Page No.# 1/14 GAHC010131842019 2026:GAU-AS:7504 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4205/2019 SHEFALI SAHA @ SEWALI SAHA W/O- GOPAL SAHA, D/O- LATE RADHA CHARAN PAUL, R/O- BARPATHAR, P.S. KACHUA, DIST- NAGAON, ASSAM. VERSUS THE UNION OF INDIA AND 5 ORS. REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, DEPARTMENT OF HOME, NEW DELHI, PIN- 110011. 2:THE STATE OF ASSAM REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6. 3:THE SUPERINTENDENT OF POLICE (B) DISTRICT- NAGAON ASSAM, PIN- 782460. 4:THE DEPUTY COMMISSIONER DISTRICT- NAGAON ASSAM, PIN- 782460. 5:THE ELECTION COMMISSIONER OF INDIA ASHOKA ROAD NEW DELHI- 110001. 6:THE STATE CO-ORDINATOR NRC, ACHYUT PLAZA BHANGAGARH DISTRICT- KAMRUP(M) GUWAHATI-5 ASSAM Page No.# 2/14 Advocate for the Petitioner : MR. P C DEY, Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, NRC,SC, ECI B E F O R E Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI Hon’ble MR. JUSTICE PRANJAL DAS Advocate for the petitioner : Shri P. C. Dey, Advocate. Advocates for the respondents : Shri J. Payeng, SC- Home Deptt & NRC, Shri P. Sarma, GA, Assam; Shri N. Kalita, Advocate (on behalf of Shri A.I. Ali, SC, ECI. Shri S. S. Roy, CGC. Date on which judgment is reserved : 27.05.2026 Date of pronouncement of judgment : 29.05.2026 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 25.07.2018 passed by the learned Member, Foreigners Tribunal No. 2, Nagaon in F.T. Case No. 1184/2011 (S. P. REF Case No. 1974/1998). By the impugned judgment, the Page No.# 3/14 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. Case No. 1184/2011. (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 24.01.2018 along with certain documents and adduced evidence through 2 (two) nos. of witnesses. The petitioner however did not adduce evidence herself. (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 P. C. Dey, learned counsel for the petitioner. We have also heard Shri J. Payeng, learned Standing Counsel, Home Department & NRC; Shri P. Sarma, learned GA, Assam, Shri N. Kalita, learned Counsel appearing on behalf of Shri A. I. Ali, learned Standing Counsel, Election Commission of India and Shri S. S. Roy, learned CGC. We have also carefully examined the records which were requisitioned vide order dated 14.08.2019. 4. Shri Dey, 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 Page No.# 4/14 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. (1) Ext-1 Copy of Registration Certificate. (2) Ext-2 Copy of Panchayat Certificate. (3) Ext-3 Copy of Gaonbura Certificate. (4) Ext-4 NRC Copy (5) Ext-5 Certified Copy of voter list in the year 1994. (6) Ext-6 Voter List of the year 2017 in respect of 82 No. Raha LAC. (7) Ext-7 Voter Identity Card name of DW 2. (8) Ext-8 Certified Copy of voter list in the year 1971. (9) Ext-9 Copy of Receipt Book. (10) Ext. 10 – Aadhaar Card No. 387074535981. 5. The learned counsel for the petitioner has submitted that in the written statement, all material disclosures were made. It is submitted that the father of the petitioner – Radha Charan Paul had migrated from the erstwhile East Pakistan and registered himself in India on 18.04.1960. Thereafter, the petitioner was born sometime in the year 1958. Reliance has been placed on a Voters List of 1971 containing the name of her brother Amulya Paul, who had deposed before the learned Tribunal as DW 2. With regard to the evidence of DW 2, he has submitted that there is a requirement to take into consideration such evidence and in this regard, he has relied upon the decision of Rousana Begum @ Rosona Begum Vs Union of India & Ors. [WP(C)/7893/2022 decided on 07.12.2022]. 6. Reliance has also been placed on the certificate dated 27.12.2011 issued by Page No.# 5/14 the Gaonburah stating the relationship. 7. The learned counsel for the petitioner has alternatively argued that the petitioner would be entitled to the benefits under the Immigration and Foreigners (Exemption) Order, 2025. He has submitted that the present Order of 2025 has replaced the Orijinal Order of 1940. He has also drawn the attention of this Court to the Immigrants (Expulsion From Assam) Act, 1950. In connection thereto, he has relied upon the case of Uttam Ghosh Vs Union of India reported in 2022 (4) GLT 406. 8. The learned counsel 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. Alternatively, he submits that the petitioner be permitted to explore her option under the Order of 2025. 9. 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 Page No.# 6/14 thereafter, the question of adducing rebuttal evidence may come in. 10. The learning Standing Counsel has further submitted that the written statement is the basic document which is supposed to lay down the foundation of the case of the proceeding and the written statement in the instant case lacks details and is totally vague. There is no date or year of the birth of the petitioner and there are no details of the family members. In this connection, he has relied upon the following observations made by the Hon’ble Supreme Court in the case of Sarbananda Sonowal vs. Union of India reported in (2005) 5 SCC 665 : “17. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Some times the place of birth of his grand parents 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.” 