Sona Bhanu vs The Union Of India And 5 Ors.

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GAHC010279362019

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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/8616/2019
SONA BHANU
W/O- AYNAL HOQUE, D/O- SULTAN KHAN, VILL- SATRAKANARA, P.S.
BAGHBAR, DIST- BARPETA, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECY. TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF
INDIA, SHASTRI BHAWAN, TILOK MARG, NEW DELHI-1
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
DEPTT. OF HOME
DISPUR
GHY-6
3:THE ELECTION COMMISSIONER OF INDIA
THROUGH ITS SECY.
NIRBACHAN BHAWAN
NEW DELHI-1
4:THE STATE CO-ORDINATOR
NATIONAL REGISTER OF CITIZENS (NRC)
ASSAM
BHANGAGARH
GHY-5
5:THE DY. COMMISSIONER OF BARPETA
P.O. AND DIST- BARPETA
ASSAM
6:THE SUPERINTENDENT OF POLICE (B)

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BARPETA
DIST- BARPETA
ASSAM
Advocate for the Petitioner : MR. R ALI, MR. H A AHMED
Advocate for the Respondent : ASSTT.S.G.I., SC, ELECTION COMMISSION.,SC, NRC,SC, F.T

BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
HONOURABLE MR. JUSTICE PRANJAL DAS
Advocate for the petitioner : Shri R. ALi

Advocates for the respondents : Shri G. Sarma, SC- Home Deptt.& NRC,
Shri P. Sarma, GA, Assam.
Shri A.I. Ali, SC - ECI.
Ms. D. Borpujari, CGC
Date on which judgment is reserved : 13.08.2026
Date of pronouncement of judgment : 16.10.2026

Whether the pronouncement is of the operative part of the
judgment? : NA
Whether the full judgment has been pronounced? : Yes
JUDGMENT & ORDER (CAV)
Date : 16-10-2026
(S.K Medhi, J.)
Heard Shri R. Ali, learned counsel for the petitioner. Also heard Ms. D. Borpujari,
learned CGC; Shri G. Sarma, learned Standing Counsel, Home Deptt. & NRC;
Shri P. Sarma, learned GA, Assam; Shri N. Kalita, learned counsel appearing on
behalf of Shri AI Ali, learned Standing Counsel, ECI.
2. Invoking the jurisdiction under Article 226 of the Constitution of India, the

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petitioner herein, namely, Sona Bhanu , has assailed the judgment and opinion
dated 12.06.2019 passed by the learned Member, Foreigners Tribunal No. 6,
Barpeta in FT Case No. 91/2015, whereby, answering the reference against the
petitioner as proceedee, the learned Tribunal held that she was an illegal
migrant post the stream of 25.03.1971. Aggrieved by the said opinion of the
learned Tribunal, the petitioner has preferred the instant writ petition.
3. The facts in brief that emerged before the learned Tribunal was that a
reference was forwarded by the Superintendent of Police (B), Barpeta under the
IM(D)T Act vide Reference No. 626/D/98, expressing doubt regarding the
nationality of the petitioner. Subsequently, after the setting aside of the IM(D)T
Act by the Hon'ble Supreme Court in the case of Sarbananda Sonowal v. Union
of India, (2005) 5 SCC 665, the pending cases including the present case were
transferred to the respective Foreigners Tribunals under the Foreigners Act. In
such a backdrop, the present case came to be placed before the
aforementioned Tribunal, registered as FT Case No. 91/2015.
4. After registration of the case, the Tribunal issued notice to the petitioner,
who appeared and filed her written statement denying the allegation of being
an illegal migrant and contending that she is a citizen of India by birth.
Subsequently, during the proceeding, the petitioner as proceedee adduced
evidence of herself as DW-1 and she also adduced in evidence as many as 17
documents, exhibited as Exhibit-A to Exhibit-H. Her projected father, Sultan
Khan, also adduced evidence in her favour as DW-2. Amongst the documents
exhibited was a certificate, in connection with which the concerned village
headman adduced evidence in her favour as DW-3. She also adduced in
evidence a certificate issued by the Secretary of the local Gaon Panchayat, and

