Gauhati High Court
WP(C)/1859/2024 on 19 December, 2024
Bench: Mansah Ranjan Pathak, Soumitra Saikia
GAHC010057972024
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
W.P(C) NO.1859/2024
Md. Jonab Ali @ Janab Ali,
Aged about 40 years
Son of Majom Ali
Resident of Village-Malibari Satra,
P.S. Boko, District-Kamrup, Assam
........Petitioner
-Versus-
1. The Union of India, represented
by the Commissioner & Secretary to
the Ministry of Home Affairs,
Government of India, New Delhi-1.
2. The State of Assam, represented
by the Commissioner & Secretary to
the Government of Assam, Home
Department, Dispur, Guwahati -6.
3. The State Co-ordinator, National
Register of Citizens (NRC), Assam,
Achyut Plaza, Bhangagarh,
Guwahati-5
4. The Election Commission of
Assam, represented by the
Commissioner, Beltola-Basistha
Road, Housefed Complex,
Guwahati-6, Assam
-2-
5. The Deputy Commissioner,
Kamrup, Amingaon, Assam
6. The Superintendent of Police
(Border), Kamrup, Amingaon
........Respondents
-BEFORE-
HON’BLE MR. JUSTICE MANSAH RANJAN PATHAK
HON’BLE MR. JUSTICE SOUMITRA SAIKIA
For the Petitioner : Mr. D.P. Borah, Advocate.
For the Respondents : Mr. P.S. Bhattacharyya, CGC for R-1
Ms. A. Verma, SC, FT for R-2 & 6
Mr. H. Kuli, SC, ECI for R-4
Mr. P. Sarma, Addl. Sr. Government
Advocate, Assam for R-5
Date of hearing : 18.09.2024
Date of Judgment & Order : 19.12.2024
JUDGMENT & ORDER (CAV)
[Soumitra Saikia, J.]
This writ petition is filed by the petitioner
challenging the opinion dated 29.12.2023 passed by the
Member, Foreigners Tribunal No. 2, Kamrup at Boko, Assam
in B.F.T. Case No 342/15 arising out of FT Case No. 880/09
whereby a reference made before the Tribunal was answered
in affirmative and the petitioner was held to be not an Indian
Citizen. The Tribunal opined that the petitioner could not
establish his linkage with an Indian parent relatable to a
period before 25.03.1971.
-3-
2. Pursuant to issuance of Notice by the Tribunal, the
petitioner appeared before the Tribunal and contested the
reference made by the State to decide the question whether
the petitioner is an illegal migrant who had entered into the
territory of Assam from the specified territory on or after the
cut-off date which is 25.03.1971. The petitioner filed his
written statement and also adduced evidences.
3. This Court by order dated 04.04.2024 before
proceeding in the matter decided to examine the Tribunal
records and accordingly the same were called for.
4. Since the Tribunal records being available, this
matter is taken up for disposal at this stage in the presence
of learned counsel for both parties.
5. In his written statements, the petitioner’s projected
case is that he was born in the village Latariadia under the
Boko Police Station in the district of Kamrup, Assam. It was
stated that his father and grandfather were born in the
village of Changordia which is under the jurisdiction of Boko
Police Station in the district of Kamrup, Assam. He projected
one Majom Ali and one Musstt. Rangmati Nessa as his
parents. His projected grandparents were Momjan Nessa and
Monser Ali. In the written Statement, it is stated that his
grandfather had a brother namely Songser Sheikh and his
father had a brother namely Majar Ali. He has 10(ten)
siblings including himself, namely, Janab Ali, Usman Ali,
-4-
Sumar Ali, Nisan Ali, Ajbhanu Nessa, Saiful Nessa, Majiran
Nessa, Paritan Nessa, Batasi Nessa, Kulson Nessa. It is also
stated that the opposite party/petitioner was married to
Najma Khatun and after marriage, they have three (3)
children namely, Naser Ali, Hamed Ali and Jahida Khatun. It
is stated in his written statement, that due to erosion by the
river Brahamaputra, the grandfather of the petitioner, his
parents and other family members shifted from Village
Changordia (Chaordia) to the nearest village-Sontoli, Mouza-
Sontoli, District-Kamrup, Assam on about 1962. It is also
stated that his grandfather was the absolute owner and
possessor of a plot of land and his grandfather name has
been recorded in the Land Annual Khiraj Patta of 1963-1964
as Monser Ali Sheikh, Son of Umedali Sheikh in the Annual
Khiraj Patta No. 12 under Village-Sontoli, Mouza-Pachim
Chamaria, District-Kamrup, Assam. It is also stated that the
grandfather of the petitioner had another two plots of land at
Village-Sontoli vide Patta No. 23 and at Village-Tangonmari
vide Patta No. 74 and his grandfather had also paid land
revenue to the concerned authority of the said two plots of
land and as such the concerned authority had issued a Land
Revenue Receipt in the name of the grandfather of the
opposite party/petitioner for the year of 1966 as Monser, Son
of Umedali vide Book No. 22546 Sl. No.041.
