Page No.# 1/16 GAHC010227192019 2026:GAU-AS:8286 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7106/2019 SULEMA KHATUN D/O- NABIE HUSSAIN, W/O- ABDUL KASEM, VILL- UDMARI, P.S- JURIA, DIST- NAGAON, ASSAM VERSUS THE UNION OF INDIA AND 7 ORS REP. BY THE SECRETARY, HOME DEPTT, NEW DELHI, INDIA 2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM HOME DEPTT DISPUR GUWAHATI- 06 3:THE CHIEF ELECTION COMMISSIONER OF INDIA NIRVACHAN BHAWAN NEW DELHI 4:THE STATE ELECTION COMMISSIONER OF ASSAM DISPUR GUWAHATI- 6 5:THE STATE COORDINATOR NRC ASSAM GUWAHATI 6:THE DEPUTY COMMISSIONER CUM RETURNING OFFICER DIST- NAGAON ASSAM 7:THE SUPERINTENDENT OF POLICE NAGAON Page No.# 2/16 ASSAM 8:THE SUPERINTENDENT OF POLICE (B) NAGAON DIST- NAGAON ASSA B E F O R E Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI Hon’ble MR. JUSTICE Pranjal Das Advocate for the petitioner : Shri AM Barbhuiya Advocates for the respondents : Shri G. Sarma, SC- Home Deptt. & NRC, Ms. RB Bora, GA, Assam; Shri AI Ali, SC, ECI. Shri UK Goswami, CGC. Date on which judgment is reserved : 27.05.2026 Date of pronouncement of judgment : 10.06.2026 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 03.06.2019 passed by the learned Foreigners Tribunal No.4th, Nagaon in F.T. Case No. 399/2015 [Police Reference ‘D’ Case No. 1303/98]. 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: Page No.# 3/16 (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. 399/2015. (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 on 02.04.2015 along with certain documentsand adduced evidence. (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 AM Barbhuiya, learned counsel for the petitioner. We have also heard Shri G. Sarma, learned Standing Counsel, Home Department& NRC; Ms. R.B. Bora, learned GA, Assam, Shri A.I. Ali, learned Standing Counsel, Election Commission of India and Shri UK Goswami, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 27.01.2020. 4. Shri Barbhuiya, 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 her evidence adduced as DW1 and also the following documentary evidence: Page No.# 4/16 (i) Ext-1 - certified copy of Voter List of 1966; (ii) Ext-2 - certified copy of Voter List of 1970; (iii) Ext-3 - certified copy of Voter List of 1977; (iv) Ext-4 - certified copy of Voter List of 1997; (v) Ext-5 – School Certificate dated 10.02.2015; (vi) Ext-6 – Affidavit sworn by the proceedee; (vii) Ext-7 – Gaonburah Certificate; (viii) Ext-8 – Land deed; 5. The learned counsel for the petitioner has submitted that in the written statement, all material disclosures were made. He has submitted that in the Voters’ List of 1966 the names of the grandparents of the petitioner were enlisted. In the next Voters’ List of 1970, along with the names of the grandparents, there is the name of her uncle (Rustom) and one Hazera Khatun. In the next Voters’ List of 1977, there are the names of her uncle, father, mother and two others. The next Voters’ List is of 1997 containing the names of her parents. The petitioner has also relied upon a school certificate which, however, was not proved. Reliance has also been placed on two certificates respectively by the Gaonburah dated 28.01.2016 and the Gaon Panchayat dated 08.09.2015.The petitioner has also referred to the Voters’ List of 2005, 2010, 2011, 2014 and 2019; containing her name, which were, however, not proved. 6. The learned counsel for the petitioner has further submitted that the petitioner had adduced evidence through herself wherein the aspect of shifting was adequately stated. Her father had adduced evidence as DW2, wherein he had deposed that he had two sons and five daughters including the petitioner. The Gaonburah had deposed as DW3 and had proved the Certificate dated 28.01.2016, wherein it was categorically stated that the petitioner is the daughter of Nobi Hussain. Page No.# 5/16 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, Shri Sarma, the learned Standing Counsel, Home Department has categorically refuted the stand taken on behalf of the petitioner. Hesubmits 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 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 totally vague. There is no date or year of the birth of the petitioner and there is 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: Page No.# 6/16 “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.” 10. Shri Sarma, the learned Standing Counsel has submitted that there does not exist even a single document supporting the petitioner’s claim of citizenship. So far as the GaonburahCertificate is concerned, he has submitted that the same contains the National Emblem and therefore, cannot be taken as a legal document. He has submitted that the School Certificate dated 10.02.2015, though exhibited, was not proved. The Gaon Panchayat Certificate was not proved, and in any case, contains a disclaimer in the following manner: “DISCLAIMER It may be added that this certificate shall be accepted only as a Page No.