Gauhati High Court
Tara Bhanu vs Union Of India And 5 Ors on 24 April, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/28
GAHC010250332019
2026:GAU-AS:5618
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7748/2019
TARA BHANU
W/O- LT NIZAM UDDIN, D/O- LT TAZU SHEIKH, R/O- VILL- APRUPI, P.S.
KALGACHIA, DIST- BARPETA (ASSAM)
VERSUS
UNION OF INDIA AND 5 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, SHASTRI BHAWAN, NEW DELHI- 110001
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-6
3:THE DY. COMMISSIONER
BARPETA
ASSAM
781301
4:THE SUPERINTENDENT OF POLICE (B)
BARPETA
ASSAM
781301
5:THE ELECTION COMMISSION OF INDIA
NEW DELHI- 110001
6:THE STATE COORDINATOR
NATIONAL REGISTRAR OF CITIZENS (NRC)
Page No.# 2/28
ASSAM
GHY-0
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
HON'BLE MRS. JUSTICE SHAMIMA JAHAN
For the petitioner : Mr. A.H.M.R. Choudhury.
For the respondents : Mr. K.K. Parasar, CGC,
: Mr. A.I. Ali, SC, ECI
: Ms. A. Verma, SC, FT & NRC
For the State respondent : Mr. P. Sarmah, Addl. Sr. G.A.
Date on which judgment is reserved : 07.04.2026
Date of pronouncement of judgment : 24.04.2026
Whether the pronouncement is of
the operative part of the judgment? : No
Whether the full judgment has been
Pronounced : Yes
JUDGMENT AND ORDER
(CAV)
(K.R. Surana, J)
Heard Mr. A.H.M.R. Choudhury, learned counsel for the petitioner.
Also heard Mr. K.K. Parashar, learned CGC appearing for respondent No.1; Ms.
A. Verma, Advocate, standing counsel for FT and Border matters, representing
respondent nos. 2, 4 and 6; Mr. A.I. Ali, Advocate, standing counsel for Election
Commission of India, respondent no.5; and Mr. P. Sarmah, learned Addl. Senior
Govt. Advocate representing respondent no.3.
2. By filing this writ petition under Article 226 of the Constitution
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of India, the petitioner, namely, Tara Bhanu, has challenged the opinion dated
12.06.2019 passed by the learned Member, Foreigners Tribunal- 5 th, Barpeta,
Assam, in Case No. F.T.(5th) 366/2015, arising out of Ref. IMDT Case No.
11275/98, thereby declaring her to be a foreigner, having entered into Assam
after 25.03.1971.
3. The petitioner has projected in her written statement that the
case was instituted against her without proper investigation. She was born and
had grown up in village- Khudrakhuwa, Mouza- Titapani, P.S. Baghbar, Dist.
Barpeta, Assam. One Jafer @ Jafar Ali @ Mujafar Ali, is her grandfather and Taju
Sheikh, whose name appeared in the NRC of 1951 and in the voter list of 1966,
1970 and 1997, is her father. On attaining marriageable age, she was married to
Nizam Uddin, son of Abdul Karim, resident of Khudrakhuwa, Mouza- Titapani,
P.S. Baghbar, Dist. Barpeta, Assam. The name of her father appeared in the
revenue paying receipt dated 30.10.1983, of land covered by Patta No. 64 of
village- Khudrakhuwa, Mouza- Titapani. Her own name appeared in the voter list
of 1985 in village- Khudrakhuwa, under Jania LAC. The petitioner's husband
along with his family had shifted from village- Khudrakhuwa to village- Aprupi
before 1997 and she was marked as 'D' voter in the electoral roll of 1997 of
village- Aprupi and in subsequent voter lists also. She has been given link
certificate by the Secretary of 57 No. Isabpur Gaon Panchayat, countersigned by
the Block Development Officer. Two certificates have been given by the
Gaonburah of Khudrakhuwa and Aprupi village, in respect of her father and
husband as permanent resident of those villages. Accordingly, the petitioner had
prayed to declare her as an Indian citizen and to drop the proceeding against
her.
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4. In support of her defence, the petitioner had examined herself
as DW-1. She had also examined Mokbul Hussain, Gaonburah of Aprupi village
as DW-2 and one Akbar Ali, claiming to be the brother of the petitioner as DW-
3.
5. In her evidence-on-affidavit filed on 26.02.2016, the petitioner
had reiterated the statements made in her written statement and exhibited the
following documents, viz., (1) certified copy of voter list of 1966 (Ext.A); (2)
certified copy of voter list of 1970 (Ext.B); (3) certified copy of voter list of 1997
(Ext.C); (4) Revenue paid receipt dated 30.10.1983 of land vide Patta No. 64 of
village- Khudrakhuwa (Ext.D); (5) Certificate issued by Secretary of 57 No.
Isabpur Gaon Panchayat (Ext.E); (6) certificate issued by Gaonburah of village-
Aprupi (Ext.F). It may be mentioned that the NRC details of 1951 of Taru Seikh,
projected father of the petitioner, were annexed to the evidence-on-affidavit as
Annexure-1. In reply to the Tribunal's query on 14.09.2018, the petitioner had
stated that her parents were not alive and they had died after her marriage. She
has five children. After the birth of her fourth child, her father had died. Her
father had been living with her brother till his death.
6. On 18.11.2017, the petitioner had examined Mokbul Hussain,
Gaonburah of Aprupi village as DW-2. In his examination-in-chief, DW-2 had
stated that he had known Tara Bhanu of this case for 15 years, who resides in
Aprupi village. He was the Gaonburah of Aprupi village. Tara Bhanu's husband is
Nizam Uddin. He had admitted issuing a certificate (Ext.F) and Ext.F(1) was his
signature. He had stated that he had come with his identity card to prove being
a Gaonburah. In response to the Tribunal's queries, DW-2 had stated that his
age was 24 years. The length of his Gaonburahship was 3 years 9 months. He
had stated that the population of Aprupi village was 2840. He maintained a
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register 3 years back. He did not maintain a register of births and deaths. He
had stated that the petitioner was born in village- Khudrakhuwa. He was the
Gaonburah of village- Aprupi and Tara Bhanu was married in this Aprupi village.
He had known the petitioner after she came to his village by way of marriage.
He had denied that he had come to depose falsely.
