Jaynab Begum vs The Union Of India And 6 Ors
- Court
- Gauhati High Court
Page No.# 1/23
GAHC010282842019
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/8585/2019
JAYNAB BEGUM
W/O- LATE FARHAD ALI, D/O- IDDRISH ALI, D/O- SAHERA KHATUN @
SAHERA BEGUM, R/O- VILL- HAZIPARA, MOUZA- GHILAZARI, P.S-
HOWLY, DIST- BARPETA, 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- 01
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
HOME DEPTT
DISPUR
GHY- 06
3:THE SUPERINTENDENT OF POLICE (B)
BARPETA
ASSAM
P.S- BARPETA
DIST- BARPETA
ASSAM
4:THE ELECTION OFFICER
BARPETA
DIST- BARPETA
ASSAM
5:THE DEPUTY COMMISSIONER
BARPETA
DIST- BARPETA
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ASSAM
6:THE CHIEF COORDINATOR
NRC
ASSAM
DIST- KAMRUP(M)
DISPUR
GUWAHATI- 06
7:THE ELECTION COMMISSION
THE STATE OF ASSA
Advocate for the Petitioner : MR A ALI, MR S ISLAM,MR. Y ALI,MR H ALI
Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, NRC,SC, ELECTION COMMISSION.
B E F O R E
Hon’ble MR. JUSTICE KALYAN RAI SURANA
Hon’ble MRS. JUSTICE SUSMITA PHUKAN KHAUND
Advocate for the petitioner : Mr. A. Ali.
Advocates for the respondents : Mr.G. Sarma, SC- Home Deptt & NRC, Mr.P. Sarma, Sr.GA,
Mr.A.I. Ali, SC, ECI.
Mr.S.K. Medhi, CGC.
Date of hearing : 24.08.2026
Date of Judgment : 04.11.2026
Judgment & Order (CAV)
( S.P.Khaund , 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
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to challenge the opinion rendered vide impugned order dated 12.04.2019
th
passed by the learned Member, Foreigners Tribunal no.10 , Barpeta in F.T.
Case No. 361/2016. By the impugned judgment, the petitioner, who was the
proceedee before the learned Tribunal, has been declared to be a foreigner of
post 25.03.1971 stream.
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),
Barpeta District, against the petitioner giving rise to the aforesaid
F.T. Case No. 361/2016.
(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 28.12.2016 along with certain documents.
(iii) The learned Tribunal, after considering the facts and
circumstances and taking into account of the provisions of Section 9
of the Foreigners’ Act, 1946 had come to a finding that the
petitioner, as opposite party, had failed to discharge the burden cast
upon him and accordingly, the opinion was rendered declaring the
petitioner to be a foreign national post 25.03.1971.
3. We have heard Mr. A. Ali , learned counsel for the petitioner. We have also
heard Mr.G. Sarma, SC- Home Deptt & NRC, ; Mr.P. Sarma, Sr.GA , Mr. A.I. Ali, learned
Standing Counsel, Election Commission of India and Mr. S.K. Medhi, learned
CGC. We have also carefully examined the records which were requisitioned vide
an order dated 06.05.2020.
4. The learned counsel for the petitioner has submitted that the petitioner
could prove her case with cogent evidence and in view of the fact that there
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was no rebuttal evidence, the learned Tribunal should have accepted the said
proof and accordingly held the petitioner to be a citizen of India. In this regard,
she has referred to her evidence adduced as DW1 and also the following
documentary evidence. Her brother Sanowar Hussain was examined as DW-11
and he also exhibited the following documents. The gaonbura of village
Hazipara deposed as DW-3 and of Village Khandarpara deposed as DW-4.
