Page No.# 1/16 GAHC010095832018 2026:GAU-AS:9225 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3410/2018 UKIL BISWAS @ AKHIL BISWAS AND 3 ORS. S/O HAREN BISWAS @ HARENDRA BISWAS, R/O VILL NO. 2 GUNAMARA, PO-AZARBARI, PS DHARAMTUL, PIN-782105, DIST. MORIGAON, ASSAM 2: SIKHARANI BISWAS W/O SRI UKIL BISWAS R/O VILL. NO 2 GUNAMARA PO AZARBARI PS DHARAMTUL PIN-782105 DIST. MORIGAON ASSAM 3: TAPASHYA BISWAS D/O SRI UKIL BISWAS R/O VILL NO.2 GUNAMARA PO-AZARBARI PS DHARAMTUL PIN-782105 DIST. MORIGAON ASSAM 4: AKASH BISWAS S/O SRI UKIL BISWAS R/O VILL NO.2 GUNAMARA PO-AZARBARI PS DHARAMTUL PIN-782105 DIST. MORIGAON ASSAM PETITIONER NO. 3 AND 4 BEING MINOR ARE REPRESENTED BY THEIR NATURAL GUARDIAN I.E. 1 AND VERSUS THE UNION OF INDIA AND 6 ORS. REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI Page No.# 2/16 2:THE CHIEF ELELCTION OFFICER ELECTION COMMISSION OF INDIA ASHOKA ROAD NEW DELHI-110001 3:THE STATE OF ASSAM REPRESENTED BY ITS SECRETARY GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6 4:THE DIRCTOR GENERAL OF POLICE ASSAM ULUBARI GUWAHATI-781007 5:THE STATE COORDINATOR OFFICE OF THE STATE COORDINATOR OF NATIONAL REGISTER OF CITIZENS (NRC) ASSAM 1ST FLOOR ACHYUT PLAZA G.S. ROAD BHANGAGARH GUWAHATI-781005 6:THE DEPUTY COMMISSIONER MORIGAON DIST. MORIGAON ASSAM 7:THE SUPERINTENDENT OF POLICE (BORDER) MORIGAON DIST. MORIGAON ASSAM BEFORE HON’BLE MR. JUSTICE SANJAY KUMAR MEDHI HON’BLE MRS. JUSTICE SHAMIMA JAHAN Advocate for the petitioner(s): Mr. K. Lahkar. Advocate for the respondent(s): Mr. J Payeng, SC, Home Deptt. & NRC, Mr. P. Sarma, GA, Assam Mr. N.Kalita, on behalf of Mr A.I. Ali, SC, ECI, Page No.# 3/16 Mr. U. K. Goswami, CGC. Date on which judgment was reserved : 12.06.2026 Date of pronouncement of judgment : 24.06.2026 Whether the pronouncement is of the : operative part of the judgment? : NA Whether the full judgment has been :Yes pronounced? JUDGMENT AND ORDER (CAV) (Shamima Jahan, J.) Heard Mr. K. Lahkar, learned counsel appearing for the petitioner. Also heard Mr. J. Payeng, learned Standing Counsel, Home Department and NRC, Mr. P. Sarma, learned Government Advocate, Assam, Mr. N. Kalita, learned counsel representing Mr. A. I. Ali, learned Standing Counsel for the ECI; Mr. U. K. Goswami, learned CGC, appearing for the Union of India. 2. At the outset, it be stated here that the instant writ petition was filed by four numbers of writ petitioners, i.e. petitioner No. 1, against whom, the reference was made, petitioner No. 2, the wife of petitioner No. 1 and petitioner Nos. 3 and 4, the children of petitioner Nos. 1 and 2. It is a settled position of law that for adjudication with regard to the fact as to whether a person is a foreigner or not, individual references have to be made against any suspected person. One single reference will not cover the suspected person along with his family. In the instant case, the reference is seen in respect to Ukil Biswas @ Akhil Biswas, son of Haren Biswas @ Harendra Biswas. As such, the declaration made by the Tribunal in respect of the family members of Ukil Biswas, i.e., his Page No.# 4/16 wife and his children are not maintainable under the law. Accordingly, the opinion dated 09.03.2018, rendered in respect of petitioner Nos. 2, 3 and 4 is set aside and quashed. We are, therefore, left with the only exercise to see whether petitioner No. 1, Ukil Biswas @ Akhil Biswas has been rightly declared as a foreigner by the impugned opinion or not. 3. The petitioner has filed this application with the endeavor to invoke the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India, for a writ in the nature of certiorari, for setting aside the opinion dated 09.03.2018, passed by the learned Member, Foreigners’ Tribunal No. 1, Morigaon, Assam, in FT (C) No. 447/2010, corresponding to Police Reference FT Case No. 317 of 2009, dated 24.08.2009, whereby the petitioner along with his family members were declared as foreigners of post-25.03.1971 stream. The petitioner has also prayed for a writ in the nature of mandamus directing the respondent authorities to treat the petitioner as citizen of India. FACTS 4. It is the case of the petitioner that he was born on 01.01.1980, and that his father’s name was Late Haren Biswas @ Harendra Biswas, and his mother’s name was Smt Usharani Biswas of Village No. 2, Gunamara, under Dharampur P.S. in the district of Morigaon, Assam. The petitioner also stated that he has five brothers and that he is the youngest amongst them. It is the further case of the petitioner that his father, Late Haren Biswas @ Harendra Biswas, son of Late Rajani Biswas, came to India from Bangladesh during 1961-1962, due to religious persecution and civil disturbances. His father initially took shelter in the house of one Panna Sarkar and that he decided to settle down in India and as such, he applied for registration of his name and accordingly, the authority Page No.