Page No.# 1/29 GAHC010249822018 2025:GAU-AS:16181 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7941/2018 SALEHA KHATUN W/O- HANIF ALI, VILL 9 NO. SAND BLOCK, P.O- JHARNARCHAR, P.S- SOUTH SALMARA, DIST- DHUBRI, ASSAM, PIN- 783339 VERSUS THE UNION OF INDIA AND 5 ORS REP. BY THE MIN OF HOME AFFAIRS, 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 DEPUTY COMMISSIONER DHUBRI DIST- DHUBRI ASSAM PIN- 783301 4:THE SUPERINTENDENT OF POLICE(B) DHUBRI ASSAM PIN- 783301 5:THE ELECTION COMMISSION OF INDIA NEW DELHI- 110001 6:THE STATE COORDINATOR NRC BHANGAGARH GUWAHATI- 78103 Page No.# 2/29 Advocate for the Petitioner : MR H R A CHOUDHURY, MR. A MATIN,MRS H AHMED Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, NRC,SC, ELECTION COMMISSION. 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.M. Ahmed Advocate for the respondents : Shri J. Payeng, SC, Home & NRC Shri P. Sarma, Addl. Sr.GA, Assam Shri H. Kuli, for ECI Shri R.K.D. Choudhury, Dy.SGI. Date on which judgment is reserved : 19.11.2025 Date of pronouncement of judgment : 27.11.2025 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 vide impugned order dated 06.09.2018 passed by the learned Foreigners’ Tribunal - II, Dhubri in F.T. Case No. 633/F/2015, arising out of Ref FT Case No. 842/98. By the Page No.# 3/29 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) The reference was made by the Superintendent of Police (B), Dhubri District, against the petitioner giving rise to the aforesaid F.T. Case No. 633/F/2015. (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 had also adduced evidence as DW1. There were two more witnesses namely, one Kansu Sheikh (DW2) and the Headmaster of the School (DW3). (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 A.M. Ahmed, learned counsel for the petitioner. We have also heard Shri J. Payeng, learned Standing Counsel, Home Deptt. & NRC; Shri P. Sarma, learned Additional Senior Government Advocate, Assam; Shri H. Kuli, learned counsel appearing on behalf of Shri A.I. Ali, learned Standing Counsel, ECI and Shri RKD Choudhury, learned Dy.SGI. We have also carefully examined the records which were requisitioned vide an order dated 10.12.2018. 4. Shri Ahmed, the learned counsel for the petitioner has submitted Page No.# 4/29 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 on affidavit of the petitioner and also the following documentary evidence: i. Ext 1: Register Kabinnama ii. Ext 1(1): Gaon Panchayat Certificate iii. Ext 2: School Certificate iv. Ext 3: NRC Certificate of 1951. v. Ext 4: Electoral Roll 1966. vi. Ext 4(1): Electoral Roll 1970. vii. Ext 5: Electoral Roll 1989. viii. Ext 5(1): Electoral Roll 1979. ix. Ext 6: Electoral Roll 1997. x. Ext 7: Electoral Roll 1997. xi. Ext 8: Electoral Roll 2005. 5. The learned counsel has at the outset submitted that the reference itself was not proper inasmuch as, the Verification Officer’s Report did not contain any information except the name of the petitioner with her husband. He has also submitted that while issuing notice by the learned Tribunal, the earlier Report by the Electoral Registration Officer was not looked into. He has submitted that in a Written Statement, it was clearly mentioned that the grandfather of the petitioner was one, Lokman Sarkar Page No.# 5/29 @ Lokman Sk. who had seven children out of which, Nur Hossen @ Nurul Hoque is the father of the petitioner. Reference has also been made to the NRC of 1951 containing the name of the grandfather Lokman Sarkar with his wife and four children including one Nur Hossen, who is stated to be the father of the petitioner. The voter lists of 1966 and 1970 have been enclosed wherein the grandfather and father – Nurul Hoque Ali appear. Thereafter, in the voters list of 1979, the name of the parents of the petitioner – Nurul Hoque Ali and Rabia Khatun appear. The next voter list is of the year 1989 where along with the name of the parents, the name of one Kansu Sheikh appears who has been stated to be the brother of the petitioner. Two voters list of 1997 and one of 2005 have been enclosed containing the names of the parents and siblings. A School Certificate dated 05.01.2016 has been produced as per which, the petitioner was in Class-IV in the year 1992 with her date of birth as 31.12.1978. Further, a Kabinnama dated 02.12.1995 and a Certificate by the Secretary of the Goan Panchayat were also produced. 6. The learned counsel for the petitioner has submitted that the petitioner had adduced evidence himself as DW1 and through his brother Kansu Sk. as DW2 and the headmaster of the school as DW3. It is submitted that in the impugned opinion dated 06.09.2018, the learned Tribunal did not record any findings on the deposition of DW2 which had caused prejudice to the petitioner and therefore, the matter should be remanded back. In this connection, he has relied upon a decision dated 11.11.2024 of this Court passed in WP(C)/8243/2018 [Jamila Khatun @ Jumila Khatun Vs. Union of India]. In the said case, the matter was remanded back as the evidence was not discussed. He has also relied upon Page No.