Page No.# 1/14 GAHC010217252019 2026:GAU-AS:8924 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7071/2019 SACHIN BISWAS S/O- LT HAREN BISWAS @ HARENDRA BISWAS, R/O- VILL- NO. 2 GUNAMARA, P.O. AZARBARI, P.S. DHARAMTUL, PIN- 782105, DIST- MORIGAON, ASSAM VERSUS THE UNION OF INDIA AND 6 ORS. REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI 2:THE CHIEF ELECTION COMMISSIONER ELECTION COMMISSION OF INDIA ASHOKA ROAD NEW DELHI- 110001 3:THE STATE OF ASSAM REP. BY ITS SECY. GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-6 4:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GHY-07 5:THE STATE COORDINATOR OFFICE OF THE STATE COORDINATOR OF NATIONAL REGISTER OF CITIZENS (NRC) ASSAM Page No.# 2/14 1ST FLOOR ACHYUT PLAZA G.S.ROAD BHANGAGARH GHY-05 6:THE DY. COMMISSIONER MORIGAON DIST- MORIGAON ASSAM 7:THE SUPERINTENDENT OF POLICE (B) MORIGAON DIST- MORIGAON ASSA Advocate for the Petitioner : MR. K M HASSAN, Advocate for the Respondent : ASSTT.S.G.I., SC, NRC,SC, ELECTION COMMISSION.,SC, F.T B E F O R E HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI HON'BLE MRS. JUSTICE SHAMIMA JAHAN Advocate for the petitioner : Shri K.M. Hassan, Advocate. Advocates for the respondents : Shri J. Payeng, SC- Home Deptt. & NRC, Ms. R.B. Bora, GA, Assam; Shri A.I. Ali, SC, ECI; Date on which judgment is reserved : 10.06.2026. Date of pronouncement of judgment : 22.06.2026. Whether the pronouncement is of the operative part of the judgment? : NA Whether the full judgment has been pronounced? : Yes Page No.# 3/14 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 01.03.2019 passed by the learned Member, Foreigners Tribunal No. 1, Morigaon, Assam in Case No. F.T. Case No. 83/2009. 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), Morigaon District, against the petitioner giving rise to the aforesaid Case No. F.T. Case No. 83/2009. (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 23.06.2016 along with certain documents and adduced evidence through his wife as DW 1 and himself as DW2. (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 him and accordingly, the opinion was rendered declaring the petitioner to be a foreign national post 25.03.1971. 3. We have heard Shri K.M. Hassan, learned counsel for the petitioner. We have also heard Shri J. Payeng, learned Standing Counsel, Home Department & NRC; Ms. Page No.# 4/14 R.B. Bora, learned GA, Assam and 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 22.01.2020. 4. Shri Hassan, the learned counsel for the petitioner has submitted that the petitioner could prove his 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 his evidence adduced through his wife as DW 1 and himself as DW2 and also produced certain documents 5. The learned counsel for the petitioner has submitted that in the written statement, all material disclosures were made. 6. The primary contention of Shri Hassan, learned counsel in assailing the impugned opinion is that the petitioner was never given an opportunity to adduce evidence and rather, he was examined under Section 165 of the Indian Evidence Act. He has clarified that so far as the wife of the petitioner is concerned, she has adduced evidence as DW1 which was pertaining to her only and not towards the defence of the petitioner. He has submitted that there has been gross procedural irregularity in the proceeding in which there was also violation of the principles of natural justice. He has submitted that the powers which may be exercised by the Tribunal under Section 165 of the Indian Evidence Act was only to seek clarification from any witness and the same cannot be construed to be the evidence of the said witness without there being any chief or cross-examination. He has submitted that the petitioner was denied of a fair and reasonable opportunity to defend himself. 7. The learned counsel has also submitted that the learned Tribunal had committed serious error in proceeding with the case on the presumption that the response of the petitioner in his examination under Section 165 of the Evidence Act was his substantial evidence. It is submitted that when the petitioner was deprived of an opportunity to Page No.# 5/14 defend himself by adducing evidence, the entire proceeding would be non est in law and liable to be set aside. 8. In support of his submission, the learned counsel for the petitioner has relied upon a judgment dated 13.06.2025 passed by a Co-ordinate Bench in WP(C)/5343/2020 [Ashok Ali Vs. Union of India]. In the said case, interference was made by this Court with an opinion inasmuch as, it reveals from the records that amongst others, adequate opportunity was not granted for filing evidence and there were some error in fixing of dates 9. Per contra, Shri Payeng, the learned Standing Counsel, Home Department & NRC 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. 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. 10. The learned 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 wholly 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 Page No.# 6/14 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 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. On the principal argument advanced on behalf of the petitioner that he was not given an opportunity to adduce evidence, the learned Standing Counsel has categorically refuted the same and has contended that such submissions are both factually and legally incorrect. To clarify the position, the learned Standing Counsel has referred to the original records of the learned Tribunal, more specifically to the various orders from which it transpires that the petitioner was given more than adequate opportunity. He has submitted that the proceeding before the learned Tribunal was initiated by issuance of notice on 14.01.2016. Accordingly, the petitioner, as proceedee, had appeared on 23.02.2016 and sought time to file written statement. When the stage of adducing evidence had come, adjournments were granted on the prayer of the petitioner on numerous dates. He has referred to the order dated 03.04.2017 of the learned Tribunal which had recorded that numerous dates were granted to the petitioner to adduce evidence in spite of which, no evidence Page No.