Dismissed¶112

Basaton Nessa @ Bachatan Necha v. the Union of India and 5 Ors.

Gauhati HC12 May 2026WP(C)/4304/2019

Case brief

AI extract

What is this about?

Foreigners Tribunal opinion upheld; burden of proof under Section 9 Foreigners Act 1946 lies on proceedee and never shifts; certiorari jurisdiction under Article 226 confined to decision-making process; voters lists lacking linkage; uncertified 1971 electoral roll inadmissible; incomplete application for certified copy contrary to Clause 24.3 Manual on Electoral Rolls; witness absenting cross-examination not lawful evidence; Gaonburah certificate rejected for want of Certificate Issue Register; oral evidence requires documentary and contemporaneous corroboration; Kamrup Assam; NRC; writ petition dismissed, interim order vacated.

What did the court decide?

The impugned order dated 29.08.2018 passed by the learned Foreigners Tribunal No. 1, Kamrup (R) in G.F.T. Case No. 991/2017 does not call for any interference. ¶110

Basaton Nessa @ Bachatan Necha Vs the Union of… — Writ and Judicial Review | Gauhati HC (2026)

What the court decided

AI extract

Outcome

Dismissed

¶112

Issue for consideration

Whether the opinion dated 29.08.2018 of Foreigners Tribunal No. 1, Kamrup (R) in G.F.T. Case No. 991/2017 declaring the petitioner a foreigner post 25.03.1971 calls for interference in exercise of certiorari jurisdiction under Article 226 of the Constitution. +3 more

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Court's answer

The impugned order dated 29.08.2018 passed by the learned Foreigners Tribunal No. 1, Kamrup (R) in G.F.T. Case No. 991/2017 does not call for any interference.

¶110

Ratio / Principle

A Writ Court in exercise of jurisdiction under Article 226 confines its powers to examining the decision-making process only, and findings of fact of the Tribunal are not liable to be interfered with under its certiorari jurisdiction.

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Key takeaways

The burden of proof that a proceedee is an Indian citizen lies on the proceedee under Section 9 of the Foreigners Act, 1946 and never shifts; the Section carries a non-obstante clause providing that the provisions of the Indian Evidence Act would not apply.ratio¶74
The petitioner's written statement was absolutely vague and did not meet the requirement laid down in Sarbananda Sonowal (supra) of disclosing date of birth, place of birth, name of parents, their place of birth and citizenship, and grandparents' details.ratio¶88
The Voters Lists of 1966 and 1970, per se, provide no link with the petitioner; the Voters List of 1971, being an uncertified copy, is not relevant.

Detailed headnote1 paragraphs

Gauhati High Court (S.K. Medhi & Shamima Jahan, JJ.) dismissed WP(C)/4304/2019 and upheld the opinion dated 29.08.2018 of Foreigners Tribunal No. 1, Kamrup (R) in G.F.T. Case No. 991/2017 declaring the petitioner Basaton Nessa @ Bachatan Necha a foreigner post 25.03.1971. The Court held that: (i) under Section 9 of the Foreigners Act, 1946 the burden of proving citizenship rests on the proceedee and never shifts, the Section containing a non-obstante clause excluding the Indian Evidence Act; (ii) a Writ Court under Article 226 examines only the decision-making process and does not interfere with findings of fact under its certiorari jurisdiction; (iii) the petitioner's written statement was absolutely vague and did not meet the disclosure requirements indicated in Sarbananda Sonowal (2005) 5 SCC 665; (iv) the Voters Lists of 1966/1970 had no linkage with the petitioner, the 1971 list was uncertified, and the application for its certified copy was incomplete and contrary to Clause 24.3 of the Manual on Electoral Rolls; (v) the Kazi's (DW 2) deposition was excluded as he did not make himself available for cross-examination, and the Gaonburah's (DW 3) certificate lacked contemporaneous records; and (vi) oral evidence alone is not enough and must be corroborated by documentary evidence and contemporaneous records (Bijoy Das, 2018 (3) GLT 118). Interim order vacated; Tribunal records ordered to be returned forthwith.

Page No.# 1/17

GAHC010141312019

2026:GAU-AS:6650

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/4304/2019

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BASATON NESSA @ BACHATAN NECHA W/O. MD. ANOWAR HUSSAIN, D/O- BATCHU MIYA, R/O- VILLAGE- PURAN KUCHIA, P/S- CHAYGAON, DIST- KAMRUP(R), ASSAM. PIN -781124.

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VERSUS

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THE UNION OF INDIA AND 5 ORS. REPRESENTED BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI-01.

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2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-06.

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3:THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOK ROAD NEW DELHI PIN- 110001.