7. Akbar Ali, who was examined as DW-3 had stated in his
evidence-on-affidavit filed on 14.12.2017, that he was the brother of Tara
Bhanu. He was an inhabitant of village- Khudrakhuwa. He and his sister were
born and grew up in village- Khudrakhuwa. The name of his grandfather is Jafar
@ Jafar Ali @ Majafar Miya. He had stated that on attaining marriageable age,
his sister was given marriage to Nizam Uddin, son of Abdul Karim of village-
Khandrakhuwa (sic.). He had stated that the name of his father Taju Sheikh @
Taju Miya and step-mother Akatan Nessa appeared in the voter list of 1966 of
village- Namberpara Part-III under Abhayapuri LAC (Ext.A). The name of his
father, Taju Sheikh @ Taju Miya and mother, Somari Nessa @ Somari Khatun
appeared in the voter lists of 1970 (Ext.B) and 1997 (Ext.C) of village-
Khudrakhuwa under Jania LAC. The name of his father appeared in land
revenue paid receipt dated 30.10.1983 (Ext.D). The name of his sister appeared
in the voter list of 1985 of village- Khudrakhuwa (Ext.E). He had also referred to
link certificate by the Secretary of Isabpur Gaon Panchayat (Ext.F) and
certificate by Gaonburah (Ext.G and Ext.H). He had stated that his own name
appeared in the voter list of 1997 (Ext.C) and he had also exhibited his Elector
Photo Identity Card (EPIC) (Ext.G). He had also stated that the actual name of
his father is Taju Miya and he is also known as Taju Sheikh, which is written in
the voter lists of 1970 and 1997 and also known as Taju, which is written in the
voter lists of 1970, 1997 and 2010 and in EPIC against his mother and his own
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name. The actual age of his father in the year 1970 and 1997 was 37 and 64
years, but in the voter list of 1970 and 1997, his age was wrongly, written as 45
and 70 years. He had stated that he and his sister were Indian. On 14.09.2018,
in reply to the Court query, DW-3 had stated that he was 65 years old and he
had been casting his vote since 1985. He only has one sister. His parents had
been living with him till their death. His father had died 17/18 years ago. His
mother had died three years before his father's death.
8. On 29.09.2018, the petitioner had examined Safiur Rahman,
Secretary of Isabpur Gaon Panchayat as DW-4. In his examination-in-chief, PW-
4 had stated that he was working in the said post for the last 7 (seven) years.
He had issued a certificate in the name of the petitioner, Tara Bhanu. Her
father's name is Taju Sheikh and mother's name is Somari Khatun of village-
Khudrakhuwa. Tara Bhanu got married with Najim Uddin of village- Aprupi. The
petitioner's brother Akbari (sic.) Ali had applied for a certificate along with some
documents and accordingly, he had issued the said certificate. The Gaonburah
of Khudrakhuwa had identified Tara Bhanu before issuing the said certificate. In
his reply to the Tribunal's query, DW-4 had stated that he is the Secretary of
village- Hatchara, Muhia, Khudrakhuwa, Isabpur and Manikpur. He had stated
that he personally does not know the petitioner. The Gaonburah of
Khudrakhuwa had identified Tara Bhanu and after receiving their application, he
had issued the said certificate in the name of the petitioner.
9. The learned counsel for the petitioner had submitted that the
learned Tribunal had not appreciated the pleadings and evidence correctly and
had not applied its judicial mind. It was submitted that on the ground that the
voter list of 1997 contained the name of one Samad Ali, son of Taju Sheikh, the
entire evidence was disbelieved and discarded. It was submitted that Akbar Ali
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was the elder brother of the petitioner and Samad Ali was the younger brother
of the petitioner. However, when questions were put to her, being illiterate, she
was totally confused and replied under a misunderstanding that she had one
brother. The learned counsel for the petitioner has placed reliance on the
jamabandi to project that the landed property of the petitioner's father was
inherited by Akbar Ali and Samad Ali, i.e. both the brothers of the petitioner. It
has been submitted that the petitioner was a citizen of India and therefore, the
impugned opinion be interfered with.
10. Per contra, the learned standing counsel for the FT and Border
matters has made his submissions in support of the impugned opinion.
11. It may be stated that the petitioner has relied on certificate
dated 16.02.2017, issued by the Gaonburah (Ext.F). The said document is
inadmissible in evidence because of use of the State Emblem of Lion Pillar of
Asoka, which DW-2 is not authorized to use. In this regard, reference may be
made to the decision of this Court in the case of Sajeda Khatun v. Union of
India & Ors., 2018 (4) GLT 696, where it has been held that Gaonburah's
certificate contains the State Emblem, which he is not authorized to use under
Rule 10(2) of the State Emblem of India (Regulation of use) Rules, 2007 framed
under the State Emblem of India (Prohibition of Improper Use) Act, 2005 and it
was further held that such unauthorized use of the State Emblem has rendered
the certificate wholly inadmissible in evidence. In any case, the said certificate
does not contain the name of the village and at the nota bene appended to the
said certificate, it has been stated to the effect that " In the voter list of 2017, 'D'
is seen under serial no. 1029, house no. 225, ... (illegible) no. 104 against the
name of the said person." Thus, the voter list of the petitioner has 'D' i.e.
doubtful voter mark. It must be mentioned that Annexure-13 to the writ petition
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is the photocopy of the Gaonburah's certificate (Ext.F), but in the English
translated copy thereof, the petitioner has omitted to translate the said nota
bene" or remark, which is nothing but a serious attempt by the learned counsel
for the petitioner to mislead the Court, which is strongly deprecated, because
the learned counsel was certified the said translation to be a true copy.
12. Similarly, the entire text of Annexure-12, which is a photocopy of
the certificate dated 24.07.2015 (Ext.E), issued by the Secretary of 57 No.
Isabpur Gaon Panchayat has not been typed out by the learned counsel for the
petitioner. The disclaimer part that had been withheld in the typed copy is
extracted below:-
"DISCLAIMER
It may be added that this certificate shall be accepted only as a supporting
document for establishing linkage with the parent(s) of the aforementioned
person, for whom the certificate is issued. This document shall be valid only if
accompanied by Legacy Data or any of the other admissible documents issued for
the person with whom linkage is claimed for inclusion in updated NRC ."
13. Thus, certificate issued by the Panchayat Secretary (Ext.E) is
valid only if accompanied by other valid documents and moreover, the said
certificate is only for inclusion of names in updated NRC. Thus, by no stretch of
imagination, the said certificate can constitute proof of citizenship. Therefore, in
the absence of any documentary evidence to link the petitioner with her
projected father, the said Ext.E is of no help to the petitioner. Hence, if the
disclaimer is not read, there is every likelihood that the Court would be misled
by the contents of the said Ext.E. The said typed copy is also certified to be true
by the learned counsel for the petitioner and such unscrupulous practice by the
learned counsel for the petitioner is strongly deprecated.