(i) Ext-A is the photocopy of certified copy of 1965 voter list,
(ii) Exhibit-B is photocopy of certified copy of 1970 voter list,
(iii) Exhibit-C is photocopy of certified copy of 1997 voter list,
(iv) Exhibit-D is a photocopy of certified copy of 2010 voter list,
(v) Exhibit-E is a photocopy of elector photo identity card (EPIC for short) in
the name of Idrish Ali,
(vi) Exhibit-F is a photocopy of certified copy of 1989 voter list,
(vii) Exhibit-G is a photocopy of certified copy of 1997 voter list,
(viii) Exhibit-H is a photocopy of certified copy of 2010 voter list,
(ix) Exhibit-I is a photocopy of elector photo identity card in the name of Jaynab
Begum,
(x) Exhibit-J is a certificate dated 26.09.2017 issued by the Gaonburha of village
Khandarpar,
(xi) Exhibit-K is a certificate dated 24.10.2016 issued by the Gaonburha of
village Hazipara,
(xii) Exhibit-L is a certificate dated 18.06.2015 issued by the Secretary of 35 No.
Uttar Betbari Gaon Panchayat,
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(xiii) Exhibit-M is a photocopy of elector photo identity card in the name of
Sanowar Hossain.
5. The learned counsel has submitted that in the written statement, all
material disclosures were made. It is contended that the petitioner was declared
as a foreigner as discrepancies in names and age surfaced in the Voters lists
and other documents submitted by the petitioners. It is submitted that the LVO’s
report clearly depicts that the petitioner was born in India in 1964 and thus the
petitioner is an Indian citizen. The paragraph-5 of the written statement also
corroborates the LVO’s report that the petitioner’s place of birth is at
Khandarpar. The petitioner’s grandfather’s name appears as Kurpan Ali in Voters
list of 1997 and 2010 and the letter ‘f’ is changed to letter ‘p’ as her
grandfather’s name appears as Kurfan Ali in the Voter’s list of 1965 and 1970. It
is contended that although the learned Member held in page-4 of the Judgment
that the constituency has not been mentioned in Exhibit-A (Voter’s list of 1965),
this was not disputed by the prosecution, nor did the prosecution cross-examine
the witnesses on this aspect. It is further submitted that the voter’s lists have
not been challenged.
6. It is submitted on behalf of the petitioner that the Gaonbura Hasem Ali
who issued the Certificate dated 24.10.2016 was examined as DW-3. The
Gaonbura’s certificates traces the petitioner lineage to her father and
grandfather whose names appear in the voters lists of 1965, 1970, 1997 and
2010. Not a single voters list was challenged nor were the witnesses cross-
examined on the discrepancies surfacing in the petitioner’s grandfather’s name.
Her evidence is substantiated by her brother’s evidence as well. Her brother’s
evidence and the Gaonbura’s certificates establishes her linkage to her father
and grandfather. The learned counsel for the petitioner laid stress in his
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argument that the petitioner could prove that she is an Indian citizen by
adducing oral as well as documentary evidence. The LVO’s report showing that
she was born in Khandarpar village in the year 1964 proves that the reference
was not a valid reference.
7. Relating to discrepancies in the names, the learned counsel for the
petitioner has relied on the decision of the Supreme Court in Sirajul Haque Vs.
The State of Assam & Ors reported in 2019 (5) SCC 534 , wherein it has
been held that:-
“ 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.”
8. The petitioner tried to substantiate his argument relating to undisputed
documents by relying on the decision of the Supreme Court in Muddasani
Venkata Narsaiah (Dead) through Legal Representatives Vs. Muddasani
Sarojana reported in 2016 (12) SCC 288, wherein it has been held that:-
“ Moreover, there was no effective cross-examination made on the
plaintiff's witnesses with respect to factum of execution of sale deed, PW
1 and PW 2 have not been cross-examined as to factum of execution of
sale f deed. The cross-examination is a matter of substance not of
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procedure one is required to put one's own version in cross-examination
of opponent. The effect of non-cross-examination is that the statement
of witness has not been disputed. The effect of not cross-examining the
witnesses has been considered by this Court in Bhoju Mandal v. Debnath
Bhagat. This Court repelled a submission on the ground that the same
was not put either to the witnesses or suggested before the courts
below. Party is required to put his version to the witness. If no such
questions are put the Court would presume that the witness account has
been accepted as held in Chuni Lal Dwarka Nath v. Hartford Fire
Insurance Co. Ltd.
