The Gauhati High Court affirmed that procedural compliance in foreigner determination proceedings cannot be set aside on technical objections, and reiterated that the onus of proving Indian citizenship rests on the alleged foreigner under Section 9 of the Foreigners Act, 1946.
Background & Facts
The Dispute
The petitioner, Amulya Paul, filed a writ petition under Article 226 challenging the ex parte opinion dated 13 September 2018 passed by the learned Member of the Foreigners Tribunal (2nd), Darrang, Mangaldai in FT 2nd Case No. 620/2008 (arising out of Ref Case No. 7380/98). The Tribunal had declared the petitioner an illegal migrant who entered Assam after 25 March 1971.
Key Facts
- 30 March 2010: Notice issued directing appearance before the Tribunal on 19 April 2010; petitioner signed the service report.
- 19 April 2010: Petitioner appeared, submitted his hazira (attendance-sheet).
- 12 August 2010: Next date fixed by the Tribunal.
- 06 May 2011: Second notice issued; petitioner signed the service report, which was returned on 15 June 2011.
- 10 January 2017: Third notice issued; petitioner signed the service report, which was returned on 13 February 2017.
- 13 September 2018: Ex parte opinion passed, declaring petitioner a foreigner.
- 26 November 2019: Writ petition filed before the Gauhati High Court (WP(C) 9127/2019).
- 13 May 2020: Notice issued to the petitioner; interim bail granted.
- 17 July 2026 and 5 August 2026: Matter listed for hearing.
- 6 August 2026: Hearing concluded and judgment delivered.
- 1997: Petitioner’s name entered in the electoral roll for 70 Mazbat LAC; ERO raised doubt about citizenship and forwarded a verification report on 24 October 1979.
- 1978-1979: Reference made to the Superintendent of Police, Darrang, Mangaldai, which was later transferred to the Foreigners Tribunal following Sarbananda Sonowal v. Union of India (2005).
Procedural History
- 26 Nov 2019: Writ petition filed under Art. 226.
- 13 May 2020: Court issued notice; interim bail granted.
- 17 Jul 2026: First listing.
- 5 Aug 2026: Second listing; counsel heard at the “motion stage”.
- 6 Aug 2026: Final hearing at the “motion stage”.
- 13 Aug 2026: Judgment pronounced (reserved on 06 Aug 2026).
Parties' Positions
- Petitioner: Argues that the process-server’s report omitted the date of service, that the form of notice incorrectly states his entry dates (01 Jan 1966 and 25 Mar 1971), and that the birth-year column (1965) in Annexure-A proves citizenship under Section 3 of the Citizenship Act. He contends that these defects vitiate the ex parte opinion.
- Respondents (Union of India, State of Assam, Election Commission, NRC Office, Deputy Commissioner, Superintendent of Police): Submit that notice was duly served on three occasions, the petitioner’s signature is on the service reports, he appeared once and thereafter deliberately defaulted, and that under Section 9 of the Foreigners Act, 1946 the burden of proving Indian citizenship lies on the petitioner, which he has failed to discharge.
Relief Sought
The petitioner sought (i) setting aside the ex parte opinion dated 13 September 2018, (ii) recall of the interim bail granted on 13 May 2020, and (iii) a declaration that he is an Indian citizen.
The Legal Issue
Whether the ex parte opinion of the Foreigners Tribunal dated 13 September 2018 can be set aside on the grounds that (a) the notice of appearance was not dated in the process-server’s report, (b) the form of notice misstates the petitioner’s entry dates, and (c) the petitioner has not discharged the burden of proof under Section 9 of the Foreigners Act, 1946.
Arguments Presented
For the Petitioner
- The process-server’s report lacks the date of service, rendering the notice defective.
- The form of notice alleges entry on 01 Jan 1966 and 25 Mar 1971, which the petitioner claims contradicts the Tribunal’s finding.
- Annexure-A records the petitioner’s birth year as 1965; under Section 3 of the Citizenship Act, this would make him a citizen by birth.
- Cites Sabitri Dey @ Swasthi Dey v. Union of India (2026 INSC 694) for relief where procedural lapses were held fatal.