11. He has submitted that no link could be established with the projected father at all and though it appears that the petitioner was born sometime in the year 1958, there is no documentary evidence to connect her with the projected Page No.# 7/14 father. He has stated that the certificate issued by the Gaonburah, by no means, could be deemed as a proof of citizenship, more so, when the Gaonburah could not produce the contemporaneous records. He has submitted that use of national emblem on such certificate is unauthorized. In this connection, he has relied upon the case of Khudeja Khatoon Vs Union of India & Ors reported in 2018 (3) GLT 347. 12. In support of his submission that a document has to be proved from contemporaneous records, the learned Standing Counsel has relied upon the judgment passed in the case of Romila Khatun vs. Union of India reported in 2018 (4) GLT 373 and the following observations have been pressed into service. “20. It is trite that documentary evidence would have to be proved on the basis of the record and the contemporaneous record must substantiate and prove the contents of the document. Proof of document is one thing and proof of contents is another. Not only the document would have to be proved but its contents would also have to be proved. That apart, the truthfulness of the contents of the document would also have to be established from the record. A document or the contents of the document cannot be proved on the basis of personal knowledge. …” 13. He has also drawn the attention of this Court to the case of Nur Begum vs. Union of India and Ors. reported in 2020 (3) GLT 347 wherein certain observations regarding exercise of Certiorari jurisdiction have been made which read as follows: “9. On the available materials, we find that the Tribunal rendered opinion/order upon due appreciation of the entire facts, evidence and Page No.# 8/14 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.” 14. 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. 15. The learned Standing Counsel has accordingly submitted that the writ petition be dismissed. He has however fairly submitted that though the Orders of 2025 have been sought to be relied upon by the petitioner as an alternative argument, ultimately, it would be the Citizenship (Amendment) Act, 2019 which may have a role, in case the petitioner opts to apply under the same. 16. 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 Page No.# 9/14 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. 17. 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. 18. 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 herein below- “9. Burden of proof.—If in any case not falling under Section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.” Page No.# 10/14 19. In this connection, the observations of the Hon’ble Supreme Court in the case of Fateh Mohd. Vs. Delhi Administration [AIR 1963 SC 1035] which followed the principles laid down by the Constitutional Bench in the case of Ghaus Mohammad Vs. Union of India [AIR 1961 SC 1526] in the context of Foreigners Act, 1946 would be relevant which is extracted hereinbelow- “22. This Act confers wide ranging powers to deal with all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner for prohibiting, regulating or restricting their or his entry into India or their presence or continued presence including their arrest, detention and confinement. The most important provision is Section 9 which casts the burden of proving that a person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall lie upon such person. Therefore, where an order made under the Foreigners Act is challenged and a question arises whether the person against whom the order has been made is a foreigner or not, the burden of proving that he is not a foreigner is upon such a person. In Union of India v. Ghaus Mohd. the Chief Commissioner of Delhi served an order on Ghaus Mohammad to leave India within three days as he was a Pakistani national. He challenged the order before the High Court which set aside the order by observing that there must be prima facie material on the basis of which the authority can proceed to pass an order under Section 3(2)(c) of the Foreigners Act, 1946. In appeal the Constitution Bench reversed the judgment of the High Court holding that onus of showing that he is not a foreigner was upon the respondent.” 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 Page No.# 11/14 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. In the instant case, the written statement is 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) the date of birth; (ii) place of birth (iii) name of parents (iv) their place of birth and citizenship Further, there may be a requirement to give the details of the grandparents. It has been stated that all these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. 