# 6/29 the case of Amina Khatun Vs. Union of India reported in 2022 (4) GLT 102 on the aspect of non-disclosure of grounds in the notice. The aspect of satisfaction of the Tribunal to be recorded on the report of the referral authority has also been highlighted and in this connection, reliance has been placed on the case of Muslim Mondal Vs. Union of India reported in 2013 (1) GLT 809. With regard to the evidence of the brother, reliance has been placed on the decision of the Karim Ali Vs. Union of India reported in 2022 (3) GLT 816. 7. Opposing the arguments made on behalf of the petitioner, Shri J. Payeng, learned Standing Counsel, Home Department has submitted that the grounds sought to be canvassed by the petitioner are not tenable in law. He has submitted that the concept of “D” voter came in the year 1997 when voters who were doubtful were prefixed as per the intensive revision of the electoral rolls. He has submitted that the action of the Election Commission of India (ECI) for intensive revision as well as marking of D voters was the subject matter of challenge in PIL Nos. 185, 253, 254 / 1998 which were dismissed on 11.02.2002 and the said decision is reported in 2002 (1) GLT 1 [HRA Choudhury Vs. Election Commission of India]. The following observations made by the Hon’ble Division Bench are pressed into service- “( 6 ) It appears that the Election commission of India, (hereinafter referred to as ‘the Commission’), has issued instructions from time to time to the Chief electoral Officer, Assam, for intensive revision of the electoral rolls in Assam with reference to 1.1.1997 as the qualifying date. These instructions of the Commission are contained in the communications dated 7.10.1996, 4.2.1997 and 17.7.1997, Page No.# 7/29 copies of which have been annexed to the reply affidavit filed on behalf of the commission. The instructions of the commission which provide that the cases of persons whose citizenship is in doubt are to be referred to appropriate Tribunals for determination of their citizenship are contained in paragraph-3. 8, 3. 9 and 3. 10 of the guidelines annexed to the communication dated 17/7/1997 of the Commission to the Chief Electoral Officer, Assam. The said paragraphs 3. 8, 3. 9, and 3. 10 of the guidelines are quoted hereinbelow: "3.8 The Electoral Registration Officer shall, on receipt of the verification reports from the Local Verification Officers, consider the same. Where he is satisfied, on such report and such other material/information as may be available to him, about the eligibility of a person, he shall allow his name to continue on the roll and include it in the final roll. Where, however, he is not so satisfied and has reasonable doubt about the citizenship of any person, he shall refer all such doubtful cases to the competent authority under the Illegal migrants (Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946, as the case may be. For the convenience of the Electoral registration Officer, the Commission has devised a pro forma (Annexure-'b') for making such reference which shall be adopted by all the Electoral Registration Officers. While making such a reference, the Electoral registration officer shall also furnish to the competent authority all documentary evidence collected during the Page No.# 8/29 process of verification (including the local verification report)pertaining to the person concerned, and also inform the person concerned of his case having been referred by him to the competent authority. 3.9. After the case of a person has been referred by the Electoral Registration officer to the competent authority as aforesaid, he shall wait for a decision of the relevant Tribunal in relation to that person and act according to such decision. 3.10. Where the relevant Tribunal decides that any such person is not a citizen of India, the Electoral Registration Officer shall proceed under Rule 21a of the Registration of Electors Rules, 1960 to have the name of such person deleted from the electoral roll, before it is finally published. The electoral Registration Officer shall issue notice as required under the proviso to the said Rule 21a of the Registration of electors Rules, 1960 to the individual concerned in the prescribed format. (Please see para-16 of Chapter V - Claims and objections - of the Hand Book for electoral Registration Officers). It further appears that by an order dated 5. 1.1998 of the Commission, copy of which has been annexed to the reply affidavit filed on behalf of the commission, it has been directed that persons whose names have been provisionally entered in the electoral rolls in the State of Assam and against whose names the letter 'd' has been indicated to denote that their citizenship status as doubtful/disputed, shall not be allowed to cast their vote at the Page No.