# 5/16 concerned registered his name on 09.06.1961, under the provisions of Section 5 (1) (a) (d) of Citizenship Act, 1955. The petitioner also stated that his father purchased a plot of land in the year 1970, by executing a sale deed on 20.07.1970. He further stated that his father died in the year 2001 and that his mother is alive. 5. Thereafter, the petitioner stated that on an earlier occasion, an IM(D)T Case was registered against his elder brother and his family and that they were declared as Indians by the learned Member of IM(D)T, Nagaon. He also stated that reference was also made against his two brothers, who were also declared to be citizens of India. With regard to his youngest brother, Sri Nibaran Biswas, on a reference a case was instituted and upon conclusion of hearing, the Foreigners’ Tribunal declared him as a foreigner. 6. With regard to the petitioner, on the basis of the reference made by the Superintendent of Police (Border), Morigaon, FT Case No. 447 of 2010 was registered and notice was issued to the petitioner by the Foreigners’ Tribunal and on receipt of the said notice, the petitioner submitted his written statement on 15.09.2017, along with certain documents in support of his defence. PLEADINGS ACCORDED BY THE PETITIONER IN HIS WRITTEN STATEMENT i) The father of the petitioner was an Indian citizen due to the fact that he purchased a plot of land in the year 1970. ii) The younger brother of the petitioner was declared as Indian citizen. Page No.# 6/16 iii) The petitioner had casted his vote from Village-Azarbari, PS- Dharamtol in the district of Morigaon. iv) The petitioner was issued a transfer certificate by the Headmaster of Gunamara L P School, where he studied in Class-III. v) The petitioner married Smt Sikha Rani Biswas, and out of the wedlock two children were born. vi) The authorities did not verify the documents of the petitioner, and mechanically instituted the case against him and others. EXAMINATION OF DEFENCE WITNESSES: 7. The petitioner, apart from submitting his written statement, had given his evidence as DW No. 1, and he stated the same statements as were stated in the written statement. He exhibited the following documents:- i) Exhibit-A is the 1966 Voters’ List, showing the name of his father-in- law, as a voter. ii) Exhibit-B is the petitioner’s school certificate, issued to the petitioner. iii) Exhibit-C is the Gaon Burah Certificate issued to the petitioner. iv) Exhibit--F is the 2016 Voters’ List, showing petitioner as the Voter. 8. The petitioner was cross-examined and he stated that he has five numbers of brothers and that his parents came from Bangladesh to India. He further stated during his cross-examination that he does not know whether his father had any brothers and also that, his father expired 17 years back. He then stated Page No.# 7/16 that his father had a landed property and that he too has his own property. 9. Apart from the petitioner, the wife of the petitioner was also examined as DW No. 2, however, the said deposition is not relevant for the purpose of adjudication of the present issue inasmuch, as DW No. 2 being a party before the Tribunal, had given evidence in her defence. FINDINGS AND CONCLUSIONS OF TRIBUNAL: On the basis of the aforesaid evidence adduced by the petitioner, the learned Tribunal had held as follows:- i) Although the petitioner had deposed that his two brothers were declared as Indians, but he had not exhibited any documents in support of the case. ii) Since all cases have to be dealt independently, the positive adjudication of the reference with regard to his brothers will have no effect in the case of the petitioner. iii) The school certificate was not proved by the author of the said certificate and as such, the same had no value. On the said findings, the learned Tribunal declared the petitioner as a foreigner of post-25.03.1971 stream. The learned Tribunal further directed the authorities to delete the name of the petitioner from the Voters’ List, as well as to delete the names of other family members of the petitioner from any Government beneficial scheme, Family Ration Card, Voter ID, Driving Licence etc. and also to confiscate all such documents from the custody of the petitioner and his family members and to institute fresh references. Page No.