22. The documents relied upon by the petitioner have been carefully examined. The first document is the registration certificate of the projected father dated 18.04.1960. The next document is a Voters List of 1971 containing the name of the projected brother. Both the aforesaid documents however would not provide any connection of the petitioner with her projected father. Much emphasis has been laid on the deposition made by the projected brother as DW 2. The case of Rousana Begum (supra) has been carefully perused and it clearly appear that in that case though there was evidence of the brother, in the impugned order, there was no discussion of the said evidence. On the other hand, in the instant case, there is not only a reference but also a discussion of the evidence of DW 2 in the Order more particularly, in the third paragraph of Page No.# 12/14 page 52 of the writ petition. 23. It is further trite that oral evidence, though may be relevant is necessarily required to be corroborated and supported by documentary evidence of the contemporaneous period. The law in this field is well settled that oral evidence alone cannot establish citizenship of a suspected proceedee. In the case of Nur Begum (supra), the following observations have been made by a Coordinate Bench, which we respectfully endorse: “…We would reiterate that in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 the evidentiary value of oral testimony, without support of documentary evidence, is wholly insignificant. Oral testimony alone is no proof of citizenship…” 24. The reliance upon the certificate by the Gaonburah dated 27.12.2011 would not come to the aid of the petitioner for more than one reason. There is an authorized use of the National Emblem which renders the certificate otiose. However, even if the said aspect is overlooked, it is seen that the Gaonburah in his deposition could not prove the same with contemporaneous records. He had also admitted that he had become the Gaonburah only in the year 2013 i.e. after issuance of the certificate by the earlier Gaonburah. We find force in the contention advanced by the learned Standing Counsel, who by relying upon the case of Khudeja (supra) had submitted that the said certificate would not have any probative value. On the aforesaid issue, a Co-ordinate Bench in the case of State of Assam Vs. Ohab Ali dated 29.05.2018 in WP(C)/2641/2017 has made the following observations which we respectfully endorse: “13. Though petitioner exhibited a number of documents from Exhibits-A to M, Page No.# 13/14 we find that none of these documents were proved in accordance with law. There were simply filed and marked as exhibits. It is trite that mere filing of document or marking of document as exhibit is not enough. Not only the document has to be proved, the contents of the document would also have to be proved; that apart truthfulness of the contents would have to be proved too. 14. The two crucial documents which say that Ahed Ali @ Oheb Ali was the son of Late Shangser Ali are Exhibits-H and Exhibit-I. Exhibit-H is a certificate dated 02.06.2014, issued by one Akmat Ali, Gaonburah, certifying that Ohed Ali was the son of Late Shangser Ali, but Akmat Ali did not appear before the Tribunal alongwith the contemporaneous record to prove Exhibit-H as well as the contents thereof. Therefore, this exhibit was not proved. That apart, we find that the Gaonburah had embossed the State Emblem of India in Exhibit-H certificate. Under the State Emblem of India (Prohibition of Improper Use) Act, 2005, and the State Emblem of India (Regulation of Use) Rules, 2007, Gaonburah is not authorized to use the State Emblem of India in any manner. Such unauthorized use of the State Emblem of India had rendered Exhibit-H inadmissible in evidence. Similar is the position in respect of Exhibit-I, issued by another Gaonburah, Jahidul Islam Bhuyan on 23.12.2014. For the reasons mentioned above, this exhibit is also inadmissible in evidence. Therefore, these two exhibits besides not being proved were inadmissible in evidence. If these documents are excluded from consideration, there is nothing on record to establish linkage between Ahed Ali @ Oheb Ali or Ohed Ali on the one hand and Shangser Ali on the other hand.” 25. We are of the view that the petitioner as proceedee had failed to discharge her burden to prove her citizenship. 26. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 25.07.2018 passed by the learned Member, Page No.# 14/14 Foreigners Tribunal No. 2, Nagaon in F.T. Case No. 1184/2011 (S. P. REF Case No. 1974/1998) does not call for any interference. 27. The writ petition accordingly stands dismissed. The actions consequent upon the opinion rendered by the learned Tribunal would follow in accordance with law. 28. At this stage, we have also given our anxious thought to the alternative submission advanced on behalf of the petitioner regarding availing the benefit under the Orders of 2025. We are of the opinion that the governing Act in this field would be the Citizenship (Amendment) Act, 2019 which provides for the mode of availing the benefit by a class of persons. There is however a basic requirement to establish that the person making an application falls within that class. We are therefore of the view that if the petitioner can establish that she belongs to the said class, there will be no impediment for her to seek the benefit under the aforesaid Act. It is further made clear that the present order shall not cause any prejudice to the petitioner to file appropriate application under the Citizenship Amendment Act and if the same is done, such application(s) is to be considered 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