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4:THE DEPUTY COMMISSIONER KAMRUP P/O- AMINGAON DIST- KAMRUP ASSAM PIN- 781031.

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5:THE SUPERINTENDENT OF POLICE (BORDER) KAMRUP P/O- AMINGAON DIST.- KAMRUP

Page No.# 2/17

ASSAM

PIN- 781301.

6:THE STATE COORDINATOR NATIONAL REGISTRATION OF CITIZEN ASSAM BHANGAGARH GUWAHATI-05

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B E F O R E

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Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI

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Hon’ble MRS. JUSTICE SHAMIMA JAHAN

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Advocate for the petitioner : Shri A. R. Sikdar.

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Advocates for the respondents : Shri J. Payeng, SC- Home Deptt & NRC,

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Shri P. Sarma, GA, Assam;

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Shri A. I. Ali, SC, ECI.

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Ms. A. Gayan, CGC.

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Date on which judgment is reserved : 29.04.2026

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Date of pronouncement of judgment : 13.05.2026

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Whether the pronouncement is of the operative part of the judgment? : NA Whether the full judgment has been pronounced? : Yes

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Judgment & Order

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(S.K. Medhi, J.)

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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 29.08.2018 passed by the learned Foreigners Tribunal no.1, Kamrup (R) in G.F.T. Case No. 991/2017. By the impugned judgment, the petitioner, who was the proceedee

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before the learned Tribunal, has been declared to be a foreigner post 25.03.1971.

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2. The facts of the case may be put in a nutshell as follows:

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(i) A reference was made by the Superintendent of Police (B), Kamrup District, against the petitioner giving rise to the aforesaid G.F.T. Case No. 991/2017. Initially, the reference was made under IM(D)T Act, 1983 and after the judgment of the Hon’ble Supreme Court in the case of Sarbananda Sonowal Vs. Union of India reported in (2005) 5 SCC 665 , the matter was placed before the Foreigners Tribunal.

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(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 26.04.2018 along with certain documents.

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(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 accordingly, the opinion was rendered declaring the petitioner to be a foreign national post 25.03.1971.

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3. We have heard Shri A. R. Sikdar, 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 Ms. A. Gayan, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 19.08.2018.

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4. Shri Sikdar, the learned counsel for the petitioner has submitted that the petitioner could prove his case with cogent evidence and in view of the fact that there was no rebuttal evidence, the learned Tribunal should have accepted the said proof and accordingly hold the petitioner to be a citizen of India. In this regard, he has referred to his evidence adduced as DW1 and also the following documentary evidence.

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1.Ext.-A Certified copy of Voters List of 1966.

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2.Ext.-B Certified copy of Voters List of 1970. 3.Ext. C Photocopy of an extract copy of Voters List of 1971

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4.Ext.-D Photocopy of application dated 31-03-2018. 5.Ext.-E Certified copy of Voters List of 1977. 6.Ext.-F Land Revenue Payment Receipts dtd 01.2.77 & 12.1.84. 7.Ext.-G Certified copy of Voters List of 1989. 8.Ext.-H Certified copy of Voters List of 1997. 9.Ext.-I Certified copy of Voters List of 2005. 10.Ext.-J Certified copy of Voters List of 2010. 11.Ext.-K Certified copy of Voters List of 2016. 12.Ext.-L Marriage certificate. 13.Ext.-M Certified copy of Voters List of 1997. 14.Ext.-N Certified copy of Voters List of 2005. 15.Ext.-O Certified copy of Voters List of 2016. 16. Ext.-P Certified copy of Voters List of 2018. 17.Ext.-Q Photocopy of Elector Photo Identity Card. 18. Ext.-R Certificate issued by Gaonburha.

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5. The learned counsel for the petitioner has submitted that in the written statement, all material disclosures were made. It is submitted that the Voters

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Lists of 1966 and 1970 have been proved with the name of the Grandparents and the paternal uncle of the petitioner. Thereafter, a Voters List of 1971 has been referred containing the name of the projected father- Bachu Sheikh and projected step mother Rohima Khatun.

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6. He has submitted that an application for certified copy of the Voters List of 1971 was made which however rejected by the learned Tribunal on 30.06.2018 and such rejection has also been criticized.

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7. The learned counsel for the petitioner has relied upon Voters List of 1977 containing the names of the projected parents – Bachu Mia and Basiran. Further, revenue receipts of the years 1977 and 1978 in the name of the projected father have been relied upon. He has thereafter relied upon the Voters Lists of the years 1989, 1997, 2005, 2010 and 2016 containing the name of the projected mother- Basiran Bewa/Basiran Nessa.

