Page No.# 1/16 GAHC010201222019 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/6275/2019 RAHIMA KHATUN D/O- LATE ATAR ALI, W/O- KHALILUR RAHMAN, VILL- RANIPUKHURI, P.S- UDALGURI, DIST-UDALGURI, BTAD, ASSAM VERSUS THE UNION OF INDIA AND 8 ORS REP. BY THE SECRETARY OF THE MIN OF HOME AFFAIRS, UNION OF INDIA, NEW DELHI 2:THE ELECTION COMMISSION OF INDIA REP. BY ITS SECRETARY NIRBACHAN BHAWAN NEW DELHI- 01 3:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM HOME DEPTT DISPUR GUWAHATI- 06 4:THE STATE COORDINATOR NRC ASSAM ACHYUT PLAZA 1ST FLOOR BHARALUPAR BHANGAGARH GHY- 781005 5:THE DEPUTY COMMISSIONER DARRANG DISTRICT AT MANGALDAI P.O- MANGALDAI DIST- DARRANG Page No.# 2/16 ASSAM PIN- 784125 6:THE SUPERINTENDENT OF POLICE (B) DARRANG DISTRICT AT MANGALDAI P.O- MANGALDAI DIST- DARRANG ASSAM PIN- 784125 7:THE DEPUTY COMMISSIONER OF UDALGURI AT UDALGURI P.O P.S AND DIST- UDALGURI ASSAM 8:THE SUPERINTENDENT OF POLICE (B) UDALGURI DISTRICT AT UDALGURI P.O P.S AND DIST- UDALGURI ASSAM 9:THE MEMBER FOREIGNERS TRIBUNAL NO.2 DARRANG MANGALDAI DIST- DARRANG ASSA 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. Rahman. Advocates for the respondents : Shri G. Sarma, SC, Home Deptt. Shri J. Payeng, SC, NRC, Ms. R.B. Bora, GA, Assam Shri A.I. Ali, SC, ECI Date on which judgment is reserved : 09.06.2026 Date of pronouncement of judgment : 12.06.2026 Whether the pronouncement is of the operative part of the judgment? : NA Whether the full judgment has been pronounced? : Yes 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 17.05.2019 passed by the learned Foreigners Tribunal no.2, Darrang, Mangaldai in F.T. Case No. F.T.(2) 12866/2011 (Ref. F.T. Case No. 12212/1998). 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), Darrang, Magaldai District, against the petitioner giving rise to the aforesaid F.T. Case No. F.T.(2) 12866/2011 (Ref. F.T. Case No. 12212/1998). (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 15.02.2019 along with certain documents and adduced evidence through 2 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 K. Rahman, learned counsel for the petitioner. We have also heard Shri G. Sarma, learned Standing Counsel, Home Deptt, Shri J. Page No.# 4/16 Payeng, learned Standing Counsel, NRC, Ms. R.B. Bora, GA, Assam and Shri A.I. Ali, learned Standing Counsel, ECI. We have also carefully examined the records which were requisitioned vide an order dated 02.12.2019. 4. Shri Rahman, 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 her as DW1 and her brother as DW2 and also the following documentary evidence. (i) Ext. 1- Gaonburah certificate of Ulubari village (ii) Ext. 2- Gaonburah certificate of Ranipukhuri village (iii) Ext. 3- Panchayat certificate (iv) Ext. 4- Voters List of 1966 (v) Ext. 5- Annual Patta for the year 1940/1941 (vi) Ext. 6- License of 1963 (vii) Ext. 7- License of 1966 (viii) Ext. 8- Chitha Checklist. 5. The learned counsel for the petitioner at the outset has criticized the LVO report. He has submitted that the said report was incomplete and therefore, the learned Tribunal could not have assumed jurisdiction. 6. The learned counsel for the petitioner has submitted that in the written statement, all material disclosures were made. It is submitted that there is a land document in the form of Annual Patta of 1940 in the name of the father of the petitioner. Reliance has been placed on two receipts of license fee for vehicle issued by the Dalgaon Sialmari Anchalik Panchayat in the name of the father of the petitioner dated 31.03.1963 and 30.06.1966 respectively. The Page No.# 5/16 Voters List of the year 1966 containing the name of the father has been relied upon followed by Chitha Checklist dated 20.12.2012. It is specifically contended that this document was not taken into consideration by the learned Tribunal. Reliance have also been placed on three certificates, the first dated 20.07.2015 issued by the No.1/2 Baruajhar Gaon Panchayat; the second dated 11.02.2019 issued by the Gaonburah of Ulubari/ Jangalpara village under Dalgaon Revenue Circle and the third dated 24.02.2019 issued by the Gaonburah of village Sibapur. 7. 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. 8. In support of his submission, the learned counsel for the petitioner has relied upon the following case laws: (i) Judgment dated 20.02.2023 in WP(C)/6428/2019 (Jagat Chetri@ Jagat Bahadur Chetrivs. UOI& Ors.) (ii) 2023 (2) GLT 1102 (Anjana Biswas vs. UOI& Ors.) (iii) 2023 (4) GLT 425 (Pranati Hazong vs. UOI& Ors.) (iv) Judgment dated 06.11.2024 in WP(C)/4854/2024 (Hazera Khatun @ Hazara Bibi vs. UOI& Ors.) 9. In the case of Jagat Chetri (supra), interference was made with the Reference as there were materials to show that the petitioner had indeed served the Indian Army for about 38 years and there was no application of mind. The case of Anjana Biswas (supra) has been cited wherein this Court had given Page No.# 6/16 credence to oral evidence of the father and the Gaonburah. In the case of Pranati Hazong (supra), the interference was made as there was clear finding in the LVO report that the petitioner was born prior to 1971 which was ignored. The case of Hazera Khatun (supra) was cited wherein the High Court had held that a Foreigners Tribunal assumes jurisdiction only after a Reference is made. 10. Per contra, Shri Sarma, the learned Standing Counsel, Home Department has categorically refuted the stand taken on behalf of the petitioner. On the submission advanced by the learned counsel for the petitioner questioning the LVO Report, the learned Standing Counsel has contended that the issue has already been settled by the Division Bench in the judgment dated 29.07.2019 passed in WA/170/2019(Sayam Uddin vs Union of India & Ors.) and the said view has been reiterated in subsequent decision. 11. 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. Page No.# 7/16 12. 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 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.” 13. He has submitted that there is not a single Voters List of the petitioner. The documents containing the name of the projected father would not serve as a link with her. He has also submitted that none of the certificates by the Gaon Panchayat and the two Gaonburahs have been proved and therefore would not Page No.