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the said Secretary also adduced evidence in her favour as DW-4. All the
witnesses adduced by the petitioner's side, including the proceedee, were cross-
examined on behalf of the State.
5. Upon completion of the proceeding, however, the Tribunal was not
convinced about the case of the petitioner and it returned the reference against
her, holding her to be a foreigner post the stream of 25.03.1971. Being
aggrieved, the writ petition has been filed.
6. Shri Ali, the learned counsel for the petitioner submits that the petitioner
has laid cogent evidence regarding her projected grandfather whose name
figured in the voters list of 1966 and 1970. It is submitted that she also adduced
evidence regarding her projected father. It is submitted that the Gaon Panchayat
certificate should be taken as sufficient link evidence, as also the certificate
issued by the village headman. It is submitted that the author of the respective
documents had also adduced evidence and the petitioner's father also adduced
evidence in her favour. In the context of adequate evidence adduced by the
petitioner as proceedee, the learned Tribunal committed error in law and facts in
discarding such cogent evidence and declaring the petitioner as a foreigner. The
learned counsel submits that the said judgment and opinion requires
interference in exercise of certiorari jurisdiction by the Court under Article 226 of
the Constitution of India.
7. On the other hand, Shri Sharma, the learned Standing Counsel for Home
Department of the State and NRC, supports the impugned judgment and
opinion, contending that there is no infirmity in the same. It is submitted that
the projected father, Sultan Khan, appears only in the voters list of 1985. It is
submitted that as per the ages enumerated in the voters list, the age gap

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between the said Sultan Khan and his mother is only 10 years. It is submitted
that there are also discrepancies in the voter lists and that the written statement
is also vague. It is submitted by the learned Standing counsel that there is
variance between the place of birth of the petitioner from her testimony and
that of her projected father. It is submitted that the Gaonburah who had
adduced evidence stated that she was born in village Chasra and that there is
no statement that Chasra and Digher Pam are the same villages and same
places. It is submitted that DW-4 issued the certificate without any verification.
The learned Standing counsel submits that there is no merit in the writ petition
and that the same should be dismissed, upholding the judgment and opinion
passed by the learned Foreigners Tribunal.
8. We have perused the pleadings of the writ petition, the written statement,
the evidence adduced during the proceeding, the documents exhibited, and
other relevant materials. We have considered the submissions of the learned
counsels of both the sides.
9. The written statement of the petitioner as proceedee before the learned
Tribunal is somewhat brief, in which she has not stated many details. Though
she has stated about being born and brought up in village Chasra within the
jurisdiction of Baghbar Police Station in the district of Barpeta, she has not
stated about her date of birth. She has stated about her grandfather, Afser Kha,
appearing as a voter in the voter lists of 1966 and 1970 against Serial No. 56
and 57 with regard to House No. 17 in village Chasra under Baghbar LAC. She
has also stated about her father, Sultan Kha, being voter in 1997 and 2014
against Serial Nos. 100 and 146 against House No. 36 in village Chasra under
Baghbar LAC.

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10. In her testimony before the Tribunal as DW-1, the petitioner stated that
she was born and brought up in village Chasra under Baghbar Police Station in
the district of Barpeta. Here also, she did not state about her date of birth. In
the testimony also, she has reiterated about her projected grandfather, Afser
Kha, appearing as a voter in the voter lists of 1966 and 1970 against Baghbar
LAC of village Chasra. She also reiterated about the appearance of her father's
name in the voter lists of 1985, 1997, and 2014.
11. In cross-examination, she stated that she was born and brought up at
Digher Pam under Baghbar PS, but could not state her year or date of birth. She
stated about her grandfather being about 60 years old when he expired, at
which time the petitioner was 6–7 years old. She stated that her grandfather
had cast his vote regularly when alive. She also expressed ignorance as to when
her father had casted his vote for the first time.
12. The projected father, Sultan Kha , adduced evidence on affidavit as DW-
2 , in which also he stated that the petitioner was born and brought up at village
Chasra under Baghbar PS in the district of Barpeta. He stated about her
marriage to Aynal Haque of village Satrakanara under Baghbar PS in the district
of Barpeta. DW-2 also stated about his father, Afser Kha, being a voter in 1966
and 1970 in Baghbar LAC, and about his also being a voter in 1985, 1997, 2010,
and 2014 in village Chasra with regard to Baghbar LAC. In cross-examination,
DW-2 stated that the petitioner was his daughter, but he could not say her date
and year of birth, stating further that she was probably born 40 years ago. He
referred to the Gaon Panchayat certificate to create his linkage with her. He
could not state the age of his father when he died. He also expressed ignorance
as to when he cast his vote for the first time and stated that maybe he casted

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his vote in 1985. He denied the suggestion that he was not the father of
petitioner Sona Bhanu, and denied that he was not a resident of village Chasra.

