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Judgment
(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 04.01.2019 passed by the learned Foreigners Tribunal No.1, Morigaon in F.T.(D.) Case No. 303/2019. 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.
The facts of the case may be put in a nutshell as follows:
A reference was made by the Superintendent of Police (B), Morigaon District, against the petitioner giving rise to the aforesaid F.T.(D.) Case No. 303/2019.
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 26.09.2016 along with certain documents and adduced evidence through herself.
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.
We have heard Shri DP Chaliha, learned Senior Counsel assisted by Ms. M. Roy, 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 S. Chanda, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 12.05.2020.
Shri Chaliha, learned Senior Counsel for the petitioner, at the outset, has submitted that no notice was issued to the petitioner as there was no reference against her. On the other hand, it appears that there was a reference against one Musstt. Gulenera Begum whereas the petitioner is Musstt. Gulenur Begum. He has also submitted that in the notice issued by the learned Tribunal, the process server had made an endorsement that no person by the name of Gulenera Begum was found and accordingly, the notice was returned to the learned Tribunal. In view of that, it is submitted that the impugned order against the petitioner is unsustainable.
On the merits of the case, the learned Senior Counsel for the petitioner has submitted that in the written statement, all material disclosures were made. He has contended 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:
Ext-A– School Transfer Certificate;
Ext-B – Voter List of 1965;
Ext-C – Voter List of 1970;
Ext-D– Gaonburah Certificate.
The learned Senior Counsel for the petitioner has submitted that relevant documents in the form of Voters Lists of the years 1965 and 1970 were proved. The 1965 List contains the name of her father and in the 1970 List, along with the name of her father, there was the name of her mother – Golbahar and step-mother Nurjahan Bibi. Further, one document has been relied upon wherein the learned Member, FT has certified that the NRC has been checked. He has also referred to a Certificate by the Headmaster that the petitioner was a student of Class III on 20.08.1979. Reliance has also been placed on new document, namely, a Transfer Certificate dated 03.04.2019 issued by the Jagiroad Secondary School wherein the petitioner has been stated to be the daughter of Md. Abdul Zalil and that she was reading in Class V in 1971 and her date of birth was 01.07.1960. It is submitted that the said document can be accepted and in this regard, Sections 62, 63 and 65 of the Indian Evidence Act have been referred to.
The learned Senior Counsel for the petitioner has also relied upon a Voters List of 1993 containing the name of the petitioner. Lastly, he has submitted that, so far as the elder sister of the petitioner, namely, Afroza Begum is concerned, the learned Foreigners Tribunal had removed the prefix “D” from her name vide order dated 21.10.2016 which would prove that the petitioner is also a citizen of India.
In support of his submission, the learned Senior Counsel for the petitioner has relied upon the recent decision of the Hon’ble Supreme Court in the case of Sabitri Dey @ Swasthi Dey & Ors. Vs. UoI & Ors. reported in 2026 INSC 694 and also the case of Md. Rahim Ali @ Abdul Rahim Vs. UoI reported in 2024 INSC 511.
The learned Senior 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.
Per contra, Shri Sarma, learned Standing Counsel, Home Department 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. 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.
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 detail of the family members. The name of the mother of the petitioner or any of her siblings has not been mentioned. 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:
“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.”
The learned Standing Counsel has also submitted that in the written statement, more specifically in paragraph 4, the petitioner admits that her name was wrongly put and had accordingly filed a petition to correct her name. Therefore, the submission made before this Court on behalf of the petitioner regarding incorrect name has no legs to stand.
The learned Standing Counsel has submitted that new grounds have been taken in the writ petition which are factual in nature and not permissible. The ground regarding the projected sister was not even pleaded in the Tribunal and in any case, would not have a material bearing. He has specifically submitted that the order regarding the projected sister is dated 21.10.2016 but there was no mention of any pending proceeding regarding her sister in the written statement. Further, the petitioner had adduced evidence in December, 2016 and yet there was no mention about the case of the sister. In this connection, he has submitted that there cannot be any variance between pleadings and evidence and in this regard, he has relied upon the case of Momin Ali Vs. UoI reported in 2017 (2) GLT 1076.
The learned Standing Counsel has also submitted that the projected father of the petitioner had expired sometime in the year 1986 and yet there is not a single Voter List containing the name of the father after 1970. He has also pointed out that in the Voters List of 1970, there is a name Gol Bahar who is projected to be the mother of the petitioner. However, from the cross-examination of the petitioner, it reveals that the name of her mother is Asia Khatun.
In support of his submission that a document 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 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. …”
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 been able to make out any case demonstrating any errors apparent on the face of the record to warrant interference of the impugned opinion.”
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.
The learned Standing Counsel has accordingly submitted that the writ petition be dismissed and the interim order be vacated.
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.
The rival submissions made have been duly considered and the materials placed before this Court, including the records of the learned Tribunal have been carefully perused.
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.”
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 are extracted hereinbelow-
“22.This Act confers wide ranging powers to deal with all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner for prohibiting, regulating or restricting their or his entry into India or their presence or continued presence including their arrest, detention and confinement. The most important provision is Section 9 which casts the burden of proving that a person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall lie upon such person. Therefore, where an order made under the Foreigners Act is challenged and a question arises whether the person against whom the order has been made is a foreigner or not, the burden of proving that he is not a foreigner is upon such a person. In Union of India v. Ghaus Mohd. the Chief Commissioner of Delhi served an order on Ghaus Mohammad to leave India within three days as he was a Pakistani national. He challenged the order before the High Court which 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.”
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.
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 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.”
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:
his date of birth;
place of birth;
name of his parents;
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.
