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 13.09.2019 passed by the learned Foreigners’ Tribunal No. 7, Sonitpur in Case No. FTDC.624/16 arising out of Reference No. TZP(B) 471/07. 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 reference was made by the Superintendent of Police (B), Sonitpur District, against the petitioner giving rise to the aforesaid Case No. FTDC.624/16.

                   (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 21.05.2018 along with certain documents and had claimed to be an Indian Citizen. He had adduced evidence as DW1 and there are two other witnesses, namely, his father as DW2 and the School Headmaster as DW3.

                   (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 N. Bora, learned counsel for the petitioner. We have also heard Shri J. Payeng, learned Standing Counsel, Home Department & NRC, Assam; Ms. S. Katakey, learned Standing Counsel, Election Commission of India; Shri H.K. Hazarika, learned Government Advocate, Assam and Shri AK Dutta, learned CGC.

4. Shri Borah, 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 evidence

                   i. Voter Identity Card (Exbt -A)

                   ii. School Certificate (Exbt – B)

                   iii. Gaon Panchayat Certificate (Exbt – C)

                   iv. Voter list of 1971 (Exbt – D)

                   v. Voter Identity Card of the father of 2010 (Exbt – E)

                   vi. Voter list of 2010 (Exbt – F)

                   vii. Voter list of 1966 (Exbt – G)

                   viii. School Admission Register (Exbt – H)

                   ix. Attendance Register (Exbt – I)

5. Shri Borah, the learned counsel for the petitioner has submitted that the petitioner was born on 05.01.1985 and had attended the Jiabharali HE School, Silonigaon and left School on 31.12.2001. In this regard, the Headmaster of the School had adduced evidence as DW3 and had exhibited the relevant documents. He has also relied upon the Certificate dated 02.07.2015 issued by the Secretary of the concerned Gaon Panchayat. He has submitted that the Voters Lists of the grandfather and father of the petitioner have been proved which would establish a link with the petitioner. He has also relied upon a Marriage Certificate given by the Gaonburah and an extract of the NRC dated 23.06.2015.

6. The learned counsel for the petitioner has relied upon the judgment of the Hon’ble Supreme Court reported in (2024) 15 SCC 152 [Md. Rahim Ali @ Abdur Rahim Vs. Union of India and Ors.] with regard to the observations made qua Section 9 of the Foreigners’ Act, 1946. He accordingly submits that the impugned opinion is unsustainable in law and liable to be interfered with.

7. Per contra, Shri J. Payeng, 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 further submits that so far as the documents 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 the voter list of 1971 contains the name of the projected father. However, there is not a single voter list after 1971. There is no mention of the name of the mother of the petitioner in WS. Further, while in the said voter list of 1971, the name of the projected father has been written as 'Abu Akar Siddik', in the School Certificate, the name of the father has been written as 'Md. Abubakkar Siddik'. Further, there is no explanation as to why the School Certificate was issued after a long period of 8 years. He has also highlighted that while the letter head of the School Certificate states the name of the school as "Jiabharali HE School", the seal states the name of the school as "Jia Bharali High School". He has submitted that the School Register was not proved by the person who made the entries and even the DW3 did not say about such acquaintance. He has also submitted that the School Register was not countersigned.

9. 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 …”

10. 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.”

11. On the aspect of belated issuance of Certificate, the learned Standing Counsel has relied 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 were 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.”

12. On the aspect of the reliance of the petitioner in the case of Rahim Ali (Supra), the learned Standing Counsel has submitted that the instant proceeding was initiated way back in the year 2004 when information was sought for by the ERO through the LVO and the Reference was initiated in the year 2007. He has also submitted that the guidelines of the Election Commission of India in the notification dated 17.07.1997 more particularly, those in clauses 3.8 and 3.9 were upheld by this Court in the decision reported in 2002 (1) GLT 1 [HRA Choudhury Vs. Election Commission of India] . The following observations made by the Hon’ble Division Bench are pressed into service-

                   “( 6 ) It appears that the Election commission of India, (hereinafter referred to as ‘the Commission’), has issued instructions from time to time to the Chief electoral Officer, Assam, for intensive revision of the electoral rolls in Assam with reference to 1.1.1997 as the qualifying date. These instructions of the Commission are contained in the communications dated 7.10.1996, 4.2.1997 and 17.7.1997, copies of which have been annexed to the reply affidavit filed on behalf of the commission. The instructions of the commission which provide that the cases of persons whose citizenship is in doubt are to be referred to appropriate Tribunals for determination of their citizenship are contained in paragraph-3. 8, 3. 9 and 3. 10 of the guidelines annexed to the communication dated 17/7/1997 of the Commission to the Chief Electoral Officer, Assam. The said paragraphs 3. 8, 3. 9, and 3. 10 of the guidelines are quoted hereinbelow:

                   "3.8 The Electoral Registration Officer shall, on receipt of the verification reports from the Local Verification Officers, consider the same. Where he is satisfied, on such report and such other material/information as may be available to him, about the eligibility of a person, he shall allow his name to continue on the roll and include it in the final roll. Where, however, he is not so satisfied and has reasonable doubt about the citizenship of any person, he shall refer all such doubtful cases to the competent authority under the Illegal migrants (Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946, as the case may be. For the convenience of the Electoral registration Officer, the Commission has devised a pro forma (Annexure-'b') for making such reference which shall be adopted by all the Electoral Registration Officers. While making such a reference, the Electoral registration officer shall also furnish to the competent authority all documentary evidence collected during the process of verification (including the local verification report)pertaining to the person concerned, and also inform the person concerned of his case having been referred by him to the competent authority.

                   3.9. After the case of a person has been referred by the Electoral Registration officer to the competent authority as aforesaid, he shall wait for a decision of the relevant Tribunal in relation to that person and act according to such decision.

                   3.10. Where the relevant Tribunal decides that any such person is not a citizen of India, the Electoral Registration Officer shall proceed under Rule 21a of the Registration of Electors Rules, 1960 to have the name of such person deleted from the electoral roll, before it is finally published. The electoral Registration Officer shall issue notice as required under the proviso to the said Rule 21a of the Registration of electors Rules, 1960 to the individual concerned in the prescribed format. (Please see para-16 of Chapter V - Claims and objections - of the Hand Book for electoral Registration Officers).

                   It further appears that by an order dated 5. 1.1998 of the Commission, copy of which has been annexed to the reply affidavit filed on behalf of the commission, it has been directed that persons whose names have been provisionally entered in the electoral rolls in the State of Assam and against whose names the letter 'd' has been indicated to denote that their citizenship status as doubtful/disputed, shall not be allowed to cast their vote at the ensuing general election to the House of the People and also at any election held thereafter either to the House of the People or to the legislative Assembly of the State of Assam so long as the citizenship status of any such person is not determined in his favour by the appropriate Tribunal to whom his case has been referred. For the aforesaid direction of the Commission, reasons have also been recorded by the commission in the said order dated 5.1.1998. …”

13. He has also submitted that as per the Full Bench judgment of this Court in the case of Muslim Mondal Vs. Union of India & Ors. reported in 2013 (1) GLT 809 the requirement is to ensure a fair enquiry. He has submitted that as per the direction of the Hon'ble Supreme Court in the case of Sarbananda Sonowal Vs. Union of India reported in (2005) 5 SCC 665, all proceedings were transferred to the Foreigner's Tribunal. He submits that by the said judgment, both the IM(D)T Act and the IM(D) Rules were declared ultra vires . Though, the judgment of the Larger Bench in the case of Sarbananda Sonowal (supra) was brought to the notice of the Hon'ble Court while considering the case of Rahim Ali (supra), the aforesaid aspects do not appear to have been brought to the notice.

14. On the aspect that the Reference did not mention the stream on which the petitioner was suspected to be a foreigner, the learned Standing Counsel has submitted that the same did not cause any prejudice to the petitioner in defending her case as no document worth its name could be produced to establish that the petitioner was not a foreigner. In this regard, he has also referred to page 17 of the records of the learned Tribunal where the notice had in fact specified the stream.

15. The learned Standing Counsel has further submitted that the aforesaid issue was not raised in the written statement and otherwise also stands answered in the case of Sarbananda Sonowal (supra) 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 have been pressed into service-

