Gauhati High Court
Rahatan Nessa @ Behatan Nessa vs The Union Of India And 6 Ors on 23 April, 2026
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/28
GAHC010111432019
2026:GAU-AS:5582
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3309/2019
RAHATAN NESSA @ BEHATAN NESSA
W/O- SANDESH KHAN, D/O.- LT. SAHEB ALI, VILL- BURIKHAMAR PAM,
P.S.- SARTHEBARI, DIST- BARPETA, ASSAM. PIN- 781315.
VERSUS
THE UNION OF INDIA AND 6 ORS.
REPRESENTED BY THE SECRETARY TO THE MINISTRY OF HOME
AFFAIRS, GOVT. OF INDIA, NEW DELHI-1.
2:THE ELECTION COMMISSION OF INDIA
NEW DELHI-1.
3:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6.
4:THE COORDINATOR
NATIONAL REGISTER OF CITIZENS (NRC)
ASSAM
BHANGAGARH
GUWAHATI-05.
5:THE DEPUTY COMMISSIONER
BARPETA DISTRICT
ASSAM
PIN- 781315.
6:THE SUPERINTENDENT OF POLICE (B)
Page No.# 2/28
BARPETA
DISTRICT- BARPETA
ASSAM. PIN-
7:THE OFFICER-IN-CHARGE
SARTHEBARI POLICE STATION
DISTRICT- BARPETA
ASSAM. PIN- 781315
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
HON'BLE MRS. JUSTICE SHAMIMA JAHAN
Advocate for the petitioner(s): Mr. M. U. Mahmud
Advocate for the respondent(s): Mr. H. Gupta, CGC,
Mr. A. I. Ali, SC, ECI,
Mr. P. Sarmah, Addl. Sr GA
Mr. J. Payeng, SC, FT & NRC
Date on which judgment was reserved : 06.04.2026
Date of pronouncement of judgment : 23.04.2026
Whether the pronouncement is of the :
operative part of the judgment? : NA
Whether the full judgment has been : Yes
pronounced?
JUDGMENT AND ORDER (CAV)
(Shamima Jahan, J.)
The extraordinary jurisdiction of this Court has been invoked by filing this
application under Article 226 of the Constitution of India by which the petitioner
has challenged the opinion dated 14.02.2019, passed by the learned Member,
Foreigners' Tribunal-III, Barpeta, in FT Case No. 827(III) of 2013, corresponding
Page No.# 3/28
to Reference IMDT Case No. 5711 of 1998. By the said impugned opinion, the
petitioner, who was the proceedee before the learned Tribunal has been
declared to be a foreigner post-25.03.1971 stream.
FACTS:
2. The petitioner stated in her petition that she was born and brought up
at Village Besimari Pam, Mouza-Sarukhetri, PS Sarthebari, Barpeta, about 48
years ago, on the date of filing of the petition. She further stated that her father
was Saheb Ali and her mother’s name is Matiran Nessa and that the name of
her grandfather was Naser Ali Matabbar and grandmother’s name was Yaton
Nessa. She also stated that in the voters’ list of 1965, the name of her
grandfather, grandmother, father and mother appeared therein at 53 No.
Sarukhetri (A.O) LAC. She, thereafter, stated that in the voters’ List of 1970,
along with the name of her grandfather, grandmother, father and mother, her
uncle’s name also appeared as Sadok Ali, son of Naser Ali Matabbar at 53 No.
Sarukhetri (S.C) LAC. The petitioner had annexed both the Voters’ Lists of 1965
and 1970 in the petition. It be further stated here that during the trial, more
specifically, on 11.06.2018 as well as on 02.07.2018, the petitioner had
submitted photocopies of some documents.
3. The petitioner further stated that after the year 1970, her parents
shifted from the village Besimari Pam to Village-Burikhamar Pam, Mouza-
Sarukhetri, PS-Sarthebari, Barpeta. She, thereafter stated that in the year 1977,
the voters’ list reflected the name of her brother and sister-in-law, namely, Lal
Miya, son of Late Saheb Ali, and Kamala, vide Serial No. 439 and 440 under 46
No. Sarukhetri LAC and that again in the voters’ list of 2010, her said brother
and sister-in-law’s name had appeared under the same LAC. The copies of the
Page No.# 4/28
said voters’ list of 1997 and 2010 were annexed to the said writ petition.
4. The petitioner, thereafter, stated that she got married to Sandesh
Khan, resident of Village-Garartari, Sarthebari, Barpeta, Assam and that after
marriage in the voters’ list of 1989, her name along with her husband appeared
vide Serial Nos. 24 and 20, respectively, under the aforesaid LAC. The petitioner
has annexed the said voters’ list in the petition.
5. In order to establish her citizenship, the petitioner stated that she holds
a Gaon Panchayat certificate dated 20.06.2015, issued by the Secretary,
wherein, it was stated that the petitioner is the daughter of Saheb Ali. Along
with the same, she has also placed a Gaon Burah certificate dated 09.05.2018,
issued by Sri Harmohan Das in her favour showing her permanent residence.