# 8/16 SUBMISSIONS: 10. The learned counsel for the petitioner, Mr. K Lahkar has submitted that two of the brothers of the petitioner were declared as Indians and the same findings be applicable in respect of the petitioner since the evidence are same. He also stated that the father of the petitioner, Sri Haren Biswas @ Harendra Biswas, had obtained a citizenship certificate under Section 5 (1) (a) (d) of the Citizenship Act, 1955, and the petitioner being the son should also be considered as the citizen of India. The learned counsel further submits that the certificate was issued in favour of the petitioner by the Headmaster of Gunamara L P School, stating inter alia, that the petitioner had appeared in the final examination of Class-III, and that his date of birth was 1st of January, 1980. He further submitted that the father of the petitioner purchased a plot of land measuring 4 Bighas covered by Dag No. 70-71 of Eksona (Annual) Patta No. 83 of Ejarbari Kirat, Mouza-Tetelia, in the district of Nagaon from one Hem Kanta Hazarika, by executing a sale deed on 28th of July, 1970. The learned counsel by relying upon Section 90 of the Evidence Act, stated that the said document being a 30-year-old document is admissible in evidence. He relied on a judgment rendered by this Court in Writ Petition (Civil) No. 3128 of 2017 (Maharuddin Ali -vs Union of India & Others), wherein it was held that if opinions relate to the blood relations as brothers or sisters, the one favourable to either of the siblings, can be applied to the other. He also relied on the Judgment rendered by this Court in Paramesh Sarma -and Islam Ali -vs – Union of India; reported in 2000 (3) GLT 453, by which this Court had deliberated on Section 90 of the Evidence Act. 11. On the other hand, Mr J Payeng, learned counsel for the FT matters and Page No.# 9/16 NRC, submitted that the petitioner had not exhibited the alleged citizenship certificate issued to his father, neither there was any application filed by the petitioner to call for the same. He further submitted that the Tribunal on its own called for a report from the office of the Deputy Commissioner about existence of the said citizenship certificate, but the same was not found in the records. He also submitted that the sale deed dated 20.07.1970 placed by the petitioner was not exhibited in the present proceeding. He also stated that the opinion regarding the brothers of the petitioner will not have any relevancy in the instant case. He further submitted that the school certificate produced by the petitioner as well as the Gaonburah certificate were not proved during the proceedings before the Tribunal, as per law. He as such, submits that except Exhibit-B and Exhibit-C, i.e., school certificate and Gaonburah certificate, there are no other documents to prove the link of the petitioner with his father. These are the submissions made by the learned counsel for the parties. ANALYSIS AND FINDINGS: 12. The principal argument raised by the learned counsel for the petitioner that certificate of registration was issued to his projected father by authorities was, however, not exhibited during the present proceeding before the learned Tribunal. Moreover, the petitioner could not place any documents proving the fact that he is the son of Late Haren Biswas @ Harendra Biswas. The only document that the petitioner had placed in his favour was the opinion rendered by the learned Tribunal in respect of his brothers declaring them as Indian citizens. The same, however, cannot be made applicable in view of the law laid down by this Court that each case will be based on the reference made individually in respect of each proceedee. It is a trite law that children or family Page No.