6. In the written statement, it is stated that the
grandfather of the petitioner died on or about 1966 and as
such his name was deleted from the subsequent voters lists.
It is also stated that the petitioner’s father’s name Majom Ali
-5-
Son of Monmer has been recorded in the voters list of 1971
vide Sl. No. 362, House No. 42, 36, Part No. 48 under 55 No
Boko LAC of the village-Sontoli, Mouza-Sontoli, P.S.-Boko,
District-Kamrup, Assam and also in the voters list of 1978,
vide Sl. No. 184, 185, House No. 42, under 48 No Boko LAC
of the village-Sontoli, Mouza-Sontoli, P.S.-Boko, District-
Kamrup, Assam. It is stated that although the petitioner’s
father submitted particulars to the Enumerator for registering
his father’s name and names of other family members in the
voter list for the year 1985 but because of the shifting of his
father and other family members from Sontoli to the nearest
village Latariadia in 1985, the names were not registered.
The family again shifted from Village-Latariadia to village-
Malibari Satra under Boko Police Station on about 2004 due
the erosion of the river Brahmaputra. It is stated that in the
voters list of 1993, 1997, 2005, the names of his father
Majom Ali and other family members are recorded. It is
stated that the name of the petitioner is recorded in the
voters list of 2005 as Jonab Ali Son of Majom Ali at Sl. No.
822, House No. 536 T, Part No. 37 at the Village-Malibari
Satra, Mouza-Nagarbera, District-Kamrup, Assam under 48
No Boko LAC. Although he shifted from village- Latariadia in
the year 2004 to Village- Malibari Satra, Mouza- Nagarbera,
District-Kamrup, Assam under 48 No. Boko LAC, his name in
the voter list of 2005 was also recorded vide Sl. No. 149,
House No. 650, Part No. 50 at Village Latariadia, Mouza
Sontoli, District, Kamrup, Assam under 48 No. Boko LAC and
after the year 2005, the name of the petitioner has been
deleted from the voter list of the Village-Latariadia.
-6-
7. It is also stated that the names of his father,
mother, his brother, his name and his wife’s name have been
recorded in the voters list of 2015 at Sl No. 907, 908, 909,
910, 911 respectively, House No. 536, Part No. 52 at Village-
Malibari Satra, Mouza-Nagarbera, District-kamrup, Assam
under 48 No Boko LAC and also in voter list of 2022 vide Sl.
No. 1257, 1258, 1259, 1260, 1261 respectively, in House No.
536, Part No. 62 at the village- Malibari Satra, Mouza-
Nagarbera, District-Kamrup, Assam under the 48 No Boko
LAC.
8. It is also stated that the petitioner has been issued
voter identity card in the year 2013 whereas name of the
petitioner has been recorded as Janab Ali vide card No.
MRF5243801. He also has been issued an AADHAAR card in
his name wherein his name as recorded as Janab Ali vide
Aadhaar No. 523054805798. He has a PAN Card, wherein has
name has again been recorded as Janab Ali Son of Majam Ali
vide PAN No. CNPPA1330M. It is further stated that he was
issued two Gaon Pradhan certificates by the Gaon Pradhan of
Chamaria Revenue Circle vide certificate dated 09.10.2022
and Gaon Pradhan of Malibari Satra vide certificate No. 429
dated 04.03.2023 certifying that he is the Son of Majam Ali
and thereby the certificates establishes the link with his
father in addition to the voters list and the land documents.
9. It is stated in the written statements that his great
grandfather’s name is recorded in some places as Umedali
-7-
Sheikh and in some places as Umedali. He submits that
‘Umedali Sheikh’ and ‘Umedali’ are one and the same person.
Similarly, his grandfather’s name is recorded sometimes as
Monser Ali Sheikh and sometimes as Monser Ali and also
Monser. He therefore submits that ‘Monser Ali Sheikh’,
‘Monser Ali’ and ‘Monser’ are one and the same person, who
is his grandfather. His father’s name is also recorded
sometimes as Janab Ali and sometime as Jonab Ali and
sometimes as Jonab. He therefore submits that ‘Janab Ali’,
‘Jonab Ali’ and ‘Jonab’ are one and the same person who is
his father.