Furthermore, she has also in her possession, a PAN Card, issued by the Income
Tax Department, showing her as the daughter of Saheb Ali, as well as Elector
Photo Identity Card, showing her as wife of Sandesh Khan. The said certificates
as well as the cards were annexed in the writ petition by the petitioner.
6. However, on 12.10.1997, the Local Verification Officer, after an
investigation, in respect of the petitioner, as directed by the Electoral
Registration Officer, submitted the report to the said Electoral Registration
officer and on the basis of the said report, the Superintendent of Police (B)
Barpeta, made a reference against the petitioner, namely, Bahatan Nessa, wife
of Chandes of Village-Garartari under Sarthebari Police Station, Barpeta. On
receiving the reference, the Tribunal served notice upon the proceedee, i.e., the
petitioner, as a result of which the proceedee appeared before the Tribunal
through her engaged Advocate and submitted her written statement on
11.06.2018, along with photocopies of some documents in support of her claim
as an Indian citizen, which are mentioned in the Firisti (Fahrisht) as exhibits and
Page No.# 5/28
annexures.
7. In the said written statement, the petitioner as DW No. 1, had stated that
she was born and brought up at Village-Besimari Pam in the district of Barpeta,
and that the name of her grandfather, grandmother, father, mother appeared in
the voters’ list of 1965, as well as in the subsequent voters’ list of 1970, along
with her projected uncle’s name, as the son of her grandfather. She had also
stated that her brother alleged to be so, and her projected sister-in-law
appeared as voter in the voters’ list of 1997 as well as in the subsequent voters’
list of 2010. She also stated that after her marriage to one Sandesh Khan, her
and her husband’s name appeared in the voters’ list of 1989, and she also
declares that Rahatan Begum and Behatan Nessa is one and the same person,
i.e., the petitioner. Further, she declared that she and her husband shifted their
residence from village – Garartari to village Burikhamar Pam and that their
name appeared in the voters’ list of 1997 at Burikhamar Pam under 46 No.
Sorukhetri LAC. Thereafter, she stated that in the voters’ list of 2017, she and
her husband appeared as voters in the said voters’ list. Apart from the same,
she also stated that the Election Commission of India had issued an Elector
Photo Identity Card in her name and that a PAN Card was also issued in her
favour. Furthermore, to establish the linkage between her and her parents, the
Secretary of 13 No. Paschim Sarukhetri Gaon Panchayat had issued a certificate
on 20.06.2015, showing that Late Saheb Ali was her father and also the Gaon
Burah, Sri Harmohan Das is alleged to have issued a certificate linking her with
her father and also another Gaon Burah, who had issued a certificate showing
her residential address. With these contentions, the petitioner had submitted
the written statement.
Page No.# 6/28
8. On 11.06.2018, the petitioner had submitted the list of documents as
follows:
“Ref.FT-III Case No. 827/13
Date:- 11.06.2018
State
-Vs-
Rahatan Nessa @ Behatan Nessa
FIRISTI
1. Exhibit-A- Certified copy of voter list of 1965 (Photocopy)
2. Exhibit-B- Certified copy of voter list of 1970 (Photocopy)
3. Exhibit-C- Certified copy of voter list of 1997 (Photocopy)
4. Exhibit-D- Certified copy of voter list of 2010 (Photocopy)
5. Exhibit-E- Certified copy of voter list of 1989(Photocopy)
6. Exhibit-F- Xerox copy of Panchayat Certificate.
7. Exhibit-G–Xerox copy of Elector Photo Identity Card.
8. Exhibit-G- Xerox copy of PAN Card.
9. Exhibits-H, I, J of Gaonburah Certificates (3 copy)
10. Annexure I is the Photocopy of the Voter List of 1997 of Vill- Garartari.
11. Annexure-II is the Photocopy of the Voter List of 1997 of Vill-Burikhamar Pam.
12. Annexure-III is the Photocopy of the Voter List of 2017 of Village-Burikhamar
Pam.”
9. Subsequently, on 02.07.2018, the petitioner had submitted her evidence-
in-chief in the form of an affidavit, wherein she had stated the same statements
as stated in her written statement. Further that her alleged Uncle, namely,
Sadek Ali had also submitted his evidence-in-chief as DW-2, on the same date.
Both were cross-examined by the State and questions were also put by the
Tribunal to them on 01.11.2018. It be stated here that on 02.07.2018, the
petitioner and her alleged uncle had also submitted photocopy of some
documents, as reflected in the order dated 02.07.2018.
10. During the cross-examination as stated above, the petitioner stated that
her father’s name is Late Saheb Ali and that he died during her childhood and
further that, her father had one brother, namely, Sadek Ali, and three numbers
of sisters. She also stated that she has one elder brother and two sisters and
Page No.# 7/28
that she casted her vote in the year 1989 at her husband’s village. During the
said cross-examination, she relied on the Gaon Panchayat certificate and the
Gaon Burah’s certificate for establishing her link with her father. On the queries
put by the Tribunal, the petitioner replied that she had not stated about the
persons who appeared in the voters’ list of 1965 and 1970, as to whether they
are alive or dead and that her father expired when she was 6 to 7 years old and
that her daughter is 30 years of age and that her name appeared in the voters’
list of 1989 at her husband’s village.