# 9/29 ensuing general election to the House of the People and also at any election held thereafter either to the House of the People or to the legislative Assembly of the State of Assam so long as the citizenship status of any such person is not determined in his favour by the appropriate Tribunal to whom his case has been referred. For the aforesaid direction of the Commission, reasons have also been recorded by the commission in the said order dated 5.1.1998. …” 8. By submitting that any portion left blank in the report of the LVO would not be to the advantage of a proceedee and in this connection, he has relied upon a judgment of this Court dated 28.02.2025 passed in WP(C)/245/2019 [Shukurjan Nessa Vs. Union of India] in which this Court had reiterated an earlier judgment in the case of Sayam Uddin reported in 2019 (4) GLT 456. Certain observations of the aforesaid two cases are required to be mentioned, which are as follows: “11. In the year 1997, Election Commission of India had undertaken an intensive revision of electoral rolls in the State of Assam as apprehensions were expressed from various quarters that the electoral rolls were infested with the names of foreigners/illegal migrants. In the course of this exercise citizenship status of as many as 3,13,046 persons whose names were in the draft voters lists were found to be doubtful and accordingly they were marked as doubtful “D” voters in the electoral rolls after local verification. 12. Legality of this exercise was challenged before this Court in HRA Choudhury Vs Election Commission of India, reported in 2002 (1) Page No.# 10/29 GLT 1. The challenge made was rejected by a Division Bench of this Court. In HRA Choudhury (supra) this Court examined the guidelines dated 17.07.1997 of the Election Commission of India laying down the procedure to carry out the exercise. 12.1. As per paragraph 3.8 of the guidelines, the Electoral Registration Officer was required to consider the verification report received from the Local Verification Officer. If he was satisfied on such report and such other material/information as may be available about the eligibility of a person, he should allow his name to continue on the electoral roll. Where, however, he was not so satisfied and had reasonable doubt about the citizenship of any person, he was required to refer such doubtful cases to the competent authority under the then Illegal Migrants (Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946 as the case may be. For convenience of the Electoral Registration Officers, Election Commission devised proformas. 12.2. As per paragraph 3.9, after the case of a person was referred by the Electoral Registration Officer to the competent authority, he should wait for the decision of the relevant Tribunal in relation to that person and act according to such decision. 12.3. As per paragraph 3.10, where the relevant Tribunal decided that any such person was not a citizen of India, Electoral Registration Officer should proceed under Rule 21 A of the Registration of Electors Rolls, 1960 to have the name of such person deleted from the electoral roll before it was finally published. Page No.# 11/29 12.4. This Court in HRA Choudhury (supra) held that such guidelines and decision of the Election Commission were in accordance with Article 324 of the Constitution of India besides conforming to the principles of natural justice. It was held that such guidelines cannot be held to be arbitrary or vitiated by mala fide or partiality. 13. At this stage, it may be mentioned that the Illegal Migrants (Determination by Tribunals) Act, 1983 is no longer in existence, the same having been declared unconstitutional by the Supreme Court in Sarbananda Sonowal Vs Union of India reported in (2005) 5 SCC 665. Therefore, in so far paragraph 3.8 of the guidelines dated 17.07.1997 is concerned, the reference would be under the Foreigners Act, 1946. 14. The above exercise was repeated in the year 2005 with the Election Commission of India again going for intensive revision of electoral rolls in the State of Assam taking 01.01.2005 as the qualifying date. In this connection, guidelines dated 17.06.2004 were issued by the Election Commission of India. Paragraph 2.2 of the guidelines dealt with “D” voters. It was mentioned that the guidelines issued in 1997 would be followed while dealing with such category of persons. Paragraph 8 dealt with verification by Electoral Registration Officers. It laid down the procedure while carrying out such verification including verification by Local Verification Officer. As per paragraph 8.6, Local Verification Officer would conduct the verification by making an on the spot visit and the person concerned could adduce any one or more of the documents mentioned therein in support of his claim as a citizen of India. After due verification, Page No.