10. The petitioner filed his evidence on affidavit in
support of the contentions made in the written statement as
DW-1. He presented his father as his witness as DW-2.
11. In his evidence as DW-1, he deposed in support of
the statements made in the written statement.
12. The father of the petitioner as D.W-2 deposed that
the petitioner/opposite party was his son and was born in
village Changordia He deposed that he and his father was
born in the same village. D.W-2 deposed that his parents’
names are Monser Ali and Momjan Nessa and that his father
had brother namely Songser Sheikh. He further deposed that
he has six siblings but he remembered only four siblings
namely, Moymona Nessa, Lal Bhanu Nessa, Fuljaan Nessa
and Hanufa Nessa. D.W-2 deposed that his wife’s name is
Rangmati Nessa and he has ten children and the opposite
-8-
party/petitioner was married to Najma Khatun and they have
three children. D.W.-2 deposed that he did not know whether
his grandfather casted vote or not and he heard that his
father casted votes in the years 1954 and 1960. D.W.-2 also
deposed that he does not know the land details and also
does not know the year in which his father died. D.W.-2
deposed that he had casted his vote in the year 1971 along
with his father and brother but he does know the voting
centre. He further deposed that he cast his vote in the year
1983 in village Latariadia and the year 2005 in Village-
Malibari.
13. The Gaon Pradhans were examined as Court
Witnesses as C.W.-1 and C.W.-2. In respect of the certificate
issued by the Gaon Pradhan of village-Malibari Satra, who
was examined as C.W-1, the witness although identified the
said certificate as Exhibit-O but in his deposition, he stated
that the certificate was issued only based on the Voter ID
card presented by the petitioner. The said witness also
deposed that he did not bring the counter folio of the said
certificate.
Similarly, the Government Gaon Pradhan of Village-
Bar Saru Arikati and in-charge Gaonpradhan of Village-
Latariadia and Panikhaity who was examined as C.W-2
identified the seal and signature of the certificate issued by
him which was exhibited as Ext-N. He stated before the Court
that the said certificate was issued based on the statements
made by the opposite party/petitioner and that he did not
know more about the opposite party/petitioner and nor did
-9-
he bring the counter folio of the said certificate with him at
the time of his deposition before the Court.
14. The exhibits produced before the Court are as
under:
1. Exhibit-A is a certified copy of the electoral roll for
the year 1960.
2. Exhibit-B is a Annual Khiraj Patta
3. Exhibit-C is a land revenue receipt
4. Exhibit-D is a certified copy of the electoral roll for
the year 1971
5. Exhibit-E is a certified copy of the electoral roll for
the year 1993
6. Exhibit-F is a certified copy of the electoral roll for
the year 1997
7. Exhibit-G is a certified copy of the electoral roll for
the year 2005
8. Exhibit-H is a certified copy of the electoral roll for
the year 2010
9. Exhibit-I is a certified copy of the electoral roll for
the year 2015
10. Exhibit-J is a certified copy of the electoral roll for
the year 2022
11. Exhibit-K is a Voter ID card
12. Exhibit-L is a Aadhaar Card
13. Exhibit-M is a PAN Card
14. Exhibit-N is a Gaonpradhan certificate issued by
Gaon Pradhan, Bor Saru Arikati dated 09.10.2022
-10-
15. Exhibit-O is a Gaonpradhan certificate issued by
Gaon Pradhan, Malibari Satra dated 04.03.2023
16. Exhibit-P is an affidavit of the petitioner dated
03.03.2023
15. The Ext-A is the voter list of 1960 wherein the names of
Songser Sheikh, Monser Sheikh and Jeherun Nessa are
shown to be residents of Village- Changordia under Boko
Police Station in the district of Kamrup, Assam. The names
appeared at Sl No. 51, 52 and 53 on the said voters list. As
per Ext-A, according to the petitioner, names of his
grandfather Monser Sheikh appeared along with brother
Songser Sheikh and Jeherun Nessa wife of Songser Sheikh.
16. Ext-B is the land Annual Khiraj Patta of 1963-64, this
document as is evident from the records does not clearly
reflects name of the person who has been issued this patta.
The document of Annual Khiraj Patta can be an evidence of
land allotted to a person on annual lease basis. This land
Annual Khiraj Patta as per the Revenue Regulations is issued
on the basis of ‘draft citha’. No supporting evidence was
placed before the Tribunal to establish properly the
ownership which the petitioner is trying to project through
the annual land khiraj patta. This land Annual Khiraj Patta
although was stated to have been allotted to his late
grandfather, the name inserted in the said land Annual khiraj
Patta is not legible. If this piece of evidence is to be
considered to be reliable, then in view of the statement made
by the petitioner that his grandfather expired on or about
-11-
1966, no land document was exhibited before the Tribunal to
show that the legal heirs of his late grandfather namely his
father who still alive had his name mutated in that plot of
land by the process prescribed under the Revenue
Regulations. There is no clear statement as to the status of
the said plot of land.
