-
by Admin
08 March 2026 6:15 AM
The Division Bench of Justice Kalyan Rai Surana and Justice Susmita Phukan Khaund held that the petitioner failed to discharge the statutory burden of proving citizenship under Section 9 of the Foreigners Act, 1946, particularly as she could not establish her lineage with her projected grandfather whose name appeared in the voters’ lists of 1966 and 1970.
The Court found no infirmity in the Tribunal’s opinion and consequently dismissed the writ petition, vacating the earlier bail order granted to the petitioner.
“A Document Must Be Proved Through Records – Personal Knowledge Alone Is Not Enough”
The petitioner had challenged the opinion dated 30.09.2016 passed by the Foreigners Tribunal declaring her to be a foreigner of the post-25.03.1971 stream. She claimed that she was an Indian citizen and that the ‘D’ marking against her name in the electoral roll was erroneous.
To prove citizenship, she attempted to establish lineage with her grandfather Sahar Uddin, whose name appeared in the electoral rolls of 1966 and 1970 under Golakganj LAC.
However, the High Court observed that none of the documents relied upon by the petitioner were properly proved in accordance with law.
The Court emphasised:
“Not only the document would have to be proved but its contents would also have to be proved. A document or the contents of the document cannot be proved on the basis of personal knowledge.”
The Court noted that the Kabin Nama (marriage document), school certificate and Gaon Panchayat certificate relied upon by the petitioner were not proved through the testimony of the authorities who issued them.
The Qazi who registered the marriage was not examined, the Gaon Panchayat Secretary who issued the certificate was not produced, and the Headmaster who issued the school certificate was also not examined, thereby rendering the documents unproved.
“Proof Of Document And Proof Of Contents Are Two Different Requirements”
The Court reiterated the principle that merely producing a document is insufficient; its authenticity and contents must be established through proper evidence.
Referring to its earlier decision in Romila Khatun v. Union of India (2018), the Court observed:
“Proof of document is one thing and proof of contents is another. The truthfulness of the contents of the document must also be established from contemporaneous records.”
Since the petitioner failed to produce the issuing authorities or relevant records, the Court held that the documents relied upon by her could not establish her lineage with her parents or grandfather.
“A Party Cannot Travel Beyond Pleadings Before The Foreigners Tribunal”
Another major flaw identified by the Court was the introduction of new facts through the testimony of DW-2, the petitioner’s brother, which were never mentioned in the petitioner’s written statement.
The brother claimed that their father had been residing in Tufanganj, Cooch Behar (West Bengal) and had returned to Assam only in 1990, explaining the absence of his name from earlier voters’ lists.
However, the Court found that this claim had never been pleaded by the petitioner in her written statement or evidence.
The Bench emphasised:
“Written statement is the basic statement of defence of a proceedee before the Foreigners Tribunal… a party cannot traverse beyond the pleadings made in the written statement.”
Because the claim regarding residence in Cooch Behar was introduced for the first time during evidence, the Court refused to accept it.
“Petitioner Failed To Establish Linkage With Grandfather Appearing In 1966 And 1970 Voters’ Lists”
Although the petitioner produced voters’ lists showing the name of her projected grandfather Sahar Uddin in 1966 and 1970, the Court held that she failed to establish any linkage between herself and the said person.
The Bench noted that no document was proved to show that her father Sakir Hossain was the son of Sohar Uddin, whose name appeared in the earlier electoral rolls.
The Court observed:
“Not a single document was proved to establish that the petitioner’s father was a voter or an Indian citizen.”
Further discrepancies were noticed in the names of the father and grandfather across various electoral rolls, which remained unexplained.
“Burden Of Proving Citizenship Lies On The Person Concerned”
The Court reiterated the settled principle under Section 9 of the Foreigners Act, 1946, read with Section 106 of the Evidence Act, that the burden of proving citizenship lies upon the person asserting it.
Referring to the Supreme Court’s ruling in Sarbananda Sonowal v. Union of India (2005), the Court observed:
“Facts relating to date of birth, place of birth, parentage and citizenship are within the personal knowledge of the person concerned, and therefore the burden of proving those facts lies upon him.”
Since the petitioner failed to produce reliable documentary evidence establishing her lineage and citizenship, the Court held that she failed to discharge the burden placed upon her by law.
“Tribunal’s Opinion Found To Be Correct”
After examining the record, the Court concluded that the Foreigners Tribunal had correctly evaluated the evidence.
The Bench observed that the petitioner failed to prove her lineage with her grandfather whose name appeared in the voters’ lists of 1966 and 1970, and also failed to establish that her father was an Indian citizen.
The Court held that no infirmity could be found in the Tribunal’s decision declaring her to be a foreigner who entered Assam after 25 March 1971.
The Gauhati High Court dismissed the writ petition and upheld the opinion of the Foreigners Tribunal declaring the petitioner a foreigner of post-25.03.1971 stream.
The Court directed that the consequences of the Tribunal’s order shall follow, and the bail order dated 09.02.2017 stood vacated, while making no order as to costs.
Date of Decision: 07 March 2026