# 12/29 the Local Verification Officer was required to submit his report in the prescribed format. Under paragraph 8.8, Electoral Registration Officer on receipt of the verification report from the Local Verification Officer should consider the same. Where he was satisfied about the eligibility of a person, he should allow the name of such person to continue on the electoral roll but where he was not so satisfied and had reasonable doubt about the citizenship of any person he should refer such doubtful cases to the competent authority under the then Illegal Migrants (Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946 in a prepared format (Annexure-B to the guidelines dated 17.06.2004) to the competent authority for making reference to the Tribunal and await the decision of such Tribunal. ... 20. Thus, under the Central Government notifications dated 19.04.1958 and 17.02.1976, Government of Assam, Superintendents of Police and Deputy Commissioners (Incharge of Police) have been delegated the power to make reference to the Foreigners Tribunal under order 2 (1) of the Foreigners (Tribunals) Order, 1964 to seek opinion as to whether the proceedee is a foreigner or not within the meaning of the Foreigners Act, 1946. 21. Thus from the above, what transpires is that there are two categories of “D” voters:- (i). those who were marked as “D” voters in the electoral roll by the Electoral Registration Officer following enquiry by Local Verification Officer; and (ii) those whose references are pending before the Foreigners Tribunals. Page No.# 13/29 22. In so far Electoral Registration Officer is concerned the exercise undertaken by him while marking a person as a “D” voter in the electoral roll is a quasi judicial exercise. If he holds the view after examining the enquiry report of the Local Verification Officer that the concerned person is not a citizen of India he is required to forward the case of that person to the competent authority i.e., the Superintendent of Police. If it is so forwarded by the Electoral Registration Officer, the jurisdictional Superintendent of Police has to make a reference to the competent Foreigners Tribunals under order 2(1) of the Foreigners (Tribunals) Order, 1964 based on the report received from the Electoral Registration Officer. Question of making further enquiry by the Superintendent of Police in such a case would not arise because enquiry has already been made by the Electoral Registration Officer by exercising quasi judicial powers and the Superintendent of Police cannot sit over such decision of the Electoral Registration Officer. He has to forward the same by making the reference to the competent Foreigners Tribunal for its opinion.” 9. He has also submitted that the contention advanced is otiose and redundant in view of the judgment of the Hon’ble Supreme Court in the case of Sarbananda Sonowal Vs. Union of India reported in (2005) 5 SCC 665 wherein a direction was given to transfer all matters which will pending in the Tribunals under the IM(D)T Act to the Foreigners Tribunal and the present case was transferred in compliance of the aforesaid direction. The relevant part of the directions read as follows: 84. In view of the discussion made above, the writ petition succeeds and is allowed with the following directions: Page No.# 14/29 (1) The provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 and the Illegal Migrants (Determination by Tribunals) Rules, 1984 are declared to be ultra vires the Constitution and are struck down. (2) The Tribunals and the Appellate Tribunals constituted under the Illegal Migrants (Determination by Tribunals) Act, 1983 shall cease to function. (3) All cases pending before the Tribunals under the Illegal Migrants (Determination by Tribunals) Act, 1983 shall stand transferred to the Tribunals constituted under the Foreigners (Tribunals) Order, 1964 and shall be decided in the manner provided in the Foreigners Act, the Rules made thereunder and the procedure prescribed under the Foreigners (Tribunals) Order, 1964. ...” 10. On the merits of the case tried to be projected on behalf of the petitioner, the learned Standing Counsel has submitted that certain documents have been sought to be relied upon by the petitioner. So far as the School Certificate (Ext. 2) is concerned, the same is given on a letter head containing the National Emblem which is not admissible. Further, the same was not a Government School. He has contended that even otherwise, as per the Certificate itself, the petitioner had left School on 31.12.1992 and the Certificate have been issued on 05.01.2016 i.e. after a period of about 24 years and there is no explanation. He has submitted that the proceeding was initiated in the year 1997. As regards the deposition of the headmaster, as DW3, the learned Standing Counsel has submitted that it has been deposed that as per the Certificate, the petitioner was a student of a School in the period 1985-92. As per the voter list of 1989, Page No.