Facts
The petitioner, Md. Abdul Hussain, challenged an opinion dated 21.11.2018 by the Foreigners Tribunal-2nd, Morigaon, which declared him a foreigner entering Assam on or after 25.03.1971
Source reference: p.2The petitioner claimed he was born in Patuakata, Assam, to late Samser Ali @ More Ali, who allegedly voted in 1966 and 1970
Source reference: p.3He claimed his name was erroneously recorded as "Oser Ali" or "Osan" in the 1975/1985 voter lists and he was marked as a 'D' (Doubtful) voter in 1997
Source reference: p.4The petitioner relied on voter lists (1966, 1970, 1975), a Gaonburah certificate, and testimony from a projected brother (DW-2)
Source reference: p.4-5The Tribunal rejected these claims due to material contradictions regarding land ownership and failure to establish a documented linkage between the petitioner and the projected father
Source reference: p.6-7Issues
1. Whether the petitioner discharged the burden of proof under Section 9 of the Foreigners Act, 1946, to establish Indian citizenship by descent
Source reference: p.7 / para. 132. Whether the Foreigners Tribunal committed a jurisdictional error or ignored admissible evidence in declaring the petitioner a foreigner
Source reference: p.7 / para. 14Law Applied
Section 9 of the Foreigners Act, 1946, which mandates that the burden of proving that a person is not a foreigner lies upon that person
Source reference: p.11Section 6-A(3)(b) of the Citizenship Act, 1955, regarding the requirement of presence in India
Source reference: p.9Principles from Rashminara Begum v. Union of India and Saru Sheikh v. Union of India, establishing that material facts must be pleaded and proved by cogent evidence
Source reference: p.8Following Ayesha Khatun v. Union of India, the court noted that failure to disclose material facts leads to an adverse presumption
Source reference: p.8Per Borhan Ali v. Union of India, documents like voter lists must be appreciated in their entirety, including discrepancies in age or name, rather than in isolation
Source reference: p.9-10Reasoning
The High Court observed that the petitioner failed to plead the existence of his siblings or specific family relationships in his written statement, making the subsequent testimony of his projected brother (DW-2) unreliable
Source reference: p.8-9The court noted significant evidentiary contradictions: while the petitioner and his brother (DW-1 and DW-2) testified they had no land, the Gaonburah (DW-3) claimed he issued the linkage certificate based on 1975 land documents
Source reference: p.10Regarding the voter lists, the court held that merely producing a list containing a "Samser Ali" does not establish a legal relationship without corroborating links
Source reference: p.10-11The court emphasized that in Tribunal proceedings, relationship claims cannot be proven by oral testimony alone without supporting documentation that places the petitioner in the same residence as the projected parent
Source reference: p.11Since the petitioner’s name did not appear in any exhibited voter list alongside his father before 1971, the linkage remained unproven
Source reference: p.11Holding
The court answered both issues in the negative, holding that the petitioner failed to discharge his burden under Section 9 of the Foreigners Act, 1946
The writ petition was dismissed, and the Tribunal's declaration of the petitioner as a foreigner who entered Assam on or after 25.03.1971 was upheld
Source reference: p.11-12Original Court PDF
Md. Abdul Hussain @ Abdul HasenvsThe Union Of India And 6 Ors.
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