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8. The learned counsel for the petitioner has relied upon a marriage certificate dated 05.08.1994 followed by Voters Lists of the years 1997, 2005, 2016 and 2018 containing her name. It is contended that the marriage certificate discloses that the petitioner is the daughter of Bachu Mia. The petitioner has also relied upon a certificate issued by the Gaonburah certifying that the petitioner is the daughter of Bachu Mia.

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9. The learned counsel accordingly submits that in view of the availability of the aforesaid materials, the impugned opinion could not have been rendered against the petitioner and therefore, the same requires interference.

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10 . Per contra, Shri Payeng, the learned Standing Counsel, Home Department

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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.

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11 . The learning 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 and the written statement in the instant case lacks details and is totally vague. There is no date or year of the birth of the petitioner and there is no details of the family members. In this connection, he has relied upon the following observations made by the Hon’ble Supreme Court in the case of Sarbananda Sonowal vs. Union of India reported in (2005) 5 SCC 665 :

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“17. 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

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also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

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12 . He has submitted that the Voters List of 1971 containing the name of the projected father is an uncertified copy and no steps were taken to prove the same by calling for the officials. He has also raised the issue as to why earlier Voters Lists were not produced and proved inasmuch as, in 1971 the age of the projected father was 30 years.

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13. As regards the application dated 31.03.2018 for certified copy of the Voters List is concerned, the learned Standing Counsel has pointed out that the same is apparently an incomplete application and not in accordance with law. He submits that the evidence of the Kazi as DW 2 has been rightly rejected as the said DW 2 did not make himself available for cross-examination. In any case, he submits in the marriage certificate, the date of the marriage itself has not been stated and the signature was also not proved. So far as the evidence of the Gaonburah as the DW 3 is concerned, the same would not be relevant as he had clearly stated in his cross examination that the certificate was issued on the information furnished by the petitioner. He has also submitted that no

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contemporaneous records including the issuing register were produced.

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14 . 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.

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“ 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. …”

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15 . He has also drawn the attention of this Court to the case of Nur Begum vs. Union of India and Ors. reported in 2020 (3) GLT 347 wherein certain observations regarding exercise of Certiorari jurisdiction have been made which reads as follows:

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“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

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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 support 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.”

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16 . 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.

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17 . The learned Standing Counsel has accordingly submitted that the writ petition be dismissed and the interim order be vacated.

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18 . Shri Ali, the learned Standing Counsel, ECI and Shri Sarma, the 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.

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19 . Shri Ali, the learned Standing Counsel, ECI has specifically referred to the Manual of Electoral Rolls, more particularly, Clause 24.3 thereof which laid down the prescription for applying for certified copy of Voters List. He has submitted

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that the application dated 31.03.2018 did not at all comply with the laid down prescription and therefore could not have been projected as a defence by the petitioner.

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20 . 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.

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21 . 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. 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-

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“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.”

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22 . 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-

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“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.”

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23 . 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.

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24 . 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:

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“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

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when it comes to issue of writ of certiorari.

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The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari is that in granting such a writ, the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, being a high prerogative writ, should not be issued on mere asking.

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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.”

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25 . In the instant case, the written statement is absolutely vague and

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apparently, has not met the requirement, as laid down by the Hon’ble Supreme Court in the case of Sarbananda Sonowal (supra). There is a requirement to disclose the following:

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(i) date of birth;

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(ii) place of birth

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(iii) name of the parents

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(iv) their place of birth and citizenship

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Further, there may be a requirement to give the details of the grandparents. It has been stated that all these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State.

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26 . As regards the Voters Lists of the years 1966 and 1970 are concerned, the same, per se would not provide any link with the petitioner and there would be requirement of other credible documentary evidence. So far as the Voters List of 1971 is concerned, the same is not a certified copy and therefore will not be relevant.

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27 . As regards the submission regarding applying for a certified copy of the Voters List of 1971, it has been found that the application for certified copy filed on 31.03.2018, was itself incomplete. We find force in the argument advanced by Shri Ali, the learned Standing Counsel, ECI who, by referring to the Manual on Electoral Rolls has submitted that such application for certified copy has to be made by the person himself which has not be done in the instant case. A bare perusal of the application which has been enclosed as Annexure-6 to the writ petition would show that it was applied by one Roushanara Khatun, Advocate without disclosing on whose behalf the same was made. The application is also ex facie vague and the information required to be filled up

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has not been done. As per Clause 24.3 of the aforesaid Manual, the procedure for supply of certified copy of electoral roll has been laid down. For ready reference, the same are extracted herein below:

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“24.3 Supply of Certified Copy of Electoral Roll

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24.3.1 If a person seeks a certified copy of relevant entries of an electoral roll, the certified copy shall be given in the prescribed format (Annexure 54). It should be noted that an applicant can apply only for a certified copy of an entry pertaining to oneself in a roll. Request for obtaining certified copy of entry relating to others in a roll should not be entertained. In any case, Photocopy of the electoral roll shouldn’t be certified and given to the person.

