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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 30.12.2020 th passed by the learned Foreigners Tribunal 4 , Nagaon in F.T. Case No. 389/16 (Police Reference ‘D’ Case No. 2965/98). 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.
The facts of the case may be put in a nutshell as follows:
A reference was made by the Superintendent of Police (B), Nagaon District, against the petitioner giving rise to the aforesaid F.T. Case No. 389/16.
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 03.01.2012 along with certain documentsand adduced evidence through 4 nos. of DWs.
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.
We have heard Shri A. Mobaraque, learned counsel for the petitioner. We have also heard Ms. A. Verma, learned Standing Counsel, Home Department& NRC;Shri P. Sarma, learned GA, Assam, Shri N. Kalita, learned counsel appearing on behalf of Shri A.I. Ali, learned Standing Counsel, Election Commission of India and Ms. MM Katakey, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 17.01.2022.
Shri Mobaraque, 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 the evidence adduced through 4 nos. of DWs including himself as DW1and also the following documentary evidence:
Ext-I– Certified Copy of Voters List of 1965;
Ext-II– Certified Copy of Voters List of 1970;
Ext-III– Certified Copy of Voters List of 1977;
Ext-IV– Certified Copy of Voters List of 1994;
Ext- V– Name Correction Affidavit;
Ext-VI– Certificate of Gaon Burah;
Ext-VII– Rectification Deed.
The learned counsel for the petitioner has submitted that in the written statement filed on 03.01.2012, all material disclosures were made. He has relied upon the Voters Lists of 1965 and 1970 containing the name of his father. The next Voters List relied upon is of the year 1977 wherein along with the name of his parents, there are the names of his uncle and aunt. He has mentioned about a Voters List of 1985 wherein his name appears along with his uncle, aunt and mother. However, this list of 1985 was not exhibited. The next Voters List relied upon is of the year 1994 having the name of the petitioner and his wife. One Voters List of 1989 containing the name of the petitioner is relied upon which however is neither a certified copy nor was exhibited before the learned Tribunal.
Reliance has also been placed on a corrected Voters List regarding the name of the petitioner. Reliance has also been placed an affidavit by the petitioner correcting the name of the father. The learned counsel has however clarified that though this affidavit has not been annexed to the writ petition, it was available with the records. He has also relied upon a Gaon Burah Certificate (Ext.VI) and a Rectification Deed (Ext.VII).
The learned counsel for the petitioner has also drawn the attention of this Court to the evidence adduced by 4 nos. of witnesses. He has submitted that apart from the petitioner deposing as DW1, the Gaon Burah had proved the Certificate (Ext.VI) as DW2. Further evidence was adduced by a co-villager as DW3 and a Deed Writer as DW4. He has submitted that the petitioner has discharged his burden and had established his citizenship.
In support of his submissions, the learned counsel for the petitioner has relied upon the following decisions:
Mustt Momtaz Begum Vs. UoI [WP(C)/1818/2020 decided on 11.06.202];
Md. Zakir Hussain Vs. UoI [WP(C)/3211/2019 decided on 29.05.2019];
Haidar Ali Vs. UoI [2021 (3) GLT 85];
Rahim Ali @ Abdur Rahim (MD.) Vs. State of Assam [2024 (4) (SC) 97];
Sirajul Hoque Vs. State of Assam [(2019) 5 SCC 534];
Abdul Matal @ Mataleb (MD.) Vs. UoI [2015 (2) GLT 617];
Jahanara Begum Vs. UoI [WP(C)/7546/2019 decided on 24.04.2026] and
Abdul Khalique (MD.) Vs. UoI [2013 (1) GLT 941]
The case of Momtaz Begum (supra) has been pressed into service to harp the point of “fact in issue”. He has submitted that the learned Tribunal had failed to appreciate this important point. Reliance on the case of Zakir Hussain (supra) is on the aspect of an obligation cast on the Tribunals to consider evidence. The case of Haider Ali (supra) is on the aspect of adequate opportunity to a proceedee under the Foreigners (Tribunal) Orders, 1964. In the case of Rahim Ali (supra), the Hon’ble Supreme Court has made certain observations regarding the enquiry and procedure to be adopted by the Tribunals. The case of Sirajul Hoque (supra) has been relied upon to buttress the point that minor inconsistencies in the Voters Lists are required to be overlooked. On similar lines, the cases of Abdul Matali (supra) and Abdul Khalique (supra) have been relied upon. The case of Jahanara Begum (supra) has been relied upon wherein this Court has laid down emphasis on the requirement of a discussion on the materials by the learned Tribunals.
