nonetheless, as impassioned and intense prayer was made by the learned counsel for the petitioner to examine the records as it was an issue of citizenship, the Court had examined the documents Page No.# 8/10 filed for the first time in this writ petition, but the Court is constrained to hold that the documents are not sufficient to prove the case projected by the petitioner. Nonetheless, it is clarified that the exercise undertaken by the Court of examining the documents in this writ petition is under the unique facts of this case and therefore, this exercise is not intended to be a precedent for any other case as this Court is not exercising power of appeal or revision and therefore, this Court would not have powers to examine the documents produced for the first time before this Court, which must be left to be done by the Foreigners Tribunals. 16) Therefore, in the absence of any documents being proved by the petitioner, it cannot be said that the petitioner had been able to discharge his burden under Section 9 of the Foreigners Act, 1946 to prove that he is a citizen of India and not a foreigner. At this stage, it would be of utmost importance to refer to paragraph 26 of the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665, which is extracted below: - "26. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish ones citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the fact and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." Page No.# 9/10 17) In the case of Jalaluddin v. Union of India & Ors., (2018) 6 GLR 513: 2018 (4) GLT 354, this Court had held that in a case relating to Foreigners Tribunals, oral evidence de hors record cannot prove contents of documents and it was further held that a document cannot be proved from personal knowledge. 18) Thus, in other words, without exhibiting and proving documents, by oral evidence alone, it cannot said that the petitioner could prove that he is a citizen of India and born out of Indian parents. 19) The learned counsel for the petitioner had submitted that the petitioner did not get proper advice from his learned counsel, who was conducting the case before the learned Foreigner’s Tribunal. The Court is unable to accept the said submissions because of two reasons. Firstly, there lack of any statement in the writ petition, making any allegation against the learned counsel for the petitioner and the concerned counsel is also not arrayed as respondent. Secondly, the petitioner has not filed any complaint against his learned counsel before the authority competent to take any decision on advocates who have committed misconduct. Such an issue is beyond the scope of examination by this Court. 20) Accordingly, the present challenge fails. Consequently, the writ petition is dismissed, leaving the parties to bear their own cost. 21) The consequences of the impugned opinion dated 23.10.2017, passed by the learned Member, Foreigners Tribunal 3rd, Nagaon, in F.T. Case No. N.F.T.(No.3) 57/2016, corresponding to F.T. Case No. 451/03, would follow. 22) The Registry shall return back the learned Tribunal’s records Page No.# 10/10 along with a copy of this order, so that this can be made a part of record by the said learned Tribunal. JUDGE JUDGE Comparing Assistant