13. One Sarbesh Ali , village headman, adduced evidence before the Tribunal
as DW-3 , stating that he was the village headman of village Aligaon and in-
charge of village Chasra for the last two years, and that he knew the petitioner.
He stated that her father's name is Sultan Khan and she is married to one Aynal
Haque of Satrakanara. DW-3 affirmed that he had exhibited the certificate which
he exhibited as Exhibit-G and his signature thereon as Exhibit-G(i). He stated
that he issued the said document on the request of the petitioner and her
father, stating further that he knew the petitioner and her father for many years
and as he knew their family members, therefore, he issued the said certificate.
He stated that he is maintaining a register book for the purpose of village
survey as per intimation issued by the Circle Officer of Baghbar Revenue Circle.
He exhibited as Exhibit-G(ii) the relevant page which was certified with seal and
signature of the Circle Officer, and he exhibited as Exhibit-G(iii) the relevant
page of the register book.
14. In cross-examination, he stated that he certified the petitioner as a
resident of village Chasra, but he had not mentioned about the petitioner's
father's inhabitancy in village Chasra. DW-3 could not state about when the
petitioner was born or about her date of marriage, but speculated that probably
it was in 1980. He clarified in cross-examination that house number entry in
Exhibit-G(iii) as House No. 36 in Serial No. 80 was made two years back. He
further clarified that since he was holding the post of Gaonburah of village
Chasra as in-charge for the last two years only, he does not know as to what
was the family of Sultan Kha two years back. He admitted that Exhibit-G(iii) only

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establishes the fact that Sultan Kha is a resident of village Chasra, but it does
not reflect as to how long he is residing in village Chasra. However, he stated
that he had seen him since his childhood. He denied that the parents of Sona
Bhanu, the petitioner, were not residents of village Chasra and that they were
Indian nationals.

15. DW-4 is Surat Jamal Ahmed , the Secretary of the Village Panchayat of
No. 69 Satra Kanara Gaon Panchayat. In his testimony, he stated that he does
not know the petitioner personally, but she is a resident of Chasra Gaon and her
father's name is Sultan Khan and she was married to Aynal Hoque of Satra
Kanara village. He admitted that he had issued a certificate in her favour, which
he exhibited as Exhibit-F and Exhibit-F(I) as his signature. He stated that the
petitioner had submitted an application along with NRC details and voters list of
1966, 1970, and 1997. He exhibited as Exhibit-F(III) the application; Exhibit-
F(IV) as the NRC details; Exhibit-F(V) as the voters list of 1966; Exhibit-F(VI) as
the voters list of 1970; and Exhibit-F(VII) as the voters list of 1997. He stated
that on the basis of these documents he issued the certificate.
16. In cross-examination, DW-4 admitted that he came to know the petitioner
only after she applied for the certificate in their Gaon Panchayat office. He
stated that while issuing such certificates, usually the village headman is
consulted, but while issuing this certificate the village headman was not present.
DW-4 admitted that he does not know the petitioner's husband as well. He
admitted that he had not done cross-verification of the documents submitted by
OP with the custodian of the original documents. He admitted that he had not
seen Sultan Khan or Afser Kha, the projected father and grandfather
respectively of the petitioner. He also admitted that no members of the paternal

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side of the petitioner appeared before his office to prove the particulars
mentioned by the petitioner in the application. He stated that he entered her
age as 38 years on the basis of what she entered in the application. However,
he denied that without any authority he issued this linkage certificate and also
denied that he issued the certificate without any documents.
17. The rival submissions made have been duly considered and the materials
placed before this Court including the records of the Tribunal have been
carefully perused.
18 . With regard to the aspect of burden of proof as laid down in Section 9 of
the 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 hereinbelow-
“ 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
thereunder, 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 or description, as the case
may be, shall, notwithstanding anything contained in the Indian Evidence Act,
1872 (1 of 1872), lie upon such person.”

