Sanjay Kumar 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 12.11.2018 passed by the learned Foreigners Tribunal no.7th, Barpeta in F.T. Case No. 13/2017 [Reference IM(D)T Case No. 4198/1998]. 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) The proceeding was initially against the petitioner under the IM(D)T Act. However, after the said Act and the connected Rules were declared unconstitutional by the Hon’ble Supreme Court in the case of Sarbananda Sonowal vs. Union of India reported in (2005) 5 SCC 665, the matter was transferred to the concerned Foreigners Tribunal under the Foreigners Act and the Rules which was registered as giving rise to the aforesaid F.T. Case No. 13/2017.
(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 22.12.2017 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 her and accordingly, the opinion was rendered declaring the petitioner to be a foreign national post 25.03.1971.
3. We have heard Shri A.T. Sarkar, 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 A.I. Ali, learned Standing Counsel, Election Commission of India and Shri P.S. Lahkar, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 25.09.2019.
4. Shri Sarkar, 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 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 four numbers of witnesses and also the following documentary evidence.
(i) Ext-A is the translated certified copy of the voter list of 1966;
(ii) Ext-B is the digitally signed certified copy of the E/Roll of 1970;
(iii) Ext-D is the translated certified copy of the voter list of 1997;
(iv) Ext-E is the Sale deed dated 24.02.1979;
(v) Ext-F is the Gaon Panchayat Certificate;
(vi) Ext-G is the Gaonburah Certificate .
(vii) Ext- H is the Gaonburah Certificate
5. Shri Sarkar, the learned counsel has submitted that in the written statement, all material disclosures were made. It is submitted that the name of the petitioner is Mamtaj Begum, and her parents name were Iman Ali @ Imanali and Hajiran Nessa @ Chajiran Begum @ Chajiran Nessa. She had also given the names of her grandparents and that she was born in village Dakshin Godhuni, Tarabari in the district of Barpeta. However, the said village was affected by erosion by the Brahmaputra river for which the family had to shift to village Kandhbari in the district of Nalbari. She was married to one Anowar Hussain of village Dakshin Godhuni and is presently living there. He submits that documents were exhibited to show her linkage with her parents and to prove that she was a citizen of the country.
6. Amongst others, she had proved Voters Lists of the years 1966 and 1970 containing the names of her parents and further Voter List of the year 1997 containing the name of her father. It was also contended that in the year 1996, the petitioner had shifted from Chenga to Borkhetri. One Mainul Hoque had adduced evidence as the elder brother of the petitioner and evidence was also adduced by the Gaonburah of Uttar Godhani village.
7. The learned counsel has also drawn the attention of this Court to the report of the ERO and has submitted that on the basis of such report which is incomplete, the Reference could not have proceeded. In this connection, he has relied upon the decision of this Court in the case of Amina Khatun vs. Union of India & Ors. reported in 2022 (4) GLT 102 and the observations made in paragraph 6 have been pressed into service.
“6. In the ERO's report which is based on the LVO's report, some doubt has been expressed about the citizenship of the aforesaid person. However, when we see the LVO's report, we have noticed that the entire format is blank except the name mentioned as Amina Khatun, W/o Ismail. As regards the various other particulars required to be filled up, there is nothing mentioned except the word 'Absent' on the top of the format. If the basis of the doubt on the citizenship of the person is based on LVO's report, we are of the view that since the LVO's report is devoid of any particular or any finding or for that matter any remark or observation, the said reference cannot be said to have been made after proper application of mind.”
8. Per contra, Shri J. Payeng, 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 thereafter, the question of adducing rebuttal evidence may come in.
9. 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 proceeding. He submits that in the written statement, there is no reference regarding the date of birth of the petitioner, her siblings and other details. He has also submitted that it appears that there is an age gap of 10-12 years with her alleged brother which is unusual. He has submitted that no link could be established with the projected father and the certificates issued by the Panchayat and Gaon Burah could not be proved. Though there was another certificate by a Gaon Burah, the Gaon Burah, in his deposition had clarified that the evidence was hearsay.
10. As regards, the point sought to be raised by the petitioner that the report by the LVO was not complete, Shri Payeng, the learned Standing Counsel has submitted that in the year 1997, when a sudden surge was seen in the number of voters, an intensive revision of the electoral rolls was directed by the Election Commission of India in which the ERO had called for a preliminary report from the Local Verification Officer (LVO). Such step was only to ensure that all such cases are not required to be sent for a Reference. Therefore, lack of minutes details in such report would not come to the aid of a proceedee and rather would be against the proceedee.