9. On the same subject, the petitioner has also relied on the decision of the
Supreme Court in R.V.E. Venkatachala Gounder Vs. Arulmigu
Viswesaraswami & V.P. Temple & Anr. reported in 2003 (0) AIR (SC)
4548 , wherein it has been held that:-
“ The learned counsel for the defendant-respondent has relied on The
Roman Catholic Mission vs. The State of Madras & Anr AIR 1966 SC 1457
in support of his submission that a document not admissible in evidence,
though brought on record, has to be excluded from consideration. We do
not have any dispute with the proposition of law so laid down in the
abovesaid case. However, the present one is a case which calls for the
correct position of law being made precise. Ordinarily an objection to the
admissibility of evidence should be taken when it is tendered and not
subsequently. The objections as to admissibility of documents in
evidence may be classified into two classes:- (i) an objection that the
document which is sought to be proved is itself inadmissible in evidence,
and (ii) where the objection does not dispute the admissibility of the
document in evidence but is directed towards the mode of proof alleging
the same to be irregular or insufficient. In the first case, merely because
a document has been marked as an exhibit, an objection as to its
admissibility is not excluded and is available to be raised even at a later
stage or even in appeal or revision. In the latter case, the objection
should be taken before the evidence is tendered and once the document
has been admitted in evidence and marked as an exhibit, the objection
that it should not have been admitted in evidence or that the mode
adopted for proving the document is irregular cannot be allowed to be
raised at any stage subsequent to the marking of the document as an
exhibit. The later proposition is a rule of fair play The crucial test is
whether an objection, if taken at the appropriate point of time, would
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have enabled the party tendering the evidence to cure the defect and
resort to such mode of proof as would be regular The omission to object
becomes fatal because by his failure the party entitled to object allows
the party tendering the evidence to act on an assumption that the
opposite party is not serious about the mode of proof On the other hand,
a prompt objection does not prejudice the party tendering the evidence,
for two reasons firstly, it enables the Court to apply its mind and
pronounce its decision on the question of admissibility then and there;
and secondly, in the event of finding of the Court on the mode of proof
sought to be adopted going against the party tendering the evidence,
the opportunity of seeking indulgence of the Court for permitting a
regular mode or method of proof and thereby removing the objection
raised by the opposite party, is available to the party leading the
evidence. Such practice and procedure is fair to both the parties. Out of
the two types of objections, referred to hereinabove, in the latter case,
failure to raise a prompt and timely objection amounts to waiver of the
necessity for insisting on formal proof of a document, the document itself
which is sought to be proved being admissible in evidence In the first
case, acquiescence would be no bar to raising the objection in superior
Court.”
10. The petitioner has also relied on the decision of this Court in WP(C) No.
1818/2019, wherein vide order dated 30.03.2021 , this Court has held
that :
“ On proper analysis of the aforesaid observation of the Hon'ble Supreme
Court, the following aspects emerge:
(i) In order to establish one's citizenship, normally he may be required to
give evidence of (1) his date of birth (ii) place of birth (iii) name of his
parents (iv) their place of birth and citizenship. However, the Supreme
Court nowhere states that the aforesaid facts must be proved only by
documents. The expression used is "normally he may be required to give
evidence" Thus, it is not mandatory to prove all these to show that he is
an Indian citizen. These are, however, relevant facts, if one proves, can
establish beyond doubt that he is a citizen of this country. Yet, he may be
able to prove his citizenship by other evidences as well.
(ii) Further, disclosure of facts or information other than the ones
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mentioned in para 26 does not mean that adverse inference can be
drawn.
(iii) One may prove one's citizenship without referring accurately to all
the factors mentioned under paragraph 26 of Sonowal II (supra). For
example, if the date of birth or the place of birth is not conclusively
proved, but if it is conclusively proved that the father of the proceedee is
an Indian citizen, the claim of the proceedee cannot be rejected as a
foreigner, as it would fly in the face of logic and common sense.
(iv) Further, it is nowhere mandated that he must prove all these facts by
documentary evidence only. Section 59 of the Evidence Act, 1872 says
that all facts, except the contents of document or electronic records, may
be proved by oral evidence. There may be cases, where the proceedee is
an illiterate, and the birth is not registered with any authority, in which
event, it would be impossible to produce any documentary evidence to
prove his date of birth and place and other facts accurately and one may
rely on oral evidence only. In such case, can a claim be thrown out
merely because only oral evidence has been led?