19 . In this connection, the observations of the Hon’ble Supreme Court in the
case of Fateh Mohd. Vs. Delhi Administration [AIR 1963 SC 1035] which
followed the principles laid down by the Constitutional Bench in the case of
Ghaus Mohammad Vs. Union of India [AIR 1961 SC 1526] in the context

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of Foreigners Act, 1946 would be relevant which are extracted herein below-
“ 22. This Act confers wide ranging powers to deal with all foreigners or
with respect to any particular foreigner or any prescribed class or description of
foreigner for prohibiting, regulating or restricting their or his entry into India or
their presence or continued presence including their arrest, detention and
confinement. The most important provision is Section 9 which casts the burden
of proving that a person is not a foreigner or is not a foreigner of such particular
class or description, as the case may be, shall lie upon such person. Therefore,
where an order made under the Foreigners Act is challenged and a question
arises whether the person against whom the order has been made is a foreigner
or not, the burden of proving that he is not a foreigner is upon such a person. In
Union of India v. Ghaus Mohd. the Chief Commissioner of Delhi served an order
on Ghaus Mohammad to leave India within three days as he was a Pakistani
national. He challenged the order before the High Court which set aside the
order by observing that there must be prima facie material on the basis of which
the authority can proceed to pass an order under Section 3(2)(c) of the
Foreigners Act, 1946. In appeal the Constitution Bench reversed the judgment
of the High Court holding that onus of showing that he is not a foreigner was
upon the respondent.”
20 . Before embarking to adjudicate the issue involved vis-a-vis the
submissions and the materials on record, we are reminded that a Writ Court in
exercise of jurisdiction under Article 226 of the Constitution of India would
confine its powers to examine the decision making process only. Further, the
present case pertains to a proceeding of a Tribunal which has given its findings
based on the facts. It is trite law that findings of facts are not liable to be
interfered with by a Writ Court under its certiorari jurisdiction.

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21 . Law is well settled in this field. The Hon’ble Supreme Court, after
discussing the previous case laws on the jurisdiction of a Writ Court qua the writ
of certiorari, in the recent decision of Central Council for Research in
Ayurvedic Sciences Vs. Bikartan Das [Civil Appeal No. 3339 of 2023]
has laid down as follows:
“
49. Before we close this matter, we would like to observe something
important in the aforesaid context: Two cardinal principles of law governing
exercise of extraordinary jurisdiction under Article 226 of the Constitution more
particularly when it comes to issue of writ of certiorari.
50. The first cardinal principle of law that governs the exercise of
extraordinary jurisdiction under Article 226 of the Constitution, more particularly
when it comes to the issue of a writ of certiorari is that in granting such a writ,
the High Court does not exercise the powers of Appellate Tribunal. It 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 of certiorari can be issued if an error of
law is apparent on the face of the record. A writ of certiorari, being a high
prerogative writ, should not be issued on mere asking.
51. The second cardinal principle of exercise of extraordinary jurisdiction
under Article 226 of the Constitution is that in a given case, even if some action
or order challenged in the writ petition is found to be illegal and invalid, the High
Court while exercising its extraordinary jurisdiction thereunder can refuse to
upset it with a view to doing substantial justice between the parties. Article 226
of the Constitution grants an extraordinary remedy, which is essentially
discretionary, although founded on legal injury. It is perfectly open for the writ
court, exercising this flexible power to pass such orders as public interest

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dictates & equity projects. The legal formulations cannot be enforced divorced
from the realities of the fact situation of the case. While administering law, it is to
be tempered with equity and if the equitable situation demands after setting right
the legal formulations, not to take it to the logical end, the High Court would be
failing in its duty if it does not notice equitable consideration and mould the final
order in exercise of its extraordinary jurisdiction. Any other approach would
render the High Court a normal court of appeal which it is not.”
22 . In the instant case, the written statement is absolutely vague and
apparently, has not met the requirements, as laid down by the Hon’ble Supreme
Court in the case of Sarbananda Sonowal (supra). There is a requirement to
disclose the following:
(i) date of birth;
(ii) place of birth;
(iii) name of the parents;
(iv) their place of birth and citizenship.
Further, there may be a requirement to give the details of the
grandparents. It has been stated that all these facts would necessarily be within
the personal knowledge of the person concerned and not of the authorities of
the State.
23 . In the instant case however, in the written statement filed on 10.07.2017,
there is no mention of the date or year or birth of the petitioner; there is no
mention of the names of the parents of the petitioner and there is no mention
of the names of the siblings. Such omission is vital and would be fatal for
discharging the burden by the petitioner as proceedee to establish her
citizenship.

