Rahima Khatun vs The Union Of India And 5 Ors.
- Court
- Gauhati High Court
Page No.# 1/15
GAHC010147252019
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4650/2019
RAHIMA KHATUN
W/O- MD. SAHAB UDDIN, R/O- VILL- UDMARI, P.O. SINGARI MADRASSA,
P.S. JURIA DIST- NAGAON, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, SHASTRI BHAWAN, NEW DELHI- 110001
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY TO THE GOVT. OF ASSAM
DEPTT. OF HOME
DISPUR
DIST- KAMRUP (M)
GHY-1
3:THE DY. COMMISSIONER
NAGAON
ASSAM
4:THE SUPERINTENDENT OF POLICE (B)
NAGAON
DIST- NAGAON
ASSAM
5:ELECTION COMMISSION OF INDIA
NIRBACHAN SADAN
ASHOKA ROAD
NEW DELHI- 110001
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6:STATE COORDINATOR NATIONAL REGISTRAR OF CITIZENS
G.S.ROAD
BHANGAGARH
GHY-
Advocate for the Petitioner : MR S CHAKRABORTY, MR. R SARKAR
Advocate for the Respondent : ASSTT.S.G.I., SC, NRC,SC, ELECTION COMMISSION.,SC, F.T
B E F O R E
Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI
Hon’ble mrs. JUSTICE SUSMITA PHUKAN KHAUND
Advocate for the petitioner : Shri S. Chakraborty, Advocate.
Advocates for the respondents : Shri P. S. Bhattacharyya, CGC.
Ms. A. Verma, SC- Home Deptt & NRC,
Shri P. Sarma, Addl. Senior GA, Assam;
Shri A. I. Ali, SC, ECI.
Date on which judgment is reserved : 17.09.2026
Date of pronouncement of judgment : 14.10.2026
Whether the pronouncement is of the operative part of the judgment? : NA
Whether the full judgment has been pronounced? : Yes
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 20.12.2018
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th
passed by the learned Member, Foreigners Tribunal-4 , Nagaon, Juria in FT
Case No. 76/2016 [Police Reference D/C No. 1310/98]. 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.
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
District, against the petitioner giving rise to the aforesaid FT Case
No. 76/2016 [Police Reference D/C No. 1310/98].
(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 01.10.2013 along with certain documents and adduced
evidence through 3 (three) nos. of DWs.
(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. Chakraborty, learned counsel for the petitioner. We
have also heard Shri K. Kalita, learned Counsel representing Shri P. S.
Bhattacharyya, learned CGC; Ms. A. Verma, learned Standing Counsel, Home
Department & NRC; Shri A. I. Ali, learned Standing Counsel, ECI and Shri P.
Sarma, learned Addl. Senior Govt. Advocate, Assam. We have also carefully
examined the records which were requisitioned vide an order dated 30.08.2019.
4. Shri Chakraborty, the learned counsel for the petitioner has submitted that
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the petitioner could prove her case with cogent evidence and in view of the fact
that there was no rebuttal evidence, the learned Tribunal should have accepted
the said proof and accordingly hold the petitioner to be a citizen of India. In this
regard, he has referred to the evidence adduced by the petitioner as DW1 and
two other witnesses as DW2 and DW3 and also certain documentary evidence
including Voter List of 1965 (Ext. 1), Voter List of 1970 (Ext. 2), Jamabandi Copy
and Gaonburah Certificate.
5. The learned counsel for the petitioner has submitted that in the written
statement, all material disclosures were made. Reliance has been placed on
Voters Lists of the years 1965 and 1970 containing the names of her
grandparents, father and uncle. In the Voters List of 1970, the name of the
mother is also there. By referring to the averments made in paragraph 5 of the
written statement, the learned counsel has submitted that after marriage, the
name of the petitioner was enlisted in the Voters List of the year 1997 which
however is with her husband. Reliance has also been placed on the Certificate
dated 02.06.2016 issued by the Gaonburah, who had also deposed in the
proceeding as DW3.
6. It is further submitted that though there were 3 (three) nos. of witnesses,
the deposition of DW2 was not discussed at all. It is submitted that DW2 is the
elder brother of the petitioner and his evidence was important and clinching and
therefore, failure to take into account such deposition would vitiate the entire
opinion.
7. The learned counsel for the petitioner has also relied upon a School
Certificate dated 31.12.2013 to prove the citizenship.