11. During the cross-examination of DW-2, i.e., the alleged uncle of the
petitioner, namely, Sadek Ali, it was stated that he is the son of Late Naser Ali
and that said Naser Ali has two sons, namely, Saheb Ali and himself and two
daughters and further that, Saheb Ali has four number of daughters and a son.
He also stated that he casted his vote in the year 1970 and that in the year
1988, he along with his parents shifted to Burikhamar Pam. On the queries put
by the Tribunal, he replied that the petitioner was born in the year 1970 and
that he did not mention the same in his affidavit, neither he mentioned the link
with other persons nor he had mentioned about any exhibited documents or in
support of the documents of the petitioner.
12. Thereafter, on 30.01.2019, the learned Advocate appearing for the
petitioner submitted the written argument wherein the same facts and
statements were written as stated by the petitioner. On the basis of the said
facts and the documents, placed by the petitioner, the learned Tribunal, by order
dated 14.02.2019, declared the petitioner as a foreigner under Section 2 (a) of
the Foreigners’ Act, 1946. The main grounds on which the Tribunal had rejected
the claim of the petitioner are:
Page No.# 8/28
i) The petitioner had not mentioned the material facts as to how many
brothers or sisters, her grandfather had or how many sons or daughters as well
as other related members of the family, her father or grandfather had and that
the petitioner had only submitted the voters’ list.
ii) The petitioner had submitted only certified copies without producing
the original which is in violation of the provisions under the Evidence Act.
iii) Evidence of DW No. 2, i.e., the alleged uncle of the petitioner did not
seem to be reliable, believable in view of the fact that names are different in his
affidavit and in the Voters’ List of 1970.
On these grounds the learned Tribunal declared the petitioner as a
foreigner, which is put to challenge by the petitioner by filing the instant
petition.
SUBMISSIONS:
13. Mr. M. U. Mahmud, learned counsel for the petitioner submitted that in a
voters’ list of 1965, the names of the grandfather, grandmother, father and
mother of the petitioner appeared and the same is exhibited as Exhibit No. A
and that thereafter, in the year 1970, along with the grandfather, grandmother,
father and mother, the uncle, namely, Sadok Ali of the petitioner also appeared
as a voter and the same was exhibited as Exhibit-B. Further, the petitioner’s
brother and his wife also appeared as voters in the voters’ list of 1997. The
learned counsel, thereafter, relied on the written statement filed by the
petitioner, wherein the petitioner stated that she casted her vote with her
husband at the age of 22 and that the certificates issued by the Panchayat and
the Gaonburah established her link with other family members whose name
appeared in the aforesaid Voters’ List. He also submitted that non examination
Page No.# 9/28
of the Gaonburah was the mistake of the lawyer and further, since no objection
was raised during trial, the said certificates issued by the Gaonburah or the
Panchayat should be given value.
14. The learned counsel further submitted that DW-2 in his affidavit had
stated in no unclear terms that Sadek Ali and Sadok Ali are one and the same
person and as such, the finding reached by the Tribunal that the evidence of
DW-2 is not reliable, is incorrect. He further submits that Tribunal by questioning
the petitioner as well as DW-2, ceased to be impartial. The learned counsel
further submits that the standard of proof in matters under the Foreigners’ Act,
is on the basis of preponderance of probabilities and not on strict proof, like in
criminal cases. He also submitted that the finding of the Tribunal that certified
copies could not be taken as evidence is incorrect in view of Section 77 of the
Evidence Act or Section 76 of Bharatiya Shakshya Adhiniyam, 2023 (BSA, for
short). To substantiate his argument, he relied on the following decisions:
i) Anil Rishi -Vs- Gurbaksh Singh, reported in (2006) 5 SCC 558,
where the Hon’ble Supreme Court had held that under Section 102 of the
Evidence Act, the onus shifts on the State.
ii) Sucha Singh Vs State of Punjab, reported in (2001) 4 SCC
375, by which the Hon’ble Supreme Court held that Section 106 of the Evidence
Act is not intended to relieve the prosecution of its burden to prove the guilt of
the accused person.
iii) Maharuddin Ali -Vs- Union of India, reported in 2021 (2) GLT
1021, by which the Gauhati High Court had held that standard of proof to be
adopted by the Tribunal is preponderance of probabilities.
Page No.# 10/28
15. On the other hand, the learned Standing Counsel appearing for FT
matters. Mr. J. Payeng, submitted that the only certificate produced by the
petitioner was the Gaonburah certificate showing the link that the petitioner is
the daughter of Saheb Ali but the said certificate was not proved by calling the
Gaonburah as a witness who would prove the contents of the said certificate. To
substantiate the said argument, the learned counsel relied on the following
decisions:
i) Khudeja Khatun -Vs- Union of India, reported in 2018 (3 )
GLT 347, by which this Hon’ble Court had returned the finding that the
Secretary of the Gaon Panchayat did not testify before the Tribunal to the effect
that the certificate was issued by him and the contents were true.
ii) The judgment delivered by the Hon’ble High Court in WP(C) No. 3547
of 2016, by which this Court had held that Gaonburah certificate without the
said Gaonburah being examined has no probative value.
iii) The judgment delivered by the Hon’ble High Court in WP(C) No. 4020
of 2017, by which this Court had held that burden of proving citizenship
absolutely rests upon the proceedee.