# 10/16 members of a person declared as a foreigner, cannot automatically be branded as foreigners, in absence of a separate and a specific reference against them and vice versa. This Court in Maya Das -vs- Union of India; rendered in WP(C) No. 5617/2019, has held as follows: “26. It is a settled position of law that until a specific reference is initiated against an individual, no orders of declaration as foreigner of such persons can be made by any Foreigners Tribunal and in this connection, reference may be made to the judgment dated 04.01.2019 passed in the case of Sudhir Kr. Roy vs. Union of India in WP(C)/6790/2018 wherein it has been held that the authorities would be at liberty to initiate a fresh reference against the family members of a person who is declared foreigner but the fact that a family member has been declared a foreigner would not be sufficient by itself to declare the other family members as foreigners without any specific reference.” As such, the contention of the petitioner that the opinion in respect of his brothers would be applicable in the instant case, cannot be accepted. 13. The further reliance on the school certificate in respect of the petitioner, showing that he attended the final examination of Class-III of Gunamara L P School, is of no relevance in the instant case, inasmuch, as the said document was not proved neither the contents thereof. The Headmaster of the said school was not brought as a defence witness to prove the contents of the said document. 14. It is no res integra that written statement is the basic document which is supposed to lay down the foundation of the case of the proceedee and the written statement in the instant case lacks details and is wholly vague as stated above. There is no date of birth of the petitioner nor there is any statement with respect to the petitioner’s siblings. In this connection, the observations made by Page No.# 11/16 the Hon’ble Supreme Court in the case of Sarbananda Sonowal -vs- Union of India, reported in (2005) 5 SCC 665, may be referred hereinbelow:- “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 u/s 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.…” 15. We further reiterate that the main reason for not relying on the opinion in respect of other family members is due to Section 9 of the Foreigners’ Act, 1946. It is no res integra that the burden of proof as laid down in Section 9 of the Foreigners’ Act of 1946, is solely upon the proceedee and the said burden never shifts. In the said Section, there is non-obstante clause which suggest that the provisions of Indian Evidence Act would not be appliable. Section 9 is extracted 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 Page No.# 12/16 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.” 16. The Hon’ble Supreme Court had observed in case of Fateh Mohd. Vs. Delhi Administration; reported in AIR 1963 SC 1035 that the burden of proving that a person is not a foreigner or is not a foreigner of such particular class or description, lies upon such person only. In the said decision, the principles laid down by the Constitution Bench in the case of Ghaus Mohammad -vs- Union of India ; reported in AIR 1961 SC 1526 was relied on. The relevant extract from Fateh Mohd. (supra) are quoted hereinbelow:- “By reason of S. 9 of the Foreigners Act whenever a question arises whether a person is or is not a foreigner, the onus of proving that he is not a foreigner lies upon him. The burden is therefore upon the appellant to establish that he is a citizen of India in the manner claimed by him and therefore he is not a foreigner. This court in Union of India v. Gyaus Mohammad, (1962) 1 SCR 744 : (AIR 1961 SC 1526), accepted this legal position and laid down at p. 748 (of SCR), thus : "It does not seems to have realised that the burden of proving that he was not foreigner, was on the respondent and appears to have placed that burden on the Union. This was a wholly wrong approach to the question." Rightly throwing the onus on the appellant the Magistrate considered the evidence and came to the conclusion that the appellant had failed to prove that he was a citizen of India and therefore not a foreigner. The learned Additional Sessions Judge after noticing that the onus was on the appellant considered the evidence, both oral and documentary and came to the conclusion that the appellant had failed to discharge the onus. It cannot be and indeed is not suggested that the said finding is vitiated by any error of law, but it is contended that the Additional Sessions Judge was not justified in ignoring the evidence of respectable witnesses who spoke to the fact that the appellant was born in India and continued to Page No.