[Cites 19, Cited by 0]
Gauhati High Court
Fazila Khatun vs The Union Of India And 6 Ors on 22 May, 2026
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/17
GAHC010201092019
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6278/2019
FAZILA KHATUN
W/O- KUDDUS ALI, VILL- DHANIABHETI, P.S- BATADRAVA, DIST-
NAGAON, ASSAM
VERSUS
THE UNION OF INDIA AND 6 ORS
REP. BY THE SECRETARY TO THE GOVT OF INDIA, MIN OF HOME
AFFAIRS, SHASTRI BHAWAN, TILAK MARG, NEW DELHI- 110001
2:THE ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI- 110001
3:THE STATE OF ASSAM
REP. BY THE SECRETARY TO THE GOVT OF ASSAM
HOME DEPTT
DISPUR
GHY- 06
4:THE STATE COORDINATOR
NRC
GS ROAD
BHANGAGARH
GUWAHATI- 781005
5:THE MEMBER FOREIGNERS TRIBUNAL
6TH
NAGAON
ASSAM
PIN- 782001
Page No.# 2/17
6:THE DEPUTY COMMISSIONER
NAGAON
ASSAM
PIN- 782001
7:THE SUPERINTENDENT OF POLICE (B)
NAGAON
ASSAM
PIN- 78200
Advocate for the Petitioner : MR S HOQUE, MR M DEKA
Advocate for the Respondent : ASSTT.S.G.I., SC, NRC,SC, F.T,SC, ELECTION COMMISSION.
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MR. JUSTICE PRANJAL DAS
Advocate for the petitioner : Shri S. Hoque, Advocate.
Advocates for the respondents : Ms. A. Verma, S.C., Home Deptt.,
Shri G. Sarma, S.C., NRC,
Shri P. Sarma, G.A., Assam,
Shri N. Kalita, Advocate (on behalf of A.I.
Ali, SC, E.C.I.)
Shri S.S. Roy, C.G.C.
Date on which judgment is reserved : 11.05.2026.
Date of pronouncement of judgment : 22.05.2026.
Whether the pronouncement is of the
operative part of the judgment? : NA
Whether the full judgment has been
pronounced? : Yes
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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 21.12.2018
passed by the learned Foreigners' Tribunal (6 th), Nagaon, Assam in F.T. Case No.
FT(6th) 318/2016. 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), Nagaon,
against the petitioner giving rise to the aforesaid F.T. Case No.
FT(6th) 318/2016.
(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 25.11.2016 along with certain documents and adduced
evidence.
(iii) The learned Tribunal, after considering the facts and circumstances
and taking into account of the provisions of Section 9 of the
Foreigners' Act, 1946 had come to a finding that the petitioner, as
opposite party, had failed to discharge the burden cast upon her and
accordingly, the opinion was rendered declaring the petitioner to be
a foreign national post 25.03.1971.
3. We have heard Shri S. Hoque, learned counsel for the petitioner. We have
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also heard Ms. A. Verma, learned Standing Counsel, Home Department; Shri G.
Sarma, learned Standing Counsel, N.R.C.;Shri P. Sarma, learned G.A., Assam,
Shri N. Kalita, learned counsel appearing on instructions of A.I. Ali, learned
Standing Counsel, Election Commission of India and Shri S.S. Roy, learned
C.G.C. We have also carefully examined the records of the Tribunal which were
requisitioned vide an order dated 02.12.2019.
4. Shri Hoque, 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 following documentary evidence.
(i) Ext-1- certified copy of voter list of 1965,
(ii) Ext-2- voter list of 1971,
(iii) Ext-3-certified copy of voter list of 1985,
(iv) Ext-4- certified copy of voter list of 1997,
(v) Ext-5-certified copy of sale deed,
(vi) Ext-6-Jamabandi copy,
(vii) Ext-7 - revenue receipt,
(viii) Ext-8 - Admit Card in original of S.E.B.A.,
(ix) Ext-9 - affidavit of the proceedee,
(x) Exts-10 and 11 - two Gaonburah certificates.
5. The learned counsel for the petitioner has submitted that the voters list of
1965 contains the names of her grandmother and father and the next voters list
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relied upon is of the year 1971 containing the name of her uncle and mother.
The next voters list is of the year 1977 which, however, was not exhibited. The
voters list of 1985 has been exhibited containing the name of the father of the
petitioner. Certain other voters lists of 1989, 2005 and 2013 have been referred
which, however, were not exhibited. The petitioner has, however, relied upon a
voters list of 1997 containing her name along with her parents and brother. The
2005 voters list, though referred was not exhibited. In any case, it contains the
name of a projected brother. The petitioner has also relied upon an H.S.L.C.