(v) Further, after he has given evidence on these points, the State
authorities can verify the facts and can then lead evidence in rebuttal, if
necessary.
43. It may be also noted that the standard of proof in discharge of the
onus by a proceedee under Section 9 of the Foreigners Act is
preponderance of probability as has been also reiterated in the Full
Bench decision of this Court in State of Assam vs. Moslem Mondal,
2013 (1) GLT 809 . Thus, the standard of proof being preponderance of
probability, there could be minor inconsistencies here and there in the
evidence of the proceedee which would not warrant rejection of the
claim. This is what the Hon'ble Supreme Court held in Sirajul Hoque v.
State of Assam, (2019) 5 SCC 534.”
11. The petitioner has relied on the decision of this Court in the case of Miraj
Alom @ Miraj Hussain vs. Uniion of India & Ors. in WP(C) No. 2498/2020,
wherein vide order dated 10.11.2020 , it has been held that the:-
“ We have carefully examined the case records received from the
Tribunal. It is seen from the Report of the Local Verification Officer that
the place of birth of the petitioner is described as Bihar and date of birth
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is recorded as 02.11 1981. His father is named as Md. Munir Alom, with
present address at Choudhury Market, P.S. Doomdooma, district-
Tinsukia. At Sl. No. 12 of the Report it is recorded that the mother
tongue of the petitioner is "Hindi". Further, at Sl. Nos. 15 and 16 of the
said Report, which pertains to queries as to whether the proceedee has
migrated into Assam and, if so, the place from where migrated, the Local
Verification Officer have recorded in the affirmative as against Sl. No.15
and "Bihar, India".
Against Sl. No. 16, meaning thereby that the petitioner migrated into
Assam from Bihar. Neither in the impugned opinion dated 29.12.2018 nor
in the Report of the Local Verification Officer or in the Referral Order of
the Electoral Registration Officer (ERO), 125 Doomdooma LAC, there are
any findings or suspicion recorded that the petitioner came to Assam
from the "specified territory".
Pertinent to note that for the purpose of initiating proceeding against a
person for examination as to whether he/she is a foreigner or not, in
respect of references made to a Tribunal constituted under the
Foreigners (Tribunals) Order, 1964 having jurisdiction over a district or
part thereof in the State of Assam, the primary and necessary ingredient
or the condition precedent is that reference can only be made in respect
of persons who have come to Assam from the "specified territory",
meaning the territories included in Bangladesh immediately before the
commencement of the Citizenship (Amendment) Act, 1985, and also
having regard to the cut-off date of migration into Assam as prescribed
under the aforesaid Section 6-A of the Citizenship Act, 1955.”
12. 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.
13. Per contra, the 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
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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.
14. 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 petitioner, and the written statement in the instant case lacks
details and is totally vague. There is no date or year of birth of the petitioner
and there are no details of the family members. In this connection, he has relied
on 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,
wherein it has been observed that :-
“ 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 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
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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. 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.
…”
16. 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
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
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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.”
17. He 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.
18. The learned Standing Counsel has accordingly submitted that the writ
petition be dismissed and the interim order be vacated.
19. The learned counsel for the other 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
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taken, the proceedee is given an opportunity whereby he or she is required to
prove the citizenship.
20. 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.
21. 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.”
22. 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
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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.”
23. The argument of the learned counsel for the respondents has substance.
It is submitted that rebuttal evidence in every case is not mandatory. Learned
counsel for the petitioner has relied on the decisions of the Supreme Court in
the case of Muddasani Venkata Narsaiah (Dead) through legal
representatives (Supra), and in the case of Arulmigu Viswesaraswami &
V.P. Temple & Anr. (Supra), and has submitted that the voters lists have not
been disputed through cross-examination of the witnesses and the same cannot
be discarded by the Tribunal. It has been submitted that the voters list ought to
have been considered as the petitioner's father's name reveals that her father
was an Indian citizen, as the petitioner's father and grandfather have been
shown as voters prior to 1971 in the voters list of 1965 as well as the voters list
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of 1970.