# 13/16 reside in India at the date of the commencement of the Constitution and thereafter. The learned Additional Sessions Judge as a Judge of fact considered the evidence in the light of probabilities and the documentary evidence and rejected the same as unworthy of credence. The High Court in revision refused to interfere with that finding. We do not see any permissible ground for interference with that finding in an appeal under Art. 136 of the Constitution. Although the petitioner had exhibited a certificate issued by the Gaonburah, but the contents of the said certificate were not proved by calling the issuing authority, i.e., the Gaonburah, to depose as a defence witness. This Court had held in Romila Khatun -vs.- Union of India; reported in 2018 (4) GLT 373, in the following words: 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. ..." 17. It will not be out of context to mention herein that the sale deed executed on 22nd of July, 1970, by which a landed property is shown to have been bought by the projected father of the petitioner, cannot also be relied in the instant case, since the same has not been exhibited in the present case. Furthermore, no documents were submitted by the petitioner to establish the fact that he is the son of Late Haren Biswas @ Harendra Biswas. 18. Furthermore, while adjudicating the issue involved in the instant petition, we are reminded that a writ Court in exercise of jurisdiction under Article 226 of Page No.# 14/16 the Constitution of India should confine its powers only towards examination of the decision making process. In the present case, the Tribunal had given its findings based on facts, and it is a trite law that findings of facts are not liable to be interfered with, by a writ Court under its certiorari jurisdiction. The Hon’ble Supreme Court after discussing the previous case laws on the jurisdiction of a Writ Court with regard to the Writ of Certiorari had held in Central Council for Research in Ayurvedic Sciences and Another -vs- Bikartan Das; reported in AIR 2023 SC 4011, 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 Page No.# 15/16 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. 19. In T.C. Basappa v. T. Nagappa and Another, reported in AIR 1954 SC 440, the Hon’b;le Apex Court had laid down the essential features of a writ of certiorari. In the said decision, it has been exhaustively explained by B.K. Mukherjea, J that writ in the nature of certiorari could be issued in ‘all appropriate cases and in appropriate manner’ so long as the broad and fundamental principles are kept in mind. It was held as follows:- “7. … In granting a writ of ‘certiorari’, the superior court does not exercise the powers of an 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 ….. 8. The supervision of the superior court exercised through writs of certiorari goes on two points, as has been expressed by Lord Summer in King v. Nat Bell Liquors Limited [(1922) 2 AC 128, 156]. One is the area of inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of law in the course of its exercise. …. 9. Certiorari may lie and is generally granted when a court has acted without or in excess of its jurisdiction.” As such, we observe herein 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 although for the ends of justice, some exercise has been done to the said effect. 20. Further, the wife of the petitioner had adduced evidence and the same was not in connection with discharging of the burden cast upon the petitioner. Page No.# 16/16 Since the proceeding against the petitioner was taken along with his wife and other family members, his wife had given evidence for herself and the learned Tribunal had declared the petitioner as well as his wife and other family members as foreigners which, however was not in accordance with law, as stated above. 21. In the instant case, it is clear from above that alleged Certificate of Registration issued to the projected father of the petitioner was not exhibited. The link was also not established by the petitioner with his projected father by way of valid documents, by exhibiting them before the learned Tribunal. As such, this Court is of the view that the opinion dated 09.03.2018, passed by the learned Member, Foreigners’ Tribunal No. 1, Morigaon, in FT (C) No. 447/2010, corresponding to Police Reference FT Case No. 317 of 2009, dated 24.08.2009, does not call for any interference. 22. The writ petition stands dismissed. The interim order passed earlier stands vacated. The actions consequent upon the opinion rendered by the learned Tribunal would follow in accordance with law. 23. The records of the learned Tribunal be returned forthwith, along with a copy of this order. 24. 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