# 7/16 supporting document for establishing linkage with the parent(s) of the aforementioned person, for whom the certificate is issued. This document shall be valid only if accompanied by Legacy Data or any of the other admissible documents issued for the person with whom linkage is claimed for inclusion in updated NRC.” 11. He has submitted that so far as the Voters’ Lists are concerned there is an inexplicable gap of two decades from 1977 to 1997. Furthermore, when the age of the projected father was 35 years in 1977, his name ought to have been enlisted in any previous Voters’ List. He has submitted that even the link between the projected father and projected grandfather has not been established, as there is not a single common Voters’ List. 12. As regards the evidence of the projected father as DW2 is concerned, there are gross inconsistencies. While DW2 had stated to having seven children including the petitioner, no statements were made by the petitioner regarding any siblings. He has further submitted that oral evidence of the projected father in the absence of any documentary support would not be relevant. In this regard, he has relied upon the case of Asia Khatun Vs. UOI [WP(C) 4020/2017 disposed of on 21.11.2019]. He has also relied upon the case of Nur Begum v. UoI reported in 2000 (3) GLT 347 and the following observations have been pressed into service: “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 Page No.# 8/16 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. By submitting that mere reference to a Voters’ List will not be a conclusive proof of one’s citizenship, the learned Standing Counsel has relied upon the case of Aziz Miya Vs. UoI reported in 2023 (4) GLT 246 and the following observations have been pressed into service: “15. We are constrained to observe that a mere claim by a suspected person by referring to a voters' list claiming a person therein to be his father is not a conclusive proof and that by doing so, the person has discharged the burden that he is not a foreigner. This is because there is also a further requirement to prove that the person who is reflected in the voters' list relied upon is actually the father of the person who makes the claim the claim will have to be substantiated with further material/materials acceptable in law.” 14. In support of his 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. Page No.# 9/16 “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. …” 15. 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 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 Page No.# 10/16 been able to make out any case demonstrating any errors apparent on the face of the record to warrant interference of the impugned opinion.” 16. 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. 17. The learned Standing Counsel has accordingly submitted that the writ petition be dismissed and the interim order be vacated. 18. 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. 19. 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. Page No.# 11/16 20. 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 may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.” 21. 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. Page No.# 12/16 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.” 22. 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. 23. 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 Page No.# 13/16 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 Page No.# 14/16 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.” 24. 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; (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. 25. As regards the Voters’ List are concerned, there is not even one Voters’ List which can connect the petitioner with her projected father. The same link is essential as admittedly, the petitioner was born on 01.01.1978, which is post 1971. Further, even in the Voters’ List produced, those are full of inconsistencies. In the Voters’ List of 1996, the names of the projected grandparents appear and in the Voters’ List of 1970 along with the names of the grandparents, there contains the name of one Rustom- the projected uncle, aged 54 years. There is no explanation as regards who is Hazera Khatun, whose name appears together. In the Voters’ List of 1977, for the first time the name of the projected parents appears with their ages as 35 years and 25 years respectively. There seems to be no explanation as to why the name of the Page No.# 15/16 father was not enlisted in any of the earlier Voters’ List. Furthermore, in this Voter List of 1977, the age of the projected uncle gets reduced to 45 years. There is a long, inordinate and unexplained gap of two decades with the next Voters’ List of 1997. There also exists gross inconsistencies with regard to the ages of the projected parents. The School Certificate dated 10.02.2015, though exhibited, was not proved. As regards the Gaonburah Certificate dated 28.01.2016 is concerned, apart from unauthorised use of the National Emblem, the Gaonburah who was examined as DW3 in response to the Court’s query had stated that his evidence was not based on any records. The Gaon Panchayat Certificate was not exhibited. The other Voters’ List having the name of the petitioner starts from the year 2019 and are all uncertified copies and thus will not have any probative value. 26. We have also noticed that when the petitioner had claimed to be born on 01.01.1978, her name should have been enlisted in the Voters’ List at least from 1998. It may be mentioned by the Sixty First Amendment of the Constitution of India, 1988, the voting age was reduced from 21 years to 18 years. We are, therefore, of the view that the petitioner had failed to discharge her burden. 27. In the case of Bijoy Das Vs. UOI reported in 2018 (3) GLT 118, this Court has laid downthat 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 Page No.# 16/16 that the impugned order dated 03.06.2019 passed by the learned Foreigners Tribunal No.4th, Nagaon in F.T. Case No. 399/2015 [Police Reference ‘D’ Case No. 1303/98] 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 be returned to the concerned Foreigners Tribunal forthwith, along with a copy of this order. JUDGE JUDGE Comparing Assistant