17. Ext-C is the land revenue receipt of the year 1966.
However as no further collateral or supporting evidence in
connection to the land revenue receipt was produced, that by
itself will not be sufficient to establish that the land belonged
to his grandfather. It is possible that the petitioner is
projecting a case that the land which belonged to his
grandfather and which was allotted to him by the land
Annual Khiraj Patta and on which the land revenue was paid
by his grandfather came to be eroded because of flood and
which led to the purported shifting of the family from
Changordia to Lataradia. This averment on its own is not
sufficient to return a finding that the person mentioned in the
land Annual Khiraj Patta was his grandfather and that land
allotted to him was eroded in flood and consequently
requiring the family to move to Lataradia. No certificates
from any authority including the Gaon Pradhan/Gaon Burah
of the village Panchayat has been exhibited before the
Tribunal to show that the family had shifted due to flood and
the land allotted to the petitioner’s grandfather came to be
eroded.
-12-
18. A Notary executed affidavit was filed in support of
Ext-B and Ext-C. However, an affidavit to that effect cannot
be relied upon in the absence of collateral and supporting
documents on the basis of which such statements are made
in the affidavit.
19. Ext-D is the certified copy of the voter list of 1971
which reflects only one name which is the name of the
projected father of the petitioner namely Majom Ali son of
Monmer whereas in his written statement and evidence, he
submits that the name of his grandfather is Monser. The
Annexure-6 from the records is an extract of the voters list
for the year 1978, here the name of Majom is reflected at Sl.
No. 184 as son of Mokhser.
20. Similarly Ext-E, certified copy of the voter list for
the year 1993 shows only a singular name of Majom Ali son
of Monser.
21. The Exhibits-F, G, H, I and J are the certified copies
of the voters list for the years of 1997, 2005, 2010, 2015 and
2022 respectively.
22. Exhibit-G shows the name of the petitioner as son
of Majom Ali for the year 2005. Ext-H shows the name of the
petitioner as son of Majom Ali as well as the names of Majom
Ali son of Monser Ali who is the projected father, Ranmati
Nessa wife of Majom Ali namely the projected mother of the
petitioner, Usman Ali son of Majom Ali namely the projected
-13-
brother of the petitioner as well as Najma Khatun namely the
projected wife of the petitioner. Similarly, these names are
also seen in the certified copy of the voters list of 2015 as
well as the certified copy of the voters list of 2022. The
village is shown as Malibari Satra.
23. Ext-N is the Gaonpradhan Certificate issued by one N.
Islam, Gaonpradhan Village- Bar Soru Arikati. This exhibit
certifies that the petitioner Janab Ali is the son of Majam Ali
of Village-Panikhaiti/Latariadia under the Post Office of
Mahtoli, Mouza Sontoli, P.S. Boko, Dist-Kamrup, Assam. In
the said certificate, the petitioner’s age is shown to be about
24 years old and it is certified that his name was recorded in
the voters list of 2005. However, there is an endorsement in
the said certificate by the Gaonpradhan in vernacular which
translated to English will mean- the above named person is
from Sontoli village under Sontoli Mouza and his father’s
name appears in voters list of 1971. This certificate is dated
09.10.2022. However, the Gaon Pradhan upon being
summoned by the Tribunal appeared and in his deposition,
he categorically stated that the certificate was issued based
on the statement of the opposite party/petitioner and that he
does not know more about the proceedee nor has he brought
the counter folio of the book from which the certificate has
been issued. Under such circumstances, the Tribunal did not
accept the certificate to be reliable.
24. Similarly, Ext-O is also another certificate issued by
the Gaon Pradhan of Malibari Satra vide certificate No. 429
-14-
dated 04.03.2023. By the said certificate, the Gaon Pradhan
certified that the petitioner is a son of Majom Ali and is a
resident of Malibari Satra. Again before the Tribunal, the
Gaon Pradhan who appeared to prove the said certificate in
his deposition, it is stated that the said certificate was issued
based on the voter ID card and he did not bring the counter
folio of the said certificate. Consequently, contents of the
certificate were held to be not proved by the Tribunal.
25. A perusal of both the Exhibits-N and O reflect that
these two certificates contradict each other and also the
statements made by the petitioner in his written statement
and his evidence before the Court. Ext-N is issued by the
Gaon Pradhan of Chamaria Revenue Circle on Village-Bar
Soru Arikati.