24. The argument of the learned counsel for the petitioner that no effective
cross-examination was made by the prosecution disputing the documents, has
no legs to stand. The cross-examination of the petitioner's brother, Sanowar
Hussain as DW2 clearly reveals that he had no knowledge about the voters,
whose names are reflected in the voters list of 1965 and 1970. He further stated
in his cross-examination that he had no idea about the enrollment of his sister's
name in the voters list. He did not even know about the constituency, where she
was shown as a voter. It is further admitted in his cross-examination that his
grandfather came to India from Bangladesh. This contradicts the petitioner's
pleadings and evidence that her father was an Indian citizen.
25. It is also pertinent to note that petitioner admitted in her cross-
examination that since 1965 to 2010, her father was residing in the same place.
This is not true. The voters list of 2010 marked as exhibit-D clearly reveals that
the constituency was Sarukhetri. No reasons were ascribed, how the
constituency had changed from Khandarpar to Sarukhetri. The change of
address was not explained by the petitioner in her pleadings or in her evidence.
It can be safely held that both DW1 and DW2 have been duly cross-examined
on the voters lists.
26. It has to be borne in mind 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.
27. Law is well settled in this field. The Hon’ble Supreme Court, after
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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
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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.”
28. 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:
(i) date of birth,
(ii) place of birth,
(iii) name of the 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.
29. The written statement of the petitioner is vague. The petitioner has not
mentioned the names of her grandparents, her mother or her siblings in her
written statement. The petitioner introduced the names of her grandfather and
her mother in her evidence-in-chief. Although, she examined her projected
brother as a witness, yet the petitioner failed to mention her brother's name in
the written statement or in the evidence. It is trite law that evidence cannot
traverse beyond pleadings.
30. It would also be pertinent to mention that the petitioner and her brother
also failed to substantiate their documentary evidence through their oral
evidence when they were cross-examined. The cross-examination and the
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evidence-in-chief of DW1 does not at all give a hint regarding the petitioner's
siblings. However DW2 mentioned in his cross-examination that he has two
brothers and four sisters. It is also apparent that their parents were alive. DW2
further admitted in his cross-examination that he was not aware of the
constituency from where his sister cast her vote and if his father came to India
from Bangladesh. He also admitted that his grandfather came to India from
Bangladesh.
31. The decision of this Court in WP(C) 1818/2019 in the case of Haidar Ali
(Supra) is of no aid to the petitioner. The documentary evidence as well as the
oral evidence of the petitioner was not found to be reliable. We cannot be
oblivious of the fact that between the voters list of 1970 and the voters list of
1997, there is a gap of 27 years. To prove citizenship, continuous stay is a sine
qua non. There is no explanation by the petitioner relating to the voters list
after 1970. A voters lists has been produced which reveals a gap of 27 years.
The grandfather's name appears to be different in this case. The grandfather's
name is shown as Kurpan Ali in the voters list of 1997 and grandmother's name
is shown as Sahara Begum in the voters list of 1997 instead of Sahara Khatun
as shown in the voters lists of 1965 and 1970. The grandfather's name appears
as Kurfan Ali in the voters lists of 1965 and 1970.
32. The learned counsel for the petitioner has relied on the decision of the
Supreme Court in Sirajul Hoque (Supra). The discrepancies relating to names
and ages have also surfaced. In Sirajul Hoque’s case, there was a difference of
only one letter. In this case, there are discrepancies in the letters as well as age.
Continuous stay has also not been proved. The village has shifted from
Khandarpar to Sarukhetri as is apparent in the voters list of 2010. There is no
explanation relating to shifting of constituency from Khandarpar to Sarukhetri.
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The age of Idris Ali is shown as 37 years in the year 1970, and after 27 years in
the voters list of 1997,Exhibit-C, his age ought to have been 64 years instead of
70 years. The age of Sahira Khatun is shown as 27 years in the voters list of 1970,
Exhibit-B, whereas her age after 27 years is shown as 65 years and her name is
shown as Sahira Begum and not Sahira Khatun in the voters list of 1997,
Exhibit-C. 11 years age discrepancy has surfaced between the voters list of 1970
vis-a-vis the voters list of 1997. The facts and circumstances of this case are
thus not similar to the facts and circumstances of Sirajul Hoque's case (supra).
