S.K. Medhi, J.

1. 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 29.01.2022 passed by the learned Foreigners’ Tribunal No. 6, Nagaon in F.T. Case No. 281/2016 arising out of Police Reference – F.T. “D” Case No. 831/98. 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 Case No. 281/2016.

                   (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 dated 15.03.2013 along with certain documents and had claimed to be an Indian Citizen. He had adduced evidence as OPW1 and there were three other witnesses, namely, a neighbour as OPW2, the Gaonburah as OPW3 and the Headmistress of Rajabari Sologuri High School as OPW4.

                   (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 Shri M. Alam, learned counsel for the petitioner. We have also heard Shri G. Sarma, learned Standing Counsel, Home Department & NRC, Assam; Ms. S. Katakey, learned Standing Counsel, Election Commission of India; Shri H.K. Hazarika, learned Additional Senior Government Advocate, Assam and Shri AK Dutta, learned CGC.

4. Shri Alam, the learned counsel for the petitioner has submitted that the petitioner could prove his case with cogent evidence and in view of the fact that there was no rebuttal evidence, the learned Tribunal should have accepted the said proof and accordingly hold the petitioner to be a citizen of India. In this regard, he has referred to the evidence on affidavit of the three numbers of witnesses and also the following documentary evidencei.

                   i. Voter List, 1965 (Exbt -1)

                   ii. School Transfer Certificate (Exbt – 2)

                   iii. School Transfer Certificate (Exbt – 3)

                   iv. Gaonburah (Exbt –4)

                   v. Sale Deed, 1974 (Exbt – 5)

                   vi. Pension Calculation Sheet (Exbt – 6)

5. The learned counsel for the petitioner has submitted that the petitioner was born on 01.02.1974 and in the voter list of 1965 the name of his father A. Hakim appears. He has also referred to the voter lists of 1970, 1977, 1985, 1997 and 2011 where the name of his father appears. He has also referred to a Sale Deed of the year 1979 executed by his grandfather and another Sale Deed of the year 1980 executed by his father. The petitioner claims to have attended the Rajabari Sologuri ME Madrassa and thereafter, the Rajabari Sologuri High School and in this regard, had proved the School Certificates as Exhibits 2 & 3. He had also relied upon a pension paper of his father which was proved as Exbt. 6. Reliance has also been placed upon the certificate of the Gaonburah, who had deposed as OPW3, wherein it has been stated that the petitioner is a citizen of India and is the son of A. Hakim.

6. The learned counsel for the petitioner accordingly submits that the impugned opinion is unsustainable in law and liable to be interfered with.

7. Per contra, Shri G. Sarma, learned Standing Counsel, Home Department & NRC 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 thereafter, the question of adducing rebuttal evidence may come in.

8. The learned Standing Counsel has submitted that to discharge the burden of proof, the first requirement of a proceedee is to disclose all the relevant facts in the written statement. However, in the WS filed on 15.03.2013 by the petitioner, there is no disclosure of the relevant materials. There was no disclosure regarding the grandparents, mother and the siblings of the petitioner.

9. The learned Standing Counsel has submitted that so far as the document relied upon by the petitioner is concerned, a part of the same cannot be relied upon and the document, as a whole is to be read. He has submitted that though certain voter lists containing the name of one A. Hakim have been proved, there is no connection at all between the said A. Hakim and the father of the petitioner which could be established. He has submitted that the petitioner as OPW1 did not prove any documents at all and all such documents were introduced by persons who did not have the competence and who were not the custodian of such documents except the Certificate by the Gaonburah. He has been critical that the documents including the voter lists have been introduced by OPW2 who appears to be a neighbour. So far as OPW3 (Gaonburah) is concerned, he had deposed that the petitioners had 9 siblings but this important aspect was neither stated in the written statement nor in his deposition by the petitioner.

10. As regards the school certificates, the learned Standing Counsel has submitted that so far as the certificate of the Rajabari Sologuri ME Madrassa is concerned, the same was issued on 18.10.2011 while the petitioner had left the School on 13.12.1987 and there is no explanation regarding the delay of about 25 years. He has submitted that the School Register was not proved by the person who made the entries and even the OPW3 did not say about such acquaintance. He has also submitted that the School Register was not proved in accordance with law and therefore, the same cannot have a evidentiary value. He has highlighted the aspect that even if the school register is taken into consideration, the same states that the occupation of the father of the petitioner was cultivation whereas, as per the projection made, his father was a Railway Employee.