                   “41. Another important enactment, whose provisions have been superseded by Section 4 of the IMDT Act, is The Passport (Entry into India) Act, 1920. Sub-section (1) of Section 3 of this Act conferred power upon the Central Government to make rules requiring that persons entering India shall be in possession of passports and for all matters ancillary or incidental to that purpose. Sub-section (2) of this Section says that without prejudice to the generality of the powers conferred by subsection (1), the rules may prohibit the entry into India or any part thereof of any person who has not in his possession a passport issued to him and also prescribe the authorities by whom passports must have been issued or renewed and the conditions which they must comply for the purposes of the Act. Sub-section (3) lays down that the rules made under this Section may provide that any contravention thereof or of any order issued under the authority of any such rule shall be punishable with imprisonment for a term which may extend to three months or with fine or with both. Section 4 says that any officer of police not below the rank of Sub-Inspector and any officer of the customs department empowered by a general or special order of the Central Government in this behalf may arrest without warrant any person who has contravened or against whom a reasonable suspicion exists that he has contravened any rule or order made under Section 3. Section 5 provides that the Central Government may, by general or special order, direct the removal of any person from India who, in contravention of any rule made under Section 3 prohibiting entry into India without passport, has entered therein, and thereupon any officer of the Government shall have all reasonable powers necessary to enforce such direction. By virtue of the power conferred by this Act, all such nationals of Bangladesh, who have entered India without a passport, could be arrested without a warrant by a police officer not below the rank of Sub-Inspector. The Central Government also had the power to direct removal of any such person who had entered India in contravention of a rule made under Section 3 prohibiting entry into India without a passport. However, Section 4 of the IMDT Act has stripped the Central Government of its power of removal of such person from India and also the power of arrest of such person without warrant possessed by a police officer of the rank of Sub-Inspector or above.

                   42. The above discussion leads to irresistible conclusion that the provisions of the IMDT Act and the Rules made thereunder clearly negate the constitutional mandate contained in Article 355 of the Constitution, where a duty has been cast upon the Union of India to protect every State against external aggression and internal disturbance. The IMDT Act which contravenes Article 355 of the Constitution is, therefore, wholly unconstitutional and must be struck down.”

16. He has also relied upon the judgment of this Court in the case of Dukhu Miah Vs. Union of India [judgment dated 08.03.2018 in WP(C)/3805/2016], the relevant observations being extracted hereinbelow:

                   “21. The issue raised by the petitioners was also raised in WP(C) No. 2613/2016 (Aysha Khatun vs Union of India), decided on 03.10.2016. This Court held as follows:-

                   ‘Firstly, a notice is given to the noticee to make her aware of the proceeding registered against her, in this case, a proceeding under the Foreigners' Act, 1946. Though under Clause 3(1) of the Foreigners' (Tribunals) Order, 1964, it is mentioned that the show cause notice should be accompanied by a copy of the main grounds on which the allegation had been made, it is open to the Foreigners' Tribunal to endorse a remark or to mention in the show cause notice itself the reason for issuing the show cause notice. The use of the expression “copy of the main grounds” as appearing in Clause 3(1) should be understood to mean disclosure of the ground(s) in the show cause notice. As pointed out above, these grounds can be incorporated in the show cause notice itself as those need not be elaborate. After all, the objective of issuing notice is to inform the noticee before hand about registration of the proceeding. Reverting to the facts of the present case, it has already been noticed that in the show cause notice, it was mentioned that as per reference of the Superintendent of Police, Bongaigaon petitioner was suspected to be a foreigner having illegally entered into India/Assam from East Pakistan/Bangladesh whereafter the reference was registered. This itself is the ground for issuance of the show cause notice.

                   Secondly, it is evident that no prejudice has been caused to the petitioner by alleged non-furnishing of a copy of the grounds. Petitioner had filed the written statement along with documents way back on 19.10.2013 taking the stand as indicated above. Almost three years thereafter the related petition was filed by the petitioner alleging non-furnishing of copy of grounds and seeking a copy of the same, which was rejected by the Tribunal. From the above, it is more than evident that petitioner was in no way prejudiced by nonfurnishing of a separate copy of the grounds. If the petitioner is not prejudiced, which is to be demonstrated by way of pleadings which is absent in the present case, the Court would not intervene in a pending proceeding before the Tribunal in exercise of its writ jurisdiction under Article 226 of the Constitution of India. A mere procedural lapse would not give rise to any cause of action to a proceedee facing a proceeding before the Foreigners' Tribunal under the Foreigners' Act, 1946 to move the writ court at an interlocutory stage. The writ court would certainly apply the test of prejudice and if it finds that petitioner has not suffered any prejudice, no interference would be called for and certainly not at an interlocutory stage. In fact, not to speak of prejudice being caused to the petitioner, petitioner herself has stated in the writ petition that this was an idea introduced to her by her new counsel and as advised by him, she had raised this issue at this belated stage.

                   Furthermore, question of framing a preliminary issue on this point does not arise as the Tribunal is not adjudicating a suit; it is a proceeding where opinion of the Tribunal is sought for following a summary proceeding.

                   On a thorough consideration of the matter, we do not find any good reason to interfere with the pending proceeding at this stage. Writ petition is dismissed.”

