Page No.# 1/15 GAHC010144092019 2026:GAU-AS:8284 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5318/2019 SAHERA KHATUN D/O. LT. HASEN ALI, W/O. HAIDAR ALI, VILL. MOTONGA, P.O. NIMUA, P.S. SALBARI, DIST. BAKSA, ASSAM. VERSUS THE UNION OF INDIA AND 6 ORS. REP. BY ITS SECRETARY OF THE MINISTRY OF HOME AFFAIRS, UNION OF INDIA, NEW DELHI. 2:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR, GUWAHATI. 3:THE ELECTION COMMISSION OF INDIA REP. BY THE CHIEF ELECTION COMMISSIONER OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI. 4:THE STATE COORDINATOR OF NATIONAL REGISTER OF CITIZENS ASSAM 1ST FLOOR ACHYUT PLAZA GUWAHATI SHILLONG ROAD BHANGAGARH GUWAHATI ASSAM, PIN-781005. 5:THE DY. COMMISSIONER OF POLICE BAKSA DIST. P.O. P.S. AND DIST. BAKSA ASSAM, PIN-781343. Page No.# 2/15 6:THE SUPDT. OF POLICE (B) BAKSA DISTRICT AT BAKSA P.O. P.S. AND DIST. BAKSA ASSAM, PIN-781343. 7:THE OFFICER IN CHARGE SALBARI POLICE STATION SALBARI DIST. BAKSA (BTAD) ASSAM B E F O R E Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI Hon’ble MRS. JUSTICE SHAMIMA JAHAN Advocate for the petitioner : Shri A. S. Choudhury, Advocate. Advocates for the respondents : Ms. A. Verma, SC- Home Deptt, Shri G. Sarma, SC, NRC, Ms. R. B. Bora, GA, Assam; Shri A. I. Ali, SC, ECI, Ms. M. Das, Advocate, (on behalf of Shri S. K. Medhi, CGC) Date on which judgment is reserved : 08.06.2026 Date of pronouncement of judgment : 11.06.2026 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 28.02.2019 passed by the learned Member, Foreigners Tribunal - III, Barpeta, in F.T. Case No. 42 (III) of 2017 (Ref IMDT Case No. 4283/B/98). By the impugned Page No.# 3/15 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. 42 (III) of 2017 (Ref FT IMDT Case No. 4283/B/98). (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 29.01.2018 along with certain documents and adduced evidence through 4 (four) nos. of witnesses. (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. S. Choudhury, learned counsel for the petitioner. We have also heard Ms. A. Verma, learned Standing Counsel, Home Department; Shri G. Sarma, learned Standing Counsel, NRC; Ms. R. B. Bora, learned GA, Assam; Shri A. I. Ali, learned Standing Counsel, Election Commission of India and Ms. M. Das, learned counsel appearing on behalf of Shri S. K. Medhi, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 03.10.2019. 4. Shri Choudhury, the learned counsel for the petitioner has submitted that the petitioner could prove her case with cogent evidence and in view of the fact Page No.# 4/15 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 DWs and also the following documentary evidence. 1) Ext-A : Certified copy of voter list 1966. 2) Ext-B : Certified copy of voter list 1970. 3) Ext-C : Certified copy of voter list 1997. 4) Ext-D : Elector Photo Identity Card. 5) Ext-E : Land Chitha Copy. 6) Ext-F : Land Revenue paying receipt. 7) Ext-G : Gaonburah Certificate. 8) Ext-H : Gaonburah Certificate. 9) Ext-9 : Birth Certificate. 10) Ext-10 : Birth Certificate. 11) Ext-11 : Birth Certificate. 12) Ext-12 : Birth Certificate. 13) Ext-13 : Birth Certificate. 14) Ext. 15 : Elector Photo Identity Card. 15) Ext. 16 : Elector Photo Identity Card 5. The learned counsel for the petitioner has submitted that in the written statement, all material disclosures were made. He has referred to the Voters List Page No.# 5/15 of 1966 containing the name of her parents along with one Abdul Rokman and grandmother. The next Voters List relied upon is of the year 1971 containing the names of her parents. The Voters List which has been relied upon thereafter is of the year 1997 containing the names of the parents, elder brothers and their respective wives. Certain other Voters List of subsequent period have been referred to which however do not contain the name of the petitioner. In the Voters List where the name of the petitioner appears is of the year 1989 along with her husband Md. Haider Ali. The learned counsel has however submitted that from 1997 onwards, “D” has been prefixed in the name of the petitioner. He has also referred to a land revenue receipt dated 20.01.2018 in the name of the petitioner and other land documents dated 27.05.2019 and 18.12.2017. Reliance has also been placed on a ration card. A certificate by the Gaonburah of Motonga Village has been relied upon which was exhibited. 6. He has relied upon the case of Sirajul Hoque vs. State of Assam reported in (2019) 5 SCC 534 and has contended that minor inconsistencies are to be overlooked. Reliance has also been placed on a decision reported in 2014:GAU-AS:287 [Md. Anuwar Hussain @ Md. Anowar Hussain vs Union of India] 7. The learned counsel for the petitioner 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. 8. 