14. It may be stated that for an attempt to mislead the Court, the
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Court would ordinarily have dismissed the writ petition in limine. However, as
the valuable claim of citizenship is involved, the Court is inclined to appreciate
the pleadings and evidence on record.
15. On a careful examination of the Tribunal's records, it is seen that
in her written statement, the petitioner had only disclosed the names of three
persons, being (1) Jafer @ Jafar Ali @ Mujafar Ali, projected grandfather; (2)
Taju Sheik, projected father; and (3) Nizam Uddin, husband. The petitioner had
not disclosed (i) the names of the siblings of her grandfather; (ii) names of the
siblings of her father; (iii) her own siblings; (iv) the name of her mother; (v) the
year of her birth; (vi) the year of the death of her father, (vii) year of death of
her mother; and (viii) the names of voters whose name appeared in the
exhibited voters list and the relationship of the petitioner with those voters.
16. In the aforesaid context, it may be mentioned that in the case of
Rashminara Begum v. Union of India & Ors., 2017 (4) GLT 346 , this Court had
held that material facts pleaded would have to be proved by adducing cogent
and admissible evidence. The said view was also endorsed by this Court in the
case of Saru Sheikh v. Union of India & Ors., (2017) 4 GLR 295 . In the case of
Ayesha Khatun v. Union of India & Ors., (2017) 3 GLR 820 , and Jehirul Islam v.
Union of India & Ors., (2017) 5 GLR 670, this Court had held that failure to
disclose material facts would lead to adverse presumption.
17. Thus, as the petitioner had not disclosed material facts, the
sudden appearance of Akbar Ali, as the projected brother of the petitioner to
give evidence as DW-3 does not inspire the confidence of the Court on the
truthfulness or admissibility of his evidence.
18. The petitioner had not disclosed the name of Samad Ali, son of
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Taju Sheikh, whose name appeared in the voters list of 1997. However, after
adverse observations had been made by the learned Tribunal in the impugned
opinion, the petitioner had stated in paragraph 14 of this writ petition that the
petitioner was puzzled with the question of the learned Tribunal as to how many
brothers she had and her reply that she had one brother was a
misunderstanding. This is not how evidence can be appreciated by this Court in
exercise of certiorari jurisdiction. It cannot be accepted that an illiterate woman
will not be able to state how many brothers or siblings she has. The petitioner
had not disclosed about any siblings in her written statement and in her
evidence-on-affidavit. As mentioned hereinbefore, the petitioner (as DW-1) had
filed her evidence-on-affidavit was filed on 26.02.2016.
19. The petitioner's projected brother, Akbar Ali, had filed his
evidence-on-affidavit as DW-3 on 14.12.2017 but the existence of Samad Ali, as
his brother was also not disclosed. Rather, on 14.09.2018, while replying to the
learned Tribunal's query, DW-3 had specifically stated that he had only one
sister.
20. In the considered opinion of the Court, the non disclosure of the
family by the 4 (four) witnesses examined by the petitioner would lead to the
only presumption that the petitioner had failed to prove her family and in the
process, could not connect her with her projected father, whose name appears
in the voter lists of 1966, 1970 and 1997.
21. The two names appearing in voter list of 1966 (Ext.A) are (1)
Taju Miya, son of Mojafar Miya, and (2) Akaton Nessa, wife of Taju, who were
residents of village- Numberpara Part-III. However, the names of two voters in
the voter list of 1970 (Ext.B) were (1) Taju Sheikh, son of Jafarali, and (2)
Sumari Sheikh, wife of Taju and they were voters of village- Khudrakhowa.
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There is no pleading or evidence as to what happened to Akaton Nessa, the
voter in the voters list of 1966. Thus, it would be difficult to believe that Taju
Miya, son of Mojafar Miya, voter in 1966 of village- Numberpara Part-III is the
same person who became Taju Sheikh, son of Jafarali in the voter list of 1970 of
village- Khudrakhowa. Neither the petitioner as DW-1 nor the DW-3 had given
the exact year of death of their father. If the statement of the DW-3 in his reply
to the Tribunal's queries is considered then his father had died in or about the
year 2000-2001. However, the name of his projected father appears only in the
voter lists of 1966, 1970 and 1997, with no explanation where he was for 27
years between 1970 and 1997. Apart from Ext.B and Ext.C of village-
Khudrakhowa, the petitioner has not exhibited any voter list of her projected
father to show his continuous stay in India, which is the requirement of Section
6-A (3) (b) of the Citizenship Act, 1955.
22. The submission that it is common amongst Muslim community to
have several aliases cannot be a generally accepted presumption. It may be
acceptable that a person may add a prefix to his name like Haji, Moulavi, etc. It
may perhaps be acceptable that one may have an alias, but this is not how
persons change their identity in voter's list after changing address to another
village, that too, after having a different wife, as is sought to be portrayed in the
case of the projected father of the petitioner.
23. In the opinion of the Court, if the Foreigners Tribunals start
accepting the projection that 'A' of village- 'X' has become 'B' in village- 'Y' and
then has become 'C' in village- 'Z', it would be impossible to detect and expel an
illegal foreigner and/or migrant. Moreover, acceptance of such a plea would
frustrate the very purpose of Section 9 of the Foreigners Act, 1946, which casts
the burden of proof on the proceedee or suspected illegal migrant.
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24. In this case, except for the evidence by DW-1, DW-2 DW-3 and
DW-4, in their respective evidence-on-affidavit and/or examination-in-chief,
there is not a single document where the name of the petitioner appears with
her parents. As the petitioner has not disclosed about her family, her father's
family or about the family of her parental grandfather, reliance cannot be placed
solely on the testimony of DW-2, DW-3 and DW-4 as a proof that the petitioner
is a citizen of India.
25. In this regard, it would be relevant to refer to the case of Nur
Begum v. Union of India & Ors., 2020 (3) GLT 347. Paragraph 6 thereof is
quoted below:-
6. The statement of D.W. 2 i.e. Jahurun Begum, who claimed to be the mother
of the petitioner, cannot be relied upon in the absence of any documents showing
her relationship, either to the projected grandfather, father or to the petitioner
herself. Oral testimony of D.W. 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 D.W.
