Page No.# 1/16 GAHC010203762019 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/6342/2019 RABIYEL HUSSAIN S/O- LT. SUKUR ALI,R/O- VILL. TIL PUKHURI, P.O. SRIJANGRAM, P.S. ABHAYAPURI, DIST.- BONGAIGAON, ASSAM, PIN- 783384. VERSUS THE UNION OF INDIA AND 5 ORS. REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, TRILOK MARK, NEW DELHI- 110001. 2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM DEPTT. OF HOME DISPUR GUWAHATI- 781006. 3:THE ELECTION COMMISSIONER OF INDIA THROUGH ITS SECRETARY NIRBACHAN SADAN NEW DELHI-1. 4:THE STATE CO-ORDINATOR NATIONAL REGISTER OF CITIZENS (NRC) ASSAM BHANGAGARH GUWAHATI- 781005. 5:THE DEPUTY COMMISSIONER OF BONGAIGAON PO. AND P.S. BONGAIGAON DIST.- BONGAIGAON ASSAM PIN- 783380. Page No.# 2/16 6:THE SUPERINTENDENT OF POLICE (B) BONGAIGAON P.O. AND DIST.- BONGAIGAON ASSAM PIN- 783380 Advocate for the Petitioner : MR. A HUSSAIN, MR. A S AHMED Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, NRC,SC, ECI B E F O R E HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI HON'BLE MR. JUSTICE PRANJAL DAS Advocate for the petitioner : Shri A. Hussain, Advocate. Advocates for the respondents : Ms. A. Verma, S.C., Home Deptt., Shri P. Sarma, G.A., Assam, Shri N. Kalita, Advocate (on behalf of A.I. Ali, SC, E.C.I.) Ms. J. Sarma, C.G.C. Date on which judgment is reserved : 22.05.2026. Date of pronouncement of judgment : 29.05.2026. 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 22.02.2019 passed by the learned Member, Foreigners’ Tribunal No. 2, Bongaigaon at Abhayapuri, Assam in Case No. BNGN/FT/Case No. 70/2011 (Ref. BNGN P.E. No. 238/2010). By the impugned Page No.# 3/16 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), Bongaigaon, against the petitioner giving rise to the aforesaid Case No. BNGN/FT/Case No. 70/2011. (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 along with certain documents and adduced evidence. (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 him and accordingly, the opinion was rendered declaring the petitioner to be a foreign national post 25.03.1971. 3. We have heard Shri A. Hussain, learned counsel for the petitioner. We have also heard Ms. A. Verma, learned Standing Counsel, Home Department; Shri P. Sarma, learned G.A., Assam, Shri N. Kalita, learned counsel appearing on instructions of A.I. Ali, learned Standing Counsel, Election Commission of India and Ms. J. Sarma, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 04.12.2019. 4. Shri Hussain, 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 the following documentary evidence:- Page No.# 4/16 (i) Ext-1 is the voter list of 1966, (ii) Ext-2 is the voter list of 1970, (iii) Ext-3 is the voter list of 1985, (iv) Ext-4 is the Final Patta, (v) Ext-5 is the voter list of 1997, (vi) Ext-6 is the voter list of 2006, (vii) Ext-7 is the original copy of land document, (viii) Ext-8 is the voter list of 2014, (ix) Ext-9 is the land document, (x) Ext-10 is the Bank Passbook, (xi) Ext-11 is the Gaon Panchayat certificate, (xii) Ext-12 is the Jamabandi. 5. The learned counsel for the petitioner has submitted that in the voters lists of 1966 and 1970, the name of his grandparents had figured and in the year 1970, his grandfather had expired. The next voters list relied upon is of 1985 having the name of his parents followed by the voters list of 1997. The next voters list is of the year 2006 having the name of the petitioner along with his mother. It has been submitted that in the year 2004, his father had expired. The next voters lists relied upon are of the years 2014 and 2017 having the names of the mother, the petitioner, and his wife. 6. The learned counsel petitioner had relied upon a Jamabandi containing his name with two others, namely, Surma Khatoon and Sukiya Khatoon which were inserted as per order dated 27.09.2016. 7. The learned counsel for the petitioner has relied upon a Sale Deed dated Page No.# 5/16 07.09.1970 with the father of the petitioner as the purchaser and has contended that the same would serve as a link document. He has also relied upon a certificate by the Gaonburah dated 11.02.2014. 8. Shri Hussain, learned counsel for the petitioner has also submitted that all the documents were handed over to the counsel who, however, neglected in conducting the case for which, the petitioner should not suffer. He has contended that a writ court has the power to remand matters if relevant materials are ignored by the Tribunal and in this regard, he has relied upon the case of Abdul Matali Vs. Union of India, reported in 2015 (2) GLT 617. He has also relied upon the case of Madamanchi Ramappa & Anr. Vs. Muthaluru Bojjappa, reported in AIR 1963 SC 1633 by contending that in that case, it has been laid down that certified copy need not be proved. 9. 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. 10. Per contra, Ms. Verma, the learned Standing Counsel, Home Department has categorically refuted the stand taken on behalf of the petitioner. She 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 of 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. She further submits that the evidence of a proceedee has to be cogent, relevant, which inspire confidence Page No.