11. On the aspect as to how a school certificate is required to be proved, he has relied upon a judgment of the Hon’ble Supreme Court in the case of Birad Mal Singvi Vs. Anand reported in (1988) Suppl SCC 604 wherein the following observations have been made:

                   “15. ... To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. In Raja Janaki Nath Roy v. Jyotish Chandra Acharya Chowdhury a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show on what material the entry in the register about the age of the plaintiff was made. The principle so laid down has been accepted by almost all the High Courts in the country … The courts have consistently held that the date of birth mentioned in the scholar’s register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined …”

12. On the aspect of belated issuance of the School Certificate, the learned Standing Counsel has relied upon the case of Rofiqul Hoque Vs. Union of India reported in 2025 SCC Online SC 1160 where the following observations have been made:

                   “15. The Tribunal as well as the High Court have considered these documents and have found that those earlier voter lists relate to a person located in some other village than the one of which the appellant claimed to be a resident. In such circumstances, the appellant ought to have stated in his affidavit, or demonstrated by some documentary evidence, that his ancestors had migrated from that village to the other village where the appellant was reported to be residing, but, according to the Sarbananda Sonowal v. Union of India and another, (2005) 5 SCC 665 Tribunal, there was no such claim by the appellant in his affidavit. Therefore, the Tribunal discarded the probative value of those voter list entries. Interestingly, the school leaving certificate on which heavy reliance was placed by the appellant was also doubted as there appeared no reason for it to have been obtained 10 years after passing from the institution. Moreover, the headmaster of the school was not called for to prove the authenticity of the certificate of which duplicate was produced. 16. For the foregoing reasons, if the Tribunal and the High Court held that the appellant could not discharge his burden of proving that he is not a foreigner, the view taken by them cannot be held perverse, or manifestly erroneous, or unreasonable, as to warrant interference under Article 136 of the Constitution of India.”

13. Reliance has also been made upon a judgment dated 26.04.2018 passed by this Court in the case of Khudeja Khatoon Vs. Union of India [WP(C)/7756/2016] wherein the following observations have been made:

                   “12. Ext. A. is a transfer certificate dated 09.01.2016 issued by the Head Master of Uttar Durabandhi Beel LP School certifying that Musstt. Khudeja Khatoon was the daughter of Lt. Jonab Ali of Durabandhi Beel village under Moirabari Police Station in the district of Morigaon. She had left the school on 31.12.1988 after passing Class-II. As per admission register, her date of birth was 12.01.1981. This certificate cannot be accepted as a valid piece of evidence for more than one reason. Firstly, the State Emblem of India is embossed in the certificate. The State Emblem of India (Regulation of Use) Rules, 2007 has been framed by the Central Government in exercise of powers conferred by Section 11 of the State Emblem of India (Prohibition of Improper Use) Act, 2005. This Act was enacted by the Parliament to prohibit improper use of the State Emblem of India. Section 3 specifically prohibits improper use of the State Emblem.—It says that notwithstanding anything contained in any other law for the time being in force, no person shall use the emblem or any colourable imitation thereof in any manner which tends to create an impression that it relates to the Government or that it is an official document of the Central Government or the State Government, without the previous permission or authorisation. Head Master of LP School is not authorised to use the State Emblem of India in any manner. Such unauthorised use of the State Emblem of India has rendered Ext. A inadmissible in evidence. Secondly, as per this certificate, petitioner had left the school on 31.12.1988. This certificate was issued 28 years thereafter on 09.01.2016. Such belated issuance would naturally cast serious aspersion on the bonafides of such certificate which is heightened by the unauthorised use of the State Emblem of India, that too, not as per the statutory format. Thirdly and most importantly, the author of the said certificate did not appear before the Tribunal alongwith the school admission register to prove the contents of the said certificate, more particularly, date of birth and relation with Lt. Jonab Ali. How the date of birth in school certificate has to be proved has been settled by the Supreme Court long back in Birad Mal Singhvi vs Anand Purohit reported in 1988 (Supl) SCC 604 and further reiteration is not necessary. Therefore, Ext. A besides not been proved, is also inadmissible in evidence.”