# 15/29 the village of the petitioner was Jharnasar Part-III and so far as village Sand Block is concerned, the first voter list is of the year 2005. By drawing the attention of this Court to the records of the Tribunal, the learned Standing Counsel has submitted that in the Admission Register sought to be proved, there was no date of birth entered so far as the petitioner is concerned and the village of the petitioner has been written as Sand Block. He has also submitted that though DW3 had claimed to be the headmaster at the relevant point of time, the signatures appearing in the Register and the Certificate are apparently different. He submits that in absence of the School Certificate, there is no other document which can link the petitioner with her father. 11. In the aforesaid connection, he has relied upon the case of Rofiqul Hoque Vs. Union of India reported in 2025 SCC Online SC 1160 where the following observations have been made: “15. The Tribunal as well as the High Court have considered these documents and have found that those earlier voter lists relate to a person located in some other village than the one of which the appellant claimed to be a resident. In such circumstances, the appellant ought to have stated in his affidavit, or demonstrated by some documentary evidence, that his ancestors had migrated from that village to the other village where the appellant was reported to be residing, but, according to the Sarbananda Sonowal v. Union of India and another, (2005) 5 SCC 665 Tribunal, there was no such claim by the appellant in his affidavit. Therefore, the Tribunal discarded the probative value of those voter list entries. Interestingly, the school leaving certificate on which heavy reliance was placed by the appellant was also doubted as there appeared no Page No.# 16/29 reason for it to have been obtained 10 years after passing from the institution. Moreover, the headmaster of the school was not called for to prove the authenticity of the certificate of which duplicate was produced. 16. For the foregoing reasons, if the Tribunal and the High Court held that the appellant could not discharge his burden of proving that he is not a foreigner, the view taken by them cannot be held perverse, or manifestly erroneous, or unreasonable, as to warrant interference under Article 136 of the Constitution of India.” 12. On the aspect of belated issuance of Certificate, the learned Standing Counsel has relied upon a judgment dated 26.04.2018 passed by this Court in the case of Khudeja Khatoon Vs. Union of India [WP(C)/7756/2016] wherein the following observations were made: “12. Ext. A. is a transfer certificate dated 09.01.2016 issued by the Head Master of Uttar Durabandhi Beel LP School certifying that Musstt. Khudeja Khatoon was the daughter of Lt. Jonab Ali of Durabandhi Beel village under Moirabari Police Station in the district of Morigaon. She had left the school on 31.12.1988 after passing Class-II. As per admission register, her date of birth was 12.01.1981. This certificate cannot be accepted as a valid piece of evidence for more than one reason. Firstly, the State Emblem of India is embossed in the certificate. The State Emblem of India (Regulation of Use) Rules, 2007 has been framed by the Central Government in exercise of powers conferred by Section 11 of the State Emblem of India (Prohibition of Improper Use) Act, 2005. This Act was enacted by the Parliament to prohibit improper use of the Page No.# 17/29 State Emblem of India. Section 3 specifically prohibits improper use of the State Emblem.—It says that notwithstanding anything contained in any other law for the time being in force, no person shall use the emblem or any colourable imitation thereof in any manner which tends to create an impression that it relates to the Government or that it is an official document of the Central Government or the State Government, without the previous permission or authorisation. Head Master of LP School is not authorised to use the State Emblem of India in any manner. Such unauthorised use of the State Emblem of India has rendered Ext. A inadmissible in evidence. Secondly, as per this certificate, petitioner had left the school on 31.12.1988. This certificate was issued 28 years thereafter on 09.01.2016. Such belated issuance would naturally cast serious aspersion on the bonafides of such certificate which is heightened by the unauthorised use of the State Emblem of India, that too, not as per the statutory format. Thirdly and most importantly, the author of the said certificate did not appear before the Tribunal alongwith the school admission register to prove the contents of the said certificate, more particularly, date of birth and relation with Lt. Jonab Ali. How the date of birth in school certificate has to be proved has been settled by the Supreme Court long back in Birad Mal Singhvi vs Anand Purohit reported in 1988 (Supl) SCC 604 and further reiteration is not necessary. Therefore, Ext. A besides not been proved, is also inadmissible in evidence.” 13. So far as the Kabinnama is concerned, the learned Standing Counsel has submitted that the same was not proved in accordance with law and Page No.