Gauhati High Court
Mamtaj Begum vs The Union Of India And 5 Ors on 28 April, 2026
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/14
GAHC010149142019
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4748/2019
MAMTAJ BEGUM
D/O- IMAN ALI, W/O- ANOWAR HUSSAIN, VILL- DAKSHIN GODHUNI, P.S-
TARABARI, DIST- BARPETA, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS
REP. BY THE SECRETARY TO THE GOVT OF INDIA, MIN OF HOME
AFFAIRS, SHASTRI BHAWAN, TRILOK MARG, NEW DELHI- 110001
2:THE ELECTION COMMISSION OF INDIA
REP. BY THE CHIEF ELECTION COMMISSIONER
NEW DELHI- 110001
3:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
HOME DEPTT
DISPUR
GUWAHATI 781006
4:THE STATE COORDINATOR
NRC
ASSAM
1ST FLOOR
ACHYUT PLAZA
G S ROAD
BHANGAGARH
GUWAHATI
ASSAM
PIN- 781005
5:THE DEPUTY COMMISSIONER
Page No.# 2/14
BARPETA
DIST- BARPETA
P.O
P.S AND DIST- BARPETA
ASSAM
PIN- 781301
6:THE SUPERINTENDENT OF POLICE (B)
BARPETA
P.O
P.S AND DIST- BARPETA
ASSAM
PIN- 78130
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
Hon'ble MR. JUSTICE SHAMIMA JAHAN
Advocates for the petitioner : Shri A.T. Sarkar.
Advocates for the respondents : Shri J. Payeng, SC- Home Deptt& NRC,
Shri P. Sarma, GA, Assam ;
Shri A.I. Ali, SC, ECI.
Shri P.S. Lahkar, CGC.
Date on which judgment is reserved : 27.04.2026 Date of pronouncement of judgment : 28.04.2026
Whether the pronouncement is of the operative part of the
judgment? : NA
Whether the full judgment has been pronounced? : Yes
Page No.# 3/14
Judgment & Order
(S.K. Medhi, J.)
The extra-ordinary jurisdiction of this Court has been sought to be invoked
by filing this application under Article 226 of the Constitution of India by putting
to challenge the opinion rendered vide impugned order dated 12.11.2018
passed by the learned Foreigners Tribunal no.7th, Barpeta in F.T. Case No.
13/2017 [Reference IM(D)T Case No. 4198/1998]. By the impugned judgment,
the petitioner, who was the proceedee before the learned Tribunal, has been
declared to be a foreigner post 25.03.1971.
2. The facts of the case may be put in a nutshell as follows:
(i) The proceeding was initially against the petitioner under the IM(D)T
Act. However, after the said Act and the connected Rules were
declared unconstitutional by the Hon’ble Supreme Court in the case
of Sarbananda Sonowal vs. Union of India reported in (2005)
5 SCC 665, the matter was transferred to the concerned Foreigners
Tribunal under the Foreigners Act and the Rules which was
registered as giving rise to the aforesaid F.T. Case No. 13/2017.
(ii) As per requirement u/s 9 of the Foreigner’s Act, 1946 to prove that
the proceedee is not a foreigner, the petitioner had filed the written
statement on 22.12.2017 along with certain documents.
(iii) The learned Tribunal, after considering the facts and circumstances
and taking into account of the provisions of Section 9 of the
Foreigners’ Act, 1946 had come to a finding that the petitioner as
opposite party had failed to discharge the burden cast upon her and
Page No.# 4/14
accordingly, the opinion was rendered declaring the petitioner to be
a foreign national post 25.03.1971.
3. We have heard Shri A.T. Sarkar, learned counsel for the petitioner. We have
also heard Shri J. Payeng, learned Standing Counsel, Home Department & NRC;
Shri P. Sarma, learned GA, Assam, Shri A.I. Ali, learned Standing Counsel,
Election Commission of India and Shri P.S. Lahkar, learned CGC. We have also
carefully examined the records which were requisitioned vide an order dated
25.09.2019.