In the instant case, there are too many inconsistencies between the age
and names of the petitioner's parents and grandparents.
33. To bridge the long gap of 27 years, the petitioner exhibited two
Gaonburah’s certificates to establish her lineage with her father and grandfather.
The petitioner produced two Gaonburahs as witnesses to establish her lineage
with her parents and grandparents. However, the evidence of the Gaonburahs
as DW3 and DW4 could not prove the petitioner's lineage with their father and
grandfather. The petitioner failed to bridge the gap of 27 years by producing
DW3 and DW4. Haseem Ali of Hajipara deposed as DW3 that he issued the
certificate to the petitioner on 24.10.2016. The petitioner is known to him and
she is a resident of village Hajipara and she is the wife of late Farhad Ali. In his
cross-examination, he deposed that he did not maintain any register. He did not
know when the petitioner's marriage was solemnized. The petitioner has been
residing in his village for the last 22 years. Thus, no error is apparent when the
learned Tribunal held that the petitioner was known to the DW3 since 1996 only.
It is apparent from the evidence of DW3 that the petitioner's place of birth, the
petitioner's father's name or grandfather's name is not known to him. His
evidence is not based on contemporaneous records. It is discernible that he may
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have been acquainted with the petitioner's husband, but not with the
petitioner's parents or grandparents.
34. The certificate has also not been identified by him. The other Gaonburah
is Dinesh Nath and he deposed as DW4 that he was serving as Gaoburah of
Village-Khandarpar and Bamunbari. He issued the certificate to the petitioner
marked as Exhibit-J. This witness however testified that the petitioner's father is
known to him but the petitioner is not known to him. He thus issued a
certificate to the petitioner who was not known to him. He further deposed that
as the petitioner's father wanted a certificate, he issued the certificate to the
petitioner. In his cross-examination, he admitted that the Circle Officer
authorized him to issue the certificate. He also admitted that he did not know
Idris Ali's father's name. He did not verify the contents of his certificate. He
admitted that he issued the certificate on being requested by Idris Ali.
35. It has been held by this Court in Romila Khatun (Supra), that not only
the document would have to be proved but its contents are to be proved. That
apart, the truthfulness of the contents of the document would also have to be
established from the record.
36. In the case of Bijoy Das vs UOI reported in 2018 (3) GLT 118, this Court
has laid down that in proceedings of this nature, oral evidence alone would not
be enough and such evidence is required to be supported and corroborated by
documentary evidence and contemporaneous records. However, in this case, the
petitioner failed to prove the Gaonburah’s documents with the aid of
contemporaneous records. We are of the view that the petitioner as proceedee
had failed to discharge her burden to prove her citizenship.
37. Petitioner exhibited Exhibit-E, EPIC in the name of Idris Ali, Exhibit-I, EPIC
in the name of the petitioner as well as Exhibit-M, EPIC reflecting the name of
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her projected brother, Sanowar Hussain. It is indeed trite law that voter identity
card does not prove citizenship of the person. A person has to prove his
citizenship by cogent, admissible and reliable evidence. A procedee has to prove
continuous stay to prove his or her citizenship.
38. The petitioner failed to prove her citizenship through cogent, reliable and
admissible evidence. The petitioner failed to discharge her burden as mandated
under Section 9 of the Foreigners Act.
39. In view of the foregoing discussions, it is also apt to mention that the
decision of this Court in Miraj Alom (supra), relied upon by the petitioner, is of
no aid to the petitioner.
40. We are of the opinion that the impugned order dated 12.04.2019 passed
th
by the learned Member, Foreigners Tribunal No.10 , Barpeta in F.T. Case No.
361/2016 does not call for any interference.
41 . 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.
42. The records of the learned Tribunal be returned forthwith, along with a
copy of this order.
JUDGE JUDGE
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Comparing Assistant