# 8/16 be relevant. As regards the Chitha Checklist, he has submitted that the same was not proved and it does not disclose as to how the projected father had acquired the land. He has further submitted that the said document is a post 1971 document and, as the name suggest, it is only a Checklist and not a Chitha, per se. He has added that even a Chitha does not vest any right which is required to be followed by a jamabandi. Further, the same was not proved by the Lat Mandal or the Issuing Authority. 14. As regards the oral evidence adduced, he has submitted that the same, in absence of documentary support would not be sufficient. He has also submitted that oral evidence of the projected brother as DW2 would not be relevant as there is not a single documentary evidence to support the claim of the petitioner. In this regard, he has relied upon the case of Momin Ali Vs Union of India reported in 2017 (2) GLT 1076 wherein the following observations have been made: “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 pattaholder. Page No.# 9/16 Therefore, evidence of Omar Ali was rightly discarded by the Tribunal.” 15. 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. …” 16. 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 Page No.# 10/16 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.” 17. 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. 18. The learned Standing Counsel has accordingly submitted that the writ petition be dismissed and the interim order be vacated. 19. 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. 20. The rival submissions made have been duly considered and the materials Page No.# 11/16 placed before this Court including the records of the Tribunal have been carefully perused. 21. 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.” 22. 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 Page No.# 12/16 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.” 23. 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. 24. 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 Page No.# 13/16 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 approach would render the High Court a normal court of appeal which it is not.” Page No.# 14/16 25. 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) her date of birth; (ii) place of birth (iii) name of her 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. 26. It is seen that in the written statement, the petitioner has not named his parents or siblings. He has not given his date of birth or even year of birth. 27. So far as the documents are concerned, those pertaining to the projected father cannot, by any means be construed as link document with the petitioner. As rightly pointed out by the learned Standing Counsel, none of the three certificates issued by the Gaon Panchayat and the Gaonburahs has been proved. As regards the Chitha Checklist dated 20.02.2012, it is found that the petitioner has been stated to be the daughter of Atar Ali and the submission is that this document was not taken into consideration by the learned Tribunal. In the interest of justice, we have looked into the original records and have found the said document albeit, scattered. Firstly, the said document was not proved in accordance with law by the Lat Mandal or any Officer of the Issuing Authority and therefore, could not be relevant. Be that as it may, it is not disclosed as to how the projected father had acquired the land. We also find force in the Page No.# 15/16 contention of the learned counsel for the respondents that the same is a post 1971 document which would not be of much relevance. We have also noticed that, as the name itself suggest, the same is only a Checklist and cannot be construed to be a Chitha which otherwise also does not vest any right. 28. The oral evidence of the projected brother as DW2 shall not be of much significance in absence of documentary proof which is a mandatory requirement for discharging the burden under Section 9 of the Act which is a settled position of law. 29. None of the case laws cited by the learned counsel for the petitioner would come to her aid. The facts in the case of Jagat Chetri (supra) are wholly distinguishable where there were materials to show that the petitioner had indeed served the Indian Army for about 38 years and this aspect was ignored by the learned Tribunal. So far as the case of Anjana Biswas (supra) is concerned, the evidence of the father and the Gaonburah were supported by documents unlike the present case. The facts in the case of Pranati Hazong (supra) are wholly different and the interference was made as there was clear finding in the LVO report that the petitioner was born prior to 1971 which was ignored. The ratio in the case of Hazera Khatun (supra) would not be applicable in the facts of the present case as there is no issue with regard to the jurisdiction exercised by the learned Tribunal in the instant case. 30. With regard to the submissions advanced on the LVO report, the issue is no longer res integra. In fact, the entire facet has been discussed and answered in details by this Court in the case of Sayam Uddin vs. Union of India & Ors. in WA/170/2019 vide judgment and order dated 29.07.2019. The aforesaid views have been endorsed and reiterated by a Coordinate Bench in the Page No.# 16/16 subsequent case of Shukurjan Nessa @ Sukurjan vs. Union of India & Ors. reported in 2025 (2) GLT 1058 and subsequent judgments. We are in respectful agreement with the aforesaid decision and accordingly hold that the contention of the petitioner is not sustainable. 31. In the case of Bijoy Das vs UOI reported in2018 (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. 32. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 17.05.2019 passed by the learned Foreigners Tribunal no. 2, Darrang, Mangaldai in F.T. Case No. F.T.(2) 12866/2011 (Ref. F.T. Case No. 12212/1998) 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 be returned to the concerned Foreigners Tribunal forthwith, along with a copy of this order. JUDGE JUDGE Comparing Assistant