Page No.# 1/15 GAHC010287352019 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/8727/2019 SULEMA KHATUN @ MUSST. SULEMA KHATUN W/O- JABBAR ALI @ MD. JABBAR ALI, D/O- LT MANIR UDDIN, R/O- VILL- 8 NO MATIPARBAT, P.S. JAGIROAD, DIST- MORIGAON, ASSAM VERSUS THE UNION OF INDIA AND 6 ORS. REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI-1 2:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-06 3:THE ASSAM STATE ELECTION COMMISSION ASSAM HOUSEFED COMPLEX DISPUR GHY-6 ASSAM PIN- 781006 4:THE STATE CO-ORDINATOR NRC ASSAM BHANGAGARH GHY-5 PIN- 781005 5:THE DY. COMMISSIONER Page No.# 2/15 MORIGAON P.O. AND DIST- MORIGAON ASSAM PIN- 782411 6:THE SUPERINTENDENT OF POLICE (B) MORIGAON P.O. AND DIST- MORIGAON ASSAM PIN- 782411 7:THE OFFICER-IN-CHARGE JAGIROAD P.S. JAGIROAD DIST- MORIGAON ASSAM PIN- 78241 B E F O R E Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI Hon’ble MR. JUSTICE Pranjal Das Advocate for the petitioner : Shri J. Ahmed Advocates for the respondents : Ms. A. Verma, SC- Home Deptt.& NRC, Shri P. Sarma, GA, Assam; Shri M. Islam, for ECI. Shri HK Baishya, CGC. Date on which judgment is reserved : 12.08.2026 Date of pronouncement of judgment : 11.09.2026 Whether the pronouncement is of the operative part of the judgment? : NA Whether the full judgment has been pronounced? : Yes Page No.# 3/15 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 16.07.2019 passed by the learned Foreigners Tribunal No.1, Morigaon in F.T. (C)503/2008. By the impugned judgment, the petitioner, who was the proceedee before the learned Tribunal, has been declared to be a foreigner post 25.03.1971. 2. The facts of the case may be put in a nutshell as follows: (i) A reference was made by the Superintendent of Police (B), Morigaon District, against the petitioner giving rise to the aforesaid F.T. (C)503/2008. (ii) As per requirement u/s 9 of the Foreigner’s Act, 1946 to prove that the proceedee is not a foreigner, the petitionerhad filed the written statement on 26.10.2018along with certain documentsand 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 J. Ahmed, learned counsel for the petitioner. We have also heard Ms. A. Verma, learned Standing Counsel, Home Department& NRC; Page No.# 4/15 Shri P. Sarma, learned GA, Assam;Shri M. Islam, learned counsel appearing on instructions of Shri A.I. Ali, learned Standing Counsel, Election Commission of India and Shri HK Baishya, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 11.05.2020. 4. Shri Ahmed, 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 and also the following documentary evidence. (i) Ext-A – School Transfer Certificate; (ii) Ext-B – GaonBurahCertificate; (iii) Ext-C – Voter Id Card; (iv) Ext-D – Voters List of 1965; (v) Ext-E – Voters List of 1970; (vi) Ext-F – Voters List of 1985; (vii) Ext-G – Voters List of 1993; (viii) Ext-H – Voters List of 1997; (ix) Ext-I – Voters List of 2005; (x) Ext-J – Copy of Jambandi; (xi) Ext-K – Voters List of 1997 at village Matiparbat. 5. Shri Ahmed,learned counsel for the petitioner has submitted that in the written statement, all material disclosures were made.The petitioner had relied upon a School Certificate dated 17.04.2018 as per which, her date of birth is 28.01.1982 and she had left school on 31.12.1992. Reliance has been placed on Ext.B – Certificate issued by the Gaon Burah dated 31.05.2018 which contains the name of the father of the petitioner. So far as Voters List is concerned, the Page No.# 5/15 petitioner has relied upon the Voters List of 1997 containing her name with her husband, namely, Jabbar Ali. Voters Lists of 1965, 1970, 1985, 1993, 1997 and 2005 have also been relied upon containing the name of the father of the petitioner, Moniruddin and other family members. The learned counsel has also submitted that the oral evidence especially of the brother Suraj Ali (DW2) was not considered. He submits that there is a land document in the name of her brother which would establish a link. He has submitted that the learned Tribunal has committed material irregularity in not considering the evidence of DW2. In this connection, he has relied upon the judgment of this Court passed in Sujab Ali Vs. UoI reported in 2021 (4) GLT 664. 6. The learned counsel for the petitioner submits that since the two link documents, namely, the School Certificate (Ext.A) and the Goan Burah Certificate (Ext.B) were not proved in accordance with law, the matter may be remanded back. He has also relied upon a judgement dated 06.03.2019 of this Court in WP(C)/3651/2016 [Rahela Bibi Vs. UoI]. 7. 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, 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 Page No.# 6/15 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. Shehas 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 vague. There is no date of birth of the petitioner. 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 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. She has submitted that no link could be established with the projected Page No.# 7/15 father. Further, though certain Voters Lists of the projected father have been proved, there is no Voters Lists of crucial periods from 1970-1985. Furter, in the Voters List of 1995, the village is different. She has further submitted that the only documentary evidence that may be construed as a link of the petitioner with her projected father are Ext.A and Ext.B. However, neither of the two documents have been proved by the petitioner in accordance with law. Be that as it may, those two documents were discussed by the learned Tribunal and findings arrived and therefore, the submissions for remand made on behalf of the petitioner is not countenanced. 10. In support of her 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 contents of the document cannot be proved on the basis of personal knowledge. …” 11. The learned Standing Counsel has also relied upon the case of Nur Begum vs. Union of India and Ors. reported in 2020 (3) GLT 347wherein certain observations regarding exercise of Certiorari jurisdiction have been made Page No.