For the Respondent/State
- Service reports for all three notices bear the petitioner’s signature; the absence of a date does not invalidate service.
- The petitioner appeared on 19 April 2010 and thereafter deliberately defaulted for more than eight years, satisfying the Tribunal’s requirement of “continuous absence”.
- Under Section 9 of the Foreigners Act, 1946, the onus is on the alleged foreigner to prove Indian citizenship; the petitioner has produced no documentary proof.
- The Tribunal complied with the mandate of Paragraph 3(14) of the Foreigners (Tribunals) Order, 1964, by eventually passing an opinion after the statutory period of 60 days had elapsed due to the petitioner’s non-appearance.
- Relies on Sarbananda Sonowal v. Union of India (2005 5 SCC 665) for the shift of burden, and on Sayam Uddin v. Union of India (2025 GLT 456) for the principle that suppression of material facts defeats the right to be heard.
The Court's Analysis
The Court first examined the service of notice. It observed that the service reports for all three notices contained the petitioner’s signature, and that the signature itself is conclusive proof of receipt. The omission of the exact date of service, while a procedural irregularity, was held not to be fatal because the petitioner had not contested the authenticity of the service.
"The petitioner has not been able to make out a case where this Court would examine the Reference submitted by the ERO and thereafter by the Superintendent of Police, Darrang, Mangaldai."
The Court then turned to the statutory framework. Under Section 9 of the Foreigners Act, 1946, the burden of proving that one is not a foreigner rests on the proceedee. The Court reiterated the Supreme Court’s pronouncement in Sarbananda Sonowal that the onus shifted from the State to the individual once a reference is made. Accordingly, the petitioner was required to establish his citizenship either by demonstrating entry before 01 Jan 1966, or between 01 Jan 1966 and 25 Mar 1971 and satisfying the conditions of Section 6-A of the Citizenship Act, 1955.
The petitioner's reliance on the birth-year entry in Annexure-A was rejected because the entry was based solely on his oral statement and was not corroborated by any documentary evidence. The Court noted that an oral statement cannot constitute cogent proof of citizenship under Section 3 of the Citizenship Act.
Furthermore, the Court emphasized that the petitioner’s deliberate non-appearance for more than eight years, despite having been served thrice, amounted to a waiver of his right to contest the proceedings. The Tribunal’s ex parte opinion was therefore a lawful exercise of its jurisdiction, and the Court could not substitute its own view for that of the Tribunal.
The Court also addressed the argument that the form of notice mis-stated the entry dates. It held that the alleged discrepancy did not affect the Tribunal’s power to determine whether the petitioner was a foreigner, as the reference was framed under Clause 2(1) of the Foreigners (Tribunals) Order, 1964, which merely asks whether the person is a foreigner within the meaning of the Foreigners Act.
In light of the above, the Court concluded that the petitioner's claims of procedural irregularities were untenable, and that the burden of proof remained unsatisfied.
The Verdict
The Gauhati High Court dismissed the writ petition. The ex parte opinion dated 13 September 2018 stands affirmed. The interim bail granted on 13 May 2020 was recalled. Both parties were ordered to bear their own costs. The standing counsel for the Foreigners Tribunal was directed to transmit a copy of this order to the Home and Political (B) Department, and the Registry was instructed to return the Tribunal’s record to be placed as part of the record.
What This Means For Similar Cases
Service of Notice Must Be Evident
- A signature on the service report is sufficient proof of service even if the date is omitted.
- Petitioners cannot rely on the absence of a date to invalidate a notice when the receipt is otherwise undisputed.
Burden of Proof Remains on the Alleged Foreigner
- Under Section 9 of the Foreigners Act, 1946, the onus to prove Indian citizenship lies squarely on the respondent.
- Oral statements or uncorroborated entries in enquiry forms do not satisfy this statutory burden.
Default Leads to Acceptance of Tribunal Findings
- Deliberate non-appearance after being served on multiple occasions is deemed a waiver of the right to be heard.
- Ex parte opinions rendered after such default are conclusive unless challenged on substantive grounds, not procedural technicalities.