# 18/29 the concerned authorities did not come to the witness box. He has also highlighted that while the marriage was allegedly done on 02.12.1995, the registration was done only on 30.05.2017. He submits that such registration is required to be done within a month of the marriage. In this connection, he has relied upon the judgment dated 29.05.2018 passed in WP(C)/6344/2016 [Rukia Begum Vs. Union of India] in which the following observations have been made: “The same would also be the position in respect of Ext.6 which is stated to be a Kabinnama dated 08.05.1991 between petitioner and Abdul Malik. Though in this document, petitioner was described as daughter of Md. Pakhi Mia, in the absence of any authentication by a responsible and competent authority, no credence can be placed on Ext.6. As a matter of fact, none of the witnesses to Ext.6 nor any Qazi deposed before the Tribunal to prove the contents of Ext.6. Or for that matter, Abdul Malik did not appear before the Tribunal to say that he had married Rukia Begum as per Kabinnama dated 08.05.1991. Moreover, as rightly pointed out by the Tribunal, Ext.6 Kabinnama is not in prescribed form as maintained by the office of the Qazi. Therefore, no reliance can be placed on Ext-6.” He has also relied upon a judgment dated 06.06.2018 in WP(C)/2294/2016 [Hamida Begum Vs. Union of India] wherein the following observations have been made: “26. Proceeding to Ext.4, according to the petitioner, it is a kabinnama dated 12.12.1996 regarding marriage of the petitioner with Abdul Sukkur. Page No.# 19/29 27. As rightly pointed out by the Tribunal, this document was written on a plain piece of paper and for all intent and purpose, was a private document. If that be so, then it was required to be proved in accordance with law. At this stage, we may point out that Abdul Sukkur whom the petitioner claimed to be her husband did not come forward to depose before the Tribunal in favour of the petitioner. Neither the Qazi who had performed the nikah nor the persons who were present at the nikah as witnesses deposed before the Tribunal to prove Ext.4. Therefore, Ext.4 was not proved.” 14. On the aspect as to how a School Certificate is required to be proved, he has relied upon a judgment of the Hon’ble Supreme Court in the case of Birad Mal Singvi Vs. Anand reported in (1988) Suppl SCC 604 wherein the following observations have been made: “15. ... To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. In Raja Janaki Nath Roy v. Jyotish Chandra Acharya Chowdhury a Division Bench of the Calcutta High Court discarded the entry in school register about the Page No.# 20/29 age of a party to the suit on the ground that there was no evidence to show on what material the entry in the register about the age of the plaintiff was made. The principle so laid down has been accepted by almost all the High Courts in the country … The courts have consistently held that the date of birth mentioned in the scholar’s register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined …” 15. He has further submitted that the aspect of shifting due to the marriage has not been proved by any admissible evidence. He has reiterated that in a case of the present nature, even the evidence of those persons, who are projected to be the father or mother, are required to be supported by documentary evidence. In this regard, he has relied upon the case of Bijoy Das Vs. Union of India reported in 2018 (3) GLT 118 wherein the following observations have been made: “17. It is trite that mere filing of written statement and oral testimony in a proceeding under the Foreigners Act, 1946 would not be enough. The fact-in-issue would have to be proved by the proceedee by adducing documentary evidence which are admissible and relevant. The two documents filed by the petitioner were not proved in any manner whatsoever and therefore the assertion of the petitioner that he being the son of Bipul Das, who was a citizen of India, was therefore a citizen of India was not proved.” 16. He has also submitted that the principles laid down in the case of Bijoy Das (supra) were not properly considered in the subsequent decision of Karim Ali (supra). Page No.# 21/29 17. The learned Standing Counsel further submits 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. He submits that there is no procedural impropriety or illegality in the decision making process and therefore, the instant petition is liable to be dismissed. 18. The learned counsel for the other respondents have supported the views of the learned Standing Counsel and have added that the impugned opinion is in accordance with law and the present challenge is devoid of any merits. 19. The rival contentions have been duly considered. The records of the learned Tribunal placed before this Court have been carefully perused. 20. 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. 21. 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: Page No.