4. Shri Sarkar, the learned counsel for the petitioner has submitted that the
petitioner could prove her case with cogent evidence and in view of the fact that
there was no rebuttal evidence, the learned Tribunal should have accepted the
said proof and accordingly hold the petitioner to be a citizen of India. In this
regard, he has referred to the evidence on affidavit of the four numbers of
witnesses and also the following documentary evidence.
(i) Ext-A is the translated certified copy of the voter list of 1966;
(ii) Ext-B is the digitally signed certified copy of the E/Roll of 1970;
(iii) Ext-D is the translated certified copy of the voter list of 1997;
(iv) Ext-E is the Sale deed dated 24.02.1979;
(v) Ext-F is the Gaon Panchayat Certificate;
(vi) Ext-G is the Gaonburah Certificate.
(vii) Ext- H is the Gaonburah Certificate
5. Shri Sarkar, the learned counsel has submitted that in the written
statement, all material disclosures were made. It is submitted that the name of
the petitioner is Mamtaj Begum, and her parents name were Iman Ali @ Imanali
and Hajiran Nessa @ Chajiran Begum @ Chajiran Nessa. She had also given the
names of her grandparents and that she was born in village Dakshin Godhuni,
Page No.# 5/14
Tarabari in the district of Barpeta. However, the said village was affected by
erosion by the Brahmaputra river for which the family had to shift to village
Kandhbari in the district of Nalbari. She was married to one Anowar Hussain of
village Dakshin Godhuni and is presently living there. He submits that
documents were exhibited to show her linkage with her parents and to prove
that she was a citizen of the country.
6. Amongst others, she had proved Voters Lists of the years 1966 and 1970
containing the names of her parents and further Voter List of the year 1997
containing the name of her father. It was also contended that in the year 1996,
the petitioner had shifted from Chenga to Borkhetri. One Mainul Hoque had
adduced evidence as the elder brother of the petitioner and evidence was also
adduced by the Gaonburah of Uttar Godhani village.
7. The learned counsel has also drawn the attention of this Court to the
report of the ERO and has submitted that on the basis of such report which is
incomplete, the Reference could not have proceeded. In this connection, he has
relied upon the decision of this Court in the case of Amina Khatun vs. Union
of India & Ors. reported in 2022 (4) GLT 102 and the observations made in
paragraph 6 have been pressed into service.
“6. In the ERO’s report which is based on the LVO’s report, some doubt
has been expressed about the citizenship of the aforesaid person.
However, when we see the LVO’s report, we have noticed that the entire
format is blank except the name mentioned as Amina Khatun, W/o Ismail.
As regards the various other particulars required to be filled up, there is
nothing mentioned except the word ‘Absent’ on the top of the format. If
the basis of the doubt on the citizenship of the person is based on LVO’s
report, we are of the view that since the LVO’s report is devoid of any
particular or any finding or for that matter any remark or observation, the
said reference cannot be said to have been made after proper application
Page No.# 6/14of mind.”
8. Per contra, Shri J. Payeng, learned Standing Counsel, Home Department
has categorically refuted the stand taken on behalf of the petitioner. He submits
that a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals)
Order, 1964 relates to determination as to whether the proceedee is a foreigner
or not. Therefore, the relevant facts are especially within the knowledge of the
proceedee and accordingly, the burden of proving citizenship rests absolutely
upon the proceedee, notwithstanding anything contained in the Evidence Act,
1872 and this is mandated under Section 9 of the aforesaid Act, 1946. However,
in the instant case, the petitioner utterly failed to discharge the burden. It is
also submitted that rebuttal evidence is not mandatory in every case and would
be given only if necessary. He further submits that the evidence of a proceedee
has to be cogent, relevant, which inspire confidence and acceptable and only
thereafter, the question of adducing rebuttal evidence may come in.
9. The learned Standing Counsel has further submitted that the written
statement is the basic document which is supposed to lay down the foundation
of the case of the proceeding. He submits that in the written statement, there is
no reference regarding the date of birth of the petitioner, her siblings and other
details. He has also submitted that it appears that there is an age gap of 10-12
years with her alleged brother which is unusual. He has submitted that no link
could be established with the projected father and the certificates issued by the
Panchayat and Gaon Burah could not be proved. Though there was another
certificate by a Gaon Burah, the Gaon Burah, in his deposition had clarified that
the evidence was hearsay.