# 6/16 and acceptable and only thereafter, the question of adducing rebuttal evidence may come in. 11. The learned Standing Counsel, Home has further submitted that the written statement is the basic document which is supposed to lay down the foundation of the case of the proceedee and the written statement in the instant case is vague and the relevant facts have not been stated. There is no date or year of the birth of the petitioner and there are inconsistencies with the members of the family. In this connection, she 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 grand parents 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.” 12. She has submitted that with regard to the voters lists of 1966 and 1970, though the same are not directly relevant, the projected grandmother appears to be 20 years older than the projected grandfather which is wholly unreasonable. She has pointed Page No.# 7/16 out that the name of the father of the petitioner had figured for the first time in the voters list of 1985 showing his age as 33 years and there is no explanation as to why his name did not enlist in voters lists of previous years. So far as the voters list of 2006 is concerned, while the petitioner has been stated to be 30 years, the projected mother is shown to be aged 42 years which is an absurd proposition. She has reiterated that the written statement is absolutely vague and there is no mention of any siblings or the name of the mother. She has also pointed out that while in the written statement only three voters lists were mentioned, in the evidence, the same was sought to be enlarged. She has contended that there cannot be any variance between the statements made in the written statement and in the evidence and in this regard, she has relied upon the case of Momin Ali Vs. Union of India, reported in 2017 (2) GLT 1076. 13. She has further submitted that no link could be established with the projected father and the certificate issued by the Gaonburah, by no means, could be deemed as a proof of citizenship, more so when the Gaonburah did not come to prove the said certificate. She has also criticized the use of the National Emblem on the said certificate. In this regard, she has relied upon the case of Khudeja Khatoon Vs. Union of India & Ors., reported 2018 (3) GLT 347 and the following observations have been pressed into service:- “13. Ext. B is a certificate dated 13.2.2016 issued by the Gaonburah certifying that Khudeja Khatoon was the wife of A. Matalib. This certificate also has got the State Emblem of India embossed on it and that too not as per the statutory format. For the reasons mentioned above, this certificate is also liable to be discarded. However, notwithstanding the same, even if we accept this certificate at its face value, it only certifies that Khudeja Khatoon was the wife of A. Matalib; thus no linkage is established with Jonab Ali; whom the petitioner claimed to be her father. Page No.# 8/16 14. Ext. C is a certificate dated 13.2.2015 of the Gaonburah of Durabandhi village certifying that Khudeja Khatoon was the daughter of Lt. Jonab Ali. For the reasons mentioned above, this certificate was also not proved. Mere filing of a document or marking of a document as exhibit is not enough. The certificate as well as the contents thereof would have to be proved, so also the truthfulness thereof, in accordance with law.” 14. In support of her 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.…” 15. She 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 Page No.# 9/16 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. She 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 petition be dismissed and the interim order be vacated. 18. The learned counsel for the other respondents have supported the submissions made 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. They have 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 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. Page No.# 10/16 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 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 are 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 Page No.# 11/16 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.” 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 Page No.# 12/16 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 approach would render the High Court a normal court of appeal which it is not.” 24. In the instant case, the written statement is 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) the date of birth, (ii) place of birth, Page No.# 13/16 (iii) name of the 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. 25. So far as the voters lists are concerned, those of the years 1966 and 1970 are not directly relevant as the same contain the name of the projected grandparents of the petitioner and can, at best serve as some link. However, it may be noted that the age of the grandfather in the year 1966 and 1970 were respectively 45 and 49 years whereas the age of the grandmother in those years were respectively, 65 and 69. There is a long gap of 15 years regarding the next voters list produced which is of 1985. It is, however, seen that in the said voters list of 1985, the name and age of the projected parents are Shukur Ali, 33 years (father) and Rupjan, 28 years (mother). However, in the voters list of 1997, the names are written as Sukur Ali, 40 years (father) and Rupbhan Nessa, 35 years (mother). Though the inconsistency in the name of the father can be overlooked, those regarding the mother are major. It is also seen that there are major inconsistencies with the ages. Further, though the name of the petitioner has been stated to have appeared in the voters list of 2006 along with his projected mother, it is seen that the age of the petitioner in 2006 was 30 years. The question, therefore, arises as to why his name was not enlisted in the previous voters lists as he had attained the minimum age of voting sometime in the year 1994. So far as the voters list of 2014 is concerned, there is an unexplained gap of 8 years from the previous voters list. Further, the voters list of 2017 was not even exhibited. 