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.
Per contra, Ms. Verma, the learned Standing Counsel, Home Department has categorically refuted the stand taken on behalf of the petitioner. She submits that a proceeding under the Foreigners Act, 1946 and the Foreigners (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.
Shehas further submitted that the written statement is the basic document which is supposed to lay down the foundation of the case of the proceeding and the written statement in the instant case lacks details and is vague. There is no date or year of the birth of the petitioner and there are no details of the family members or siblings. There is no mention as to when the father of the petitioner had passed away. In this connection, she has relied upon the following observations made by the Hon’ble Supreme Court in the case of Sarbananda Sonowal vs. Union of India reported in(2005) 5 SCC 665:
“17.There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)
(d)of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in 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.”
She has submitted that the documentary evidence produced by the petitioner would not be sufficient at all to establish his citizenship. There are no documents of the petitioner either on his own or to establish a link with his parents for the crucial period. She has also submitted that apart from the aspect that the Voters List of the year 1985 was not exhibited, the same does not contain the name of his father and there is no explanation. It is also contended that though there is a projected mother whose age has been shown as 48 years in 1985, she was shown to be aged 50 years in 1977 which would raise serious doubts.
She has submitted that the oral evidence would not be itself sufficient in absence of support by documentary evidence. The evidence of the Deed Writer as DW4 would not establish a link with the father. Further, DW3, who is a co-villager could not have proved the documents which were pertaining to the petitioner. The Gaon Burah who deposed as DW2 did not produce any contemporaneous records or Issue Register to prove the Certificate issued by him.
On the submissions made on behalf of the petitioner that the evidence was not considered, the learned Standing Counsel has submitted that all the evidence was duly considered and, in this connection, has referred to the relevant paragraphs of the impugned opinion.
She has relied upon the case of Iman Ali Vs. UoI [2025 AIR GAU 164] wherein this Court had discussed the applicability of the observations made in the case of Rahim Ali (supra) and distinguished the same by citing the Larger Bench Judgment of Sarbananda Sonowal (supra). She has also submitted that the case of Sirajul Hoque (supra) has also been considered and explained in the said decision.
Reliance has also been placed on the case of Dabir Rahman@ Dabibur RahmanVs. UoI [Judgment dated 21.05.2026 passed in WP(C)/4272/2019]. She has also submitted that the case of Abdul Matali (supra) has been distinguished in the subsequent case of Basiran Bibi Vs. UoI reported in 2018 (1) GLT 372 and has referred to the following observations:
“30.Reliance placed in the case of Abdul Matali @ Mataleb (Md.) (supra), can be of no assistance to the petitioner inasmuch, as it has already been clarified by this Court in previous decisions that the said decision did not lay down any law and was a decision confined to the facts and circumstances of that case. Regarding discrepancies in the voters' lists which the petitioner contended were not her creation being entered into by officials of Election Commission and therefore should not be used adversely against the petitioner, such contention is without any substance. The voters' lists were adduced as evidence by the petitioner herself to prove her case that she was not a foreigner but a citizen of India. Petitioner cannot insist that only that portions of the voters' lists which are in her favour should be accepted and those portions going against her should be over-looked. This is not how a document put forward as a piece of evidence should be examined. The document has to be appreciated as a whole.”
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.
“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. …”
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 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 areextracted 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:
date of birth;
place of birth;
name of 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.
