Page No.# 1/11 GAHC010008292019 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/426/2019 RAMESH CH. DEBNATH S/O LT. BIPIN CH. DEBNATH VILL- NO. SINGRIMARI BAGICHIA P.S. KALAIGAON, DIST. UDALGURI (BTAD), ASSAM VERSUS THE UNION OF INDIA AND 6 ORS. REP. BY THE SECRETARY TO THE GOVT. OF INDIA, DEPARTMENT OF HOME, NEW DELHI, PIN - 110011. 2:THE STATE OF ASSAM REP. BY THE SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI PIN - 781006. 3:THE DEPUTY COMMISSIONER DIST. UDALGURI (BTAD) ASSAM PIN - 784509. 4:THE SUPERINTENDENT OF POLICE (B) UDALGURI (BTAD) DIST. UDALGURI ( BTAD) ASSAM Page No.# 2/11 PIN - 784509. 5:THE FOREIGNERS REGIONAL RESISTING OFFICE (FRRO) DIST. UDALGURI (BTAD) ASSAM PIN - 74509. 6:THE ELECTION COMMISSIONER OF INDIA REP. BY THE SECRETARY OF THE COMMISSION OF H.Q. NEW DELHI PIN- 01. 7:THE STATE CO-ORDINATOR NRC ACHYUT PLAZA BHANGAGARH DIST. KAMRUP (M) GUWAHATI - 781005 ASSAM Advocate for the Petitioner : MR. A R MEDHI, MR. M ALI,MS. K MEDHI Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,MR J PAYENG,SC, NRC,MS. A VERMA,SC, ECI,MR. D BARUAH BEFORE HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI HON’BLE MR. JUSTICE RAJESH MAZUMDAR For the Petitioner : Shri AR Medhi, Advocate. For the Respondents : Shri J Payeng, SC, FT; Shri G Sarma, SC, NRC; Shri P Sarmah, GA, Assam; Ms. M Das, Advocate (on behalf of Shri SK Medhi, CGC); Shri H Kuli, Advocate (on behalf of Shri AI Ali, SC, ECI) Page No.# 3/11 Date of Hearing : 10.09.2025. Date of Judgment : 19.09.2025. 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/ judgment and order dated 12.12.2018 passed by the learned Foreigners’ Tribunal (2nd) Darrang, Mangaldai in FT Case No. 388/2007 (Ref. Case No. IM(D)T Case No.907/1998). By the impugned judgment, the petitioner, who was the proceedee before the learned Tribunal, has been declared to be a foreigner post 25.03.1971. 2. The facts of the case may be put in a nutshell as follows: (i) The reference was made by the Superintendent of Police (B), Darrang, against the petitioner. It may be mentioned that the initial reference was made under the IM(D)T Act, 1983 which after order dated 12.07.2005 of the Hon’ble Supreme Court in WP(C)/131/2000 was transferred to the newly created Tribunal which was taken up for disposal as per the Foreigners Act, 1946 and Foreigners (Tribunal) Order, 1964; (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. Thereafter, the petitioner had Page No.# 4/11 adduced evidence by himself as DW1, his son as DW2 and one co-villager as DW3; (iii) The learned Tribunal after noticing the aforesaid 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 AR Medhi, learned counsel for the petitioner. We have also heard Shri J Payeng, learned Standing Counsel, FT & Home and Political Department; Shri G Sarma, learned Standing Counsel, NRC; Shri P Sarmah, learned Addl. Sr. Government Advocate, Assam; Ms. M Das, learned counsel appearing on behalf of Shri SK Medhi, learned CGC and Shri H Kuli, learned counsel appearing on behalf of Shri AI Ali, learned Standing Counsel, ECI. We have also carefully examined the records which were requisitioned vide an order dated 01.02.2019. 4. Shri Medhi, the learned counsel for the petitioner has submitted that the petitioner could prove his case with cogent evidence and therefore, the learned Tribunal should have accepted the said proof and accordingly held the petitioner as a citizen of India. In this regard, he has referred to the evidence on affidavit of the three witnesses and also the following documentary evidence: i) Certified copy of Voter List of 1965 as Ext.-A; ii) Certified copy of Voter List of 1993 as Ext.-B; iii) Certified copy of Voter List of 2005 as Ext.-C; Page No.# 5/11 iv) Certified copy of Voter List of 2014 as Ext.-D; v) EPIC of petitioner as Ext.-E; vi) Certified copy of order IMDT Case No. 413/90 as Ext.-F; vii) NRC list as Ext.-G. 5. The learned counsel for the petitioner has submitted that the aforesaid materials would be sufficient to come to a conclusion that the petitioner is a citizen of India. However, by overlooking the same and without a proper appreciation, the impugned opinion/order has been passed which requires interference. 6. Per contra, Shri Payeng, learned Standing Counsel, FT & Home and Political Department has opposed the writ petition. 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. This is mandated under section 9 of the aforesaid Act, 1946. However, in the instant case, the petitioner utterly failed to discharge the said burden. He further submits that the evidence of a proceedee has to be cogent, relevant, which inspires confidence and acceptable and only thereafter, the question of adducing rebuttal evidence may come in. 7. He further submits that so far as the documents are concerned, the petitioner had failed to prove the relevant documents and only few documents have been proved which will not discharge his burden. By referring to the case of Anowar Ali Vs. Union of India, reported in 2014 (3) GLT 500, he has submitted that there is no bar to proceed afresh after an opinion is rendered by a Tribunal under the IM(D)T Act. He Page No.# 6/11 has also highlighted that under Section 6A(2) of the Citizenship Act, 1955 ordinary stay is required to be established. He submits that though the Voter List of 1965 has been exhibited, there are no voters lists till year 1993. He reiterates that voters lists of the intervening period would be crucial so as to establish continuous stay. He has also submitted that in the Voters List of 1993 which has been exhibited as Ext.