16. He further stated that the PAN Card submitted by the petitioner was not a
trustworthy document, inasmuch, as the petitioner was not an Income Tax
payee and that no IT official was examined to prove the said card. He also
stated that the Voter ID Card was a document issued post-1971 and the same
was without any supporting document and accordingly, it was not reliable. He
also stated that the oral evidence of DW-2 did not establish any link with the
petitioner.
Page No.# 11/28
17. To the arguments made by the learned Standing Counsel, the counsel for
the petitioner reiterated his submission that the certificate issued by the
Gaonburah was exhibited without any objection during the trial and that too the
said objection should have been raised at the earliest point of time. He,
thereafter, submitted that Tribunal has put questions on the petitioner which
requires that the case may be remanded for re-hearing by the learned Tribunal.
These are the submissions by the learned counsels for the parties.
ANALYSIS AND FINDINGS
18. Before delving into the issue involved in the instant case together with 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. It is no res
integra that findings of facts by the Tribunal are not liable to be interfered with
by a writ Court under its certiorari jurisdiction. In the instant case, the learned
Tribunal has given its findings based on the facts and the same is not amenable
to any interference. Law is well settled in this field. The Hon’ble Apex Court after
discussing the previous case laws on the jurisdiction of a writ Court and the
powers under the writ of certiorari had held in the recent decision of Central
Council for Research in Ayurvedic Sciences and Another -Vs- Bikartan
Das, reported in (2023) 16 SCC 462 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
Page No.# 12/28jurisdiction 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.”
19. Keeping the aforesaid principle in mind, this court observes as follows. The
principal ground of challenge raised by the petitioner is that the documents
submitted by her were not properly appreciated and that the same was rejected
on flimsy grounds. The petitioner stated that she was born and brought up
within the country and that the names of her projected grandparents as well as
parents were included in the Voters’ List of 1965 and 1970. She also stated that
Page No.# 13/28
the names of her brother and her sister-in-law appeared in the Voters List of
1997 and 2010 and that further she stated that name of her and her husband
appeared in the voter’s list of 1989. However, it is also seen that in her written
statement or in her evidence-in-affidavit, she did not state apart from the
names such as Naser Ali Matabbar, Yaton Nessa, Saheb Ali and Matiran Nessa as
her grandfather, grandmother, father and mother as to who are the other family
members. She rather stated in her written statement in the following words:-
“4. That the name of the grandfather, grandmother, father and mother of the
opposite party/second party, namely, Naser Ali Matabbar, Yaton Nessa, Saheb Ali and
Matiran Nessa, respectively, appeared in the voters’ list of 1965 at village-Besimari
Pam, Mouza-Sorukhetri, P.S.-the then Barpeta, District- the then Kamrup Assam, vide
Part No. 100, Serial No. 298, 299, 301 and 302 House No. 62 under the then 53 No.
Sorukhetri LAC”
20. In the subsequent voters’ list, i.e., in the voters’ list of 1970, she claimed
that apart from her grandparents and parents, one uncle, namely, Sadok Ali
appeared as a voter. However, in her statement stipulated in her written
statement, she did not state that said Sadok Ali is her only uncle and that her
grandparents had no other children. Her further statement in the said written
statement that her brother and sister-in-law appeared as voter in the voters’ list
of 1997 as well as 2010, is also without any further particulars as to other
brothers and sisters of the petitioner. Further in the said voters’ list of 1965, it is
noticed that grandmother of the petitioner is shown to be of the age 35 and the
father of the petitioner is shown to be of the age of 30. It is seen that the
difference of age between the mother and the son is only 5 years, which is not
likely and the same creates doubt as to the authenticity of the voters’ list.
She stated that she appeared as a voter for the first time with her husband
Page No.# 14/28
in the year 1989. We have noticed that so far as Exhibit-A is concerned,
containing the names of the projected grandparents and parents cannot be held
to be a link document with the petitioner. The petitioner could not submit any
voters’ list, wherein her name appeared along with her grandparents or parents.
The petitioner had also submitted a voters’ list, wherein she stated about the
presence of her projected brother and sister-in-law, but she did not place any
further voters’ list where she appeared along with her brother. Her name
appeared only with her husband as stated above. As such, the voters’ list did
not prove linkage or help the cause of the petitioner.
21. Further the statements made by the petitioner in evidence-in-chief on
affidavit which were similar to her statement in the written statement also did
not prove the required linkage between her and her projected family members.