10. As regards, the point sought to be raised by the petitioner that the report
Page No.# 7/14
by the LVO was not complete, Shri Payeng, the learned Standing Counsel has
submitted that in the year 1997, when a sudden surge was seen in the number
of voters, an intensive revision of the electoral rolls was directed by the Election
Commission of India in which the ERO had called for a preliminary report from
the Local Verification Officer (LVO). Such step was only to ensure that all such
cases are not required to be sent for a Reference. Therefore, lack of minutes
details in such report would not come to the aid of a proceedee and rather
would be against the proceedee.
11. In support of his submission that a certificate has to be proved from
contemporaneous records, the learned Standing Counsel has relied upon the
judgment passed in the case of Romila Khatun vs. Union of India reported
in 2018 (4) GLT 373 and the following observations have been pressed into
service.
“20. It is trite that documentary evidence would have to be proved on the
basis of the record and the contemporaneous record must substantiate and
prove the contents of the document. Proof of document is one thing and
proof of contents is another. Not only the document would have to be
proved but its contents would also have to be proved. That apart, the
truthfulness of the contents of the document would also have to be
established from the record. A document or the contents of the document
cannot be proved on the basis of personal knowledge. …”
12. On the aspect of the evidence of the alleged brother, he has submitted
that such evidence is not liable for any consideration and in this regard, he has
relied upon the judgment of this Court in the case of Nur Begum vs. Union of
India and Ors. reported in 2020 (3) GLT 347. The following observations
made have been relied upon:
“6. The statement of DW-2 i.e. Jahurun Begum, who claimed to be the
mother of the petitioner, cannot be relied upon in the absence of any
Page No.# 8/14documents showing her relationship, either to the projected grandfather,
father or to the petitioner herself. Oral testimony of DW-2 alone, sans any
documentary support, cannot be treated as sufficient to prove linkage or
help the cause of the petitioner. Surprisingly, the petitioner failed to
produce a single voter list in her name even until the age of 50 years. We
would reiterate that in a proceeding under the Foreigners Act, 1946 and
the Foreigners (Tribunals) Order, 1964 the evidentiary value of oral
testimony, without support of documentary evidence, is wholly
insignificant. Oral testimony alone is no proof of citizenship. The evidence
of DW-2, thus, falls short of being considered as cogent, reliable and
admissible evidence, so much so, to establish linkage of the petitioner to
the projected grandfather, grandmother and father. The petitioner utterly
failed to prove her linkage to Indian parents relatable to a period prior to
the cut-off date of 25.03.1971 through cogent, reliable and admissible
documents.”
13. He has also drawn the attention of this Court to certain other observations
regarding exercise of Certiorari jurisdiction made in the said case which reads as
follows:
“9. On the available materials, we find that the Tribunal rendered
opinion/order upon due appreciation of the entire facts, evidence and
documents brought on record. We find no infirmity in the findings and
opinion recorded by the Tribunal. We would observe that the certiorari
jurisdiction of the writ court being supervisory and not appellate
jurisdiction, this Court would refrain from reviewing the findings of facts
reached by the Tribunal. No case is made out that the impugned
opinion/order was rendered without affording opportunity of hearing or in
violation of the principles of natural justice and/or that it suffers from
illegality on any ground of having been passed by placing reliance on
evidence which is legally impermissible in law and/or that the Tribunal
refused to admit admissible evidence and/or that the findings finds no
Page No.# 9/14support by any evidence at all. In other words, the petitioner has not
been able to make out any case demonstrating any errors apparent on the
face of the record to warrant interference of the impugned opinion.”
14. He has also relied upon the case of the Hon’ble Supreme Court in Rupjan
Begum vs. Union of India reported in(2018) 1 SCC 579, wherein it has
been laid down that a certificate has to be proved on two aspects, firstly, the
authenticity of the same and secondly, the authenticity of the contents.
