Shefali Saha @ Sewali Saha vs The Union Of India And 5 Ors.

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GAHC010131842019

2026:GAU-AS:7504
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4205/2019
SHEFALI SAHA @ SEWALI SAHA
W/O- GOPAL SAHA, D/O- LATE RADHA CHARAN PAUL, R/O- BARPATHAR,
P.S. KACHUA, DIST- NAGAON, ASSAM.
VERSUS
THE UNION OF INDIA AND 5 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA,
DEPARTMENT OF HOME, NEW DELHI, PIN- 110011.
2:THE STATE OF ASSAM
REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6.
3:THE SUPERINTENDENT OF POLICE (B)
DISTRICT- NAGAON
ASSAM, PIN- 782460.
4:THE DEPUTY COMMISSIONER
DISTRICT- NAGAON
ASSAM, PIN- 782460.
5:THE ELECTION COMMISSIONER OF INDIA
ASHOKA ROAD
NEW DELHI- 110001.
6:THE STATE CO-ORDINATOR
NRC, ACHYUT PLAZA
BHANGAGARH
DISTRICT- KAMRUP(M)
GUWAHATI-5
ASSAM

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Advocate for the Petitioner : MR. P C DEY,
Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, NRC,SC, ECI

B E F O R E
Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI
Hon’ble MR. JUSTICE PRANJAL DAS

Advocate for the petitioner : Shri P. C. Dey, Advocate.

Advocates for the respondents : Shri J. Payeng, SC- Home Deptt & NRC,
Shri P. Sarma, GA, Assam;
Shri N. Kalita, Advocate
(on behalf of Shri A.I. Ali, SC, ECI.
Shri S. S. Roy, CGC.

Date on which judgment is reserved : 27.05.2026
Date of pronouncement of judgment : 29.05.2026

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 25.07.2018
passed by the learned Member, Foreigners Tribunal No. 2, Nagaon in F.T. Case
No. 1184/2011 (S. P. REF Case No. 1974/1998). By the impugned judgment, the

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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 F.T. Case
No. 1184/2011.
(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 24.01.2018 along with certain documents and adduced
evidence through 2 (two) nos. of witnesses. The petitioner however
did not adduce evidence herself.
(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 P. C. Dey, learned counsel for the petitioner. We have
also heard Shri J. Payeng, learned Standing Counsel, Home Department & NRC;
Shri P. Sarma, learned GA, Assam, Shri N. Kalita, learned Counsel appearing on
behalf of Shri A. I. Ali, learned Standing Counsel, Election Commission of India
and Shri S. S. Roy, learned CGC. We have also carefully examined the records
which were requisitioned vide order dated 14.08.2019.
4. Shri Dey, 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

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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 and also the following
documentary evidence.
(1) Ext-1 Copy of Registration Certificate.
(2) Ext-2 Copy of Panchayat Certificate.
(3) Ext-3 Copy of Gaonbura Certificate.
(4) Ext-4 NRC Copy
(5) Ext-5 Certified Copy of voter list in the year 1994.
(6) Ext-6 Voter List of the year 2017 in respect of 82 No. Raha LAC.
(7) Ext-7 Voter Identity Card name of DW 2.
(8) Ext-8 Certified Copy of voter list in the year 1971.
(9) Ext-9 Copy of Receipt Book.
(10) Ext. 10 – Aadhaar Card No. 387074535981.
5. The learned counsel for the petitioner has submitted that in the written
statement, all material disclosures were made. It is submitted that the father of
the petitioner – Radha Charan Paul had migrated from the erstwhile East
Pakistan and registered himself in India on 18.04.1960. Thereafter, the
petitioner was born sometime in the year 1958. Reliance has been placed on a
Voters List of 1971 containing the name of her brother Amulya Paul, who had
deposed before the learned Tribunal as DW 2. With regard to the evidence of
DW 2, he has submitted that there is a requirement to take into consideration
such evidence and in this regard, he has relied upon the decision of Rousana
Begum @ Rosona Begum Vs Union of India & Ors. [WP(C)/7893/2022
decided on 07.12.2022].

6. Reliance has also been placed on the certificate dated 27.12.2011 issued by

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the Gaonburah stating the relationship.

7. The learned counsel for the petitioner has alternatively argued that the
petitioner would be entitled to the benefits under the Immigration and
Foreigners (Exemption) Order, 2025 . He has submitted that the present
Order of 2025 has replaced the Orijinal Order of 1940 . He has also drawn the
attention of this Court to the Immigrants (Expulsion From Assam) Act,
1950 . In connection thereto, he has relied upon the case of Uttam Ghosh Vs
Union of India reported in 2022 (4) GLT 406 .

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.
Alternatively, he submits that the petitioner be permitted to explore her option
under the Order of 2025.

