Gauhati HC Sets Aside Foreigner Finding Against Assam Woman, Remands Case After Tribunal Rejected Her Family’s Old Land Records

The petitioner challenged a Foreigners Tribunal opinion dated 5 September 2019 declaring her a foreigner who had entered Assam illegally from Bangladesh on or after 25 March 1971.

She claimed Indian citizenship through her father, Tasir Ali, and grandfather, Abdul Jabbar, and relied on electoral rolls, jamabandis, and pre-Independence sale deeds, among other documents.

The Tribunal found that the evidence established her father’s presence in India before 1971 but held that she had not proved her relationship to him; it rejected, among other evidence, the jamabandis and sale deeds.

The petitioner sought judicial review under Article 226.

Under Section 9 of the Foreigners Act, 1946, the person whose citizenship is questioned bears the burden of proving that they are not a foreigner.

Section 41(2) of the Assam Land and Revenue Regulation, 1886 provides that entries in a record of rights are presumed correct unless the contrary is proved.

Section 90 of the Evidence Act, 1872 permits a presumption as to the authenticity of a document that is at least thirty years old and produced from proper custody; the judgment also refers to Section 92 of the Bharatiya Sakshya Adhiniyam, 2023 as the corresponding provision.

Section 65-B(4) of the Evidence Act concerns certification of electronic records, but the Court held that a claimant should not be penalised where a certified land record is issued by the public authority without the required certification.

In exercising supervisory jurisdiction, the High Court may correct a jurisdictional error but should not simply substitute its own view for that of the Tribunal.

The Tribunal accepted that the evidence showed Tasir Ali’s presence in India before 1971, but rejected the claimed relationship between him and the petitioner.

The High Court found that the Tribunal had not properly considered the jamabandi entry showing Tasir Ali’s inheritance-based mutation from Abdul Jabbar, including the statutory presumption applicable to land records.

It also held that the original pre-Independence sale deeds were eligible for the presumption concerning old documents and that the petitioner relied on them to establish lineage, not title.

The Tribunal’s own findings identified Tasir Ali as the son of both “Aa. Jabbar” and “Abdul Jabbar”; the Court considered the reasonable inference to be that the names referred to the same person, supporting the claimed family link.

Because these evidentiary and legal errors affected the Tribunal’s assessment, its opinion was vitiated by jurisdictional error; however, the High Court left the ultimate determination to the Tribunal on remand.

The matter was remanded for a fresh hearing and opinion in accordance with law.

If the Tribunal considered that Exts. 14–17 required supporting records, the petitioner was to be given an opportunity to seek those records from the relevant authorities.

The petitioner was directed to appear before the Tribunal by 15 December 2026; any bail granted on her application was to remain effective for 30 days from the date of the fresh opinion.

There was no order as to costs.