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24 . With regard to the requirements qua a written statement, this Court has
made the following observations in the case of Rashminara Begum Vs. UoI
& Ors., reported in 2017 (4) GLT 346 which we endorse:
“ 25.Written statement is the basic statement of defence of a proceedee
before the Foreigners Tribunal. Keeping in mind the mandate of Section 9 of the
Foreigners Act,1946, it is incumbent upon the proceedee to disclose at the first
instance itself i.e., in his written statement all relevant facts specially within his
knowledge having a material bearing on his claim to citizenship of India.
Material facts pleaded in the written statement are thereafter required to be
proved by adducing cogent and reliable evidence. It is also trite that a party
cannot traverse beyond the pleadings made in the written statement.”
25 . So far as the Voters Lists are concerned, those of 1966, 1970, 1985, 1997
and 2010 have been relied upon which however do not contain the name of the
petitioner. The same contains the names of the projected grandparents,
projected parents and also a sibling. However, no link could be established by
those Voters Lists with the petitioner. It appears that there is not a single Voter
Lists in which the name of the petitioner appears and it is submitted that her
name was prefixed with “D” in the Voter Lists of 1997.
26 . We also find force in the contention advanced by the learned Standing
Counsel that so far as those Voters Lists are concerned, there is huge gap of
1970 to 1985 which is the most crucial period to determine the aspect of
citizenship. The first Voter List wherein the name of the projected father
appears is of the year 1985 when his age has been shown as 40 years. The
logical deduction is that his name should have been there from the year about
1966 and there is no explanation as to why his name was not there in the
previous Voters List. We also find force in the contention that in the said Voters

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List, the difference in age of the projected father and the projected
grandmother is 10 years. This is giving benefit of doubt that there is another
name Hazera Khatun who is also shown to be the wife of Afsar Kha (projected
grandfather) whose age is the same as the father of the petitioner i.e. 40 years
by accepting that she is the step-grandmother.
27 . So far as the oral evidence is concerned, the petitioner as DW1 except for
two Certificates by the Gaon Burah and Gaon Panchayat could not produce any
documentary evidence to establish her citizenship or her link with the projected
father which would be essential in view of the fact that the petitioner appears to
have been born after the cut-off date. Further, DW1 in her cross-examination
had stated that when she was 6-7 years old, her grandfather had died which
would mean that such death was in or about the year 1985. On the other hand,
DW2 the projected father had said that his father had died about 20 years ago
which would be about 1998. Further, DW2 in the cross-examination, he had
deposed that he did not know the date and year of birth of the petitioner which
is most unusual for a father. Law is very clear that oral evidence alone cannot
prove citizenship unless the same is corroborated and supported by cogent and
relevant documentary evidence which are trustworthy. We also find force in the
contention advanced by the learned Standing Counsel that the evidence of the
projected father as DW2 would not be of any relevance in absence of a common
Voters List with the petitioner to connect her with the projected father.
28 . In this connection, one may gainfully refer and rely upon the Judgment
dated 21.11.2019 passed by a Co-ordinate Bench in a case of Asia Khatun vs.
Union of India [WP(C)/4020/2017] wherein the following observations have
been made:
“ The statement of DW-2 i.e. Amir Uddin, who claimed to be the father of