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 Page No.# 6/15 (Tribunals) Order, 1964 relates to determination as to whether the proceedee is a foreigner or not. Therefore, the relevant facts are especially within the knowledge of the proceedee and accordingly, the burden of proving citizenship rests absolutely upon the proceedee, notwithstanding anything contained in the Evidence Act, 1872 and this is mandated under Section 9 of the aforesaid Act, 1946. However, in the instant case, the petitioner utterly failed to discharge the burden. It is also submitted that rebuttal evidence is not mandatory in every case and would be given only if necessary. She further submits that the 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. 9. 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 birth of the petitioner. In this connection, she has relied upon the following observations made by the Hon’ble Supreme Court in the case of Sarbananda Sonowal vs. Union of India reported in (2005) 5 SCC 665: “17. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in Page No.# 7/15 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.” 10. She has submitted that in the written statement there is a disclosure that the petitioner has 3 brothers and 5 sisters. However, there is not a single Voters List of the petitioner with her siblings. She has submitted that there is no a single Voters List of the petitioner with her projected parents. The only Voters List having her name is of 1989 with her projected husband wherein the age of the petitioner is shown as 25 years and there is no explanation as to why her name was not enlisted in the earlier Voters List. She has contended that none of the Gaonburah Certificates are trustworthy and credible. She has pointed that DW 4, who is one of the Gaonburah who has deposed had clearly stated in the cross examination that he did not produce the register book or village register. He has also stated that the parents of the petitioner reside in his area which is apparently incorrect as he is a Gaonburah of Meshpara Village whereas the parents’ residence is at Gandharipara. She has submitted that none of the land documents are reliable and even the deposition of the projected brother as DW 2 is inconsistent as he had deposed that there is no land document in the name of the petitioner. 11. 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. …” 12. 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.” 13. She has also relied upon the case of the Hon’ble Supreme Court in Rupajan Begum vs. Union of India reported in (2018) 1 SCC 579, wherein it has been laid down that a certificate has to be proved on two aspects, firstly, the authenticity of the same and secondly, the authenticity of the contents. 14. The learned Standing Counsel has accordingly submitted that the writ petition be dismissed and the interim order be vacated. 15. The learned counsel for the other respondents have supported the submissions advanced on behalf of the Home Deptt. & NRC and have prayed for Page No.# 9/15 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. 16. 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. 17. 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.# 10/15 18. 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 herein below- “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.” 19. 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. 20. 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 Page No.# 11/15 of certiorari, in the recent decision of Central Council for Research in Ayurvedic Sciences and Anr. Vs. Bikartan Das & Ors [Civil Appeal No. 3339 of 2023] has laid down as follows: “49. Before we close this matter, we would like to observe something important in the aforesaid context: Two cardinal principles of law governing exercise of extraordinary jurisdiction under Article 226 of the Constitution more particularly when it comes to issue of writ of certiorari. 50. The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari is that in granting such a writ, the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the 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.” 21. 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 Page No.