# 8/15 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.” 12. 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. 13. The learned Standing Counsel has accordingly submitted that the writ petition be dismissed and the interim order be vacated. 14. 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 Page No.# 9/15 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. 15. The rival submissions advanced in the Bar have been duly considered and the materials placed before this Court,including the records of the Tribunal have been carefully perused. 16. 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 Page No.# 10/15 contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.” 17. In this connection, the observations of the Hon’ble Supreme Court in the case of Fateh Mohd. Vs. Delhi Administration [AIR 1963 SC 1035]which followed the principles laid down by the Constitutional Bench in the case of Ghaus Mohammad Vs. Union of India [AIR 1961 SC 1526]in the context of Foreigners Act, 1946 would be relevant which areextracted hereinbelow- “22. This Act confers wide ranging powers to deal with all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner for prohibiting, regulating or restricting their or his entry into India or 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 Page No.# 11/15 onus of showing that he is not a foreigner was upon the respondent.” 18. 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. 19. 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 Page No.# 12/15 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.” 20. 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) date of birth; (ii) place of birth; Page No.# 13/15 (iii) name of parents; (iv) their places 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. 21. So far as Ext.A - the School Certificate is concerned, the same was issued in the year 2018 whereas the petitioner had left school in the year 1992 and there is no explanation of the delay. In any case, the same was not proved in accordance with law by the School Authorities and therefore, would not be relevant. So far as Ext.B – Certificate issued by the Gaon Burah dated 31.05.2018 is concerned, the same was not proved by the issuing authority and therefore, cannot be construed as a relevant piece of evidence. So far as the Voters Lists are concerned, the one of 1997 would be inconsequential as the same does not establish a link with the projected father as there are no names of the parents or other siblings in that. As regards the Voters Lists of 1965, 1970, 1985, 1993, 1997 and 2005 are concerned, the projection is that the name of the father Moniruddin appears along with other family members. However, the same would not establish any link with the petitioner. It has also been rightly pointed out on behalf of the respondents that for the crucial period 1970 to 1985, the Voters List is missing and in the Voters List of 1985, the name of the village is different. 22. As regards the submission that the evidence of DW2 was not considered, this Court is of the opinion that oral evidence alone given by a projected relative would not be sufficient to prove one’s citizenship. Though the case of Sujab Ali (supra) has been cited by the petitioner, in subsequent decisions, the samehas Page No.# 14/15 been distinguished. In the case of Bijoy Das Vs. UOI reported in2018 (3) GLT 118, this Court has laid downthat 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. 23. We are also of the opinion that the requirement to corroborate oral evidence by documentary evidence to prove one’s citizenship is absolutely necessary both in terms of Section 9 of the Foreigners Act, 1946 as well as the serious issue of unabated influx of foreigners illegally in the State of Assam which is to be dealt with firmly in the interest of the unity and integrity of the country. 24. However, in this case, the same has not been able to be done by the petitioner. Further, so far as the DW2, the projected brother is concerned, there is not a single link document to connect him with the petitioner. The land document of DW2 does not establish any connection with the petitioner and therefore, would be irrelevant. We are of the view that the petitioner as proceedee had failed to discharge her burden to prove her citizenship. 25. As regards the prayer for remand to prove the School Certificate and Gaon Burah Certificate, we find force in the objection raised by the learned Standing Counsel, Home Department. We are of the view that in a given case where certain document has not been considered at all in spite of being duly proved, a case for remand may be justified. However, in the instant case, the learned Tribunal had taken into consideration both Ext.A and Ext.B and has come to a conclusion that those have not been proved in accordance with law. We are of the opinion that the facts of the Rahela Bibi (supra) relied upon by the learned counsel for the petitioner are clearly distinguishable as in the instant case, there is adequate discussion on the two certificates, as indicated above. Page No.# 15/15 26. This Court also finds force in the contention advanced on behalf of the respondents that the findings arrived at by the learned Tribunal that it was not normal that when the petitioner was born, her projected father was 77 years of age and mother was 53 years. We are of the opinion that the said conclusion being reasonable, it would not be proper to alter the findings. Under the aforesaid background, this Court in exercise of certiorari jurisdiction would decline to accept the said submission. 27. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 16.07.2019 passed by the learned Foreigners Tribunal No.1, Morigaon in F.T. (C)503/2008 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, along with a copy of this order. JUDGE JUDGE Comparing Assistant