-B, the name of the village is Singrimari which is a different village. No continuous stay from 1965 to 1993 has been established by the petitioner. He has also submitted that the evidence of DW2 and DW3 who will not be of much relevance. 8. Shri Payeng, learned Standing Counsel, has, however, fairly conceded that from the certified copy of the IM(D)T order which has proved, it appears that from 1990 to 1994, the petitioner was present. Further, his presence is also seen during 1988 at the time of enquiry by the Superintendent of Police. 9. The rival contentions have been duly considered. The records of the learned Tribunal placed before this Court have been carefully perused. 10. 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 Page No.# 7/11 may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.” 11. 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. 12. 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 & 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 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 Page No.# 8/11 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.” 13. The principal ground of challenge is that the documents have not been properly appreciated and accordingly, the impugned opinion/order is liable to be set aside. 14. To establish the claim of citizenship, the first document which the petitioner has proved is the Voters List of 1965 containing his name along with his elder brother- Dinesh, son of Bipin. In the said voter list, the age of the petitioner has been shown as 28 years. Though the next voter list proved by the petitioner is of the year 1993, in the writ petition, the petitioner has enclosed a voter list of 1970 containing his name along with his elder brother. Since the said Voters List of 1970 was proved before the learned Tribunal, this Court will not accept the same as evidence. However, the age of the petitioner which is reflected as 33 years would appear to be consistent with the Page No.# 9/11 age recorded in 1965 Voters List. As mentioned above, the petitioner has proved the 1993 Voters List with his age shown as 55 years which appears to be consistent. The Voters List of 2005, however, shows his age to be 57 but the name of the wife is the same. In this proceeding, the petitioner has also enclosed a certificate of Basic Military Training of the year 1960. However, the same was not proved in the Tribunal and therefore, would not be relevant evidence. 15. DW2, who is the son of the petitioner, has proved that a similar proceeding was also initiated against his wife, who, however, was declared to be a citizen. 16. The learned counsel for the Home Department has submitted that in the Voters List of 1993, the name of the village is Singrimari. However, this Court has noted that in the written statement, the petitioner has stated that he along with his brother had migrated to India in the year 1950 from the erstwhile East Pakistan and is permanently residing at Village No. 2 Singrimari Bagicha under Kaligaon PS, Udalguri. 17. The issue would, therefore, arise of the ordinary stay of the petitioner from 1965 to 1993. Though the Voters List of 1970 has not been proved in accordance with law, the order of the IM(D)T which has been proved would show that the proceeding was on from 1990 to 1994. The learned State Counsel has also pointed that during the enquiry made by the Superintendent of Police in or about the year 1988, the petitioner was found to be present in Indian soil. 18. The relevant provision, namely, Section 6A(2) of the Citizenship Act, 1955 reads as follows: “6A. Special provisions as to citizenship of persons covered by the Assam Accord.― Page No.# 10/11 (1)… (2) Subject to the provisions of sub-sections (6) and (7), all persons of Indian origin who came before the 1st day of January, 1966 to Assam from the specified territory (including such of those whose names were included in the electoral rolls used for the purposes of the General Election to the House of the People held in 1967) and who have been ordinarily resident in Assam since the dates of their entry into Assam shall be deemed to be citizens of India as from the 1st day of January, 1966. …” 19. …” 19. The case projected in the written statement is that the petitioner and his elder brother had migrated from erstwhile East Pakistan in the year 1950. The Voters List of 1965 which has been proved contains the name of the petitioner with his elder brother. Therefore, it is to be seen whether the petitioner had been ordinarily residing in Assam thereafter. Though the next Voters List which has been proved is of the year 1993, as mentioned above, the fact of the petitioner ordinarily residing in Assam is proved by the proceeding of the IM(D)T which continued from 1990 to 1994. Further, the records also disclose that the said proceeding was preceded by an enquiry by the Superintendent of Police in the year 1988 which proves the presence of the petitioner at Assam. Therefore, even if the other documents sought to be introduced at the stage of writ petition are ignored, the aspect of ordinary stay of the petitioner, who is an Indian origin and entered Assam before 01.01.1966 has been substantially proved. 20. In the backdrop of the aforesaid conspectus, we are of the view that the opinion dated 12.12.2018 rendered by the learned Foreigners’ Tribunal (2nd) Darrang, Mangaldai in FT Case No. 388/2007 is unsustainable in law and accordingly set aside. Page No.# 11/11 21. The records of the FT Case No. 388/2007 be returned to the learned Foreigners’ Tribunal (2nd) Darrang, Mangaldai forthwith along with a copy of this order. JUDGE JUDGE Comparing Assistant