Page No.# 1/16 GAHC010271762019 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/8259/2019 KAD BHANU D/O. LT. HIMMAT ALI @ HIKMAT ALI, W/O. ABDUL MALEK, R/O. VILL. MOHAMMADPUR, MOUZA- JANIA, P.S. BARPETA, DIST. BARPETA, ASSAM, PIN- 781314. VERSUS THE UNION OF INDIA AND 8 ORS. REP. BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI, PIN-110001. 2:THE ELECTION COMMISSION OF INDIA REP. BY THE CHIEF ELECTION COMMISSIONER NEW DELHI-110001. 3:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM DEPTT. OF HOME DISPUR GUWAHATI-781006. 4:THE STATE COORDINATOR OF NATIONAL REGISTER OF CITIZENS (NRC) GOVT. OF ASSAM DISPUR GUWAHATI-781006. 5:THE DY. COMMISSIONER BARPETA P.S. BARPETA DIST. BARPETA ASSAM PIN-781301. Page No.# 2/16 6:THE SUPDT. OF POLICE (B) BARPETA P.S. BARPETA DIST. BARPETA ASSAM PIN-781301. 7:THE ENQUIRY OFFICER OF REF. F.T. CASE NO.111/16 P.S. AND DIST. BARPETA ASSAM PIN-781301. 8:IMRAN HUSSAIN S/O. LT. ASIRUDDIN VILL. MOHAMMADPUR P.S. AND DIST. BARPETA ASSAM PIN-781314. 9:MD. JAHEDUL ISLAM S/O. LT. AZIBAR RAHMAN VILL. MOHAMMADPUR P.S. AND DIST. BARPETA ASSAM PIN-781314 B E F O R E Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI Hon’ble MR. JUSTICE PRANJAL DAS Advocate for the petitioner : Shri S. Islam. Advocates for the respondents : Shri J. Payeng, SC- Home Deptt & NRC, Ms. R.B. Bora, GA, Assam; Shri A.I. Ali, SC, ECI. Shri A.K. Dutta, CGC. Date of hearing : 21.05.2026 Date of Judgment : 29.05.2026 Page No.# 3/16 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 30.07.2019 passed by the learned Foreigners Tribunal no.III, Barpeta in F.T. Case No. 20(III) of 2017 arising out of Ref. F.T. Case No. 111/16. 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), Barpeta District, against the petitioner giving rise to the aforesaid F.T. Case No. 20(III) of 2017 arising out of Ref. F.T. Case No. 111/16 (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 28.11.2017 along with certain documents and adduced evidence through 4 nos. of DWs. (iii) The learned Tribunal, after considering the facts and circumstances and taking into account of the provisions of Section 9 of the Foreigners’ Act, 1946 had come to a finding that the petitioner, as opposite party, had failed to discharge the burden cast upon her and accordingly, the opinion was rendered declaring the petitioner to be a foreign national post 25.03.1971. 3. We have heard Shri S. Islam, learned counsel for the petitioner. We have Page No.# 4/16 also heard Shri J. Payeng, learned Standing Counsel, Home Department & NRC; Ms. R.B. Bora, learned GA, Assam, Shri A.I. Ali, learned Standing Counsel, Election Commission of India and Shri A.K. Dutta, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 21.04.2020. 4. Shri Islam, the learned counsel for the petitioner has submitted that the petitioner could prove her 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 the evidence adduced by the DWs and also the following documentary evidence. (i) Ext. A is the certified copy of Voter List 1966. (ii) Ext. B is the certified copy of Voter List 1970 (iii) Ext. C is the certified copy of Voter List 1985. (iv) Ext. D & E are certified copies of Voter Lists 1997 & 2010. (v) Ext. F & G are the Gaonburah Certificates. (vi) Ext. H. is the certified copy of Voter List 1966 (vii) Ext. I is the certified copy of Voter List 1970 (viii) Ext. J is the certified copy of Voter Lists 1997 (ix) Ext. K is the certified copy of Voter Lists 2010 (x) Ext. L is the Elector Photo Identity Card (xi) Ext. M is the School Certificate. (xii) Ext. N is the Gaonburah Certificate (xiii) Ext. O is the name & age declaring affidavit. 5. The learned counsel for the petitioner has submitted that in the written statement, all material disclosures were made. It is submitted that the Voters Page No.# 5/16 List of 1966 contains the name of her father Himmat Ali along with her uncle – Sahab Ali and aunt – Asatan Nessa. Another Voters List of the same year - 1966 has been relied upon containing the name of her uncle – Mohammad Ali and grandmother – Nahatan Bibi. This Voters List, however, was not proved. Reliance has been placed in the Voters List of 1970 containing the name of the father of the petitioner which however has been stated as Hikmat Ali. The next Voters List relied upon is of the year 1985 with the name of the parents. Thereafter, the Voters List of 1997 has been relied upon containing the names of the parents, one brother and one Abeda Khatun, daughter of Nagar. The next Voters List of the year 2010 containing the names of her parents, one brother and one Nabiran Nessa. The learned counsel has also referred to one Jamabandi dated 27.03.2018 and it is contended that the petitioner had inherited land along with her siblings. The said Jamabandi was however not exhibited. It has been stated that the petitioner got married to one Abdul Malek in 1995 and in the Voters List of 1997, her name has been prefixed with “D”. Reliance has also been placed on some certificates by the Gaonburah. 