Page No.# 1/15 GAHC010149322019 2026:GAU-AS:7257 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4087/2019 SAHAR VANU NESSA W/O HANNAN ALI R/O VILLAGE PUB MAHCHARA P.S. TARABARI DISTRICT BARPETA ASSAM. VERSUS THE UNION OF INDIA AND 6 ORS. REPRESENTED BY THE HOME SECRETARY MINISTRY OF HOME AFFAIRS GOVERNMENT OF INDIA NORTH BLOCK CENTRAL SECRETARIAT NEW DELHI- 110001. 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM HOME DEPARTMENT ASSAM SECRETARIAT DISPUR GUWAHATI- 781006. 3:THE ADDL. DIRECTOR GENERAL OF POLICE (BORDER) ASSAM ASSAM POLICE BORDER ORGANISATION SRIMANTAPUR GUWAHATI- 7810032. 4:THE DEPUTY COMMISSIONER Page No.# 2/15 BARPETA DISTRICT P.O. P.S. AND DISTRICT BARPETA ASSAM PIN- 781301. 5:THE SUPERINTENDENT OF POLICE (BORDER) BARPETA ASSAM POLICE BORDER ORGANISATION BARPETA P.O. P.S. AND DIST.- BARPETA ASSAM- 781301. 6:THE STATE CO-ORDINATOR NATIONAL REGISTRAR OF CITIZENS ASSAM DISPUR GUWAHATI- 781006. 7:THE ELECTION COMMISSION OF INDIA NEW DELHI PIN- 110001. ------------ Advocate for : MR. A GOYAL Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 6 ORS. 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. Goyal Advocates for the respondents : Ms. A. Verma, SC- Home Deptt & NRC, Shri P. Sarma, GA, Assam; Shri N. Kalita, for ECI. Date on which judgment is reserved : 18.05.2026 Date of pronouncement of judgment : 26.05.2026 Page No.# 3/15 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 13.03.2019 passed by the learned Foreigner’s Tribunal No.7, Barpeta in F.T. Case No. 458/2016 [corresponding to R/IM(D)T Case No. 8234/98]. 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), Barpeta District, against the petitioner giving rise to the aforesaid F.T. Case No. 458/2016. (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 17.07.2017 along with certain documents and adduce evidence through 3 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 Page No.# 4/15 accordingly, the opinion was rendered declaring the petitioner to be a foreign national post 25.03.1971. 3. We have heard Shri A. Goyal, learned counsel for the petitioner. We have also heard Ms. A. Verma, 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. We have also carefully examined the records which were requisitioned vide an order dated 29.07.2019. 4. Shri Goyal, 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 by the petitioner as DW1 and two other witnesses, namely, DW2 – Gaonburah and DW3 – brother and also the following documentary evidence. (i) Ext-A – certified copy of the Voter List of 1966; (ii) Ext-B – certified copy of the Voter List of 1970; (iii) Ext-C – certified copy of the Voter List of 1997; (iv) Ext-D – certified copy of the E/Roll of 2016; (v) Ext-E – photocopy of the Elector Photo Identity Card of Mafajjan Khatun Bidhaba; (vi) Ext-F – certified copy of the Voter List of 1997; (vii) Ext-G - certified copy of the E/Roll of 2016; (viii) Ext-H – Elector Photo Identity Card of Abdul Mazid; (ix) Ext-I – Gaonburah certificate dated 17.07.17; (x) Ext-J – Gaonburah certificate dated 31.07.17; Page No.# 5/15 (xi) Ext-L – photocopy of the PAN Card; (xii) Ext-1 – Photo copy of the E/Roll of 1997. 5. The learned counsel for the petitioner has submitted that in the written statement, all material disclosures were made. It is submitted that in the Voters Lists of 1966 and 1970, the names of her father and stepmother were enlisted. The next Voters List is of the year 1997 containing the names of her parents. Another Voters List of 1997 has been relied upon containing the names of the brother and sister followed by a similar Voters List of the year 2005. The petitioner has also relied upon two Certificates given by the Gaonburah who had also deposed as DW2. Further, the brother of the petitioner Abdul Mazid had deposed as DW3. 6. The learned counsel has accordingly contended that the petitioner could discharge her burden towards establishing her citizenship and submits that in view of the availability of the aforesaid materials, the impugned opinion could not have been rendered against the petitioner and therefore, the same requires interference. 7. Per contra, 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, Page No.# 6/15 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 evidence of a proceedee has to be cogent, relevant, which inspire confidence and acceptable and only thereafter, the question of adducing rebuttal evidence may come in. 8. The learning Standing Counsel has further submitted that the written statement is the basic document which is supposed to lay down the foundation of the case of the proceeding and the written statement in the instant case lacks details and is vague. There is no date or year of the births of the petitioner and there are no details of the family members. 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 Page No.