Page No.# 1/16 GAHC010293312019 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/8870/2019 PABAN ALI @ PAWAN MAJEE S/O LT. ABDUL KADER @ KADER MAJEE @ KALER ALI, R/O TIHU TOWN WARD NO. 3, P.S. AND PO. TIHU, DIST. NALBARI, ASSAM, PIN-781371 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 HOME DEPTT. DISPUR GUWAHATI-781006 3:THE ELECTION COMMISSIONER OF INDIA THROUGH ITS SECRETARY NIRBACHAN BHAWAN NEW DELHI-1 4:THE STATE OF CO-ORDINATOR NATIONAL REGISTER OF CITIZENS (NRC) ASSAM BHANGAGARH GUWAHATI-781005 5:THE DEPUTY COMMISSIONER NALBARI P.O. AND P.S. NALBARI DIST. NALBARI ASSAM Page No.# 2/16 PIN-781335 6:THE SUPERINTENDENT OF POLICE (B) NALBARI P.O. AND P.S. NALBARI DIST. NALBARI ASSAM PIN-78133 Advocate for the Petitioner : MR. A HUSSAIN, Advocate for the Respondent : ASSTT.S.G.I., SC, ECI,SC, NRC,SC, F.T 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 Advocates for the respondents : Shri J. Payeng, SC- Home Deptt. & NRC, Shri P. Sarma, GA, Assam; Shri AI Ali, SC - ECI. Date on which judgment is reserved : 23.07.2026 Date of pronouncement of judgment : 29.07.2026 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 29.05.2018 Page No.# 3/16 passed by the learned Foreigners Tribunal No.1, Nalbari in F.T. (Nal) Case No. 502/2010 (SP Reference No. 198/2007). 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), Nagaon District, against the petitioner giving rise to the aforesaid F.T. (Nal) Case No. 502/2010. (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 02.05.2017 along with certain documents and adduced evidence through 3 nos. of OPWs. (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 Shri J. Payeng, learned Standing Counsel, Home Department & NRC; Shri P. Sarma, learned GA, Assam and Shri A.I. Ali, learned Standing Counsel, Election Commission of India. We have also carefully examined the records which were requisitioned vide an order dated 12.05.2020. 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 Page No.# 4/16 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 through 3 nos. of OPWs including himself as OPW1 and also the following documentary evidence: (i) Ext-1 – Elector Photo Identity Card; (ii) Ext-2 – Voter List of 1997; (iii) Ext-3 – Voter List of 2016; (iv) Ext-4 – Gaonburah Certificate; (v) Ext-5 – High School Certificate; (vi) Ext-6 – PRC; (vii) Ext-7 – NRC; (viii) Ext-8 – Tax Payment Certificate; (ix) Ext-9 – Certificate from Tihu Town Committee; (ix) Ext-10 – Another School Certificate from J.B. School; (x) Ext-11 – Admission Register of Tihu Adarsa Nimna Buniadi Vidyalay. 5. The learned counsel for the petitioner has submitted that in the written statement, all material disclosures were made. It is submitted that the petitioner had attended a school where he got admitted on 21.09.1970 and in this connection, he has proved the School Certificate dated 08.09.1986 as Ext.10. Another School Certificate dated 25.08.1986 of Tihu Boys High School was proved as Ext.5. Reliance has also been placed on a Certificate dated 06.05.2013 issued by the Gaonburah which was proved by the Gaonburah as OPW3. The petitioner has also relied upon a Voters List of 1955 containing the Page No.# 5/16 name of his father from which a link has been sought to be established. Reliance has also been made on a Voters List of the 1997 containing the name of the petitioner with the father’s name. A similar Voters List of the year 2016 has been relied upon containing his name. It is also submitted that the Tihu Town Committee has issued a Certificate dated 21.07.2017 that the father of the petitioner was paying house tax since the year 1966-67. 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. 7. 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. 8. The learning Standing Counsel has further submitted that the written statement is the basic document which is supposed to lay down the foundation Page No.# 6/16 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. The names of the mother and siblings have not been stated in the written statement. 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.” 9. He has submitted that though a Voters List of 1955 containing the name of the projected father was mentioned in the written statement, the same was not exhibited. He has also highlighted that though it is projected that the petitioner Page No.# 7/16 was born prior to 1971 in India, there is not even a single documentary evidence in that regard. He has also submitted that the School Certificate Ext.10 was not trustworthy as the same was given on a blank piece of paper without any letter head and the name of the school itself differs in the rubber stamp. He has also submitted that though the same was proved by OPW2, the School Register did not support issuance of such certificate and there was no counter signature of the Deputy Inspector of Schools. He has also submitted that the Certificate was issued belatedly without any explanation. In this regard, he has relied upon a case of Hamida Begum Vs. Union of India [judgment dated 06.06.2018 passed in WP(C)/2294/2016] and the following observations have been pressed into service: “22. Ext.3 is a School Leaving/Transfer Certificate dated 28.08.2002 issued by the Headmaster of Zarerbazar ME School, Karimganj certifying that Hamida Begum was the daughter of late Md. Abdul Wahab and that she had left the school on 31.12.1989 after passing Class-V examination. As per admission register, her date of birth was 20.05.1978. 24. This certificate can be of no assistance to the petitioner for more than one reason. Firstly, as per this certificate, petitioner had left the school on 31.12.1989. This certificate was issued 13 years thereafter on 28.09.2002. Such belated issuance of the certificate would naturally raise legitimate questions about the bona fides of the said certificate. That part, law on this point is well-settled. School admission register is not a public record within the meaning of Section 35 of the Indian Evidence Act. Therefore, it is necessary that contents of the school admission register would have to be proved.” 