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 .
26. For the same legal proposition, paragraph 7 of the case of Asia
Khatoon v. Union of India & Ors., W.P.(C) No. 4020/2017, decided on
21.11.2019, is quoted below:-
7. As the primary issue in 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, the relevant facts being especially within the
knowledge of the proceedee, therefore, the burden of proving citizenship
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absolutely rests upon the proceedee, notwithstanding anything contained in the
Evidence Act, 1872. This is mandated under section 9 of the aforesaid Act, 1946.
In the instant case and as observed above, the petitioner not only failed to
discharge the burden but also utterly failed to make proof of the most crucial
aspect, that is, in establishing linkage to her projected father and/or the
grandfather.
27. The petitioner has relied on the land revenue paid receipt of
30.10.1983 (Ext.D) in the name of Md. Taju Sheikh, projecting him to be her
father. The said document is a post 25.03.1971 document and in her evidence,
and in the evidence of DW-3, the petitioner has not linked the said Ext.D with
any land owned by Md. Taju Sheikh.
28. Moreover, it is seen that as per paragraph 7 of the impugned
opinion, the learned Tribunal had rejected the land revenue receipt (Ext.D)
because it was not readable. In the record, the said Ext.D is a photocopy, which
was "compared with the original" copy. However, in this writ petition, the
petitioner has not annexed a readable copy of Ext.D and the learned counsel for
the petitioner could not show the original of Ext.D when asked for.
29. One of the submissions of the learned counsel for the petitioner
was that the enquiry against the petitioner was not proper. In this regard, it is
seen that in the summons the petitioner was informed as to why under
Foreigners Act, 1946 and Foreigners (Tribunals) Order, 1964, she should not be
declared to be a foreigner of post 23.03.1971. Thus, it cannot be said that the
petitioner was not informed about the grounds of suspecting her to be a
foreigner.
30. In this case, on the basis of a report from the Electoral
Registration Officer of the 44 Jania LAC, IM(D)T Doubtful Case No. 11275/98
was registered by the Superintendent of Police (Border), Barpeta, which was
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submitted before the erstwhile Illegal Migrants (Determination) Tribunal,
Nagaon [hereinafter referred to as IM(D)T for short) for determination of the
reference. In brief, this fact is reflected in paragraph 1 of the impugned opinion.
The Tribunal's record reveals that the Superintendent of Police (Border),
Barpeta, while sending the reference, had made an endorsement that
"Annexure-B of the ERO is considered as a ground for considering the person as
I.M." Here I.M. is an abbreviation of "illegal migrant". In the aforesaid context, it
may be mentioned herein that by virtue of the judgment and order passed by
the Supreme Court of India in the case of Sarbananda Sonowal v. Union of
India, (2005) 5 SCC 665, all the proceedings that were then pending before the
erstwhile IM(D)Ts were transferred to the Foreigners Tribunal having
jurisdiction. The transferred reference was received by the jurisdictional
Foreigners Tribunal- 5th, Barpeta, where it was registered as F.T Case No.
366/2015. Therefore, as evident from the decision of the Supreme Court of
India, in the case of Sarbananda Sonowal (supra), the instant case was
transferred from IM(D)T to the Foreigners Tribunal, no further determination
can be made by this Court regarding making of and/or registration of the
reference.
31. It is common knowledge that a culprit would ordinarily not admit
his guilt and similarly, it cannot be expected that an illegal foreigner/ migrant
would admit that he is a foreigner and would voluntarily disclose about his
address in Bangladesh. Under such circumstances, as per Section 9 of the
Foreigners Act, 1946, the burden of proof is on the suspected illegal migrant to
prove that he is not a foreigner but an Indian.
32. In this regard, it would be relevant to quote below paragraph
nos. 22, 24 to 26, 29, 51, 56, 62 of the case of Sarbananda Sonowal v. Union of
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India, (2005) 5 SCC 665.
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 his 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 (UOI) Vs. Ghaus Mohammad, , 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 u/s 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.
24. It needs to be emphasized that the general rule in the leading democracies of
the world is 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 United
Kingdom, the relevant provision is contained in the Immigration Act, 1971 and
sub-Section (1), (8) and (9) of Section 3 thereof read as under:
"3. - General provisions for regulation and control. - (1) Except as otherwise
provided by or under this Act, where a person is not a British citizen
(a) he shall not enter the United Kingdom unless given leave to do so in
accordance with the provisions of, or made under this Act;
(b) he may be given leave to enter the United Kingdom (or when already there,
leave to remain in the United Kingdom) either for a limited or for an indefinite
period;
(c) if he is given a limited leave to enter or remain in the United Kingdom, it
may be given subject to conditions restricting his employment or occupation in
the United Kingdom, or requiring him to register with the police, or both.
xxx xxx xxx xxx
(8) When any question arises under this Act whether or not a person is a British
citizen, or is entitled to any exemption under this Act, it shall lie on the person
asserting it to prove that he is.
(9) A person seeking to enter the United Kingdom and claiming to have the
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right of abode there shall prove that he has that right by means of either -m
(a) a United Kingdom passport describing him as a British citizen of the United
Kingdom and Colonies having the right of abode in the United Kingdom; or
(b) a certificate of entitlement."
25. Somewhat similar provision is contained in Immigration and Nationality
Act of USA and Section 291 places the burden of proof upon the person concerned
in any removal proceeding. Section 318 provides that no person shall be
naturalized unless he has been lawfully admitted to the United States for
permanent residence in accordance with all applicable provisions of the Act and
the burden of proof shall be upon such person to show that he entered the United
States lawfully. The Immigration and Refugee Protection Act, 2001 of Canada
contains a provision of placing the burden upon the concerned person to establish
his right to have a permanent residence in the said country. Section 188 of the
Migration Act, 1958 of Australia provides that an officer may require a person
whom the officer knows or suspects is a non-citizen to (a) show the officer
evidence of being a lawful non-citizen; or (b) show the officer evidence of the
person's identity.
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. Some times the place of birth of his grand parents may also be
relevant like u/s 6-A(1)(d) of the Citizenship Act. All these facts would necessarily
be within the personal knowledge of the person concerned and not of the
authorities of the State. After he has given evidence on these points, the State
authorities can verify the facts and can then lead evidence in rebuttal, if necessary.