# 7/15 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 contended that there is not a single documentary evidence to show the linkage of the petitioner with her projected parents. She has also highlighted that in the Voters List of 1997, the age of her projected mother was 60 years and there is no explanation why her mother was not enlisted in any previous Voters List. She has also submitted that though one Bahaton Nessa was projected to be the stepmother whose name was there in the Voters Lists of 1966 and 1970, suddenly the name disappeared without any explanation. It is also submitted that the Gaonburah, as DW2 had clearly admitted that he was not aware of the Executive Instructions pertaining to the authority to issue such Certificates. It is also contended that the evidence of the DW3, the projected brother would be of no relevance in absence of any documentary support. 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 Page No.# 8/15 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. She 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 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, Page No.# 9/15 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 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 made 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 Page No.# 10/15 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 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 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 Page No.# 11/15 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.” 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 Page No.# 12/15 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 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) his date of birth; Page No.# 13/15 (ii) place of birth (iii) name of his 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. 21. So far as the Voters Lists are concerned, those of the years 1966 and 1970 contains the name of the projected father – Abed Ali Seikh and the stepmother Bahaton Nessa. However, there is an inexplicable gap of 27 years with the next Voters List which is however from a different district altogether. The earlier Voters List of the years 1966 and 1970 were from Singlipara in the district of Goalpara whereas the Voters List of 1997 is of the district of Barpeta. There is also change in the name of the projected father from Abed Ali Seikh to Abed Ali. Even if the change in the name of the projected father is overlooked, what is astonishing is that the age of the projected mother in the Voters List of 1997 is 60 years. There is no explanation regarding the fact as to why the mother of the petitioner was not enlisted in any previous Voters Lists in spite of the fact that she was aged 60 years in the year 1997. There is no explanation as to why the name of the projected stepmother did not reflect in the Voters List of 1997. So far as the other Voters List of the year 1997 is concerned, the same contain the names of the projected brother and sister which is similar in the Voters List of 2005. 22. So far as the two Certificates by the Gaonburah are concerned, the same were sought to be proved by the Gaonburah as DW2. However, in response to certain clarifications sought for by the learned Tribunal, he had admitted that he Page No.# 14/15 was not aware of the Executive Instructions of the Assam Land and Revenue Regulations, 1886. He has further admitted that there was no book number on the Certificates and he did not know the grandparents of the petitioner’s mother. He had also admitted that the Certificates were issued on the basis of a photocopy of the electoral roll produced before him and, on his own accord used the State Emblem. 23. There is not a single document to support the claim of the petitioner to be a citizen of India. In this connection, we find force in the contention advanced by the learned Standing Counsel who has relied upon the case of the Hon’ble Supreme Court in Rupajan Begum (supra). 24. In the case of Sufia Khatun Vs. UoI, [WP(C) /3961/ 2019 decided on 16.09.2019], the following observations have been made by a Coordinate bench in the context of a Gaonburah Certificate and evidence adduced, which we respectfully endorse: “6. … Therefore, the entries made in the Gaonbura’s Certificate appears to be based on faulty knowledge of the DW-3 and not based on any public records maintained by his office in regular course of duty attached to his office. The Executive Instructions appended to the Assam Land and Revenue Regulation, 1886, does not cast any duty to the Gaonbura to maintain record of citizens born in the Lot under his charge or register containing names of females in Lot under his charge who are married to persons outside the Lot under his charge.” 25. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 13.03.2019 passed by the learned Foreigner’s Page No.# 15/15 Tribunal No.7, Barpeta in F.T. Case No. 458/2016 [corresponding to R/IM(D)T Case No. 8234/98] does not call for any interference. 26. 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. 27. The records be returned to the concerned Foreigners Tribunal forthwith, along with a copy of this order. JUDGE JUDGE Comparing Assistant