15. The learned Standing Counsel has accordingly submitted that the writ
petition be dismissed and the interim order be vacated.
16. Shri A.I. Ali, learned Standing Counsel, ECI and Shri P. Sarma, learned GA,
Assam have supported the submissions advanced by Shri Payeng, the learned
Standing Counsel, Home Deptt. & NRC and have prayed for dismissal of the writ
petition. They have submitted that this Court in exercise of its Certiorari
jurisdiction does not act as an Appellate Court and it is only the decision making
process which can be the subject matter of scrutiny. He submits that there is no
procedural impropriety or illegality in the decision making process and therefore,
the instant petition is liable to be dismissed.
17. The rival submissions made have been duly considered and the materials
placed before this Court including the records of the Tribunal have been
carefully perused.
18. With regard to the aspect of burden of proof as laid down in Section 9 of
the Act of 1946, the law is well settled that the burden of proof that a
proceedee is an Indian citizen is always on the said proceedee and never shifts.
Page No.# 10/14
In the said Section, there is non-obstante clause that the provisions of the
Indian Evidence Act would not be applicable. For ready reference, Section 9 is
extracted hereinbelow-
“9. Burden of proof.–If in any case not falling under Section 8 any question
arises with reference to this Act or any order made or direction given
thereunder, whether any person is or is not a foreigner or is or is not a foreigner
of a particular class or description the onus of proving that such person is not a
foreigner or is not a foreigner of such particular class or description, as the case
may be, shall, notwithstanding anything contained in the Indian Evidence Act,
1872 (1 of 1872), lie upon such person.”
19. In this connection, the observations of the Hon’ble Supreme Court in the
case of Fateh Mohd. Vs. Delhi Administration [AIR 1963 SC 1035] which
followed the principles laid down by the Constitutional Bench in the case of
Ghaus Mohammad Vs. Union of India [AIR 1961 SC 1526] in the context
of Foreigners Act, 1946 would be relevant which is extracted hereinbelow-
“22. This Act confers wide ranging powers to deal with all foreigners or with
respect to any particular foreigner or any prescribed class or description of
foreigner for prohibiting, regulating or restricting their or his entry into India or
their presence or continued presence including their arrest, detention and
confinement. The most important provision is Section 9 which casts the burden
of proving that a person is not a foreigner or is not a foreigner of such
particular class or description, as the case may be, shall lie upon such person.
Therefore, where an order made under the Foreigners Act is challenged and a
question arises whether the person against whom the order has been made is a
foreigner or not, the burden of proving that he is not a foreigner is upon such a
person. In Union of India v. Ghaus Mohd. the Chief Commissioner of Delhi
Page No.# 11/14served an order on Ghaus Mohammad to leave India within three days as he
was a Pakistani national. He challenged the order before the High Court which
set aside the order by observing that there must be prima facie material on the
basis of which the authority can proceed to pass an order under Section 3(2)(c)
of the Foreigners Act, 1946. In appeal the Constitution Bench reversed the
judgment of the High Court holding that onus of showing that he is not a
foreigner was upon the respondent.”
20. Before embarking to adjudicate the issue involved vis-a-vis the
submissions and the materials on record, we are reminded that a Writ Court in
exercise of jurisdiction under Article 226 of the Constitution of India would
confine its powers to examine the decision making process only. Further, the
present case pertains to a proceeding of a Tribunal which has given its findings
based on the facts. It is trite law that findings of facts are not liable to be
interfered with by a Writ Court under its certiorari jurisdiction.
21. Law is well settled in this field. The Hon’ble Supreme Court, after
discussing the previous case laws on the jurisdiction of a Writ Court qua the writ
of certiorari, in the recent decision of Central Council for Research in
Ayurvedic Sciences and Anr. Vs. Bikartan Das & Ors [Civil Appeal No.
3339 of 2023] has laid down as follows:
“49. Before we close this matter, we would like to observe something important
in the aforesaid context: Two cardinal principles of law governing exercise of
extraordinary jurisdiction under Article 226 of the Constitution more particularly
when it comes to issue of writ of certiorari.