If the State authorities dispute the claim of citizenship by a person and assert that
he is a foreigner, it will not only be difficult but almost impossible for them to first
lead evidence on the aforesaid points. This is in accordance with the underlying
policy of Section 106 of the Evidence Act which says that when any fact is
especially within the knowledge of any person, the burden of proving that fact is
upon him.
29. In State of West Bengal Vs. Mir Mohammad Omar and Others etc., , it was
held that the legislature engrafted special rule in Section 106 of the Evidence Act
to meet certain exceptional cases in which not only it would be impossible but
disproportionately difficult for the prosecution to establish such facts which are
specially and exceptionally within the exclusive knowledge of the accused and
which he could prove without difficulty or inconvenience. This principle was
reiterated in Sanjay @ Kaka Vs. The State (NCC.T. of Delhi), and Ezhil and Others
Page No.# 17/28
Vs. State of Tamil Nadu.
51. The foremost duty of the Central Government is to defend the borders of the
country, prevent any trespass and make the life of the citizens safe and secure.
The Government has also a duty to prevent any internal disturbance and maintain
law and order. Kautilya in his masterly work "The Arthashastra" has said that a
King had two responsibilities to his state, one internal and one external, for which
he needed an army. One of the main responsibilities was Raksha or protection of
the state from external aggression. The defense of the realm, a constant
preoccupation for the king, consisted not only of the physical defense of the
kingdom but also the prevention of treachery, revolts and rebellion. The physical
defensive measures were the frontier posts to prevent the entry of undesirable
aliens and forts in various parts of the country. (Arthashastra by Kautilya -
translated by Shri L.N. Rangarajan, who was in Indian Foreign Service and
ambassador of India in several countries - published by Penguin Books - 1992 Edn.
- page 676). The very first entry, namely, Entry 1 of List I of the Seventh Schedule
is "Defense of India and every part thereof including preparation for defense and
all such acts as may be conducive in times of war to its prosecution and after its
termination of effective demobilization". In fact entries 1 to 4 of List I of Seventh
Schedule mainly deal with armed forces. Article 355 of the Constitution of India
reads as under:-
355. Duty of the Union to protect States against external aggression and
internal disturbance. - It shall be the duty of the Union to protect every State
against external aggression and internal disturbance and to ensure that the
Government of every State is carried on in accordance with the provisions of
this Constitution."
The word "aggression" is a word of very wide import. Various meanings to the
word have been given in the dictionaries, like, "an assault, an inroad, the
practice of setting upon anyone; an offensive action or procedure; the practice
of making attacks or encroachments; the action of a nation in violating the
rights especially the territorial rights of another nation; overt destruction; covert
hostile attitudes."
The word "aggression" is not to be confused only with "war". Though war would
be included within the ambit and scope of the word "aggression" but it
comprises many other acts which cannot be termed as war. In Kawasaki v.
Bantahm S.S. Company 1938 (3) All ER 80, the following definition of "war" as
given in Hall on International Law has been quoted with approval :-
"When differences between States reach a point at which both parties resort to
force, or one of them does acts of violence, which the other chooses to look
upon as a breach of the peace, the relation of war is set up, in which the
Page No.# 18/28
combatants may use regulated violence against each other, until one of the two
has been brought to accept such terms as his enemy is willing to grant."
56. There was a large scale influx of persons from the then East Pakistan into
India before the commencement of December 1971 Indo-Pak war. On 3rd
November, 1971, one month before the actual commencement of the war, Dr.
Nagendra Singh, India's representative in the Sixth Committee of the General
Assembly on the Definition of Aggression, made a statement, wherein he said :-
".................The first consideration, in the view of the Indian Delegation, is that
aggression must be comprehensively defined. Though precision may be the first
virtue of a good definition, we would not like to sacrifice the requirement of a
comprehensive definition of aggression at any cost. There are many reasons for
holding this view. Aggression can be of several kinds such as direct or indirect,
armed in nature or even without the use of any arms whatsoever. There can be
even direct aggression without arms.......................................... We would
accordingly support the categorical view expressed by the distinguished
delegate of Burma, the U.K. and others that a definition of aggression excluding
indirect methods would be incomplete and therefore dangerous.
..........................................................
For example, there could be a unique type of bloodless aggression from a vast
and incessant flow of millions of human beings forced to flee into another State.
If this invasion of unarmed men in totally unmanageable proportion were to not
only impair the economic and political well-being of the receiving victim State
but to threaten its very existence, I am afraid, Mr. Chairman, it would have to
be categorized as aggression. In such a case, there may not be use of armed
force across the frontier since the use of force may be totally confined within
one’s territorial boundary, but if this results in inundating the neighbouring State
by millions of fleeing citizens of the offending State, there could be an
aggression of a worst order……………………………………….. What I wish to
convey, Mr. Chairman, is the complexity of the problem which does not permit
of a fou r-line definition of aggression much less an ad-interim declaration on
it.”
62. The very first sentence of the Statement of Objects and Reasons of the IMDT
Act says “the influx of foreigners who illegally migrated into India across the
borders of the sensitive Eastern and North- Eastern regions of the country and
remained in the country poses a threat to the integrity and security of the said
region.” It further says that “continuance of these persons in India has given rise
to serious problems.” The Preamble of the Act says that “the continuance of such
foreigners in India is detrimental to the interests of the public of India.” The
Governor of Assam in his report dated 8th November, 1998 sent to the President of
Page No.# 19/28
India has clearly said that unabated influx of illegal migrants of Bangladesh into
Assam has led to a perceptible change in the demographic pattern of the State
and has reduced the Assamese people to a minority in their own State. It is a
contributory factor behind the outbreak of insurgency in the State and illegal
migration not only affects the people of Assam but has more dangerous
dimensions of greatly undermining our national security. Pakistan’s I.S.I. is very
active in Bangladesh supporting militants in Assam. Muslim militant organizations
have mushroomed in Assam. The report also says that this can lead to the
severing of the entire landmass of the north-east with all its resources from the
rest of the country which will have disastrous strategic and economic
consequences. The report is by a person who has held the high and responsible
position of Deputy Chief of the Army Staff and is very well equipped to recognize
the potential danger or threat to the security of the nation by the unabated influx
and continued presence of Bangladeshi nationals in India. Bangladesh is one of
the world’s most populous countries having very few industries. The economic
prospects of the people in that country being extremely grim, they are too keen to
cross over the border and occupy the land wherever it is possible to do so. The
report of the Governor, the affidavits and other material on record show that
millions of Bangladeshi nationals have illegally crossed the international border and
have occupied vast tracts of land like “Char land” barren or cultivable land, forest
area and have taken possession of the same in the State of Assam. Their
willingness to work at low wages has deprived Indian citizens and specially people
in Assam of employment opportunities. This, as stated in the Governor’s report,
has led to insurgency in Assam. Insurgency is undoubtedly a serious form of
internal disturbance which causes grave threat to the life of people, creates panic
situation and also hampers the growth and economic prosperity of the State of
Assam though it possesses vast natural resources.”
