Page No.# 1/15 GAHC010134272018 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4246/2018 MITHUN MANDAL S/O SRI NITAI MANDAL R/O VILL- JALUGUTI MACHKHOWA (BANPARA) P.O. JALUGUTI, P.S. MORIGAON, PIN - 782104, DIST. MORIGAON, ASSAM. VERSUS THE UNION OF INDIA AND 6 ORS. REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI. 2:THE CHIEF ELECTION COMMISSIONER ELECTION COMMISSION OF INDIA ASHOKA ROAD NEW DELHI- 110001. 3:THE STATE OF ASSAM REP. BY ITS SECRETARY GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI -06. 4:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI Page No.# 2/15 GUWAHATI - 781007. 5:THE STATE COORDINATOR OFFICE OF THE STATE COORDINATOR OF NATIONAL REGISTER OF CITIZENS (NRC) ASSAM 1ST FLOOR ACHYUT PLAZA G.S. ROAD BHANGAGARH GUWAHATI - 781005. 6:THE DEPUTY COMMISSIONER MORIGAON DIST. MORIGAON ASSAM 7:THE SUPERINTENDENT OF POLICE (BORDER) MORIGAON DIST. MORIGAON ASSAM B E F O R E Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI Hon’ble MRS. JUSTICE SHAMIMA JAHAN Advocate for the petitioner : Shri K. Lahkar. Advocates for the respondents : Shri J. Payeng, SC, Home Deptt. & NRC. Shri P. Sarma, GA, Assam Shri A.I. Ali, SC, ECI Shri N. Kalita Shri B. Chakrabarty, CGC Page No.# 3/15 Date on which judgment is reserved : 12.06.2026 Date of pronouncement of judgment : 22.06.2026 Whether the pronouncement is of the operative part of the judgment? : NA Whether the full judgment has been pronounced? : Yes Judgment & Order (S.K. Medhi , J.) The extra-ordinary jurisdiction of this Court has been sought to be invoked by filing this application under Article 226 of the Constitution of India by putting to challenge the opinion rendered vide impugned order dated 15.05.2018 passed by the learned Foreigners Tribunal No.3rd, Morigaon in F.T.(C) Case No. 31/2016. By the impugned judgment, the petitioner, who was the proceedee before the learned Tribunal, has been declared to be a foreigner post 25.03.1971. 2. The facts of the case may be put in a nutshell as follows: (i) A reference was made by the Superintendent of Police (B), Morigaon District, against the petitioner giving rise to the aforesaid F.T.(C) Case No. 31/2016. (ii) As per requirement u/s 9 of the Foreigner’s Act, 1946 to prove that the proceedee is not a foreigner, the petitioner had filed the written statement on 21.11.2016 along with certain documentsand adduced evidence through himself as DW1. (iii) The learned Tribunal, after considering the facts and circumstances and taking into account of the provisions of Section 9 of the Page No.# 4/15 Foreigners’ Act, 1946 had come to a finding that the petitioner, as opposite party, had failed to discharge the burden cast upon him and accordingly, the opinion was rendered declaring the petitioner to be a foreign national post 25.03.1971. 3. We have heard Shri K. Lahkar, learned counsel for the petitioner. We have also heard Shri J. Payeng, learned Standing Counsel, Home Deptt. & NRC, Shri P. Sarma, learned GA, Assam, Shri N. Kalita, learned counsel appearing on behalf of Shri A.I. Ali, learned Standing Counsel, ECI and Shri B. Chakrabarty, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 20.07.2018. 4. Shri Lahkar, the learned counsel for the petitioner has submitted that the petitioner could prove his case with cogent evidence and in view of the fact that there was no rebuttal evidence, the learned Tribunal should have accepted the said proof and accordingly hold the petitioner to be a citizen of India. In this regard, he has referred to his evidence adduced as DW1and also the following documentary evidence. (i) Ext. A - School Certificate (ii) Ext. B – Certificate of Registration of grandfather. (iii) Ext. C – Ration Card. (iv) Ext. D – 1966 voter list (v) Ext. E – 1975 voter list (vi) Ext. F – 2005 voter list. (vii) Ext. G – Certificate of village Headman. (viii) Ext. H – Certificate of Gaon Panchayat. (ix) Ext. I & J – Affidavit sworn by the parents of the petitioner. 5. The learned counsel for the petitioner has submitted that in the written Page No.# 5/15 statement, all material disclosures were made. It is submitted that the grandfather of the petitioner was residing in Assam since the year 1949. He has relied upon the certificate of registration of Bhajahari Mandal, his grandfather. He has submitted that the learned Tribunal has committed serious error of law on the ground that Cachar district is written on the certificate whereas the predecessor of the petitioner is from the district of Nagaon (presently Morigaon). It is submitted that so far as reference to Cachar district is concerned, the same is only in relation to the post of SDO and not for the other districts. He has submitted that a careful perusal of the certificate would show that it was a general format and so far as the district of Cachar is concerned, there is a special mention, as the SDO of the said district was also empowered to give such a certificate. He has also relied upon the Voters List of 1966 containing the name of his grandfather. He has submitted that there was a shift of the family from Rupahi to Banpara. Reliance has been placed upon the Voters List of 1975 containing the names of his father and grandmother. He has also relied upon a certificate of the GaonPanchayat dated 30.04.2013 and also a school certificate dated 08.05.2013. He has also relied upon a certificate by the Gaonburah dated 03.10.2016. Reliance has also been placed on the Voters List of 2005 containing the name of the petitioner along with his parents which would establish the linkage. He has submitted that so far as the Registration Certificate is concerned, the same is a 30 years old document and therefore, there would be a presumption on its authenticity. 