26. So far as the Jamabandi is concerned (Ext-9), though two more names appear with the petitioner, there is no mention in the written statement with regard to connection with those two names. It is also seen that the names were inserted as per Page No.# 14/16 an order dated 27.09.2016. As noted above, it is admitted that the father had expired in the year 2004. 27. So far as the Sale Deed dated 07.09.1970 is concerned, the learned Tribunal had remarked that the same was not proved. We have given our anxious consideration to that aspect and verified from the records. What transpires is that in page 56 of the records, there is a copy of the sale deed which is, however, not the original. We have also noted that photo copy of a certified copy of the Sale Deed has been enclosed in the writ petition which would, however, reveal that the same was procured on 02.07.2019 which is after the impugned opinion. There is, however a noting in the records that the documents were taken back by the OP (petitioner) in connection NRC verification. Without raising any doubt on the said aspect, it remains unexplained as to why certified copy of the same could not be obtained earlier and placed before the learned Tribunal. In our considered opinion, the view of the learned cannot be said to be unreasonable. 28. So far as the certificate issued by the Gaonburah dated 11.02.2014 is concerned, the same was not proved and therefore, was rightly rejected by the learned Tribunal. We find force in the contention advanced by the learned Standing Counsel who has cited the case of Khudeja Khatoon (supra). 29. We also find force in the contention advanced on behalf of the respondents that variance between the written statement and evidence is not permissible and in this regard, we endorse the observations made by a Co-ordinate Bench in the case of Momin Ali (supra) which read as follows: “12. This written statement of the petitioner was wholly inadequate and did not disclose any material facts. As noticed above, it was the allegation of the State that petitioner was a foreigner. Therefore, as per mandate of Section 9 of the Foreigners Act, 1946, it was the bounden duty of the petitioner to have Page No.# 15/16 disclosed all material facts which were specifically within his knowledge in the written statement but he did not do so. Petitioner neither mentioned his date of birth nor his age. He was silent regarding the name of his mother and identity of his grandparents - both paternal and maternal. He did not mention anything about his brothers and sisters or about his marital status. On the basis of such a written statement, it cannot be said that petitioner had stated anything substantial to show that he was not a foreigner but a citizen of India. 13. It is a settled proposition of law that where a party fails to set up a case in his pleadings, he would be debarred from adducing evidence in his support at the stage of trial. As a matter of principle, variance between pleading and proof is not permissible. … … 17. Reverting back to the written statement, it has already been noticed that there was not a whisper by the petitioner that he had any brothers or sisters, not to speak of disclosing their names and other particulars. Therefore, the sudden appearance of Omar Ali in the witness box as brother of the petitioner has to be looked with suspicion and this suspicion is further fortified by the fact that in the 1997 voters list (Ext.3), name of Omar Ali did not appear along with the petitioner. That apart, in Ext.6, i.e., land document (periodic Khiraj Patta), name of Omar Ali did not appear along with the petitioner as patta holder. Therefore, evidence of Omar Ali was rightly discarded by the Tribunal.” 30. The reliance upon the case of Abdul Matali (supra) by the learned counsel for the petitioner would not come to the aid of the petitioner as inconsistency in that case was minor whereas in the present case, not only the inconsistencies are glaring but there are also lack of necessary materials to establish the link of the petitioner with his father. Similarly, the reference upon the case of Madamanchi Ramappa (supra) is misplaced inasmuch as the ratio laid down by the Hon’ble Supreme Court in that case Page No.# 16/16 is with regard to the exercise of jurisdiction by the High Court under Section 100 of the C.P.C. as the Second Appellate Court. 31. We are of the view that the petitioner as proceedee had failed to discharge his burden to prove his citizenship. 32. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 22.02.2019 passed by the learned Member, Foreigners’ Tribunal No. 2, Bongaigaon at Abhayapuri, Assam in Case No. BNGN/FT/Case No. 70/2011 (Ref. BNGN P.E. No. 238/2010) does not call for any interference. 33. 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. 34. The records of the aforesaid Case No. BNGN/FT/Case No.70/2011 be returned to the concerned Foreigners Tribunal forthwith, along with a copy of this order. JUDGE JUDGE Comparing Assistant