# 22/29 “49. Before we close this matter, we would like to observe something important in the aforesaid context: Two cardinal principles of law governing exercise of extraordinary jurisdiction under Article 226 of the Constitution more particularly when it comes to issue of writ of certiorari. 50. The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari is that in granting such a writ, the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, being a high 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 Page No.# 23/29 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.” 22. The first ground which has been urged on behalf of the petitioner is on the aspect of the referral order itself. The specific contention is that the report of the Verification Officer is not complete and therefore, the referral order is unsustainable. The aforesaid ground however, appears to be unsustainable in view of the notifications of the Election Commission of India including one dated 17.07.1997 constituting intensive revision of the Electoral Rolls. As noted above, the aforesaid notification was unsuccessfully challenged in PIL Nos. 185, 253 and 254/1998 which were dismissed on 11.01.2002 reported in 2002 (1) GLT 1. This Court is also of the view that after the direction of the Hon’ble Supreme Court in the case of Sarbananda Sonowal (supra) for transferring all cases from the IM(D)T to the Foreigners Tribunal to decide, the said ground would not be available. 23. The other grounds of challenge is that the documents have not been properly appreciated and without there being any rebuttal evidence, the depositions made on behalf of the petitioner should have been deemed to be accepted. Though the scope of scrutiny of the documents by a Writ Page No.# 24/29 Court in exercise of its certiorari jurisdiction is circumscribed, in the interest of justice, the same are examined. The first document is the NRC of 1951 containing the name of the projected grandfather with his wife and 4 children including one Nur Hossen who is projected to be the father of the petitioner. It is a settled principle of law that NRC cannot be treated to be a proof of one’s citizenship. The voters lists which have been relied upon are of 1966, 1970, 1979, 1989, 1997 and 2005. Except the voter list of the year 2005, none of the said voters lists the name of the petitioner exist. The aforesaid position becomes suspicious inasmuch as, from the School Certificate dated 05.01.2016, the date of birth of the petitioner appears to be 31.12.1978 and it is strange that her name was not appearing in the voters list from the time she had become eligible with her parents. 24. Coming to the School Certificate, Ext. 2, the same contains the National Emblem which is not permissible in law. Moreover, it transpires that the School was not a Government School. The Certificate also appears to be issued after about 24 years whereas the proceeding was initiated in the year 1997. Though the headmaster as DW3 had proved the admission register as per which, the petitioner was in the school for the period 1985- 92, the address is not matching with the said period. The first voter list where the name of the petitioner appears is of the year 2005 and her village is shown as Sand Block whereas at least till 1989, the village of the petitioner has been projected to be Jharnasar Part-III. As pointed out by the learned Standing Counsel, there are also discrepancies in the signature of the headmaster of the School on the Certificate and the admission register. As held in the case of Rofiqul Hoque (supra), such Certificate will not have much relevance. There is also no explanation regarding the Page No.# 25/29 belated issuance of the said Certificate. The aspect of belated issuance of Certificate has been dealt with in the case of Khudeja Khatoon (supra). Further, the Hon’ble Supreme Court in the case of Birad Mal Singhvi (supra) has laid the principles regarding the aspect as to how a School Certificate is required to be proved and it clearly appears that the facts of the present case would not pass the test. 25. We also find force in the contention advanced on behalf of the respondents that the Kabinnama cannot be accepted as a valid piece of evidence. As mentioned above, while the marriage was on 02.12.1995, the registration was done on 30.05.2017. The judgments rendered by this Court in the case of Hamida Begum (supra) and Rukia Begum (supra) have settled the principles of law. 26. Under the present scheme of the Act, all material facts are required to be pleaded in the written statement and proved by relevant evidence including documentary evidence. The settled law in this field is that the burden of proof that a proceedee is an Indian citizen is always on the said proceedee and the said burden never shifts. The said procedure is clearly laid down in Section 9 of the Act of 1946 and 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 Page No.# 26/29 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.” 