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8. 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.
9. 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.
10. The learned 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 proceedee and the written statement in the instant case is
absolutely vague. There are no names of the father, mother, siblings and the
date or year of birth. It is not pleaded that the petitioner had attended any
school. Under those circumstances, she contends that the evidence of the DW2
– the projected brother cannot be held to be relevant and further, the School
Certificate dated 31.12.2013 cannot be taken to be a valid piece of evidence. In
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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 :
“ 26. 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.”
11 . She has submitted that that there is not a single document which could be
produced and proved by the petitioner to establish her citizenship and though
certain documents prior to the cut-off date have been proved by contending
that those contain the names of her parents, no documents worth its name has
been able to be produced establishing a link with the projected parents. She
further submits that the first Voters List in which the name of the petitioner
figures is of the year 1997 when she was 28 years of age and yet she could not
produce any Voters List of previous years containing her name.
12 . In support of her submission that the written statement is required to
contain all the details, she has relied upon the case of Rashminara Begum
Vs. UoI & Ors. reported in 2017 (4) GLT 346 and the following observations
are pressed into service-
“ 25. Written statement is the basic statement of defence of a proceedee
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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 reliable
evidence. It is also trite that a party cannot traverse beyond the pleadings
made in the written statement.”
13 . By contending that there cannot be any variance between pleadings and
evidence, the learned Standing Counsel has relied upon the case of Momin Ali
vs. Union of India & Ors. reported in 2017 (2) GLT 1076 and the following
observations have been pressed into service:
“ 12. This written statement of the petitioner was wholly inadequate and
did not disclose any material facts. As noticed above, it was the allegation
of the State that petitioner was a foreigner. Therefore, as per mandate of
Section 9 of the Foreigners Act, 1946, it was the bounden duty of the
petitioner to have disclosed all material facts which were specifically
within his knowledge in the written statement but he did not do so.
Petitioner neither mentioned his date of birth nor his age. He was silent
regarding the name of his mother and identity of his grandparents - both
paternal and maternal. He did not mention anything about his brothers
and sisters or about his marital status. On the basis of such a written
statement, it cannot be said that petitioner had stated anything
substantial to show that he was not a foreigner but a citizen of India.
13. It is a settled proposition of law that where a party fails to set up a
case in his pleadings, he would be debarred from adducing evidence in his
support at the stage of trial. As a matter of principle, variance between
pleading and proof is not permissible.”
14. She has also submitted that the oral evidence of the projected brother as
DW2, in absence of any documentary link would be of no help and in this
connection, she has relied upon the following observations of the judgment
dated 21.11.2019 passed by a Coordinate Bench in a case of Asia Khatoon vs.
Union of India [WP(C)/4020/2017] which are as follows:
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“ The statement of DW-2 i.e. Amir Uddin, who claimed to be the father of
the petitioner, cannot be relied upon in the absence of any documents
showing his relationship to the petitioner. In this we would observe that in
a proceeding under the Foreigners Act, 1946 and the Foreigners
(Tribunals) Order, 1964 the evidentiary value of oral testimony without
support of documentary evidence is wholly insignificant. Oral testimony
alone is no proof of citizenship. The evidence of DW-2, thus, falls short of
being considered as cogent, reliable and admissible evidence, so much so,
to establish linkage of the petitioner to him”
15 . By contending that the certificate of the Gaonburah has been rightly
rejected by the learned Tribunal, she has relied upon the case of Romila
Khatun vs. Union of India reported in 2018 (4) GLT 373
16 . The learned Standing Counsel has accordingly submitted that no grounds
for interference with the impugned opinion been made out, the writ petition be
dismissed and the interim order be vacated.
17 . 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
taken, the proceedee is given an opportunity whereby he or she is required to
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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.
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 herein below-
“
9. Burden of proof.—If in any case not falling under Section 8 any question
arises with reference to this Act or any order made or direction given
thereunder, whether any person is or is not a foreigner or is or is not a foreigner
of a particular class or description the onus of 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 are extracted herein below-
“ 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.
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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 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
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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.”
23 . 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. The
petitioner has not named her parents, siblings and there is no date of birth
mentioned.