33. The learned counsel for the petitioner has not been able to show
that the petitioner had made any attempt to establish before the Foreigners
Tribunal that the investigation was not proper. Moreover, in this case, the
petitioner had participated in the proceedings without any demur and therefore,
subjected herself to the jurisdiction of the said learned Foreigners Tribunal and
therefore, it would be impermissible for the petitioner to now claim that the
reference was not properly made.
34. The said action by the Electoral Registration Officer was initiated
Page No.# 20/28
under the Representation of the People Act, 1950, after draft electoral roll was
prepared and the Electoral Registration Officer had reasons to suspect that a
voter, whose name appears in the draft, is an illegal migrant and/or a foreigner.
35. Be that as it may, in the case of Shukurjan Nessa @ Sukurjan v
Union of India & Ors., W.P.(C) 245/2019, decided on 28.02.2025 , the reference
by Electoral Registration Officer has been dealt with. In the said case, the issue
relating to reference made at the instance of the Electoral Registration Officer
(ERO for short) has been clarified. The relevant part of the said judgment and
order are extracted hereinbelow:-
14. The point raised by the learned counsel for the petitioner that the reference
was blank and not properly filled up and therefore, the grounds of suspecting the
petitioner to be a foreigner has not been furnished to her is taken up first.
15. In this case, the reference was made by the Superintendent of Police
(Border), Barpeta, on receipt of communication dated 16.03.1998, issued by the
Electoral Registration Officer, 44 No. Jania L.A.C., which is accompanied with a
three page Local Verification Report (Annexure-A) by one Sri Khagen Kalita, J.E. In
the said LVO Report dated 17.10.1997, it has been mentioned at two places to the
effect that no documents produced during field verification.
16. Therefore, this is not a case where any enquiry was made under the
provisions of Foreigners Act, 1946 or Rules framed thereunder, where investigation
is done under the authority of the Superintendent of Police (Border). The
jurisdictional Superintendent of Police (Border) is the prescribed authority to make
reference before the Illegal Migrants (Determination) Tribunal constituted under
the erstwhile Illegal Migrants (Determination by Tribunals) Act, 1983 and Rules
framed thereunder.
17. There is an important facet, which is contained in the judgment and order of
this Court in the case of Sayam Uddin (supra), which must be referred to. We are
in respectful agreement with the said judgment and therefore, paragraphs 11 to
22 thereof are quoted below:-
11. In the year 1997, Election Commission of India had undertaken an
intensive revision of electoral rolls in the State of Assam as apprehensions
were expressed from various quarters that the electoral rolls were infested
with the names of foreigners/illegal migrants. In the course of this exercise
citizenship status of as many as 3,13,046 persons whose names were in the
Page No.# 21/28draft voters lists were found to be doubtful and accordingly they were
marked as doubtful “D” voters in the electoral rolls after local verification.
12. Legality of this exercise was challenged before this Court in HRA
Choudhury Vs Election Commission of India, reported in 2002 (1) GLT 1. The
challenge made was rejected by a Division Bench of this Court. In HRA
Choudhury (supra) this Court examined the guidelines dated 17.07.1997 of
the Election Commission of India laying down the procedure to carry out the
exercise.
12.1. As per paragraph 3.8 of the guidelines the Electoral Registration
Officer was required to consider the verification report received from the
Local Verification Officer. If he was satisfied on such report and such other
material/information as may be available about the eligibility of a person, he
should allow his name to continue on the electoral roll. Where, however, he
was not so satisfied and had reasonable doubt about the citizenship of any
person, he was required to refer such doubtful cases to the competent
authority under the then Illegal Migrants (Determination by Tribunals) Act,
1983 or the Foreigners Act, 1946 as the case may be. For convenience of the
Electoral Registration Officers, Election Commission devised proformas.
12.2. As per paragraph 3.9, after the case of a person was referred by
the Electoral Registration Officer to the competent authority, he should wait
for the decision of the relevant Tribunal in relation to that person and act
according to such decision.
12.3. As per paragraph 3.10, where the relevant Tribunal decided that
any such person was not a citizen of India, Electoral Registration Officer
should proceed under Rule 21 A of the Registration of Electors Rolls, 1960 to
have the name of such person deleted from the electoral roll before it was
finally published.
12.4. This Court in HRA Choudhury (supra) held that such guidelines
and decision of the Election Commission were in accordance with Article 324
of the Constitution of India besides conforming to the principles of natural
justice. It was held that such guidelines cannot be held to be arbitrary or
vitiated by mala fide or partiality.
13. At this stage, it may be mentioned that the Illegal Migrants
(Determination by Tribunals) Act, 1983 is no longer in existence, the same
having been declared unconstitutional by the Supreme Court in Sarbananda
Sonowal Vs Union of India reported in (2005) 5 SCC 665. Therefore, in so far
paragraph 3.8 of the guidelines dated 17.07.1997 is concerned, the reference
would be under the Foreigners Act, 1946.
14. The above exercise was repeated in the year 2005 with the Election
Commission of India again going for intensive revision of electoral rolls in the
Page No.# 22/28State of Assam taking 01.01.2005 as the qualifying date. In this connection,
guidelines dated 17.06.2004 were issued by the Election Commission of
India. Paragraph 2.2 of the guidelines dealt with “D” voters. It was
mentioned that the guidelines issued in 1997 would be followed while dealing
with such category of persons. Paragraph 8 dealt with verification by Electoral
Registration Officers. It laid down the procedure while carrying out such
verification including verification by Local Verification Officer. As per
paragraph 8.6, Local Verification Officer would conduct the verification by
making an on the spot visit and the person concerned could adduce any one
or more of the documents mentioned therein in support of his claim as a
citizen of India. After due verification, the Local Verification Officer was
required to submit his report in the prescribed format. Under paragraph 8.8,
Electoral Registration Officer on receipt of the verification report from the
Local Verification Officer should consider the same. Where he was satisfied
about the eligibility of a person, he should allow the name of such person to
continue on the electoral roll but where he was not so satisfied and had
reasonable doubt about the citizenship of any person he should refer such
doubtful cases to the competent authority under the then Illegal Migrants
(Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946 in a
prepared format (Annexure-B to the guidelines dated 17.06.2004) to the
competent authority for making reference to the Tribunal and await the
decision of such Tribunal.