6. The learned counsel for the petitioner accordingly submits that in view of the availability of the aforesaid materials, the impugned opinion could not have been rendered against the petitioner and therefore, the same requires interference. Page No.# 6/15 7. Per contra, Shri Payeng, the learned Standing Counsel, Home Department has categorically refuted the stand taken on behalf of the petitioner. Hesubmits that a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 relates to determination as to whether the proceedee is a foreigner or not. Therefore, the relevant facts are especially within the knowledge of the proceedee and accordingly, the burden of proving citizenship rests absolutely upon the proceedee, notwithstanding anything contained in the Evidence Act, 1872 and this is mandated under Section 9 of the aforesaid Act, 1946. However, in the instant case, the petitioner utterly failed to discharge the burden. It is also submitted that rebuttal evidence is not mandatory in every case and would be given only if necessary. Hefurther submits that the evidence of a proceedee has to be cogent, relevant, which inspire confidence and acceptable and only thereafter, the question of adducing rebuttal evidence may come in. 8. The learned Standing Counsel has further submitted that the written statement is the basic document which is supposed to lay down the foundation of the case of the proceeding and the written statement in the instant case lacks details and is totally vague. There is no date or year of the birth of the petitioner and there are no details of the family members. In this connection, he has relied upon the following observations made by the Hon’ble Supreme Court in the case of Sarbananda Sonowal vs. Union of India reported in(2005) 5 SCC 665: “17. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his Page No.# 7/15 parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1) (d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 9. The learned Standing Counsel has submitted that irrespective of the finding of the learned Tribunal regarding the Registration Certificate of the projected grandfather, the issue is as to whether a linkage has been able to be established by the petitioner with his projected grandfather and father. He has submitted that the said aspect attains importance inasmuch as the petitioner is post 1971 born. In this regard, he has drawn the attention to the school certificate wherein his date of birth has been written as 18.04.1984. 10. The learned Standing Counsel has submitted that the name of the projected father was reflected for the first time in the Voters List of 1975. It is submitted that in the Voters List of 1966, the age of the projected grandfather has been shown as 50 years which will mean that his year of birth would be sometime in1916. He has submitted that the grandfather would have been about 26 years in 1942 and in that year, the certificate could not have been Page No.# 8/15 issued. He has highlighted the aspect that from the period from 1975 to 2005, there is not a single Voters List and this long period of 30 yearsis inordinate and unexplained.He has accordingly submitted that the petitioner has failed to discharge his burden under Section 9 of the Act and therefore, there is no case made out for interference with the opinion dated 15.05.2018. He has submitted that none of the certificates issued by the School Gaon Panchayat and Gaonburah has been proved by the issuing authority or the author and therefore, would not be relevant. 11. In support of his submission that a document has to be proved from contemporaneous records, the learned Standing Counsel has relied upon the judgment passed in the case of Romila Khatun vs. Union of India reported in 2018 (4) GLT 373 and the following observations have been pressed into service. “20. It is trite that documentary evidence would have to be proved on the basis of the record and the contemporaneous record must substantiate and prove the contents of the document. Proof of document is one thing and proof of contents is another. Not only the document would have to be proved but its contents would also have to be proved. That apart, the truthfulness of the contents of the document would also have to be established from the record. A document or the contents of the document cannot be proved on the basis of personal knowledge. …” 12. He has also drawn the attention of this Court to the case of Nur Begum vs. Union of India and Ors. reported in 2020 (3) GLT 347wherein certain observations regarding exercise of Certiorari jurisdiction have been made which read as follows: Page No.# 9/15 “9. On the available materials, we find that the Tribunal rendered opinion/order upon due appreciation of the entire facts, evidence and documents brought on record. We find no infirmity in the findings and opinion recorded by the Tribunal. We would observe that the certiorari jurisdiction of the writ court being supervisory and not appellate jurisdiction, this Court would refrain from reviewing the findings of facts reached by the Tribunal. No case is made out that the impugned opinion/order was rendered without affording opportunity of hearing or in violation of the principles of natural justice and/or that it suffers from illegality on any ground of having been passed by placing reliance on evidence which is legally impermissible in law and/or that the Tribunal refused to admit admissible evidence and/or that the findings finds no support by any evidence at all. In other words, the petitioner has not been able to make out any case demonstrating any errors apparent on the face of the record to warrant interference of the impugned opinion.” 