Anjuman Khatun @ Anjuman Nessa @ Anjuman vs The Union Of India & Ors.

Date : 11-08-2026 (S.K Medhi, J)transcription This instant application under Article 226 of the Constitution of India has been filed putting to challenge an opinion dated 11.10.2019 passed in (Bpt/11^th) F.T 1471/2017 by the learned Foreigners Tribunal 11^th, Barpeta, whereby the petitioner has been declared to be a foreigner post-1971.

The primary ground of challenge is that there are documentary evidences which would establish that the petitioner is an Indian citizen whose name had figured in the voters list of 1970 and this aspect has been ignored by the learned Tribunal.

We have heard Shri. N. Uddin, learned counsel for the petitioner. We have also heard Shri. G. Sharma, learned Standing Counsel, Home & NRC for the respondent No. 3, 5 & 6, Shri. N. Kalita learned Standing counsel, ECI for the respondent No. 2, Shri. P. Sharma, learned State Counsel for the respondent No. 4 and Shri. K. Deka, learned CGC for the respondent No. 1.

Shri. Uddin, the learned counsel, has submitted that upon receipt of notice from the learned Foreigners Tribunal, the petitioner had filed the written statement and had adduced evidence through two numbers of witnesses, namely herself as DW-1 and her brother as DW-2. Regarding the documentary evidence, the petitioner had relied upon the voters list of 1966 containing the names of her father, mother, brother and sister-in-law. It is contended that her name had figured in the voters list of 1970, but with her husband and her in-laws. Subsequent voters list of 1985 has also been relied upon containing the name of the petitioner along with her husband and separate voters list of her in-laws. The learned Tribunal vide the impugned opinion has however, held that the petitioner could not establish her citizenship and has accordingly declared her to be a foreigner post-1971.

Shri. Uddin, the learned counsel, has submitted that when there is a documentary evidence pertaining to the petitioner herself in the form of a voters list of the year 1970, such opinion could not have been rendered. He has also highlighted the aspect that in the reference, no stream was mentioned, and yet the learned Tribunal has held the petitioner to be a foreigner post-1971.

Per contra, Shri. G. Sharma, the learned Standing Counsel, by referring to the report of the LVO and the referral order, has submitted that there was a prima facie satisfaction recorded on the aspect of the citizenship of the petitioner and accordingly, the matter was referred for adjudication. He has also submitted that no linkage could be established by the petitioner with her parents as there is no common voters list containing the name of the petitioner with her parents. With regard to the voters list of 1970 containing the name of the petitioner with her husband, the learned Standing Counsel has submitted that there is no documentary evidence to show continuous stay after the said year of 1970. He has, however, fairly submitted that there are documentary evidence of the year 1985, which, however, is after a considerable length of time.

The learned counsel for the other respondents have endorsed the submissions advanced by the learned Standing Counsel, Home Department, and has prayed for dismissal of the writ petition.

With regard to the aspect of burden of proof as laid down in Section 9 of the Foreigners 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 herein below:

In the instant case, it is seen that though the petitioner had proved the voters list of 1966, the same did not contain her name, but had contained the names of her parents, brother and sister-in-law. The explanation which is forthcoming is that in 1966, the petitioner did not attain the age to vote. The first voters list in which the name of the petitioner appears however, is of the year 1970, which is with her husband and her in-laws.

The petitioner has also proved voters list of 1985 containing her name with her husband and a separate voters list of her parents-in-law. The petitioner had adduced evidence through herself and the brother. Though, it is a settled law that oral evidence of a projected brother cannot be the sole basis for declaration of a proceedee as a citizen, in the instant case, we have found that there is a voters list of 1970 which contains the name of the petitioner. When the presence of the petitioner in India is established by such a voters list, we are of the view that the learned Tribunal could not have rendered the opinion to declare the petitioner a foreigner post-1971.

We have also verified from the records and have not been able to find out any linkage by documentary evidence with her parents to establish that the petitioner was in India prior to 1966. However, her presence in India in 1970 is established, as discussed above.

In view of the aforesaid discussions, we are of the view that the impugned opinion is unsustainable so far as it declares the petitioner a foreigner post-1971. The impugned opinion is accordingly set aside.

We, however, observe that since there is no documentary or acceptable evidence to establish the fact that the petitioner was in the soil of India prior to 1966, her declaration as foreigner would be in the stream of 1966 to 1971.

With the aforesaid observations, the instant writ petition stands allowed.

The petitioner would take consequential steps which is prescribed in law.

The records be sent back to the learned Tribunal forthwith.