15. As pointed out by Mr. Barua, in Mameja Khatun (supra) a Single Bench
of this Court directed that “D” voters should not be allowed to cast their
votes with the clarification that “D” voters would include persons whose
names were included in the electoral rolls but their citizenship was doubted
or disputed and also those whose cases were pending before the Foreigners
Tribunals. This decision of the learned Single Bench was confirmed by the
Division Bench in Writ Appeal No. 114/2011 (State Vs Mameja Khatun). By
the judgment and order dated 13.10.2015, the Division Bench directed
Election Commission of India and other authorities to implement the
directions of the Single Bench in letter and spirit.
16. At this stage, it may also be mentioned that in WP(C) No. 274/2009
filed by Assam Public Works which is pending before the Supreme Court of
India wherein NRC updation exercise in the State of Assam is being
monitored by the Supreme Court of India, on 25.10.2013, Supreme Court
clarified that as far as persons in the “D” list are concerned, undoubtedly
they were doubtful voters and therefore their names could not be included
unless the NRC is updated and unless the Foreigners Tribunals declared them
to be Indian citizens.
Page No.# 23/28
17. The Foreigners Act, 1946 is an act to confer upon the Central
Government certain powers in respect of foreigners. This Act provides for the
exercise of certain powers by the Central Government in respect of the entry
of foreigners into India; their presence in India and their departure
therefrom. Section 2 (a) defines a “foreigner” to mean a person who is not a
citizen of India. Section 3 confers power to the Central Government to make
orders making provision either generally or with respect to all foreigners or
with respect to any particular foreigner or any prescribed class or description
of foreigners, for prohibiting, regulating or restricting the entry of foreigners
into India or their departure therefrom or their presence or their continued
presence therein.
17.1. In exercise of the powers conferred by Section 3 of the Foreigners Act,
1946, Central Government made the Foreigners (Tribunals) Order, 1964. As
per order 2 (1), the Central Government may by order refer the question as
to whether a person is or is not a foreigner within the meaning of the
Foreigners Act, 1946 to a Tribunal to be constituted for the purpose for its
opinion.
18. Ministry of Home Affairs, Govt. of India had issued notification dated
19.04.1958 in exercise of powers conferred by Clause-(1) of Article 258 of
the Constitution of India whereby the President with the consent of the State
Government concerned entrusted to the Governments of each of the States
mentioned therein including the State of Assam the functions of the Central
Government in making orders of the nature specified in Section 3 of the
Foreigners Act, 1946. Another notification dated 17.02.1976 was issued by
the Government of India, Ministry of Home Affairs in the exercise of the
powers conferred by Article 258 (1) of the Constitution entrusting the
Superintendents of Police and Deputy Commissioners (In-charge of Police)
under the Government of Assam the functions of the Central Government in
making orders of the nature specified in Section 3 of the Foreigners Act, 1946
within their respective jurisdictions subject to the conditions mentioned
therein which included the condition that exercise of such functions would be
in respect of nationals of Bangladesh and that while exercising such
functions, Superintendents of Police and Deputy Commissioners (In-charge of
Police) shall comply with such general or special directions as the
Government of Assam or the Central Government may issue from time to
time.
19. Article 258 of the Constitution deals with power of the Union to confer
powers etc on States in certain cases. Clause (1) of Article 258 starts with a
non-obstante clause. It says that notwithstanding anything in the
Constitution, President may with the consent of the Government of a State
Page No.# 24/28
entrust either conditionally or unconditionally to that Government or to its
officers, functions in relation to any matter to which the executive power of
the Union extends. Clause (3) provides for making of payment by the
Government of India to the State concerned such sum as may be agreed
upon or in default of agreement through arbitration in respect of any extra-
cost of administration incurred by the State in connection with the exercise of
powers and duties of the Government of India conferred or imposed upon a
State Government.
20. Thus, under the Central Government notifications dated 19.04.1958 and
17.02.1976, Government of Assam, Superintendents of Police and Deputy
Commissioners (In-charge of Police) have been delegated the power to make
reference to the Foreigners Tribunal under order 2 (1) of the Foreigners
(Tribunals) Order, 1964 to seek opinion as to whether the proceedee is a
foreigner or not within the meaning of the Foreigners Act, 1946.
21. Thus from the above, what transpires is that there are two categories of
“D” voters:- (i). those who were marked as “D” voters in the electoral roll by
the Electoral Registration Officer following enquiry by Local Verification
Officer; and (ii). those whose references are pending before the Foreigners
Tribunals.
22. In so far Electoral Registration Officer is concerned the exercise
undertaken by him while marking a person as a “D” voter in the electoral roll
is a quasi judicial exercise. If he holds the view after examining the enquiry
report of the Local Verification Officer that the concerned person is not a
citizen of India he is required to forward the case of that person to the
competent authority i.e., the Superintendent of Police. If it is so forwarded by
the Electoral Registration Officer, the jurisdictional Superintendent of Police
has to make a reference to the competent Foreigners Tribunals under order
2(1) of the Foreigners (Tribunals) Order, 1964 based on the report received
from the Electoral Registration Officer. Question of making further enquiry by
the Superintendent of Police in such a case would not arise because enquiry
has already been made by the Electoral Registration Officer by exercising
quasi judicial powers and the Superintendent of Police cannot sit over such
decision of the Electoral Registration Officer. He has to forward the same by
making the reference to the competent Foreigners Tribunal for its opinion.
17. The said judgment by the learned Single Judge has stood affirmed by the
virtue of judgment and order dated 29.07.2019, passed by the Division Bench of
this Court in the case of Sayam Uddin v. The Union of India & Ors., W.A. 170/2019.
18. The learned counsel for the petitioner had cited the case of Moslem Mondal
(supra) and Amina Khatun (supra) to support his contention that if LVO report is
blank, the reference is vitiated. In this regard, it would be relevant to mention that
Page No.# 25/28
as per the contents of para-10 of the case of Moslem Mondal (supra), the
Superintendent of Police, Barpeta, suspecting the respondent therein as illegal
migrant within the meaning of the Illegal Migrants (Determination by Tribunals)
Act, 1983, made a reference under Section 8 (1) of the said Act read with Rule 9
(A) of the Rules framed thereunder and accordingly, Case No. 1311/2003 was
registered before the IM(D)T, Barpeta and the said proceeding was subsequently
transferred to the Foreigners Tribunal and registered as F.T. Case No. 243/2006.