26. Ext-P is an affidavit sworn before the Notary by the
petitioner regarding the list of documents relating to his
grandfather. Any Oral evidence dehors record cannot be
considered sufficient to prove the contents of documents. A
Co-ordinate Bench in Jalaluddin Vs. Union of India [W.P.(C)
No. 7677/2016] has held such a view, which we are also
inclined to follow in the facts of the present proceedings.
27. A perusal of the case projected by the petitioner by
way of his written statement as well as the evidence adduced
in support of his statement, it is seen that the crucial date
prior to which the link between the petitioner and his
projected parents or grandparents is required to be
-15-
established to the effect that his ancestors were citizens of
India in 25.03.1971. In support of those statements, the
evidence exhibited are the land Annual Khiraj Patta and the
revenue payment receipt along with the certified copies of
the voters list of his projected father Majom Ali. However, as
discussed above, the land Annual Khiraj Patta along with the
revenue payment receipt showing the land to have been
allotted to his late grandfather cannot be relied upon to
conclusively accept the submissions made by the petitioner.
Although strictly speaking, the principles of Civil Procedure
Code and the law of evidence are not required to be rigidly
applied to in cases relating to opinions rendered by
Foreigners Tribunal regarding Citizenship of any person,
however it has to be held that the petitioner has not been
able to support his contentions and projections that his
grandfather was allotted that plot of land as from a perusal
of the documents from the records, name of the allottee is
not legible from the land documents. The Ext-D being a
certified copy of the voters list of 1971 which the petitioner
projects reflects his father’s name is by itself not sufficient to
return a finding that he is the son of the said Majom Ali son
of Monmer whose name is enlisted in the voters list of 1971.
The voters list of 1978 which is also seen from the records
reflects the name of one “Majom” as son of “Mokhser”.
Thereafter, the name of the projected father Majom Ali son
of Monser is seen in the voter list of 1993. Further although
in his deposition, D.W-2 deposed that the petitioner is his
son, however, mere deposition to that effect without any
collateral evidence to show the relationship between D.W-2
-16-
and the petitioner as father and son, such statement alone is
not sufficient to return a finding that the petitioner is the son
of Majom Ali.
28. The evidence presented in support of the
petitioner’s claim to project him to be an Indian Citizen are
the certified copy of Electoral Roll of 1960 as Exhibit-A,
Annual Khiraj Patta as Exhibit-B, Land Revenue Certificate as
Exhibit-C and the voters list of 1971, 1993, 1997, 2005,
2010, 2015, 2022 as Exhibits-D, E, F, G, H, I, J respectively
and Exhibits N and O are Gaon Pradhan certificates.
29. In all these exhibits, the voters list of 1960 is relied
upon to connect the petitioner to his grandfather Monser
Sheikh . However, there is no reference to his father or any
other relatives which can be shown from the voter list of
1960. The voters list of 1971 reflects the name of one
“Majom” son on “Mokhser” which the petitioner projects to
be his father “Majom Ali” son on Monser, whereas the
projected grandfather of the petitioner in his written
statement as well as his evidence is Monser Sheikh and his
projected father name is Majom Ali son of Monser Sheikh. All
the other voters list pertain to the period after 1971. These
voters list of 1960 and 1971 by itself cannot be considered to
be sufficient to establish the linkage between the petitioner,
his father and his grandfather in view of the discrepancies
noticed and discussed. The other exhibits produced by the
petitioner in an attempt to establish his link between his
father and grandfather are exhibits ‘N’ and ‘O’ namely Gaon
-17-
Pradhan certificate issued by the Gaon Pradhan of Bar Saru
Arikati village and Gaon Pradhan of Malibari Satra.
During their examination by the Court, the Gaon
Pradhans deposed that this information was supplied by the
petitioner and they do not know anything more. The
counterfoil from which the certificate was stated to have
been issued was also not placed before the Court and
accordingly, the Tribunal discarded these evidences.
30. In so far as exhibits B and C are concerned which is
the Annual Khiraj Patta and the Land Revenue Certificate, as
discussed above, the Annual Khiraj Patta does not clearly
reflect the name of the pattadar which the petitioner claims
was his late grandfather. The Land Revenue Paying Receipt
reflects the date as 06.12.1966 and the name reflected is
also not legible. The Annual Khiraj Patta if was allotted in the
name of his grandfather then after expiry of his grandfather,
the plot of land ought to have devolved on the father of the
petitioner. No further material was placed to establish the
linkage between the petitioner and his ancestors.