# 7/14 was adduced by him and even on that date, an application for adjournment was filed. The learned Tribunal had recorded a finding that the approach of the petitioner was to delay the matter. He has submitted that nonetheless, the learned Tribunal, upon noticing photo copy of a Citizenship Registration Certificate issued in the year 1961 purportedly to the father of the petitioner, had directed the petitioner to submit the original certificate. The learned Standing Counsel has also drawn the attention of the order dated 25.09.2018 which had recorded that the petitioner was examined as DW2 and was discharged. He has submitted that the very premises upon which the writ petition is structured is fallacious and factually incorrect and therefore, the writ petition ought to be dismissed. 12. The learned Standing Counsel has 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 reads 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.” Page No.# 8/14 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 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, Page No.# 9/14 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, reported in AIR 1963 SC 1035 which followed the principles laid down by the Constitutional Bench in the case of Ghaus Mohammad Vs. Union of India, reported in AIR 1961 SC 1526 in the context of Foreigners Act, 1946 would be relevant which are 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.” 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 Page No.# 10/14 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 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 Page No.# 11/14 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. The principal ground of challenge in the present petition is on the projection that the petitioner has not been provided with adequate opportunity to defend himself, more particularly, in the aspect of adducing evidence. It is the specific case that he was not allowed to adduce evidence in chief and was rather examined by the learned Tribunal under Section 165 of the Indian Evidence Act. The aforesaid claim/ allegation has, however, been strenuously refuted by the learned Standing Counsel. To dispel any doubts, we have looked into the original records of the learned Tribunal which was also referred to by the learned Standing Counsel. 21. It reveals from the records that the proceeding was initiated by the learned Tribunal by issuing notice to the proceedee on 14.01.2016 and on the next date i.e. 23.02.2016, the proceedee had appeared and was granted time to file written statement. Further time was granted on 17.03.2016, 18.04.2016, 11.05.2016, 08.06.2016 and ultimately, on 23.06.2016, the written statement was filed and this fact is also reflected in the impugned opinion. Thereafter, the matter was fixed for evidence on 30.08.2016, 19.10.2016 and 08.12.2016. In fact, on 08.12.2016, the following order was passed by the learned Tribunal: “ Present:- Shri Gautam Soren, Member (1/C) of Foreigners Tribunal, Morgan. 08.12.2016- Though the case was fixed for adducing evidence of the opposite parties, a petition No. 1929/16 is filed contending that one relevant document has not yet been obtained. Prayer for adjournment is allowed as a last chance. Fixed 10.01.2017 for adducing evidence.” Page No.# 12/14 22. It clearly appears that the petitioner was not diligent and was rather dilly dallying and prolonging the matter which is an obstruction in the smooth and expeditious dispensation of justice. We have seen that the learned Tribunal had afforded more than adequate opportunity to the petitioner to adduce evidence. 23. As regards the Registration Certificate, as observed above, the learned Tribunal had done a due diligence exercise by calling for the records. However, vide a communication dated 17.05.2017, it was conveyed such Book number was not available. The learned Tribunal had made the following observations: “6. After perusal of the case record, WS and the deposition as well as the documentary evidences, it is found that the OP has adduced a photocopy of a registration Certificate in regard to Harendra Biswas, whom the OP has claimed to be his father. However, on perusal of the case record, the order sheet dtd. 20-05- 2017 reflected that the original registration certificate was found to be exhibited in one F.T. (D) Case No. 192/10 as Ext-A. Further, it is also found in the records that, the Ld. Predecessor(i/c) corresponded vide letter dtd. 02-05-2017 No. FTM.15/2006/76 with the Election Officer, Nagaon under the Office of the Deputy Commissioner, Nagaon for the submission of report regarding issuance of the Registration Certificate in the name of Harendra Biswas (Ext-A). In response to the aforesaid letter, the Deputy Commissioners Office vide letter dtd. 17-05-2017 No. NMM 50/2017/1087 reported that the record pertaining to the issue of the Book number containing the certificate is not available in the Office. Therefore, the authenticity of the said registration certificate in the name of Harendra Biswas, whom the OP claims as his father, is not proved. That apart, it is also perceived that, the OP has remained totally silent about his own biological mother and siblings in the WS. There is also no disclosure about his paternal uncle and aunt if any. More particularly, it is marked by this Tribunal that, except the voters list of 2016 on his own behalf, the OP has not disclosed any voters list in regard to Haren Biswas, whom he claimed to be his Page No.# 13/14 father. As such, it is apparent that the OP, Sachin Biswas is unable to support his claim of nationality for lack of sufficient document.” We are of the considered opinion that the view taken by the learned Tribunal is in accordance with law and does not require any interference. 23. Reliance upon the case of Ashok Ali (supra) by the learned counsel for the petitioner is clearly misplaced as in that case, the records reveal that adequate opportunity was not granted to the proceedee to file the evidence. 24. As noted above, though the wife of the petitioner had adduced evidence, the same was not in connection with discharging the burden caste upon the petitioner but rather for herself as there was an apprehension that the reference was for all the family members. We have also noticed that the learned Tribunal has taken note of the said aspect and has passed the opinion only qua the petitioner and has recommended initiation of fresh reference against the family members as per law. 25. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 01.03.2019 passed by the learned Member, Foreigners Tribunal No. 1, Morigaon, Assam in Case No. F.T. Case No. 83/2009 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 of the learned Tribunal be returned forthwith, along with a copy of this order. Page No.# 14/14 28. It is, however, 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. JUDGE JUDGE Comparing Assistant