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24 . So far as the documentary evidence in the form of the Voters Lists of 1965
and 1970 are concerned, though the same contain the names of the projected
grandparents and parents of the petitioner, unless a link is able to be
established with them by the petitioner, those documents would be irrelevant as
the same did not contain the name of the petitioner. It is contended that the
name of the petitioner appeared for the first time in the Voters List of the year
1997 along with her husband. However, from the age disclosed in the affidavit
accompanying the writ petition, in 1997, the age of the petitioner appears to be
28 years. Therefore, it would be imperative on the part of the petitioner to
explain as to why her name was not figuring in the Voters List prior to 1997 as
the age of exercising franchise at that time was 21 years.
25. So far as the Certificate dated 02.06.2016 issued by the Gaonburah and
the deposition made by him as DW3 are concerned, the learned Tribunal had
discarded the same for use of the State Emblem. We are of the view that
though the use of the State Emblem on the certificate is not authorized by law,
that by itself may not per se make the contents of the document wholly
inadmissible. Such contents are to be examined by applying the principles
governing the field. The Gaonburah as DW3 though had proved the Certificate,
there was no contemporaneous documents or records which were produced and
proved on the basis of which, the certificate was issued. Therefore, the
contention advanced on behalf of the petitioner would not have any legs to
stand. We find force in the contention advanced by the respondents who have
relied upon the case Romila Khatun (supra) on the aspect of the proof of a
document, namely Gaonburah Certificate. We endorse the observations made in
the said case which are as follows:
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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. In so far Ext-F document vis-a-vis the petitioner is concerned, Nimai
Miah was a resident of Kukarpar village. Petitioner after her marriage with
Saijuddin had left the said village and started residing at village Hirajani under
Hajo Police Station. When the petitioner got married and since when she had
been residing at village - Hirajani has not come on evidence. When the
petitioner was not a resident of village - Kukarpar on the date when the
Gaonburah had issued the certificate, Gaonburah could have issued the
certificate only on the basis of the record maintained in his office. We also do
not know what happened to Nimai Miah after his name appeared in one of the
documents i.e., voters list of 1965 (Ext-C). Nimai Miah was 30 years of age in
1965 and in the ordinary course, he would have been around much beyond
25.03.1971. From the voters list of 1997 (Ext-A), we find that Ramila Bibi was
20 years of age. This is the first time the age of the petitioner has come on
record. If Ramila Bibi was 20 years of age in 1997, she would have born in the
year 1977, which means that her father ought to have been alive atleast till
1976. Therefore, on the basis of the testimony of Md. Ramesh Ali, as discussed
above, it cannot be said that Ext-F was proved. Besides, there is unauthorised
use of the State Emblem of India by the Gaoburah which has rendered Ext-F
inadmissible in evidence. Under the State Emblem of India (Regulation of Use)
Rules, 2007, Gaonburah is not authorized to use the State Emblem of India in
any manner. If Ext-F is excluded from consideration, there is nothing on record
to establish that Ramila Bibi or Ramila Khatun was the daughter of Nimai Miah
of Ext-C (1965).”
26. Though it is submitted that the deposition of DW2 has not been discussed
in the impugned opinion, a bare perusal of the same would show that the
learned Tribunal had duly considered the aforesaid deposition in the impugned
opinion and has rejected the same. While endorsing the finding of the learned
Tribunal on the deposition of DW2, we would like to add that mere oral evidence
of DW2 would not be sustainable in absence of any documentary evidence
linking the said DW2 with the petitioner (proceedee). In the instant case, there
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is not a single document wherein the name of DW2 appears along with the
petitioner.
27. So far as the School Certificate dated 31.12.2013 is concerned, though the
same has not been enclosed to the writ petition, the same could be found in
page 41 of the TCR. The Certificate states that the petitioner had left school in
the year 1979. Apart from the aspect of the inordinate and unexplained delay of
more than 3 decades in obtaining such a certificate, the same was not proved
by the school authorities. In that view of the matter, the certificate cannot be
treated as a relevant piece of evidence.
28 . 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 same has not been able to be done by the petitioner.
29. We are of the view that the petitioner as proceedee had failed to discharge
her burden to prove her citizenship.
30. In view of the aforesaid facts and circumstances, we are of the opinion
that the impugned order dated 20.12.2018 passed by the learned Member,
th
Foreigners Tribunal, 4 , Nagaon, Juria in FT Case No. 76/2016 [Police
Reference D/C No. 1310/98] does not call for any interference.
31. 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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32 . The records of the learned Tribunal be returned forthwith, along with a
copy of this order.
JUDGE JUDGE
Comparing Assistant