31. In so far as the PAN card is concerned, there is no
material placed before the Tribunal to suggest that the
petitioner is a regular income tax payer and this PAN card
was applied by following the procedure prescribed under the
Income Tax Act, 1961 and the Rules made thereunder. Even
under the relevant Income Tax Act and the Rules, the PAN
card is to establish the identity of the assessee who has been
given a Parmanent Account Number (PAN). The PAN cards
-18-
are issued on the basis of applications made duly supported
by the required documents. Whether the PAN card produced
by the petitioner as an Exhibit was obtained by following the
due process prescribed under the provisions of the Act of
1961 and the Rules thereunder, was not placed before the
Tribunal or before this Court. Therefore, such PAN card
cannot be accepted to be reliable document to establish the
Citizenship of any person. This issue had earlier also been
considered in Mustt. Rabia Khatun Vs. Union of India
[W.P.(C) No. 4986/2016].
32. The Aadhaar Card and the EPIC card produced also
do not reflect the Citizenship of the petitioner. The very
purpose of these proceedings before the Tribunal is to
establish the Citizenship of the petitioner which was under
scrutiny pursuant to the reference made by the State before
the Tribunal. No material are placed before the Tribunal to
show as to how the PAN card, Aadhaar Card and EPIC card
was applied for by the petitioner and issued. The proper
officials of the respective departments ought to have been
summoned for due examination along with relevant record in
support of the claim of the petitioner.
33. In Rupajan Begum Vs. Union of India & Ors,
reported in (2018) 1 SCC 579, in respect of a certificate
issued by the Gaon Panchayat, the Apex Court held that
the certificate issued by the G.P. Secretary, by no means,
is proof of citizenship. Such proof will come only if the link
between the claimant and the legacy person (who has to
-19-
be a citizen) is established. The certificate has to be
verified at two stages. The first is the authenticity of the
certificate itself; and the second is the authenticity of the
contents thereof. The latter process of verification is bound
to be an exhaustive process in the course of which the
source of information of the facts and all other details
recorded in the certificate will be ascertained after giving
an opportunity to the holder of the certificate. The Apex
Court further held that if the document and its contents are
to be subjected to a thorough search and probe we do not
see why the said certificate should have been interdicted
by the High Court, particularly, in the context of the facts
surrounding the enumeration and inclusion of the
documents mentioned in the illustrative list of documents,
as noticed above. In fact, the said list of illustrative
documents was also laid before this Court in the course of
the proceedings held from time to time and this Court was
aware of the nature and effect of each of the documents
mentioned in the list.
34. In Romila Khatun Vs. Union of India & Ors
[W.P.(C) No. 3807/2016], a Co-ordinate Bench of this
Court held that documentary evidence will 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 thereof is another. Not only the
documents will have to be proved but its contents will also
-20-
have to be proved. Such a document or the contents of the
document cannot be proved on the basis of personal
knowledge.
35. Coming to the facts of the present case, the
certificate issued by the Gaon Burah was on the basis of
information supplied by the petitioner. Whether this
information was supported by the necessary documents
and the same was found to be satisfactory by the Office of
the G.P before issuance of the certificate, has not been
explained before the Tribunal by the witness, who
appeared in support of the said G.P. certificate. Therefore,
unless the contents in the certificate are supported by
contemporaneous record, mere statement or personal
knowledge will not be sufficient to prove the contents of
any such documents.
36. Coming to the question of the discharge of the
burden on the proceedee before the Tribunal, it is
necessary to refer to the law expounded by this Court as
well by the Apex Court.
37. In State of Assam and Ors. Vs. Moslem Mondal
and ors, reported in 2013 (3) GLR 402, a Full Bench of this
Court while examining the various issues with regard to the
Citizenship rights of a person by a Foreigners Tribunal, held
that the ‘burden of proof’ means a party’s duty to prove a
disputed assertion or charge. The ‘burden of proof includes
-21-
both ‘burden of persuasion’ and the ‘burden of production’.
The ‘burden of persuasion’ means the duty imposed on a
person to convince the fact finder to view the facts in a
way that favours that person. The ‘burden of production’ is
the duty imposed on the person to introduce enough
evidence on a issue to have the issue decided by the fact
finder, in that person’s favour. The party having the
‘burden of proof’ must introduce some evidence if he
wishes to get a certain issue decided in his favour. The
‘burden of proof’, therefore, denotes the duty of
establishing by a fair preponderance of the evidence the
truth of the operative facts upon which the issue at hand is
made to turn by substantive law (Black’s Law Dictionary,
7th edn.).