13. The learned counsel for the rest of the respondents have supported the submissions advanced on behalf of the Home Deptt. & NRC and have prayed for dismissal of the writ petition. They have submitted that this Court in exercise of its Certiorari jurisdiction does not act as an Appellate Court and it is only the decision making process which can be the subject matter of scrutiny. It is submitted that there is no procedural impropriety or illegality in the decision making process and therefore, the instant petition is liable to be dismissed. They have further submitted that the procedure adopted for adjudication of a reference by a Foreigners Tribunal is summary in nature and there is also a time frame for completion. It is also submitted that there is a question of national security by the unabated influx of foreign nationals and before any action is taken, the proceedee is given an opportunity whereby he or she is required to Page No.# 10/15 prove the citizenship through cogent, credible and acceptable evidence. 14. 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. 15. 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.” 16. 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 of Foreigners Act, 1946 would be relevant which areextracted hereinbelow- “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 Page No.# 11/15 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.” 17. 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. 18. 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 and Anr. Vs. Bikartan Das & Ors [Civil Appeal No. 3339 of 2023]has laid down as follows: Page No.# 12/15 “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 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 Page No.# 13/15 approach would render the High Court a normal court of appeal which it is not.” 19. 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) his date of birth; (ii) place of birth (iii) name of his 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. 20. The petitioner has relied upon a certificate of registration of his projected grandfather. The petitioner has placed before this Court Section 90 of the Indian Evidence Act to contend that since the document is more than 30 years old,it should be held to have been proved. He has also submitted that the document was discarded by the learned Tribunal on extraneous factors. This Court has carefully looked into the document and the reason for which it has been discarded. 21. The document appears to be a format of a certificate of registration and was applicable to all the districts. It however appears that so far as the district of Cachar is concerned, the SDO was given special power and therefore, in the said certificate itself, there is a reference to the district of Cachar below the rank of SDO. We are of the opinion that the view taken by the learned Tribunal in this regard may not be correct as the certificate clearly appears to be a general Page No.# 14/15 format for all the districts of the State of Assam. 22. Having said that, the burden cast upon the petitioner does not stand discharged by itself as the certificate is only with regard to that of the projected grandfather of the petitioner. We have also noted that so far as the documents which can be termed as link document are concerned, namely, the Panchayat certificate dated 30.04.2013, school certificate dated 08.05.2013 and the Gaonburah certificate dated 03.10.2016, thosehave not been proved in accordance with law as neither the author nor the issuing authority had come to the witness box to testify. As such, those certificates cannot be treated as valid evidence. The Voters List of 1975 containing the names of the father of the petitioner and the projected grandmother however transpires that such projection is not acceptable inasmuch as while the age of the father has been stated to be 23, the age of the grandmother has been stated to be 28 which is an absurd proposition.So far as the Voters List of 2005 is concerned, though the same has been projected to have the name of the petitioner, along with his parents the same is admittedly a post 1971 document and the link with the father and grandfather has not been able to be established and would therefore not be relevant. We have also noticed that in the Voters List of 1966, the name of the projected grandfather was appearing where his age was stated to be 50 years which would mean that his year of birth would be 1916. We find force in the contention of the learned Standing Counsel that by such projection, it appears that the grandfather of the petitioner would be around 26 years of age in 1942 and such Registration Certificate could not have been issued in the year 1942. 23. We are of the view that the petitioner as proceedee had failed to discharge his burden to prove his citizenship. Page No.# 15/15 24. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 15.05.2018 passed by the learned Foreigners Tribunal No.3rd, Morigaon in F.T.(C) Case No. 31/2016 does not call for any interference. 25. The writ petition accordingly stands dismissed. The actions consequent upon the opinion rendered by the learned Tribunal would follow in accordance with law. 26. The records be returned to the concerned Foreigners Tribunal forthwith, along with a copy of this order. 27. It is however made clear that the present order shall not cause any prejudice to the petitioner to file appropriate application under the Citizenship (Amendment) Act, 2019 and if the same is done, such application is to be considered in accordance with law. JUDGE JUDGE Comparing Assistant