6. It is also submitted that a proceeding of similar nature was initiated against the brother of the petitioner, namely, Nagar Ali in which the opinion dated 14.09.2015 was rendered in favour of the proceedee and therefore, the impugned opinion could not have been given so far as the petitioner is concerned. 7. The learned counsel has lastly submitted that the notice issued by the Tribunal itself contains the name of the father of the petitioner which is a conclusive proof of her linkage and therefore, the impugned opinion is liable to be interfered with. Page No.# 6/16 8. Per contra, Shri Payeng, the learned Standing Counsel, Home Department has categorically refuted the stand taken on behalf of the petitioner. He submits 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. He further 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. 9. 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 is no detail 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 parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also Page No.# 7/16 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.” 10. The learned Standing Counsel has submitted that there is not a single document in the instant case to link the petitioner with her father / parents. He has submitted that from the materials on record, it can be deduced that the year of birth of the petitioner is sometime in the year 1976 and therefore, it is mandatory for the petitioner as proceedee to establish the linkage. He submits that the only document to show any linkage is the Jamabandi which however was not exhibited. He has highlighted that the proceeding started in the year 2016 and the FT cases was registered in the year 2017. The written statement was filed on 28.11.2017 and there is no whisper of any land or Jamabandi in the written statement. He has also highlighted that the land is in village – Tapajuli and there is no mention of any such land at Tapajuli in the Written Statement. He has submitted that even in the evidence adduced, there was no reference to the land which is now sought to be introduced in the High Court. 11. The learned Standing Counsel has highlighted the glaring discrepancies in the names, ages and the villages in the Voters List exhibited. He has submitted that though the said Voters List are not relevant to the issue involved, the same Page No.# 8/16 otherwise suffer from gross inconsistencies and cannot be relied upon. 12. As regards the submission made that the projected brother of the petitioner has been declared as Indian Citizen in another proceeding, the learned Standing Counsel has submitted that the said fact has not even been pleaded and therefore, could not be relevant. In this connection, he has also relied upon the case of Abdul Kuddus vs. Union of India reported in (2019) 6 SCC 604 wherein it has been laid down that each case has to be decided on the facts and circumstances. 13. On the submission that the notice itself is a conclusive proof of the linkage, the learned Standing Counsel has contended that the said argument is a flawed argument. He has submitted that mentioning of father’s name in the notice cannot, by any stretch of imagination be construed as proof. In this connection, he has relied upon the case of Rupali Bibi vs. Union of India & Ors. reported in [WP(C)3917/2016 disposed of on 13.02.2018]. 14. In support of his submission that a certificate 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 Page No.# 9/16 contents of the document cannot be proved on the basis of personal knowledge. …” 15. 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 347 wherein certain observations regarding exercise of Certiorari jurisdiction have been made which read as follows: “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.” 16. He has also relied upon the case of the Hon’ble Supreme Court in Rupajan Begum vs. Union of India reported in(2018) 1 SCC 579, wherein it has been laid down that a certificate has to be proved on two aspects, firstly, the authenticity of the same and secondly, the authenticity of the contents. 17. The learned Standing Counsel has accordingly submitted that the writ Page No.# 10/16 petition be dismissed and the interim order be vacated. 18. 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 prove the citizenship through cogent, credible and acceptable evidence. 19. 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. 20. 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 Page No.# 11/16 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.” 21. 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 is extracted 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 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 Page No.# 12/16 foreigner was upon the respondent.” 22. 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. 23. 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: “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 Page No.# 13/16 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 approach would render the High Court a normal court of appeal which it is not.” 24. 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. Page No.