During the cross-examination of the petitioner, she stated that her father had
one brother, namely, Sadek Ali and 3 numbers of sisters, namely, Joytan, Sukuri
and Sahatan and that she has one elder brother Lal Miya and two sisters,
namely, Basiran Nessa and Moyful Nessa and in the question put by the
Tribunal, she stated that all her brothers and sisters were born at Village-
Besimari Pam. However, to establish the linkage with her family members,
corroborative evidence is required. The projected uncle of the petitioner had
given his evidence on affidavit as DW No. 2, wherein he stated that Sadek Ali
and Sadok Ali are one and the same person and he during his cross-examination
had stated that his father’s name was Late Naser Ali, whereas the projected
grandfather of the petitioner was Late Naser Ali Matabbar. DW-2 had further
stated that Naser Ali had two sons, namely, Saheb Ali, i.e., projected father of
the petitioner and himself with two sisters, namely, Basatan and Siyatan Nessa,
whereas the petitioner in her cross-examination had stated that there were
Page No.# 15/28
three daughters of her grandfather. It is seen that there are difference in the
statements between DW-1 and DW-2 with regard to the daughters of Naser Ali.
There is a further discrepancy in the statement of the said two witnesses,
inasmuch, as DW-1, i.e., the petitioner stated that she had two sisters, Basiran
Nessa and Moyful Nessa, whereas DW-2 stated that Saheb Ali had four number
of daughters, i.e., the petitioner, one Basiran, one Moyfal and one Late Surjya
Bhanu.
22. Further in the questions put by the Tribunal, DW No. 2 stated that the
petitioner was born in the year 1970 and that he had not stated any statement
in his affidavit showing his link to other family members and that he had neither
mentioned any exhibited documents in support of the documents of the
proceedee. In view of the said statements, the link of the petitioner along with
the other members of the family is not established by applying the standard of
proof of preponderance of probability. Further, there is yet another discrepancy
in the name of DW No. 2 to the effect that in his examination in chief, DW No. 2
wrote his name as Sadek Ali, whereas, in the voters’ list of 1970, his name
appeared as Sadok Ali. Although he stated in his affidavit that Sadek Ali and
Sadok Ali is one and the same person but there is no corroborative evidence to
the said contention.
23. It is a settled position of law that to prove linkage under the Foreigners’
Act, 1946, an individual must establish a direct bloodline connection to an
Indian ancestor whose name appears in documents prior to 25 th of March,
1971. Further, under Section 9, the burden of proof rests entirely on the
proceedee requiring documented evidence, for example, voters’ list rather than
solitary oral testimony. It is seen that the voters’ list, the petitioner placed, did
Page No.# 16/28
not establish a direct bloodline connection with grandparents or parents since
her name did not appear together with them. It is required that the core linkage
to parents should be established and if there are minor discrepancies in the
linkage of relatives in a voters list, the same cannot be fatal. In the instant case,
there is no question of any minor discrepancies rather the linkage has not been
at all established. There is no linkage between the petitioner and Saheb Ali,
whom she claims to be her father relatable to a period prior to 25.03.1971,
which is the cut-off date for identification of foreigners in the State of Assam, as
per Section 6-A of the Citizenship Act, 1955.
24. However, the petitioner has placed the certificate issued by the Gaonburah
as well as the Secretary of the Gaon Panchayat to establish her link with her
father, namely, Saheb Ali, but the said certificates are also not of any help to the
petitioner. The certificate issued by the Secretary of Paschim Sarukhetri Gaon
Panchayat Barpeta exhibited as Exhibit-F, showed that the petitioner is the
daughter of Late Saheb Ali and is a resident of Burikhamar Village under
Sarthebari Revenue Circle of Barpeta district. In the said certificate, it is also
stated that the petitioner got married to Sandesh Khan on 01.01.1989 and has
migrated from the said Gaon Panchayat area to the mentioned location.
However, it is also a settled position of law that that simply exhibiting document
is not enough as one has to prove the contents of the document as well. The
petitioner in the instant case has failed to examine the issuing authority or the
GP Secretary as the witness in support of her plea or to prove the contents of
the certificate. It is also not clear from the certificate of the Secretary as to
whether he knows the petitioner from her childhood or since her birth. It
seemed more specifically from the last statement of the certificate that he had
issued the same only based on the evidence placed before him and he has no
Page No.# 17/28
personal knowledge in regard to the birth of the petitioner or the marriage of
the petitioner. In view of the same, the said certificate cannot be of any help to
the petitioner in establishing her citizenship of this country.
25. The petitioner has also produced one certificate issued by the Gaonburah,
namely, Sri Harmohan Das of Jashodar of Burikhamar on 09.05.2019 to show
that she is the daughter of Late Saheb Ali and that she is married to Sandesh
Khan. In respect of this certificate also, the said Gaonburah was not called to
prove the contents of the same and as such, simply exhibiting the document
would not be enough. Further, the said certificate which was exhibited as
Exhibit-H, it was written by the Gaonburah that he came to know that the
petitioner got married with Sandesh Khan which again establishes the fact that
the Gaonburah had no personal knowledge about the personal life of the
petitioner. There is yet another certificate placed by the petitioner which is
exhibited as Exhibit-I, which showed that petitioner’s husband’s name is
Sandesh Khan and that they have been staying at Burikhamar Village as
husband and wife. Petitioner also submitted another certificate exhibited as
Exhibit-J by Gaonburah showing that her husband’s name is Sandesh Khan and
that they are the residents of Burikhamar. However, the said documents did not
establish the necessary linkage of the petitioner with her projected grandparents
or projected parents particularly in absence of non-examination of the issuing
authority.