50. The first cardinal principle of law that governs the exercise of extraordinary
jurisdiction under Article 226 of the Constitution, more particularly when it
comes to the issue of a writ of certiorari is that in granting such a writ, the High
Page No.# 12/14Court does not exercise the powers of Appellate Tribunal. It does not review or
reweigh the evidence upon which the determination of the inferior tribunal
purports to be based. It demolishes the order which it considers to be without
jurisdiction or palpably erroneous but does not substitute its own views for
those of the inferior tribunal. The writ of certiorari can be issued if an error of
law is apparent on the face of the record. A writ of certiorari, being a high
prerogative writ, should not be issued on mere asking.
51. The second cardinal principle of exercise of extraordinary jurisdiction under
Article 226 of the Constitution is that in a given case, even if some action or
order challenged in the writ petition is found to be illegal and invalid, the High
Court while exercising its extraordinary jurisdiction thereunder can refuse to
upset it with a view to doing substantial justice between the parties. Article 226
of the Constitution grants an extraordinary remedy, which is essentially
discretionary, although founded on legal injury. It is perfectly open for the writ
court, exercising this flexible power to pass such orders as public interest
dictates & equity projects. The legal formulations cannot be enforced divorced
from the realities of the fact situation of the case. While administering law, it is
to be tempered with equity and if the equitable situation demands after setting
right the legal formulations, not to take it to the logical end, the High Court
would be failing in its duty if it does not notice equitable consideration and
mould the final order in exercise of its extraordinary jurisdiction. Any other
approach would render the High Court a normal court of appeal which it is not.”
22. This Court has noticed that in the written statement filed, the petitioner
has not made the relevant disclosures. There is no mention regarding the date
of birth or year of the petitioner or any information about her siblings except for
a stray reference to one Mainul Haque as her brother. There is no disclosure of
the family tree and as to when the petitioner had got married.
Page No.# 13/14
23. The petitioner had relied upon the Voters List of 1966 and 1970
containing the names of her parents. However, no link documents could be
proved. The Voters List of 1997 has not been proved and only a photocopy has
been produced. As regards the Gaon Panchayat Certificate dated 27.06.2018,
the author has not been examined and therefore, the same was not proved. In
this regard, this Court takes aid of the judgment rendered in the case of
Rupjan Begum (supra). As regards the other certificates issued by the Gaon
Burah of Kandhbari dated 17.05.2017 (Ext-G) and the evidence rendered by one
Nur Mohammad as DW3 regarding the certificate issued by him as Gaon Burah
(Ext- H), there are apparent inconsistencies apart from the fact that the
evidence of the DW3 clearly appears to be hearsay.
24. In the cases of Bijoy Das vs UOI reported in2018 (3) GLT 118 and Nur
Begum (supra), this Court has laid down that in proceedings of this nature, oral
evidence alone would not be enough and such evidence is required to be
supported and corroborated by documentary evidence and contemporaneous
records.
25. This Court in the case of Musstt. Ayesha Khatun @ Aisha Khatun vs.
Union of India reported in (2017) 3 GLJ 490 has laid down that there has to
be full disclosure in the written statement. However, in the instant case, there
was no full disclosure of the relevant facts.
26. In view of the aforesaid facts and circumstances, we are of the opinion
that the impugned order dated 12.11.2018 passed by the learned Foreigners
Tribunal no. 7th, Barpeta in F.T. Case No. 13/2017 [Reference IM(D)T Case No.
4198/1998] does not call for any interference. Accordingly, this writ petition
Page No.# 14/14
being devoid of merits is dismissed.
27. The actions consequent upon the opinion rendered by the learned Tribunal
would follow in accordance with law.
28. The records of the aforesaid impugned order dated 12.11.2018 passed by
the learned Foreigners Tribunal No.7th, Barpeta in F.T. Case No. 13/2017
[Reference IM(D)T Case No. 4198/1998] be returned to the concerned
Foreigners Tribunal forthwith, along with a copy of this order.
JUDGE JUDGE Comparing Assistant