# 14/16 25. Though certain documentary evidence was produced before the Tribunal including Voters List of 1966, 1970, 1985, 1997 and 2010, none of the said documents would serve as a link document in this case. The requirement of a link document is immensely important inasmuch as from the materials produced, it appears that the petitioner was born sometime in the year 1976, i.e., post 1971. Further, a careful examination of the Voters Lists mentioned above would show gross inconsistencies particularly in the name of the father, change of villages, insertion of unknown entities. This Court finds force in the argument advanced by the learned Standing Counsel that the only document which may be termed as a link document is the Jamabandi which however was not even produced before the learned Tribunal. We have also noted that despite the Jamabandi being obtained post the impugned opinion, there is not even a passing reference in the written statement or even in the evidence regarding existence of such land. It is also seen that the land is in village – Tapajuli and there is no mention of the same in the written statement or evidence. 26. With regard to the opinion rendered in favour of the projected brother - Nagar Ali, apart from the fact that only a typed copy of the judgment has been enclosed to the writ petition as Annexure -5, the date of the judgment appears to be 14.09.2015. However, there is not even a passing reference in the written statement or even in any of the evidence of the said case. Be that as it may, there is no exhibited document even to link the petitioner with the projected brother – Nagar Ali. Further, this Court finds force in the contention made on behalf of the respondents in relying upon the case of Abdul Kuddus (supra) wherein it has been laid down that each case has to be decided on the particular set of facts and circumstances. Page No.# 15/16 27. With regard to the argument that the notice issued by the reference is itself a conclusive proof regarding the linkage of the petitioner with her projected father, we are of the opinion that such submission is an inherently flawed submission. In this connection, we endorse the views laid down by the Coordinate Bench in the case of Rupali Bibi (supra) which read as follows: “12. This Court has held in several cases that when the citizenship of a proceedee is questioned by the State, it is the bounden duty of that proceedee to disclose at the first instance itself the material facts which are relevant to establish his identity as a citizen of India. Material facts would have to be pleaded in the written statement which are thereafter required to be proved by adducing cogent and reliable evidence. This Court has further held that failure to disclose material facts in the written statement by itself may lead to drawal of adverse presumption against the proceedee. Besides, unless material facts are pleaded, proof of these facts by evidence would not arise. 14. Before proceeding further, we may deal with the argument of learned counsel for the petitioner that mentioning of the petitioner as daughter of Akbar Ali Bepari in the notice issued by the Tribunal itself was proof of fact of such relationship. We are afraid; we can accept such an untenable argument advanced on behalf of the petitioner. Marking of a notice to a person mentioning therein the person to be the son or daughter of some other person cannot be construed as the proof of the fact that noticeee is the son or daughter of that person. This is mentioned in the notice only for the purpose of identification of the noticee and for service of notice; certainly, it cannot be taken as proof of the noticee being the son or daughter of that person. This information can be obtained from the noticeee herself or from some other document or source but that is no proof of the fact. This is particularly so in the Page No.# 16/16 context of Section 9 of the Foreigners Act, 1946 which has been explained in detail by the Supreme Court as above. Even then, we may briefly examine the relevant provisions of the Indian Evidence Act, 1872 (Evidence Act).” 28. In the case of Bijoy Das vs UOI reported in 2018 (3) GLT 118, this Court has laid down that in proceedings of this nature, oral evidence alone would not be enough and such evidence is required to be supported and corroborated by documentary evidence and contemporaneous records. However, in this case, the same has not been able to be done by the petitioner. We are of the view that the petitioner as proceedee had failed to discharge her burden to prove her citizenship. 29. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 30.07.2019 passed by the learned Foreigners Tribunal no.III, Barpeta in F.T. Case No. 20(III) of 2017 arising out of Ref. F.T. Case No. 111/16 does not call for any interference. 30. The writ petition accordingly stands dismissed. Interim order passed earlier stands vacated. The actions consequent upon the opinion rendered by the learned Tribunal would follow in accordance with law. 31. The records be returned to the concerned Foreigners Tribunal forthwith, along with a copy of this order. JUDGE JUDGE Comparing Assistant