11. 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. …”
12. On the aspect of the evidence of the alleged brother, he has submitted that such evidence is not liable for any consideration and in this regard, he has relied upon the judgment of this Court in the case of Nur Begum vs. Union of India and Ors. reported in 2020 (3) GLT 347. The following observations made have been relied upon:
“6. The statement of DW-2 i.e. Jahurun Begum, who claimed to be the mother of the petitioner, cannot be relied upon in the absence of any documents showing her relationship, either to the projected grandfather, father or to the petitioner herself. Oral testimony of DW-2 alone, sans any documentary support, cannot be treated as sufficient to prove linkage or help the cause of the petitioner. Surprisingly, the petitioner failed to produce a single voter list in her name even until the age of 50 years. 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. 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 the projected grandfather, grandmother and father. The petitioner utterly failed to prove her linkage to Indian parents relatable to a period prior to the cut-off date of 25.03.1971 through cogent, reliable and admissible documents.”
13. He has also drawn the attention of this Court to certain other observations regarding exercise of Certiorari jurisdiction made in the said case which reads as follows:
“9. On the available materials, we find that the Tribunal rendered opinion/order upon due appreciation of the entire facts, evidence and documents brought on record. We find no infirmity in the findings and opinion recorded by the Tribunal. We would observe that the certiorari jurisdiction of the writ court being supervisory and not appellate jurisdiction, this Court would refrain from reviewing the findings of facts reached by the Tribunal. No case is made out that the impugned opinion/order was rendered without affording opportunity of hearing or in violation of the principles of natural justice and/or that it suffers from illegality on any ground of having been passed by placing reliance on evidence which is legally impermissible in law and/or that the Tribunal refused to admit admissible evidence and/or that the findings finds no support by any evidence at all. In other words, the petitioner has not been able to make out any case demonstrating any errors apparent on 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 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.
15. The learned Standing Counsel has accordingly submitted that the writ petition be dismissed and the interim order be vacated.
16. Shri A.I. Ali, learned Standing Counsel, ECI and Shri P. Sarma, learned GA, Assam have supported the submissions advanced by Shri Payeng, the learned Standing Counsel, 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. 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.
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 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.”
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 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. 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 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.”
22. This Court has noticed that in the written statement filed, the petitioner has not made the relevant disclosures. There is no mention regarding the date of birth or year of the petitioner or any information about her siblings except for a stray reference to one Mainul Haque as her brother. There is no disclosure of the family tree and as to when the petitioner had got married.
23. The petitioner had relied upon the Voters List of 1966 and 1970 containing the names of her parents. However, no link documents could be proved. The Voters List of 1997 has not been proved and only a photocopy has been produced. As regards the Gaon Panchayat Certificate dated 27.06.2018, the author has not been examined and therefore, the same was not proved. In this regard, this Court takes aid of the judgment rendered in the case of Rupjan Begum (supra). As regards the other certificates issued by the Gaon Burah of Kandhbari dated 17.05.2017 (Ext-G) and the evidence rendered by one Nur Mohammad as DW3 regarding the certificate issued by him as Gaon Burah (Ext- H), there are apparent inconsistencies apart from the fact that the evidence of the DW3 clearly appears to be hearsay.
24. In the cases of Bijoy Das vs UOI reported in2018 (3) GLT 118 and Nur Begum (supra), 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.
25. This Court in the case of Musstt. Ayesha Khatun @ Aisha Khatun vs. Union of India reported in (2017) 3 GLJ 490 has laid down that there has to be full disclosure in the written statement. However, in the instant case, there was no full disclosure of the relevant facts.
26. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 12.11.2018 passed by the learned Foreigners Tribunal no. 7th, Barpeta in F.T. Case No. 13/2017 [Reference IM(D)T Case No. 4198/1998] does not call for any interference. Accordingly, this writ petition being devoid of merits is dismissed.
27. The actions consequent upon the opinion rendered by the learned Tribunal would follow in accordance with law.
28. The records of the aforesaid impugned order dated 12.11.2018 passed by the learned Foreigners Tribunal No.7th, Barpeta in F.T. Case No. 13/2017 [Reference IM(D)T Case No. 4198/1998] be returned to the concerned Foreigners Tribunal forthwith, along with a copy of this order.
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