38. Relying on Phipson Law of Evidence, this Court
held the ‘burden of proof’, has three meanings, namely, (i)
the persuasive burden, the burden of proof as a matter of
law and pleading the burden of establishing a case,
whether by preponderance of evidence or beyond a
reasonable doubt; (ii) the evidential burden, the burden of
proof in the sense of adducing evidence; and (iii) the
burden of establishing the admissibility of evidence.
39. This Court held that while persuasive burden i.e.
onus probandi never shifts and is always stable;, the
evidential burden may shift constantly, according as one
scale of evidence or other preponderates. Onus probandi
-22-
rests upon the party, who would fail if no evidence at all is
adduced. The general principle of burden of proof is that
he who invokes the aid of law should be the first to prove
his case may be affected by statutory provision, e.g. in a
case where the matters within the knowledge of the person
against whom a proceeding is initiated, like the proceeding
under the provisions of the 1946 Act, as it will not only be
difficult but also impossible for the State, at whose
instance reference is made to the Tribunal, to first lead
evidence on the question as to whether a person against
whom such proceeding is initiated is a foreigner or not.
The provisions of section 9 of the 1946 Act is, therefore, in
accordance with the underlying policy of section 106 of the
Evidence Act, which provides that when any fact is
especially within the knowledge of any person, the burden
of proving that fact is upon him. In a proceeding before
the Tribunal under the provisions of the 1946 Act, the
provisions of section 101 of the 1946 Act is not at all
applicable, an exception having been curved out by section
9 of the said Act. Even in a proceeding where the
provisions of sections 101 and 106 of the Evidence Act are
applicable, the burden of proving any fact which is
especially within the knowledge of any person, is upon
such person, by virtue of section 106 of the Evidence Act,
which is an exception to section 101, i.e., the general rule
of the burden of proof in such proceeding.
-23-
40. It was held that in a proceeding under Foreigners
Act 1946 read with 1964, the issue is whether the
proceedee is a foreigner. It being a fact especially within
the knowledge of the proceedee, the burden of proving
that he is a citizen is, therefore, upon him, because of
section 9 of the 1946 Act and it is, therefore, his obligation
to provide enough evidence to establish that he is not a
foreigner.
41. The Full Bench of this Court referring to Union of
India & Ors, Vs. Ghaus Mohammad, reported in AIR 1961
SC 1526, Fateh Mohd. Son of Nathu Vs. Delhi
Administration, reported in AIR 1963 SC 1035 and Masud
Khan Vs. State of Uttar Pradesh, reported in (1974) 3 SCC
469 held that whenever a question arises whether a person
is or is not a foreigner, the onus of proving that he is not a
foreigner lies upon him and hence the burden is on the
proceedee to establish that he is a citizen of India in the
manner claimed by him.
42. In Sarbananda Sonowal (I) where the question
relating to the constitutional validity of the 1983 Act was
under consideration, the Apex Court while dealing with
various enactments made for dealing with the foreigners
including the different provisions of 1946 Act has held that
section 9 of the said Act 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, on such
person and therefore, when an order made under the 1946
-24-
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. The Apex Court while laying down the
law relating to the burden of proof has also noticed the
general rule in the leading democracies of the world that
where a person claims to be a citizen of a particular
country, the burden is upon him to prove that he is a
citizen of that country. In paragraph 26 of the said
Judgment, the Apex Court has observed as under:
“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 6A(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.”
43. The writ petitioner is before the Court praying for
writ of Certiorari for setting aside and quashing the order
dated 29.12.2023 passed by the Tribunal. The principles for
exercising the Certiorari jurisdiction by a writ Court have
been also expounded by this Court in the Full Bench
Judgment of Moslem Mondal (Supra). The Full Bench of this
-25-
Court in Moslem Mondal (Supra) also examined the scope
of interference of a Tribunal’s order under Article 226. It
was held by the Full Bench that Article 226 of the
Constitution confers on the High Court power to issue
appropriate writ to any person or authority within its
territorial jurisdiction. The Tribunal constituted under the
1946 Act read with the 1964 Order, as noticed above, is
required to discharge the quasi-judicial function. The High
Court, therefore, has the power under article 226 of the
Constitution to issue writ of certiorari quashing the decision
of the Tribunal in an appropriate case. The scope of
interference with the Tribunal’s order, in exercise of the
jurisdiction under article 226, however, is limited. The writ
of certiorari can be issued for correcting errors of
jurisdiction, as and when the inferior Court or Tribunal acts
without jurisdiction or in excess of it, or fails to exercise it
or if such court or Tribunal acts illegally in exercise of its
undoubted jurisdiction, or when it decides without giving
an opportunity to the parties to be heard or violates the
principles of natural justice. The certiorari jurisdiction of
the writ court being supervisory and not appellate
jurisdiction, the court cannot review the findings of facts
reached by the inferior Court or Tribunal. There is,
however, an exception to the said general proposition,
inasmuch as, the writ of certiorari can be issued and the
decision of a Tribunal on a finding of fact can be interfered
with, if in recording such a finding the Tribunal has acted
on evidence which is legally inadmissible or has refused to
-26-
admit admissible evidence or if the finding is not supported
by any evidence at all, because in such cases such error
would amount to an error of law apparent on the face of
the record. The other errors of fact, however grave it may
be, cannot be corrected by a writ court. As noticed above,
the judicial review of the order passed by the inferior Court
or the Tribunal, in exercise of the jurisdiction under article
226 of the Constitution, is limited to correction of errors
apparent on the face of the record, which also takes within
its fold a case where a statutory authority exercising its
discretionary jurisdiction did not take into consideration a
relevant fact or renders its decision on wholly irrelevant
factors. Hence, the failure of taking into account the
relevant facts or consideration of irrelevant factors, which
has a bearing on the decision of the inferior court or the
Tribunal, can be a ground for interference of the court or
Tribunal’s decision in exercise of the writ jurisdiction by the
High Court.