14. Shri Sarma, learned Standing Counsel has also relied upon the judgment of the Hon’ble Supreme Court in the case of Central Council for Research in Ayurvedic Sciences and Anr. Vs. Bikartan Das & Ors [Civil Appeal No. 3339 of 2023] to contend 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. He submits that there is no procedural impropriety or illegality in the decision making process and therefore, the instant petition is liable to be dismissed.

15. The rival contentions have been duly considered. We have also carefully examined the records of the learned Tribunal which were requisitioned vide an order dated 25.11.2024.

16. 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.

17. 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 case of Central Council for Research in Ayurvedic Sciences (supra) has laid down as follows:

                   “49. Before we close this matter, we would like to observe something important in the aforesaid context: Two cardinal principles of law governing exercise of extraordinary jurisdiction under Article 226 of the Constitution more particularly when it comes to issue of writ of certiorari.

                   50. The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari is that in granting such a writ, the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, being a high prerogative writ, should not be issued on mere asking.

                   51. The second cardinal principle of exercise of extraordinary jurisdiction under Article 226 of the Constitution is that in a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal court of appeal which it is not.”

18. The principal ground of challenge is that the documents have not been properly appreciated and without there being any rebuttal evidence, the depositions made on behalf of the petitioner should have been deemed to be accepted.

19. The voters lists of 1965, 1970, 1977, 1985, 1997 and 2011 contain the name of the projected father of the petitioner. However, these cannot be treated to be any link document of the petitioner with his projected father. There is not even a single voter list which contains the name of the petitioner despite the fact that from the disclosure of the date of birth as 01.02.1974, the petitioner had become eligible to vote in the year 1992. The aspect of prefixing of 'D' in the name of the petitioner in the voter list would be for a period post 1997 after the intensive revision of the electoral rolls. So far as Exhibit 3, namely, the Certificate from ME Madrassa is concerned, the same appears to have been obtained on 18.10.2011 and the petitioner had left the school on 31.12.1997. Further, there is no explanation regarding the delay in obtaining the Certificate after about 25 years. In this regard, this Court finds force in the argument made by the learned Standing Counsel, who had relied upon the cases of Rofiqul Hoque (supra) and Khudeja Khatoon (supra).

20. So far as the Exbt. 6 is concerned which is projected to be a pension paper, the same clearly appears to be a mere calculation sheet and is not any official communication made by the employer and was not proved in accordance with law. Even if those aspects are overlooked, the same would not serve as a link document with the petitioner. Further, as noted above, there is gross discrepancy regarding such projection and the occupation of the father of the petitioner, as recorded in the school register. So far as the deposition made by OPW4 is concerned, the discrepancy in the documents becomes more prominent. As rightly pointed out by the learned Standing Counsel, while a projection has been made that the father of the petitioner was an employee of the Railways, the school register supported by the deposition by the OPW4 would establish that the father of the petitioner was a cultivator. Therefore, reliance upon the documents cannot be done in a mechanical manner.

21. We are of the view that in matters of the present nature, though there is no dispute that the standard of proof is by preponderance of probabilities, such requirement to prove one's citizenship cannot be done in a trivial manner. We are also of the opinion that such requirements are in sync with the objectives of the scheme of the Statute and the seriousness of the matter involving influx of illegal migrants in the country. The gravity of the issue was itself highlighted by the Hon'ble Supreme Court in the case of Sarbananda Sonowal v. Union of India, reported in (2005) 5 SCC 665 where the erstwhile IM(D)T Act was declared ultra vires. The following observations made by a 3 Judges Bench of the Hon’ble Supreme Court in the aforesaid case are to be kept in mind:

                   “32. The foremost duty of the Central Government is to defend the borders of the country, prevent any trespass and make the life of the citizens safe and secure. The Government has also a duty to prevent any internal disturbance and maintain law and order. Kautilya in his masterly work "The Arthashastra" has said that a King had two responsibilities to his State, one internal and one external, for which he needed an army. One of the main responsibilities was Raksha or protection of the State from external aggression. The defence of the realm, a constant preoccupation for the king, consisted not only of the physical defence of the kingdom but also the prevention of treachery, revolts and rebellion. The physical defensive measures were the frontier posts to prevent the entry of undesirable aliens and forts in various parts of the country. (Arthashastra by Kautilya - translated by Shri L.N. Rangarajan, who was in Indian Foreign Service and ambassador of India in several countries - published by Penguin Books - 1992 Edn. - page 676). The very first entry, namely, Entry 1 of List I of the Seventh Schedule is "Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination of effective demobilization". In fact entries 1 to 4 of List I of Seventh Schedule mainly deal with armed forces. Article 355 of the Constitution of India reads as under :-

                   355. Duty of the Union to protect States against external aggression and internal disturbance. - It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution."

                   The word "aggression" is a word of very wide import. Various meanings to the word have been given in the dictionaries, like, "an assault, an inroad, the practice of setting upon anyone; an offensive action or procedure; the practice of making attacks or encroachments; the action of a nation in violating the rights especially the territorial rights of another nation; overt destruction; covert hostile attitudes."

                   The word "aggression" is not to be confused only with "war". Though war would be included within the ambit and scope of the word "aggression" but it comprises many other acts which cannot be termed as war. In Kawasaki v. Bantahm S.S. Company 1938 (3) All ER 80, the following definition of "war" as given in Hall on International Law has been quoted with approval :-

                   "When differences between States reach a point at which both parties resort to force, or one of them does acts of violence, which the other chooses to look upon as a breach of the peace, the relation of war is set up, in which the combatants may use regulated violence against each other, until one of the two has been brought to accept such terms as his enemy is willing to grant."

22. In this connection, we may remind ourselves to the opening remarks made by the Hon’ble Supreme Court in the case of Assam Sanmilita Mahasangha & Ors. vs Union of India reported in (2015) 3 SCC 1 involving the State of Assam which is facing a serious issue of influx of illegal migrants. The same reads as follows:

                   “A Prophet is without honour in his own country. Substitute 'citizen' for 'prophet' and you will get the gist of the various writ petitions filed under Article 32 of the Constitution of India assailing Section 6A of the Citizenship Act.”

23. This Court finds force in the contention advanced by the learned Standing Counsel that the aspect of the petitioner having 7 siblings were not disclosed by him either in his WS or in his deposition and this aspect would go against the petitioner. It is also strange that none of the siblings had come to the witness box to depose in favour of the petitioner.

24. We have seen that in the written statement filed on 15.03.2013 by the petitioner, there is no disclosure regarding the grandparents, mother and the siblings of the petitioner and other relevant facts which is a requirement of law. In this connection, one may refer to the case of Sarbananda Sonowal (supra) wherein the following requirements have been laid down:

                   “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.”

25. The settled law in the scheme of the present statute is that the burden of proof that a proceedee is an Indian citizen is always on the said proceedee and the said burden never shifts. The said procedure is clearly laid down in Section 9 of the Act of 1946 and 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.”

26. In this connection, the observation of the Hon’ble Supreme Court in the case of Fateh Mohd. Vs. Delhi Administration reported in AIR 1963 SC 1035 which followed the principles laid down by the Constitutional Bench in the case of Ghaus Mohammad Vs. Union of India reported in 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.”

27. The requirement of adducing of rebuttal evidence would only arise when a proceedee discharges his / her burden of proof by cogent, reliable and acceptable evidence and in this case, the said burden has not been discharged. As observed above, there is no acceptable document which could prove a citizenship of the petitioner.

28. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 29.01.2022 passed by the learned Foreigners’ Tribunal No. 6, Nagaon in F.T. Case No. 281/2016 arising out of Police Reference – F.T. “D” Case No. 831/98 does not call for any interference. Accordingly, this writ petition being devoid of merits stands dismissed. The interim order passed earlier stands vacated.

29. The actions consequent upon the opinion rendered by the learned Tribunal would follow in accordance with law.

30. The records of the aforesaid F.T. Case No. 281/2016 arising out of Police Reference – F.T. “D” Case No. 831/98 be returned to the learned Foreigners Tribunal No. 6, Nagaon forthwith along with a copy of this order.