26. It is the mandate of Section 9 of the Foreigners’ Act, 1946, as held by the
Hon’ble Apex Court in Paragraph-26 of Sarbananda Sonowal -vs- Union of
India; reported in (2005) 5 SCC 665, which is reproduced below:-
“26. There is good and sound reason for placing the burden of proof upon the
Page No.# 18/28person 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.”
27. In the instant case, the petitioner has not mentioned the date of her birth
neither the place of birth of her parents. She simply said that she was born and
brought up at Village-Besimari Pam, Sorukhetri, Sarthebari, Barpeta. It is
required that the petitioner has to place all the relevant facts which are specially
within his or her exclusive knowledge. This Court as well as the Apex Court in a
number of decisions has held that when the citizenship status of a proceedee is
questioned that too, by the State it is the bounden duty of the proceedee to
disclose all material facts in his or her possession at the first instance itself, in
this case, in the written statement. Failure to disclose material facts in the
written statement by itself may lead to drawal of adverse presumption against
the proceedee. However, mere pleading of material facts in the written
statement is again not enough and that the same should be proved by adducing
cogent, reliable and admissible evidence. This above requirement is in
accordance with the underlined policy of Section 106 of the Evidence Act which
says that when any fact especially within the knowledge of any person, the
burden of proving that fact is upon the said person.
Page No.# 19/28
28. In this context, Section 3 of the Evidence Act assumes relevancy. The
word ‘fact’ has been defined to mean and include, (i) anything, state of things
or relation of things capable of being perceived by senses, (ii) any mental
condition of which any person is conscious. A fact is said to be relevant to
another when the said fact is connected with the other and in any of the ways
referred to in the act relating to the relevancy of facts. Under Section 3 of the
Evidence Act, evidence means and includes oral evidence and documentary
evidence. A fact is said to be proved when after considering the matters before
it Court either believes it to exist or considers its existence and the said fact is
said to be disproved when the Court believes that it does not exist. Under
Section 5 of the Evidence Act, evidence may be given in any suit or proceeding
for showing the existence or non-existence and under Section 9, a fact may be
explained or introduced in issue and on a conjoint reading of Section 5 and
Section 9 of the Evidence Act, the requirement is that evidence may be
tendered to prove facts in issue or relevant facts forming part of the issue. In
Sahera Khatun @ Sahera Bibi -Vs- State of Assam , W.P.(C) No.
7932/2015, decided on 14.03.2018 this Court has held as follows:-
“21. In the case of Rupali Bibi (supra), in the notice issued to the proceedee by
the Tribunal, she was marked as the daughter of Akbar Ali Bepari and it was
contended that it was sufficient proof of the factum of such relationship. Negating
such contention, this court held that marking of a notice to a person mentioning
therein the person to be the son or daughter of some other person cannot be
construed as the proof of the fact that noticee is the son or daughter of that person. It
has been held that this is mentioned in the notice only for the limited purpose of
identification of the noticee for service of notice and, therefore, it cannot be taken as
proof of the factum of the noticee being the son or daughter of that person. Similar
would be the position in the case of identification of the suspect as son or daughter of
Page No.# 20/28some other person because such information can be furnished by the suspect himself
for herself or obtained from some other source. But that cannot be construed …”
29. In the instant case, the petitioner has not placed any evidence barring the
certificates of the Gaonburah and the Secretary of Gaon Panchayat to prove her
link to her family members who were present and voted in this country prior to
25.03.1971 and the said certificates cannot be taken into consideration since
the maker of the same were not examined as witnesses to prove the
authenticity of the said certificates.
30. To further establish the link, the petitioner had made a fragile attempt by
placing the Pan Card as well as the Elector Photo Identity Card. It is nowhere
stated in the written statement or in the evidence-in-affidavit that the petitioner
was an income tax payee, neither any IT official was examined to prove the
authenticity of the said Pan Card. Similar is the fact regarding the Voter ID card.
The said card having been issued after 1971 cannot establish the link of the
petitioner to her other projected family members. Further it has been held by
the Apex Court as well as various High Courts that having documents such as
Aadhar Card, Pan Card or Voter ID Card did not by itself make someone a
citizen of India as these documents were meant for identification or availing
services. The said documents by no stretch of reasoning overrides the basic
legal requirements of citizenship as prescribed in the Act. It has also been held
that relying on identity documents like Aadhar, Pan or Voter ID without verifying
how they were obtained cannot establish lawful citizenship. In view of the
serious allegations of national security, illegal entry and forged documents the
Court cannot rely on the said documents. In Sarbananda Sonowal (supra),
the Supreme Court in Paragraph-63 has held that there can be no manner of
doubt that the State of Assam is facing external aggression and internal
Page No.# 21/28
disturbance on account of large scale illegal migration of Bangladeshi nationals
and that it has become the duty of the Union of India to take all measures for
protection of the State of Assam from such external aggression and internal
disturbance as enjoined in Article 355 of the Constitution of India. In Paragraph
64 of the said judgment, the Supreme Court reiterated that presence of such a
large number of illegal migrants from Bangladesh is in fact, an aggression on
the State of Assam and has also contributed significantly in causing serious
internal disturbance in the State. In Paragraph-70, it is stated that influx of
Bangladeshi nationals who have illegally migrated into Assam pose a threat to
the integrity and security of the north-eastern region. Their presence has
changed the demographic character of that region. As such, it is the bounden
duty on the Tribunal as well as other Courts of the country to carefully look into
such matters more so, the documents placed by the suspected nationals and
pass order thereupon.