9. Per contra, Shri Payeng, 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
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

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thereafter, the question of adducing rebuttal evidence may come in.
10 . The learning Standing Counsel has further submitted that the written
statement is the basic document which is supposed to lay down the foundation
of the case of the proceeding and the written statement in the instant case
lacks details and is totally vague. There is no date or year of the birth of the
petitioner and there are no details of the family members. In this connection, he
has relied upon the following observations made by the Hon’ble Supreme Court
in the case of Sarbananda Sonowal vs. Union of India reported in (2005)
5 SCC 665 :
“ 17. There is good and sound reason for placing the burden of proof upon the
person concerned who asserts to be a citizen of a particular country. In order to
establish one's citizenship, normally he may be required to give evidence of (i)
his date of birth (ii) place of birth (iii) name of his parents (iv) their place of
birth and citizenship. 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
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 . He has submitted that no link could be established with the projected
father at all and though it appears that the petitioner was born sometime in the
year 1958, there is no documentary evidence to connect her with the projected

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father. He has stated that the certificate issued by the Gaonburah, by no means,
could be deemed as a proof of citizenship, more so, when the Gaonburah could
not produce the contemporaneous records. He has submitted that use of
national emblem on such certificate is unauthorized. In this connection, he has
relied upon the case of Khudeja Khatoon Vs Union of India & Ors reported
in 2018 (3) GLT 347.

12 . In support of his submission that a document has to be proved from
contemporaneous records, the learned Standing Counsel has relied upon the
judgment passed in the case of Romila Khatun vs. Union of India reported
in 2018 (4) GLT 373 and the following observations have been pressed into
service.
“ 20. It is trite that documentary evidence would have to be proved on the basis
of the record and the contemporaneous record must substantiate and prove the
contents of the document. Proof of document is one thing and proof of contents
is another. Not only the document would have to be proved but its contents
would also have to be proved. That apart, the truthfulness of the contents of the
document would also have to be established from the record. A document or the
contents of the document cannot be proved on the basis of personal knowledge.
…”

13 . He has also drawn the attention of this Court to the case of Nur Begum
vs. Union of India and Ors. reported in 2020 (3) GLT 347 wherein certain
observations regarding exercise of Certiorari jurisdiction have been made which
read as follows:

“ 9. On the available materials, we find that the Tribunal rendered
opinion/order upon due appreciation of the entire facts, evidence and

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documents brought on record. We find no infirmity in the findings and opinion
recorded by the Tribunal. We would observe that the certiorari jurisdiction of
the writ court being supervisory and not appellate jurisdiction, this Court would
refrain from reviewing the findings of facts reached by the Tribunal. No case is
made out that the impugned opinion/order was rendered without affording
opportunity of hearing or in violation of the principles of natural justice and/or
that it suffers from illegality on any ground of having been passed by placing
reliance on evidence which is legally impermissible in law and/or that the
Tribunal refused to admit admissible evidence and/or that the findings finds no
support by any evidence at all. In other words, the petitioner has not been able
to make out any case demonstrating any errors apparent on the face of the
record to warrant interference of the impugned opinion.”

14 . He has also relied upon the case of the Hon’ble Supreme Court in
Rupajan Begum vs. Union of India reported in (2018) 1 SCC 579, wherein
it has been laid down that a certificate has to be proved on two aspects, firstly,
the authenticity of the same and secondly, the authenticity of the contents.

15 . The learned Standing Counsel has accordingly submitted that the writ
petition be dismissed. He has however fairly submitted that though the Orders
of 2025 have been sought to be relied upon by the petitioner as an alternative
argument, ultimately, it would be the Citizenship (Amendment) Act, 2019 which
may have a role, in case the petitioner opts to apply under the same.

16 . The learned counsel for the rest of the respondents have supported the
submissions advanced on behalf of the Home Deptt. & NRC and have prayed for
dismissal of the writ petition. They have submitted that this Court in exercise of
its Certiorari jurisdiction does not act as an Appellate Court and it is only the

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decision making process which can be the subject matter of scrutiny. It is
submitted that there is no procedural impropriety or illegality in the decision
making process and therefore, the instant petition is liable to be dismissed.
They have further submitted that the procedure adopted for adjudication of a
reference by a Foreigners Tribunal is summary in nature and there is also a time
frame for completion. It is also submitted that there is a question of national
security by the unabated influx of foreign nationals and before any action is
taken, the proceedee is given an opportunity whereby he or she is required to
prove the citizenship through cogent, credible and acceptable evidence.
17 . 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.

18 . 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.”

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19 . 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 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.”
20 . 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

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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.
21 . In the instant case, the written statement is 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) the date of birth;
(ii) place of birth
(iii) name of 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.