In Sant Lal Gupta v. Modern Coop. Group Housing
Society Ltd., (2010) 13 SCC 336, the Apex Court reiterating
the grounds on which a writ of certiorari can be issued,
held that such a writ can be issued only when there is a
failure of justice and cannot be issued merely because it
may be legally permissible to do so. It is obligatory on the
part of the petitioners to show that a jurisdictional error
has been committed by the statutory authority. There must
be an error apparent on the face of the record, as the High
Court acts merely in a supervisory capacity and not as the
-27-
appellate authority. An error apparent on the face of the
records means an error which strikes one on mere looking
and does not need long drawn out process of reasoning on
points where there may conceivably be two opinions. Such
error should not require any extraneous matters to show
its incorrectness. Such error may include giving reasons
that are bad in law or inconsistent, unintelligible or
inadequate. It may also include the application of a wrong
legal test to the facts found, taking irrelevant consideration
into account and failing to take relevant consideration into
account, and wrongful admission or exclusion of evidence
as well as arriving at a conclusion without any supporting
evidence. Such a writ can also be issued when there is an
error in jurisdiction or authority whose order is to be
reviewed has acted without jurisdiction or in excess of its
jurisdiction or has failed to exercise the jurisdiction vested
in him by law.
44. In this context, a very recent Judgment of the
Apex Court on the scope and extent of issuance of
Certiorari under 226 is relevant in the context of the
present proceedings. In Central Council for Research in
Ayurvedic Sciences and Anr. Vs. Bikartan Das and ors,
reported in (2023) SCC Online SC 996, the Apex Court has
expounded the principles on which a writ Court can
exercise the writ of certiorari. The Apex Court in this
Judgment after examining the precedents in this regard
held that there are two cardinal principles of law governing
-28-
exercise of extraordinary jurisdiction under Article 226 of
the Constitution more particularly when it comes to issue
of writ of certiorari.
The first cardinal principle is that when it comes
to the issue of a writ of certiorari 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. It is not be issued on mere asking.
The second cardinal principle of exercise of
extraordinary jurisdiction under Article 226 of the
Constitution is that 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
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. The Apex
Court held that so far as the errors of law are concerned, a
writ of certiorari could be issued if an error of law is
apparent on the face of the record. A mere error of law is
not sufficient to attract the writ of certiorari. It must be
one which is manifest or patent on the face of the record.
-29-
Mere formal or technical errors, even of law, are not
sufficient, so as to attract a writ of certiorari.
45. Under such circumstances, this Court is of the view
that the Tribunal has correctly opined to hold that the
petitioner has failed to discharge the burden that he is not an
illegal immigrant who had illegally entered into the State of
Assam from the specified territory after 25.03.1971.
46. Under such circumstances, this Court is of the view
that there is no infirmity in the opinion dated 29.12.2023
passed by the Foreigner’s Tribunal No. 2, Kamrup at Boko,
Assam whereby the Foreigner’s Tribunal concluded that the
petitioner has failed to discharge the burden that he is not
an illegal immigrant who has entered from the specified
territory after 25.03.1971.
47. Accordingly, the writ petition stands dismissed, No
order as to costs.
48. Remit the original records to the Foreigners
Tribunal No. 2, Kamrup at Boko, Assam immediately along
with a copy of this order.
49. Registry shall also communicate this order to the
Superintendent of Police (Border), Kamrup, Amingaon for
necessary information.
JUDGE JUDGE
-30-
Comparing Assistant