Admit Card from which her date of birth reveals as 31.12.1978 and also
regarding her father. The petitioner has also relied upon a Sale Deed dated
21.11.1967 executed by her father and also a Jamabandi of the year 1931 in
the name of her grandfather. Reliance has also been placed on the Gaonburah
certificate dated 03.07.2018 read with the deposition of the Gaonburah as DW2.
The uncle of the petitioner had also deposed as OPW2.
6. The learned counsel 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.
7. 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,
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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.
8. The learned Standing Counsel, Home Department 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 is vague and the relevant facts have not been stated. There is no
date or year of the birth of the petitioner and there are inconsistencies with the
members of the family. 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 grand parents may
also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these
facts would necessarily be within the personal knowledge of the person
concerned and not of the authorities of the State. After he has given evidence
on these points, the State authorities can verify the facts and can then lead
evidence in rebuttal, if necessary. If the State authorities dispute the claim of
citizenship by a person and assert that he is a foreigner, it will not only be
difficult but almost impossible for them to first lead evidence on the aforesaid
points. This is in accordance with the underlying policy of Section 106 of the
Evidence Act which says that when any fact is especially within the knowledge
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of any person, the burden of proving that fact is upon him."
9. In this regard, she has also relied upon the case of Rashminara Begum Vs.
Union of India, reported in 2017 (4) GLT 346 whereby this Court has reiterated
the necessity of detail disclosures in the written statement.
10. She has submitted that there are a lot of discrepancies in the name and
age of the projected father. While in the voters list of 1965, the father's name
was Sabes Ali with age as 33 which would mean that his year of birth would be
1933, in the voters list of 1997, the name is Sabed Ali with age 55 which would
mean that his year of birth would be 1922. Further, the name of the father is
not continuously appearing in the voters list. She has also highlighted that
though the voters list of the year 2005 was not exhibited, it contains the name
of the projected brother Saiful Islam with no other names. She submits that
none of the names of the siblings appear together with the parents. She has
also submitted that in the voters list of 2018, there are only two names i.e. Amir
Jan aged 81 years and Saiful Hussain aged 46 years with no other names. In
the written statement, there is no disclosure of the year of death of the father
and the date of marriage of the petitioner. The petitioner had also deposed as
OPW1 that she has forgotten how to read in spite of the fact that the H.S.L.C.
Admit Card has been produced. It is submitted that the written statement which
is the basic document was totally silent on all the relevant aspects and all
improvements were sought to be made in the evidence which is not permissible.
She has also submitted that the mere fact of having a name in the voters list
will not by itself established citizenship. In this regard, she has relied upon the
case of Aziz Miya Vs. Union of India, reported in 2023 (4) GLT 246.
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11. On the aspect of the relevancy of a certificate by the Gaonburah, the
learned Standing Counsel has relied upon the case of Khudeja Khatoon Vs.
Union of India & Ors., reported 2018 (3) GLT 347 and the following
observations have been pressed into service:
"13. Ext. B is a certificate dated 13.2.2016 issued by the Gaonburah certifying
that Khudeja Khatoon was the wife of A. Matalib. This certificate also has got
the State Emblem of India embossed on it and that too not as per the statutory
format. For the reasons mentioned above, this certificate is also liable to be
discarded. However, notwithstanding the same, even if we accept this certificate
at its face value, it only certifies that Khudeja Khatoon was the wife of A.
Matalib; thus no linkage is established with Jonab Ali; whom the petitioner
claimed to be her father.
14. Ext. C is a certificate dated 13.2.2015 of the Gaonburah of Durabandhi
village certifying that Khudeja Khatoon was the daughter of Lt. Jonab Ali. For
the reasons mentioned above, this certificate was also not proved. Mere filing of
a document or marking of a document as exhibit is not enough. The certificate
as well as the contents thereof would have to be proved, so also the
truthfulness thereof, in accordance with law."
12. She has also relied upon the judgment dated 16.09.2019 passed in
WP(C)/3961/2001 [Sufia Khatoon Vs. Union of India].
13. In support of her 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.
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"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. ..."
14. She 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
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
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the face of the record to warrant interference of the impugned opinion."
15. She has also relied upon the case of the Hon'ble Supreme Court in
Rupjan 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.
16. The learned Standing Counsel has accordingly submitted that the writ
petition be dismissed and the interim order be vacated.
17. The learned counsel for the other respondents have supported the
submissions made 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. They have
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.
18. 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.
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19. 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."