17. Shri Payeng, the 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.

18. 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 28.07.2025.

19. 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.

20. 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.”

21. 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. It is also urged that there was no mention of the stream and therefore, the proceeding is vitiated.

22. As regards the first contention, it is seen that in the written statement filed on 21.05.2018 by the petitioner, there is no disclosure of the relevant facts. The name of the mother of the petitioner has not been mentioned at all. The only voter list of the relevant period is the voter list of the year 1971 in which the name of the projected father appears as 'Abu Akar Siddik'. On the other hand, in the School Certificate which has been exhibited, the name of the father has been written as 'Md. Abubakkar Siddik'. Even if the aforesaid discrepancy which cannot be deemed as minor is overlooked the name of the School in the letter head of the certificate and seal differs. Further, there is no explanation regarding the delay in obtaining the certificate after about 8 years. In this regard, this Court finds force in the argument made by the learned Standing Counsel and is also aided by the judgment of the Hon'ble Supreme Court in the case of Rofiqul Hoque (supra). At this stage, the observations made by the Hon’ble Supreme Court in the case of Sarbananda Sonowal (supra) are required to be kept in mind which reads as follows:

                   “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.”

23. It is true that the projected father had deposed as DW2. However, in matters of the present nature, the requirement is to have documentary evidence. Such requirement has been highlighted by this Court in the case of Bijoy Das Vs. Union of India reported in 2018 (3) GLT 118 wherein the following observations have been made:

                   “17. It is trite that mere filing of written statement and oral testimony in a proceeding under the Foreigners Act, 1946 would not be enough. The fact-in-issue would have to be proved by the proceedee by adducing documentary evidence which are admissible and relevant. The two documents filed by the petitioner were not proved in any manner whatsoever and therefore the assertion of the petitioner that he being the son of Bipul Das, who was a citizen of India, was therefore a citizen of India was not proved.”

24. 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 (supra) which had gone to make the following observations:

                   “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."

25. The grave and serious issue of influx of illegal migrants in the country in general and in the State of Assam in particular is well accepted and such issue has to be dealt with in an appropriate manner. However, at the same time a balance has to be struck with the individual liberty of a genuine citizen. 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 which 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.”

26. We have noted that the Headmistress of the School had deposed as DW3 who had however candidly stated that the Certificate was issued by the earlier Headmaster. The Admission Register was also proved. The Certificate is of the year 2009 wherein it has been stated that the petitioner had left School in the year 2001. The discrepancy in the name of the School vis-a-vis the letter head and the seal has already been discussed above. We have also noted that the School Register is not countersigned. The name of the father of the petitioner in the Certificate differs from the name of the father in the voter lists of 1971. There is no explanation as to why no other voter list of the relevant period after 1971 could not be produced. In that view of the matter, it is difficult to come to a conclusion that the School Certificate of 2009 can be accepted to be a valid link document of the petitioner with her projected father whose name had appeared in a voter list of 1971. So far as the Marriage Certificate (Ext. C) is concerned, the same appears to have been issued by the Gaonburah which is not the authority. In any case, the Certificate is of the year 2015 for a marriage allegedly performed in the year 2002. The said Gaonburah was not examined. The voter’s identity card cannot be a proof of citizenship, more so, when it is not of the relevant period.

27. The settled law in the scheme of the present status 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.”

28. 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 & Ors. 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.”

29. 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.

30. The case of Md. Rahim Ali (supra) has been relied upon by the petitioner. We have carefully gone through the aforesaid judgment. It however appears that though the case of Sarbananda Sonowal I (supra) which is a judgment of a Larger Bench was considered, the relevant observations on the point do not appear to have been brought to the notice of the Hon’ble Court while deciding the case of Md. Rahim Ali (supra). The relevant observations made in the case of Sarbananda Sonowal I (supra) have already been extracted above. The argument advanced by Shri Borah, learned counsel would amount to adopting the procedure of the IM(D)T Act which has already been declared ultra vires.

31. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 13.09.2019 passed by the learned Foreigners’ Tribunal No. 7, Sonitpur in Case No. FTDC.624/16 arising out of Reference No. TZP(B) 471/07 does not call for any interference. Accordingly, this writ petition being devoid of merits stands dismissed. The interim order passed earlier stands vacated.

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

33. The records of the aforesaid Case No. FTDC.624/16 arising out of Reference No. TZP(B) 471/07 be returned to the learned Foreigners Tribunal No. 7, Sonitpur forthwith along with a copy of this order.