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24.3.2 Supply of Certified Copy of Extract of Electoral Roll to an Elector Intending to Contest Election:- A certified copy of extract may be asked for by a registered elector primarily if he wants to contest an election. It may so happen that the elector may like to contest an election from any other constituency. A certified copy of the extract can be given once the manuscript is prepared. It may not be necessary to wait for printing of the supplement part after data entry. It may be pertinent to mention here that the electoral roll is required to be published only at the time of draft and again at the time of final publication. It is not necessary to publish the supplements of continuous updating to be brought out from time to time except when an election is announced. At the time of election all additions, corrections, and deletions made up to the last date for making nominations can be printed as a supplement of continuous updation to be appended to the existing roll. In case the supplement of continuous updating has been printed and published, the extract of electoral roll shall be shared as per the provisions mentioned above.

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24.3.3 Supply of Certified Copy of Electoral Roll under Right to Information Act, 2005:Attested/certified copies of electoral roll in full, with or without photo, should be supplied if demanded under Right to Information Act 2005 (RTI) or Rule 33 of RER 1960. Individual entries or selective pages should not be given under RTI. Application received under RTI should be dealt in the context of Section 8(1)(j) Of RTI, 2005 which is quoted as under –“8. Exemption from disclosure of information:Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen –information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted

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invasion of the privacy of individual unless the Central public Information Officer or the State Public Information officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information.”

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28 . So far as the revenue receipts of 1977 and 1978 are concerned, those per se would not constitute any linkage with the petitioner. Regarding the Voters List of her projected mother, apart from the inconsistencies in the name and age, the same would also not provide any linkage with the petitioner to establish her citizenship.

¶105

29 . So far as the Voters List of the years 1997, 2005, 2016 and 2018 are concerned containing the name of the petitioner, those are not relevant inasmuch as the same do not provide any linkage with her father. The only documents which are liable to be considered are the certificate of marriage and the certificate issued by the Gaonburah. So far as the marriage certificate is concerned, though the same was sought to be proved by the Kazi who had rendered examination-in-chief as DW 2, he had however failed to come for the cross examination. The records revealed that on 07.06.2018, the evidence of DW 2 was filed and 21.06.2018 was fixed as the date for cross examination followed by 29.06.2018 and 30.06.2018 and on none of those dates DW 2 had appeared. It is only thereafter that his evidence was not taken into consideration. We are of the opinion that the approach of the learned Tribunal is in accordance with law as the deposition of a witness who does not make himself/herself available for cross examination cannot be regarded as lawful evidence. We are also conscious of the provision of law more particularly Order 3 (14) of the Foreigners (Tribunal) Orders, 1964 which mandates completion of a proceeding within a particular time. The same reads as follows:

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“3 (14) The Foreigners Tribunal shall dispose of the case within a period of sixty days of the receipt of the reference from the competent authority.”

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30 . So far as the evidence of the Gaonburah as DW 3 is concerned, he had proved the certificate issued by him. A bare perusal of the evidence (Cross Examination) would show that he was appointed as a Gaonburah in the year 2006 whereas the certificate pertains to a period much prior to that. As indicated above, the marriage of the petitioner was in the year 1994 and he had stated that he did not know when the petitioner was born and when she got married. He had further clarified that he had issued the certificate by observing the Voters List of 1971 which was furnished by the petitioner. He had further stated that he had not brought the Certificate Issue Register. In our opinion, the aforesaid evidence would not be relevant and was rightly rejected by the learned Tribunal.

¶109

31 . In the case of Bijoy Das vs UOI reported in 2018 (3) GLT 118, 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. However, in this case, the same has not been able to be done by the petitioner.

¶110

32 . In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 29.08.2018 passed by the learned Foreigners Tribunal no. 1, Kamrup (R) in G.F.T. Case No. 991/2017 does not call for any interference.

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33 . The writ petition accordingly stands dismissed. Interim order stands vacated.

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34 . The records of the aforesaid impugned order dated 29.08.2018 passed by the learned Foreigners Tribunal no. 1, Kamrup (R) in G.F.T. Case No. 991/2017 be returned to the concerned Foreigners Tribunal forthwith, along with a copy of this order.

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JUDGE JUDGE

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Comparing Assistant

Basaton Nessa @ Bachatan Necha v. the Union of India and 5 Ors.

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Basaton Nessa @ Bachatan Necha v. the Union of India and 5 Ors.

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Hatu Bhanu @ Hatu Bhan Vs the Union of India and 5 Ors.

Samsul Ali Vs the Union of India and 6 Ors.