20. In this connection, the observations of the Hon'ble Supreme Court in the
case of Fateh Mohd. Vs. Delhi Administration [AIR 1963 SC 1035] which
followed the principles laid down by the Constitutional Bench in the case of
Ghaus Mohammad Vs. Union of India [AIR 1961 SC 1526] in the context of
Foreigners Act, 1946 would be relevant which is extracted hereinbelow: -
"22. This Act confers wide ranging powers to deal with all foreigners or
with respect to any particular foreigner or any prescribed class or
description of foreigner for prohibiting, regulating or restricting their or
his entry into India or their presence or continued presence including
their arrest, detention and confinement. The most important provision is
Section 9 which casts the burden of proving that a person is not a
foreigner or is not a foreigner of such particular class or description, as
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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 ."
21. 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.
22. 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
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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
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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."
23. In the instant case, the written statement is vague and apparently, has not
met the requirement, as laid down by the Hon'ble Supreme Court in the case of
Sarbananda Sonowal (supra). There is a requirement to disclose the following:
(i) his date of birth;
(ii) place of birth
(iii) name of his parents
(iv) their place of birth and citizenship
Further, there may be a requirement to give the details of the grandparents.
It has been stated that all these facts would necessarily be within the personal
knowledge of the person concerned and not of the authorities of the State.
24. We also endorse the views expressed by a Co-ordinate Benchin the case of
Rashminara Begum (supra) wherein the following observations have been
made:
"25.Written statement is the basic statement of defence of a proceedee
before the Foreigners Tribunal. Keeping in mind the mandate of Section 9
of the Foreigners Act, 1946, it is incumbent upon the proceedee to
disclose at the first instance itself i.e., in his written statement all relevant
facts specially within his knowledge having a material bearing on his
claim to citizenship of India. Material facts pleaded in the written
statement are thereafter required to be proved by adducing cogent and
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reliable evidence. It is also trite that a party cannot traverse beyond the
pleadings made in the written statement."
25. As regards the documentary evidence, including the voters list, we find
that a claim has been made that in the voters list of 1965, the name of the
father is enlisted. The said name is found to be Sabes Ali son of Tale Hussain
aged 33 years. In the next voters list of the year 1971, however, the name of
the father is not there and the name of the projected mother appears along
with one Abed Ali whose age is 25 years. It is contended that Abed Ali is the
Uncle. Though the voters list of 1977 is not exhibited, the same is enclosed and
on a perusal thereof, it would reveal that the name of the projected father is
Sabed Ali, son of Asuwali whereas the projected mother has been described to
be the wife of Sahed. In the voters list of 1985 which has been proved,
suddenly the name of the father Sabed Ali, son of Tale Hussain again appears
but the name of the mother is not there. The voters lists of 1989, 2005 and
2013 have not been exhibited and therefore, no relevant. The exhibited voters
list is of the year 1997 which contains the name of the petitioner and her
parents and one brother. However, a further voters list of 2005 which is not
exhibited contains the name of Abdul Hamid, son of Sabed Ali with his wife
Jamena Khatoon. Though it is projected that Abdul Hamed is the brother, no
other names of the family appear in the voters list. The H.S.L.C. Admit Card of
the petitioner though sought to be proved, the same becomes highly doubtful,
inasmuch as the petitioner in her cross-examination has stated that she has
forgotten how to read. It may be mentioned that the petitioner is not an old
rustic woman but a literate lady who claims to have appeared in the H.S.L.C.
examination in the year 1996. The Sale Deed and the Jamabandi of the years of
1967 and 1931 cannot be construed as link documents. So far as the Gaonburah
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Certificate is concerned which appears to be the lone document to link the
petitioner with the projected father, the same was not proved by production of
contemporaneous records. The Gaonburahin his evidence did not produce any
records pertaining to the certificate issued by him.
26. Though the projected uncle of the petitioner (Abed Ali) had adduced
evidence, it is trite that oral evidence alone which are not supported by
convincing documentary evidence will not discharge the burden cast to a
proceedee under Section 9 of the Act. We find force in the contention advanced
by the learned counsel for the respondents that the link with the projected
father has not been able to be established. We have also noted that in the
voters lists, there is an inordinate and unexplained gap of about 20 years from
1965 to 1985 which is the most crucial period as the cut off date is 25.03.1971.
We are of the view that the petitioner as proceedee had failed to discharge her
burden to prove her citizenship.
27. In view of the aforesaid facts and circumstances, we are of the opinion
that the impugned order dated 21.12.2018 passed by the learned Foreigners'
Tribunal (6th), Nagaon, Assam in F.T. Case No. FT(6 th) 318/2016 does not call
for any interference.
28. 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.
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29. The records be returned to the concerned Foreigners Tribunal forthwith,
along with a copy of this order.
JUDGE JUDGE
Comparing Assistant