22 . The documents relied upon by the petitioner have been carefully
examined. The first document is the registration certificate of the projected
father dated 18.04.1960. The next document is a Voters List of 1971 containing
the name of the projected brother. Both the aforesaid documents however
would not provide any connection of the petitioner with her projected father.
Much emphasis has been laid on the deposition made by the projected brother
as DW 2. The case of Rousana Begum (supra) has been carefully perused and
it clearly appear that in that case though there was evidence of the brother, in
the impugned order, there was no discussion of the said evidence. On the other
hand, in the instant case, there is not only a reference but also a discussion of
the evidence of DW 2 in the Order more particularly, in the third paragraph of

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page 52 of the writ petition.

23 . It is further trite that oral evidence, though may be relevant is necessarily
required to be corroborated and supported by documentary evidence of the
contemporaneous period. The law in this field is well settled that oral evidence
alone cannot establish citizenship of a suspected proceedee. In the case of Nur
Begum (supra), the following observations have been made by a Coordinate Bench,
which we respectfully endorse:

“… We would reiterate 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…”

24 . The reliance upon the certificate by the Gaonburah dated 27.12.2011
would not come to the aid of the petitioner for more than one reason. There is
an authorized use of the National Emblem which renders the certificate otiose.
However, even if the said aspect is overlooked, it is seen that the Gaonburah in
his deposition could not prove the same with contemporaneous records. He had
also admitted that he had become the Gaonburah only in the year 2013 i.e.
after issuance of the certificate by the earlier Gaonburah. We find force in the
contention advanced by the learned Standing Counsel, who by relying upon the
case of Khudeja (supra) had submitted that the said certificate would not have
any probative value. On the aforesaid issue, a Co-ordinate Bench in the case of
State of Assam Vs. Ohab Ali dated 29.05.2018 in WP(C)/2641/2017 has
made the following observations which we respectfully endorse:

“ 13. Though petitioner exhibited a number of documents from Exhibits-A to M,

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we find that none of these documents were proved in accordance with law.
There were simply filed and marked as exhibits. It is trite that mere filing of
document or marking of document as exhibit is not enough. Not only the
document has to be proved, the contents of the document would also have to
be proved; that apart truthfulness of the contents would have to be proved too.
14. The two crucial documents which say that Ahed Ali @ Oheb Ali was the son
of Late Shangser Ali are Exhibits-H and Exhibit-I. Exhibit-H is a certificate dated
02.06.2014, issued by one Akmat Ali, Gaonburah, certifying that Ohed Ali was
the son of Late Shangser Ali, but Akmat Ali did not appear before the Tribunal
alongwith the contemporaneous record to prove Exhibit-H as well as the
contents thereof. Therefore, this exhibit was not proved. That apart, we find
that the Gaonburah had embossed the State Emblem of India in Exhibit-H
certificate. Under the State Emblem of India (Prohibition of Improper Use) Act,
2005, and the State Emblem of India (Regulation of Use) Rules, 2007,
Gaonburah is not authorized to use the State Emblem of India in any manner.
Such unauthorized use of the State Emblem of India had rendered Exhibit-H
inadmissible in evidence. Similar is the position in respect of Exhibit-I, issued by
another Gaonburah, Jahidul Islam Bhuyan on 23.12.2014. For the reasons
mentioned above, this exhibit is also inadmissible in evidence. Therefore, these
two exhibits besides not being proved were inadmissible in evidence. If these
documents are excluded from consideration, there is nothing on record to
establish linkage between Ahed Ali @ Oheb Ali or Ohed Ali on the one hand and
Shangser Ali on the other hand.”
25 . We are of the view that the petitioner as proceedee had failed to
discharge her burden to prove her citizenship.

26 . In view of the aforesaid facts and circumstances, we are of the opinion
that the impugned order dated 25.07.2018 passed by the learned Member,

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Foreigners Tribunal No. 2, Nagaon in F.T. Case No. 1184/2011 (S. P. REF Case
No. 1974/1998) does not call for any interference.

27 . The writ petition accordingly stands dismissed. The actions consequent
upon the opinion rendered by the learned Tribunal would follow in accordance
with law.

28 . At this stage, we have also given our anxious thought to the alternative
submission advanced on behalf of the petitioner regarding availing the benefit
under the Orders of 2025. We are of the opinion that the governing Act in this
field would be the Citizenship (Amendment) Act, 2019 which provides for the
mode of availing the benefit by a class of persons. There is however a basic
requirement to establish that the person making an application falls within that
class. We are therefore of the view that if the petitioner can establish that she
belongs to the said class, there will be no impediment for her to seek the
benefit under the aforesaid Act. It is further made clear that the present order
shall not cause any prejudice to the petitioner to file appropriate application
under the Citizenship Amendment Act and if the same is done, such
application(s) is to be considered in accordance with law.

29 . The records be returned to the concerned Foreigners Tribunal forthwith,
along with a copy of this order.
JUDGE JUDGE
Comparing Assistant