10. He has also drawn the attention of this Court to the case of Nur Begum Page No.# 8/16 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.” 11. 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. 12. The learned Standing Counsel has accordingly submitted that the writ petition be dismissed and the interim order be vacated. Page No.# 9/16 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 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 Page No.# 10/16 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 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 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 Page No.# 11/16 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: “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 Page No.# 12/16 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.” 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 Page No.# 13/16 disclose the following: (i) his date of birth; (ii) place of birth; (iii) name of his parents; (iv) their place of birth and citizenship. 20. 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. 21. So far as the School Certificates are concerned, the Certificate dated 25.08.1986 of the Tihu Boys High School was not proved by the concerned authorities and therefore, cannot be construed as admissible evidence. So far as the School Certificate dated 08.09.1986 is concerned, the same appears to be proved by the subsequent Headmaster, who as OPW2 had stated that it was signed by the earlier Headmaster. However, the document suffers from certain inherent defects which renders the entire document untrustworthy. Firstly, the Certificate is on a blank piece of paper without any letter head. Secondly, the Certificate which is written in Assamese language states the name of the school as “Tihu Adarsh Nimna Bu. Bi.”. However, there is a rubber stamp beneath the signature stating the name of the school in English language as “Tihu J.B. School”. Thirdly, while the Certificate states that the petitioner was admitted in the School on 29.01.1970, the Certificate was issued after long 16 years which also did not bear the counter signature of the Deputy Inspector of Schools. There is also mismatch in the name of the petitioner; while the petitioner has been named as Md. Paban Ali, Son of Md. Abdul Kader, from the other Page No.# 14/16 materials, the name appears as Md. Paban Majee. We have also noticed that the version of the petitioner in his cross-examination as OPW1 is that he read in the Adarsh Nimna Buniyadi Vidyalay up to Class VI in 1970 which is clearly inconsistent with the contents of the Certificate. This Court also finds force in the contention of the learned Standing Counsel that this aspect was not mentioned in the evidence in chief and only the School Certificate of 1970 was inserted by hand and further that the School Register did not disclose issuance of the certificate. Further, in his chief-examination, the petitioner had stated that he was a student of Tihu Boys High School from 1970 to 1977 which is inconsistent. 22. So far as the Gaonburah Certificate is concerned, though the same was proved by the Gaonburah as OPW3, the same would not be a conclusive proof of the citizenship of the petitioner inasmuch as, the Certificate is only in connection with the petitioner being a resident of the locality. 23. So far as the Voters List of 1955 is concerned, the same is only a photocopy and not admissible evidence. Further, the name of the projected father has been stated to be Kadir Majih whereas in other documents, the name of the father is Md. Abdul Kader. We are also of the view that when the petitioner claims to have been born on 30.04.1965, the only requirement is to prove the said fact of his birth on the said date in India which the petitioner has failed to do. So far as the Voters List containing the name of the petitioner, the first is of the year 1997 wherein the name has been stated to as Paban Ali with father’s name as Abdul. As noted above, there are inconsistencies both in the name of the petitioner as well as the name of his father. That apart, what is intriguing is that the age of the petitioner is stated to be 28 years in the said Voters List. There is no explanation as to why there are no Voters List of Page No.# 15/16 previous years containing the name of the petitioner as it appears that the petitioner had attained the age of voting in the year 1989. 24. We have also noted that in the written statement, while the petitioner had mentioned the name of his father and grandfather, there is no disclosure of the other relevant and necessary facts like the name of his mother and the names of his siblings. On the other hand, in the cross-examination, the petitioner as OPW1 had stated that he has three brothers and one sister. It is trite law that there cannot be inconsistency in the pleadings and the evidence and no improvement can be made in the evidence. 25. So far as the Certificate dated 21.07.2017 issued by the Tihu Town Committee is concerned, this Court, upon verification with the records of the learned Tribunal, find force in the contention of Shri Payeng, the learned Standing Counsel that a different document was exhibited as Ext.9 which pertains to the period 1975. 26. We are of the view that the petitioner, as proceedee had failed to discharge his burden to prove his citizenship. 27. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 29.05.2018 passed by the learned Foreigners Tribunal No.1, Nalbari in F.T. (Nal) Case No. 502/2010 (SP Reference No. 198/2007) does not call for any interference. 28. 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. 29. The records be returned to the concerned Foreigners Tribunal forthwith, Page No.# 16/16 along with a copy of this order. JUDGE JUDGE Comparing Assistant