27. In this connection, the observation of the Hon’ble Supreme Court in the case of Fateh Mohd. Vs. Delhi Administration [AIR 1963 SC 1035] which followed the principles laid down by the Constitutional Bench in the case of Ghaus Mohammad Vs. Union of India [AIR 1961 SC 1526] in the context of Foreigners Act, 1946 would be relevant which is extracted hereinbelow- “22. This Act confers wide ranging powers to deal with all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner for prohibiting, regulating or restricting their or his entry into India or their presence or continued presence including their arrest, detention and confinement. The most important provision is Section 9 which casts the burden of proving that a person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall lie upon such person. Therefore, where an order made under the Foreigners Act is challenged and a question arises whether the person against whom the order has been made is a foreigner or not, the burden of proving that he is not a foreigner is upon such a person. In Union of India v. Ghaus Mohd. the Chief Commissioner of Delhi served an order on Ghaus Mohammad to leave India within three days as he was a Pakistani national. He challenged the order before the High Court which set aside the order by observing that there must be Page No.# 27/29 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.” 28. The seriousness of the problem of the influx of illegal migrants in the State was highlighted by the Hon’ble Supreme Court in the case of Sarbananda Sonowal (supra) which had gone to make the following observations: “32. The foremost duty of the Central Government is to defend the borders of the country, prevent any trespass and make the life of the citizens safe and secure. The Government has also a duty to prevent any internal disturbance and maintain law and order. Kautilya in his masterly work "The Arthashastra" has said that a King had two responsibilities to his State, one internal and one external, for which he needed an army. One of the main responsibilities was Raksha or protection of the State from external aggression. The defence of the realm, a constant preoccupation for the king, consisted not only of the physical defence of the kingdom but also the prevention of treachery, revolts and rebellion. The physical defensive measures were the frontier posts to prevent the entry of undesirable aliens and forts in various parts of the country. (Arthashastra by Kautilya - translated by Shri L.N. Rangarajan, who was in Indian Foreign Service and ambassador of India in several countries - published by Penguin Books - 1992 Edn. - page 676). The very first entry, namely, Entry 1 of List I of the Seventh Page No.# 28/29 Schedule is "Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination of effective demobilization". In fact entries 1 to 4 of List I of Seventh Schedule mainly deal with armed forces. Article 355 of the Constitution of India reads as under :- 355. Duty of the Union to protect States against external aggression and internal disturbance. - It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution." The word "aggression" is a word of very wide import. Various meanings to the word have been given in the dictionaries, like, "an assault, an inroad, the practice of setting upon anyone; an offensive action or procedure; the practice of making attacks or encroachments; the action of a nation in violating the rights especially the territorial rights of another nation; overt destruction; covert hostile attitudes." The word "aggression" is not to be confused only with "war". Though war would be included within the ambit and scope of the word "aggression" but it comprises many other acts which cannot be termed as war. In Kawasaki v. Bantahm S.S. Company 1938 (3) All ER 80, the following definition of "war" as given in Hall on Page No.# 29/29 International Law has been quoted with approval :- "When differences between States reach a point at which both parties resort to force, or one of them does acts of violence, which the other chooses to look upon as a breach of the peace, the relation of war is set up, in which the combatants may use regulated violence against each other, until one of the two has been brought to accept such terms as his enemy is willing to grant." 29. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 06.09.2018 passed by the learned Foreigners’ Tribunal - II, Dhubri in F.T. Case No. 633/F/2015, arising out of Ref FT Case No. 842/98 does not call for any interference. Accordingly, this writ petition being devoid of merits stands dismissed. 30. The actions consequent upon the opinion rendered by the learned Tribunal would follow, in accordance with law. 31. The records of the aforesaid F.T. Case No. 633/F/2015, arising out of Ref FT Case No. 842/98 be returned to the learned Foreigners’ Tribunal - II, Dhubri forthwith along with a copy of this order. JUDGE JUDGE Comparing Assistant