Therefore, in the said case, reference was not made by Electoral Registration
Officer (EVO for short). Hence, the decision of Moslem Mondal (supra), being
distinguishable on facts, is not found to help the petitioner in any manner.
19. However, in the case of Amina Khatun (supra), which was decided on
28.04.2022, the reference was made by the Superintendent of Police (Border),
based on LVO by the ERO. But when the said writ petition was being heard and
decided by a Coordinate Bench, it appears that the previous decision of the
learned Single Judge of this Court in the case of Sayam Uddin v. The Union of
India & Ors., 2019 (4) GLT 456, as affirmed by the Division Bench of this Court in
the case of Sayam Uddin v. Union of India & Ors., W.A. 170/2019, decided on
29.07.2019, were not brought to the notice of this Court. Therefore, under such
circumstances, the Court is of the considered opinion that under the well settled
principles of stare decisis, the decision in the case of Amina Khatun (supra) would
be per incurium. Accordingly, the decision rendered in the case of Amina Khatun
(supra) will also not be of any help to the petitioner.
20. In the present case, the proceedings which were hitherto pending before the
Illegal Migrants (Determination) Tribunals were transferred by the Supreme Court
of India to the Foreigners Tribunal vide directions issued in the case of Sarbananda
Sonowal (supra). The said fact has been stated in para-1 of the impugned opinion.
Hence, this Court would refrain from making any observations on the LVO Report
in this case because the Foreigners Tribunals would have no power or jurisdiction
to remand the reference back to the Superintendent of Police (Border) for a fresh
enquiry by the LVO/ERO.
21. Therefore, the challenge to the proceeding before the learned Foreigners
Tribunal on the ground that certain paragraphs and/or columns of the Local
Verification Officer’s (LVO) Report, as forwarded by the Electoral Registration
Officer (ERO) were left blank, is held to be not maintainable on facts and in law
morefully referred to hereinbefore. The point of determination no. (i) is answered
accordingly.”
36. As stated hereinbefore, in this case, the petitioner did not take
any such plea in the written statement. Had such a plea been raised before the
Page No.# 26/28
learned Tribunal, the learned Tribunal would have provided the petitioner the
relevant material. In this case, the petitioner was aware that he had failed to
produce any material in support of her defence of not being an illegal migrant/
foreigner when the enquiry was made. Therefore, at this stage, when the Court
is exercising certiorari jurisdiction, it is only permissible to examine if the opinion
expressed by the learned Foreigners Tribunal is vitiated on account of perversity.
Without raising such plea before the learned Tribunal, the State cannot be non-
suited on such plea taken for the first time before this Court. If one needs any
authority on the point of extent of power that can be exercised under certiorari
jurisdiction, the decision of the Supreme Court of India in the case of Central
Council for Research in Ayurvedic Sciences v. Bikartan Das, 2023 INSC 733:
(2023) 0 Supreme(SC) 763, may be referred to. Paragraph 77 thereof is quoted
below:-
“77. The purpose of certiorari, as we understand, is only to confine the inferior
tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non-
exercise or the illegal assumption of it and not to correct errors of finding of fact or
interpretation of law committed by them in the exercise of powers vested in them
under the statute. The accepted rule is that where a Court has jurisdiction it has a
right to decide every question which crops up in the case and whether its decision
is correct or otherwise, it is bound to stand until reversed by a competent Court.
This Court in G. Veerappa Pillai v. Messrs Raman and Raman Ltd. Kumbakonam,
Tanjore District and Others, (1952) 1 SCC 334 observed:
“26. Such writs as are referred to in Article 226 are obviously intended to
enable the High Court to issue them in grave cases where the subordinate
tribunals or bodies or officers act wholly without jurisdiction, or in excess of
it, or in violation of the principles of natural justice, or refuse to exercise a
jurisdiction vested in them, or there is an error apparent on the face of the
record, and such act, omission, error, or excess has resulted in manifest
injustice. However extensive the jurisdiction may be, it seems to us that it is
not so wide or large as to enable the High Court to convert itself into a court
of appeal and examine for itself the correctness of the decision impugned
and decide what is the proper view to be taken or the order to be made .”
Page No.# 27/28
37. Thus, the said plea that the petitioner was not served with the
grounds of suspecting her to be a foreigner is repelled and rejected.
38. In this case, if from the exhibited documents, Ext.E, issued by
DW-4 and Ext.F, issued by DW-2, are excluded, there is no other documentary
evidence to link the petitioner with her projected father.
39. Thus, in light of the discussions above, the Court does not find
any fault with the finding recorded by the learned Tribunal that the petitioner
has failed to discharge her burden under Section 9 of the Foreigners Act, 1946
to prove that she is not a foreigner and/or illegal migrant, but an Indian citizen.
40. The impugned opinion rendered by the learned Tribunal is not
found to be vitiated by any jurisdictional error nor that there was any failure in
giving an opportunity of hearing to the petitioner. Therefore, as the Court is
exercising certiorari jurisdiction and not appellate jurisdiction, no case is made
out for substituting the opinion rendered by the learned Tribunal with any other
view of the Court. This is not a case where the learned Tribunal had refused to
admit admissible evidence or that its finding is dehors the evidence on record.
41. Hence, this writ petition fails and the same is dismissed, leaving
the parties to bear their own cost.
42. The consequences of the opinion dated 12.06.2019 passed by
the learned Member, Foreigners Tribunal- 5 th, Barpeta, Assam, in Case No. F.T.
(5th) 366/2015, arising out of Ref. IMDT Case No. 11275/98, thereby declaring
the petitioner, namely, Tara Bhanu, to be a foreigner, having entered into Assam
after 25.03.1971, shall follow as no interference with the same is called for.
43. The Registry shall return back the Tribunal’s records along with a
copy of this order to be made a part of the records by the learned Tribunal for
Page No.# 28/28
future reference.
44. Before parting with the records, the learned counsel for the
petitioner is put to notice that if the practice of withholding any part of the
document in typed copy or translated copy is brought to the notice of the Court,
appropriate steps as permissible in law would be taken.
JUDGE JUDGE.
Munna Kumar Digitally signed by Munna Kumar
Date: 2026.04.24 11:49:18 +05'30'
Comparing Assistant (Private Secretary)