31. The settled law in this field 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 a non-obstante clause that the provisions of Indian Evidence Act
would not be applicable. Section 9 of the Foreigners’ Act 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
Page No.# 22/28upon such person.”
32. In this connection, the observation of Hon’ble Supreme Court in the case
of Fateh Mohammad vs Delhi Administration ; reported in AIR 1963 SC
1035, which followed the principle laid down by the Constitution Bench in the
case of Ghaus Mohammad vs Union of India, reported in AIR 1961 SC
1526 in the context of the Foreigners Act 1946, would be relevant and the
same 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.”
Therefore, it is clear from the aforesaid ruling that the onus to prove the
citizenship is upon the proceedee who has to prove the same by placing
relevant documents with necessary proof thereof.
33. The further argument of the learned counsel for the petitioner is that
Page No.# 23/28
certified copies of the Voters’ List as well as other documents were placed
before the Tribunal by the proceedee to prove her citizenship, but the said
documents were not accepted by the Tribunal on the ground that those are only
certified copies which shall have to be proved by producing the original, is an
incorrect finding, in view of Section 65 of the Evidence Act. It be stated here
that while certified copies are considered secondary evidence, they are allowed
under the said Section of the Evidence Act, however, mere production of the
same does not guarantee its authenticity and they cannot be accepted as proof.
They must be properly exhibited and proved in Court. In the instant case, it is
seen that the petitioner on 11.06.2018, while submitting the written statement
had submitted photocopies of some documents in support of her case and the
same are mentioned and submitted in the Firisti, as is reflected in the order of
the Tribunal dated 11.06.2018. Thereafter, on 02.07.2018, the order of the
Tribunal reflects that the proceedee had submitted photocopies of some other
documents while submitting evidence-in-chief. In the Firisti, i.e., the list of
documents, it is again mentioned that photocopies of certified copy of voters’
list of 1965, 1970, 1989, 1997, 2010, were submitted. Further in the said Firisti,
the photocopies of Panchayat certificate, the Pan Card as well as the Voter ID
Card were mentioned and submitted. As such, it is clear that the petitioner had
submitted photocopies of the said documents and the learned Tribunal had
given the finding that the said documents should have been proved by
producing the original and as such the same cannot be said to be an incorrect
finding. Furthermore, it is seen from the order dated 01.11.2018, passed by the
Tribunal that the documents which were submitted by the petitioner were not
exhibited in time and that the Firisti was also not accepted. It was only after the
petitioner and other witness were examined, cross-examined, questions put,
Page No.# 24/28
discharged, an application was filed by the learned Advocate for the proceedee
for exhibiting the said documents and for accepting the Firisti and that the ld.
Tribunal accepted the prayer and as such, the documents were exhibited and
the Firisti was accepted. This was done not during the evidence of the petitioner
or the other witness but after the closure thereof and the same displayed the
inaction on the part of the petitioner and the same had an adverse effect in the
trial.
34. It is necessary to elaborate on the above-mentioned facts. It is noticed in
the instant case that the proceedee had submitted photocopies of some
documents in support of her case along with the written statement on
11.06.2018, which is reflected in the order dated 11.06.2018. In the said order,
it is also stated that the said documents were mentioned in the Firisti as exhibits
and annexures. On the subsequent date, i.e., on 02.07.2018, when the
proceedee submitted her evidence in chief as DW-1, she submitted on the same
day, photocopies of some other documents and the same is reflected in the
order on the said date. However, on 01.11.2018, the petitioner as well as the
other witnesses were examined, cross-examined, questions put by the Tribunal
and were discharged, and for further evidence, the Tribunal fixed the matter on
20.12.2018. In the order dated 01.11.2018, it is seen as stated above that the
learned counsel for the proceedee submitted a petition which was numbered as
1692 of 2018 and the learned court had accepted the prayer and accordingly,
the documents were exhibited and the Firisti was accepted. As such, it is
noticed that the exhibits as well as the Firisti was numbered and allowed after
the witnesses were examined, cross-examined and discharged. As such, it is
seen that the documents were not placed, proved and exhibited by the
witnesses at the proper time. This seems to be a major flaw by the petitioner or
Page No.# 25/28
other witnesses, which will have a disastrous effect on the trial of the case.
35. It is as such, noticed that although the petitioner had submitted 9 (nine)
numbers of documents, none of the same were exhibited in time nor were
proved. They were simply filed before the Tribunal yet from the perusal of the
impugned order passed by the Tribunal, this Court noticed that the Tribunal has
considered those documents while passing the impugned order.