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the petitioner, cannot be relied upon in the absence of any documents showing
his relationship to the petitioner. In this we would observe that in a proceeding
under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 the
evidentiary value of oral testimony without support of documentary evidence is
wholly insignificant. Oral testimony alone is no proof of citizenship. The
evidence of DW-2, thus, falls short of being considered as cogent, reliable and
admissible evidence, so much so, to establish linkage of the petitioner to him”
29 . As regards the deposition of DW3 – the Gaon Burah, he had stated that he
knows the family only from last two years and that the petitioner is a resident of
Chasra. DW4, who is Secretary of the Gaon Panchayat had deposed in his cross-
examination that he came to know the petitioner only when she had applied for
the Certificate and that he does not know her husband. Such deposition would
not at all be adequate to establish the citizenship of the petitioner.
30 . So far as the reliance on the Panchayat Certificate dated 23.07.2015 is
concerned, this Court finds force in the submission advanced by the learned
Standing Counsel, Home Department who by relying upon the case of Rupjan
Begum Vs. Union of India, reported in (2018) 1 SCC 579 has submitted
that such GP Certificate cannot establish citizenship. For ready reference, the
relevant observations made by the Hon’ble Supreme Court are extracted herein
below:
“ 15. The certificate issued by the G.P. Secretary merely acknowledges the
shifting of residence of a married woman from one village to another. The said
certificate by itself and by no means establishes any claim of citizenship of the
holder of the certificate. This is made clear in the illustrative list of documents
itself by specifying the same to be only a supporting document. The certificate in
question only enables its holder to establish a link between the holder and the

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person from whom legacy is claimed. It has been made clear in the several
reports of the learned State Coordinator, NRC, Assam that a claim accompanied
by such a certificate, without details of the legacy person, is to be discarded and
in the event information as to the legacy person has been furnished, the
certificate in question is to be used for the limited purpose of providing a linkage
after due enquiry and verification.
16. The certificate issued by the G.P. Secretary, by no means, is proof of
citizenship. Such proof will come only if the link between the claimant and the
legacy person (who has to be a citizen) is established. The certificate has to be
verified at two stages. The first is the authenticity of the certificate itself; and the
second is the authenticity of the contents thereof. The latter process of
verification is bound to be an exhaustive process in the course of which the
source of information of the facts and all other details recorded in the certificate
will be ascertained after giving an opportunity to the holder of the certificate. If
the document and its contents is to be subjected to a thorough search and
probe we do not see why the said certificate should have been interdicted by the
High Court, particularly, in the context of the facts surrounding the enumeration
and inclusion of the documents mentioned in the illustrative list of documents,
as noticed above. In fact, the said list of illustrative documents was also laid
before this Court in the course of the proceedings held from time to time and
this Court was aware of the nature and effect of each of the documents
mentioned in the list.
17. The above apart, from a conjoint reading of the provisions of the
Assam Panchayat Act, 1994 i.e. Sections 19(1) (vi), 21 and 122, it would appear
that directions for issuance of such certificate can come within the ambit of the
jurisdiction of the authorities under the Act in which event the view taken by the
High Court and the contentions advanced on behalf of the State that the said

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document is a 'private document' would be legally fragile.”
31 . We have also noted that the Panchayat Certificate contains a Disclaimer at
the foot and would be valid only if accompanied by certain other documents
which admittedly was not done in the present case.
32 . In the case of Momin Ali Vs. State of Assam, reported in 2017 (2)
GLT 1076 , a Co-ordinate Bench has laid down the following principles
regarding the requirement of consistency between the pleadings and the
evidence which we endorse:
“ 12.This written statement of the petitioner was wholly inadequate and did
not disclose any material facts. As noticed above, it was the allegation of the
State that petitioner was a foreigner. Therefore, as per mandate of Section 9 of
the Foreigners Act, 1946, it was the bounden duty of the petitioner to have
disclosed all material facts which were specifically within his knowledge in the
written statement but he did not do so. Petitioner neither mentioned his date of
birth nor his age. He was silent regarding the name of his mother and identity of
his grandparents - both paternal and maternal. He did not mention anything
about his brothers and sisters or about his marital status. On the basis of such a
written statement, it cannot be said that petitioner had stated anything
substantial to show that he was not a foreigner but a citizen of India.
13.It is a settled proposition of law that where a party fails to set up a case
in his pleadings, he would be debarred from adducing evidence in his support at
the stage of trial. As a matter of principle, variance between pleading and proof
is not permissible.”
33 . In view of the aforesaid facts and circumstances, we are of the opinion
that the impugned order dated 12.06.2019 passed by the learned Member,
Foreigners Tribunal No. 6, Barpeta in FT Case No. 91/2015 does not call for any

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interference.

34 . The writ petition accordingly stands dismissed. Interim order passed
earlier stands vacated. The actions consequent upon the opinion rendered by
the learned Tribunal would follow in accordance with law.

35 . The records be returned to the concerned Foreigners Tribunal forthwith,
along with a copy of this order.
JUDGE JUDGE
Comparing Assistant