As regards the first submission that there was no proceeding against the petitioner, we have carefully looked into the records of the learned Tribunal. It reveals that the reference was against one Musstt. Gulenera Begum and the submissions made regarding the endorsement made by the process server also appear to be correct. However, the said submission cannot be countenanced in view of the fact that the petitioner had subsequently contested the proceeding by filing written statement and adducing evidence and therefore, the contention is rejected. In this connection, the observations made by the learned Tribunal in paragraph 2 of the opinion is to be taken into consideration which read as follows:
“2.Initiating the proceeding a show cause notice assigning the main ground was dispatched to serve upon the OP on 08-12-2014, but the notice could not be served upon the proceedee due to her unavailability. Thereafter, the notice was hanged in a conspicuous place in presence of witness. But the OP did not turn up for appearance and WS, even after providing reasonable opportunity by the court to discharge her burden of proof. Eventually, seeing no other alternative, the Ld. Predecessor filed the case and directed the SP(B), Morigaon to make periodical enquiry to trace out the OP. Subsequently, the OP appeared before the Tribunal and prayed to restore the case record of the instant F.T. (D) Case through a petition 1360/16 and accordingly upon hearing this Tribunal fixed 26-09-2016 for WS.”
This Court also finds force in the contention advanced by the learned Standing Counsel, who has referred to the pleadings made in paragraph 4 of the written statement wherein the petitioner had admitted that there was a mistake in her name. For ready reference, the said pleadings are extracted hereinbelow-
4)That, in the notice issued by the Foreigners Tribunal No.1, Morigaon the name of the opp. Party is wrongly mentioned as Mustt. Gulenara Begum instead of Mustt. Gulenur Begum and the opp. Party filed a petition to correct her name before the Hon’ble Tribunal.”
Though reference has been made to an NRC, the said NRC however, does not contain the name of the petitioner and the other names do not find mention in any other documents. As regards the Certificate dated 20.08.1979, the same is not in the Letter Pad of the School. Further, neither the Headmaster nor any School Authorities had proved the same and therefore, the same would have little evidentiary value.
So far as the Transfer Certificate is concerned, the same is admittedly obtained after the impugned opinion and therefore, would be of no significance as it was not proved at all. Further, the same appears to have been obtained after inordinate delay of about 40 years apart from the fact that there would be a gross discrepancy with the School Certificate regarding the age. The contention that the said document can be accepted by this Court while exercising certiorari jurisdiction would be contrary to the settled position of law. As regards the reference to the Indian Evidence Act, 1872, it has already been observed that the burden of proof under Section 9 the Foreigners Act, 1946 has an overriding effect over the Evidence Act.
So far as the Voters List of 1993 is concerned, though it apparently contains the name of the petitioner, the same was not produced before the learned Tribunal. Even for the interest of justice, if the same is considered, it has no connection or link with the projected father and only the name of the husband of the petitioner figures which will not come to the aid of the petitioner to prove her citizenship. Further, there would be discrepancy in the age of the petitioner even if this document is taken into consideration.
As regards the submission that “D” has been removed from the name of the projected sister, this Court finds force in the argument advanced by the learned Standing Counsel that there was no pleadings at all in the written statement regarding such case. We have also noticed that there was no mention of any siblings in the written statement or in the deposition of the petitioner. Lastly, this Court is of the opinion that a reference has to be contested by a proceedee on his or her own merits. This Court, in a number of judicial pronouncements has laid down that mere declaration of a member of a family as foreigner may not be the sole factor for declaring the other members as foreigner in absence of a specific reference. Therefore, the corollary would also apply that declaration of one member of a projected family as citizen would itself not be conclusive to declare the other members as citizen in case there is a reference.
This Court finds force in the contention advanced by the learned Standing Counsel who has relied upon the case of Momin Ali (supra) wherein this Court had made the following observations:
“12.This written statement of the petitioner was wholly inadequate and did not disclose any material facts. As noticed above, it was the allegation of the State that petitioner was a foreigner. Therefore, as per mandate of Section 9 of the Foreigners Act, 1946, it was the bounden duty of the petitioner to have disclosed all material facts which were specifically within his knowledge in the written statement but he did not do so. Petitioner neither mentioned his date of birth nor his age. He was silent regarding the name of his mother and identity of his grandparents - both paternal and maternal. He did not mention anything about his brothers and sisters or about his marital status. On the basis of such a written statement, it cannot be said that petitioner had stated anything substantial to show that he was not a foreigner but a citizen of India.
13.It is a settled proposition of law that where a party fails to set up a case in his pleadings, he would be debarred from adducing evidence in his support at the stage of trial. As a matter of principle, variance between pleading and proof is not permissible.”
This Court finds sufficient force in the contention of the learned Standing Counsel that the petitioner is also not able to state the name of her mother. The records of the learned Tribunal has been examined from which it reveals that in the cross-examination, the petitioner had disclosed the name of her mother as Asia Khatun whereas in the Voters List of 1970, the name of Gol Bahar appears with her projected father who was claimed to be her mother.
Reliance upon the case of Sabitri Dey (supra) will not come to the aid of the petitioner as that judgment is mainly on ex-parte opinions of the Foreigners Tribunal. So far as the case of Md. Rahim Ali (supra) is concerned, it clearly appears that the relevant observations of a Larger Bench of the Hon’ble Supreme Court in the case of Sarbananda Sonowal (supra) was not brought to the notice of the Hon’ble Court as the observations made would amount to reviving the IM(D)T Act which has been declared to be ultra vires by the Larger Bench.
In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 04.01.2019 passed by the learned Foreigners Tribunal No.1, Morigaon in F.T.(D.) Case No. 303/2019 does not call for any interference.
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.
The records be returned to the concerned Foreigners Tribunal forthwith, along with a copy of this order.