36. Law on this aspect is very clear. In Narbada Devi Gupta vs. Birendra
Kumar Jaiswal, MANU/SC/0862/2003: (2003) 8 SCC 745, Supreme
Court reiterated the legal position that marking of documents as exhibits and
their proof are two different legal concepts. Mere production and marking of a
document as exhibit cannot be held to be due proof of its contents. Its
execution has to be proved by admissible evidence i.e., by the evidence of those
persons who can vouch safe for the truth of the facts in issue.
37. This proposition was again re-stated by the Supreme Court in L.I.C. vs.
Ram Pal Singh Bisen, MANU/SC/0170/2010: (2010) 4 SCC 491,
wherein it has been held that mere admission of a document in evidence does
not amount to its proof; in other words, mere marking of exhibit on a document
does not dispense with its proof which is required to be done in accordance with
law. Under the law of evidence, it is necessary that contents of documents are
required to be proved either by primary or by secondary evidence. At the most,
admission of documents may amount to admission of contents but not its truth.
Contents of the document cannot be proved by merely filing in a court. Such a
document cannot be relied upon.
38. It is the further argument of the learned counsel for the petitioner that
Page No.# 26/28
Tribunal has put questions to the petitioner when she was examined as DW-1 as
well as to the projected uncle of the petitioner, who was examined as DW-2 and
that the same reflects that the Tribunal was not impartial and that the same
becomes a ground for remanding the case. However, the said argument falls flat
on the law provided in Section 165 of the Evidence Act. Section 165 of the
Evidence Act may be reproduced below:-
“165. Judge’s power to put questions or order production.
The judge may, in order to discover or to obtain proper proof of relevant facts,
ask any question he pleases, in any form, at any time, of any witness, or of the
parties, about any fact relevant or irrelevant; and may order the production of any
document or thing ; and neither the parties nor their agents shall be entitled to make
any objection to any such question or order, nor, without the leave of the Court, to
cross-examine any witness upon any answer given in reply to any question: Provided
that the judgment must be based upon facts declared by this Act to be relevant and
duly proved :Provided also that this section shall not authorise any Judge to compel
any witness to answer any question or to produce any document which such witness
would be entitled to refuse to answer or produce under sections 121 to 131, both
inclusive, if the question were asked or documents were called for by the adverse
party; nor shall the Judge ask any question which it would be improper for any other
person to ask under section 148 or 149; nor shall he dispense with primary evidence
of any document , except in the cases hereinbefore excepted. ”
A bare perusal of the aforesaid Section makes it crystal clear that the Judge
may ask any question he pleases and at any point of time to any witness
regarding the facts which are relevant or irrelevant and the same cannot be
objected by any parties or their agents. The only rider is that the witness cannot
be compelled to answer questions which he is entitled to refuse under Section
121 to Section 131, Section 148 or Section 149 of the Evidence Act, or any
Page No.# 27/28
other provisions provided in the Constitution of India or any other laws made
thereunder.
39. It is noticed in the instant case that the petitioner as DW-1 and projected
uncle as DW-2 had submitted their evidence-in-chief on affidavit and thereafter,
they both were cross-examined by the State and subsequent thereto, the
Tribunal had put questions which is allowed under Section 165 of the Evidence
Act as mentioned above. Accordingly, there is no illegality in the conduct of the
learned Tribunal and as such there is no scope for remanding the matter back to
the said learned Tribunal.
CONCLUSIONS
40. As the primary issue in a proceeding under the Foreigners’ Act and the
Foreigners’ (Tribunal) Order, 1964 relates to determination as to whether the
proceedee is a foreigner or not, the relevant facts being specially within the
knowledge of the proceedee, therefore the burden of proving citizenship, rest
upon the proceedee notwithstanding anything contained in the Evidence Act,
1872. In the instant case and as observed above, the petitioner not only failed
to discharge the burden but had also utterly failed to make proof of almost all
the documents, i.e., in establishing linkage to her projected parents, projected
grandparents as well as her projected brother.
41. On the available materials, we find that the Tribunal rendered opinion
upon due appreciation of the entire facts, evidence and documents brought on
record. We would also like to observe herein that the certiorari jurisdiction of the
writ Court being supervisory and not appellate jurisdiction, this Court would
Page No.# 28/28
refrain from reviewing the findings of facts reached by the Tribunal although for
the ends of justice, some exercise has been done to the said effect. We are, in
view of the aforesaid facts and circumstances, of the opinion that impugned
order dated 14.02.2019, passed by the learned Foreigners’ Tribunal-III, Barpeta,
in FT Case No. 827 (III) of 2013, corresponding to Reference IMDT Case No.
5711 of 1998, does not call for any interference and the instant writ petition
being devoid of merits, stands dismissed.
42. The actions consequent upon the opinion rendered by the learned Tribunal
would follow in accordance with law.
43. The records of the aforesaid FT Case be returned to the learned
Foreigners’ Tribunal-III, Barpeta, forthwith, along with a copy of this order.
JUDGE JUDGE Comparing Assistant