# 12/15 disclose the following: (i) date of birth, (ii) place of birth, (iii) name of the 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. So far as the documentary evidence is concerned, the Voters Lists of 1966 and 1971 contain the names of the projected parents of the petitioner which admittedly cannot be construed as linkage documents. Thereafter, there is a long and inordinate gap of more than 25 years with the Voters List of 1997 in which also the name of the petitioner is not there and cannot serve as a linkage document. As mentioned above, the subsequent Voters Lists also do not contain the name of the petitioner. The only Voters List containing her name is of the year 1989 which however is not with her projected parents but with her projected husband which will not help her to discharge her burden. The petitioner was prefixed “D” from 1997. What is also intriguing is that in 1989 the petition was aged 25 years and therefore there should have been at least one Voters List containing her name. 23. As regards the oral evidence, it is a settled principle and in matters of the present nature, oral evidence is required to be supported by documentary evidence. The documents sought to be relied upon by the petitioner as DW 1 are not trustworthy and credible. So far as the land revenue receipt dated 20.01.2018 is concerned, the same is found in page 32 of the records of the Page No.# 13/15 Tribunal. It transpires that there are 2 headings with the meaning “from whom received” and “for whom received”. The petitioner claims that she had paid the land revenue but the same clearly appears to have been paid for Hasen Ali from which it can be presumed that the father of the petitioner was alive as on 2018. On the other hand, it is the case of the petitioner that the father had expired in or about 2003. So far as the land document dated 27.05.2019 is concerned, the same is wholly irrelevant as the document is one which is procured after the impugned opinion which is dated 28.02.2019. As regards the chitha dated 18.12.2017, it appears that the land is in the name of the projected father and there is no linkage. In this connection, it may also be noted that the projected elder brother of the petitioner, who had deposed as DW 2 had stated in the cross examination that there was no land document of the petitioner. 24. So far as the ration card is concerned, the same was not even produced in the Tribunal as an evidence to establish citizenship. As regards the certificate of the Gaonburah is concerned (Ext-G), the concerned Gaonburah was not examined. So far as DW 4, the Gaonburah of Meshpara is concerned, he had deposed that the residence of the parents of the petitioner are from his area whereas the parents appeared to be from village Gandharipara. We have found another certificate by a Gaonburah in page 68 of the records (Ext. H) which apart from not being proved by the Gaonburah, no names of the parents have been written and it is not discernable as to who had issued the same. We find force in the submission advanced by the learned Standing Counsel that though the petitioner had stated in paragraph 38 of the written statement of having 3 brothers and 5 sisters, there is not a single common Voters List. 25. So far as the case of Md. Anuwar Hussain (supra) is concerned, the Page No.# 14/15 same cannot be binding as it is a Single Bench decision. 26. So far as the case of Sirajul Hoque (supra) is concerned, the Hon’ble Supreme Court had put a rider that while minor inconsistency in the Voters List may be overlooked, the other aspects have to remain consistent. For ready reference, the relevant observations are extracted which are self-explanatory: “3. There is no doubt that the great grandfather’s name Amtullah appears as Amtullah throughout the document. Equally, there is no doubt about the father’s name which appears as Hakim Ali throughout. The only discrepancy found is that in some of the documents Kefatullah later becomes Kematullah. However, what is important to note is that his father’s name Amtullah continues as Amtullah and the other family members associated continued as such. Also produced are NRC Registration details of the year 1971 of the grandfather who is noted to be Kefatullah in this document. Other voters lists are then produced where the letter F becomes the letter M with other family names remaining the same....” 27. In the case of Bijoy Das Vs UOI reported in 2018 (3) GLT 118, this Court has laid down that in proceedings of this nature, oral evidence alone would not be enough and such evidence is required to be supported and corroborated by documentary evidence and contemporaneous records. However, in this case, the same has not been able to be done by the petitioner. We are of the view that the petitioner as proceedee had failed to discharge her burden to prove her citizenship. 28. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 28.02.2019 passed by the learned Member, Page No.# 15/15 Foreigners Tribunal III, Barpeta in F.T. Case No. 42 (III) of 2017 (Ref IMDT Case No. 4283/B/98) does not call for any interference. 29. 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. 30. The records of the learned Tribunal be returned forthwith, along with a copy of this order. JUDGE JUDGE Comparing Assistant