So far as the Voters Lists are concerned, those of years 1965, 1970 and 1977 would be relevant only when a link is able to be established between the projected father and the petitioner which is not done. As mentioned above, the Voters List of 1985 was not even exhibited and has been enclosed for the first time in the writ petition which cannot be considered by this Court exercising certiorari jurisdiction. In any case, even a bare look on the said document would reveal that the age of the petitioner is shown as 26 years which would imply that his name should have been there in at least one earlier Voters List which is not there. Further, the name of the projected father is not there in this Voters List with the petitioner and there is no disclosure as to when the father had passed away, if so. The Voters List of 1994 states the name of the petitioner as Izzat Khatun. Even if the same is considered to be an error in recording the name, the same would not act either as a link document or an independent document to establish the presence of the petitioner on Indian soil prior to the cut-off date. As mentioned above, the Voters List of 1989 is neither a certified copy nor was exhibited and therefore, is not relevant. Moreover, the name is written as Eeman Ali. Though, the petitioner had relied upon a document of correction of name, the said document, apart from being unclear regarding the year 1989 or 1990 which has mechanical struck off, the said document is neither a certified copy nor was exhibited.
Reliance on Ext.V would not come to the aid of the petitioner in view of the law laid down by this Court on the subject. A self-serving affidavit, that too for correction of the name of a deceased person in an attempt to establish citizenship will not be relevant. A Coordinate Bench in the case of Abdul Seikh vs. Union of India [WP(C)/6871/2016 judgment dated 29.03.2018] wherein the following observations have been made.
“19…That apart, a self-servingsuo-moto affidavit filed by a proceedee to explain discrepancies in name and age of self, father etc is neither evidence nor proof in the eye of law..”
As regards the Gaon Burah Certificate (Ext.VI) though the DW2 had adduced evidence, there was no statement that the Certificate was issued on the basis of contemporaneous records which were also not produced. The deposition of the co-villager would be of little significance. Further, it appears that more than the proceedee, it is DW3 who appears to be accustomed with all the documents which were exhibited.
As regards the case of Rahim Ali (supra) relied upon by the petitioner, this Court had discussed about the same in the case ofIman Ali (supra)and distinguished the same by citing the Larger Bench Judgment of Sarbananda Sonowal (supra). For ready reference the relevant paragraphs are extracted hereinbelow-
“23.The case of Md. Rahim Ali (supra) has been relied upon by the petitioner. We have carefully gone through the aforesaid judgment. It however appears that though the case of Sarbananda Sonowal I (supra) which is a judgment of a Larger Bench was considered, the relevant observations on the point do not appear to have been brought to the notice of the Hon’ble Court while deciding the case of Md. Rahim Ali (supra). The relevant observations made in the case of Sarbananda Sonowal I (supra) have already been extracted above. The argument advanced by Shri Ahmed, learned counsel would amount to adopting the procedure of the IM(D)T Act which has already been declared ultra vires.”
In the said case of Iman Ali (supra), this Court had also discussed the case of Sirajul Haque (supra) and have come to the conclusion that the facts were wholly distinguishable and we endorse the said findings, which are as follows:
22.The case of Sirajul Haque (supra) is distinguishable in facts inasmuch as, in the said case the affidavit of declaration was given by the deponent for his own aliases. On the other hand, in the instant case, the affidavits are with regard to the change of name of the projected father and not of the deponents. Moreover, in the said case of Sirajul Haque (supra), the inconsistency was minor which is revealed from the discussions appearing in paragraph 3 of the judgment, which reads as follows:
‘3. There is no doubt that the great grandfather’s name Amtullah appears as Amtullah throughout the document. Equally, there is no doubt about the father’s name which appears as Hakim Ali throughout. The only discrepancy found is that in some of the documents Kefatullah later becomes Kematullah. However, what is important to note is that his father’s name Amtullah continues as Amtullah and the other family members associated continued as such. Also produced are NRC Registration details of the year 1971 of the grandfather who is noted to be Kefatullah in this document. Other voters lists are then produced where the letter F becomes the letter M with other family names remaining the same. In fact, the appellant has himself produced a document of 1981 from the Income Tax Department giving his Permanent Account Number. Apart from these documents, certain other later documents have also been produced including photo identity cards issued by the Election Commission of India and identity cards issued to his brother including voters lists in which the appellant’s name appears.”
In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 30.12.2020 passed by the learned Foreigners Tribunal 4 , Nagaon in F.T. Case No. 389/16 (Police Reference ‘D’ Case No. 2965/98) 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.