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

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 20.11.2018 passed by the learned Foreigners Tribunal no. 4^th , Darrang, Mangaldai, Assam in F.T. 4^th Case No. 46/DHL/2016 arising out of Reference vide IM (D) T Case No. 482/98. By the impugned judgment, the petitioner, who was the proceedee before the learned Tribunal, has been declared to be a foreigner post 25.03.1971.

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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), Darrang District, against the petitioner giving rise to the aforesaid F.T. 4^th Case No. 46/DHL/2016.

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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 14.02.2017 along with certain documents and adduced evidence through 3 DWs.

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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 S. A. Ahmed, learned counsel for the petitioner. We have also heard Shri G. Sarma, learned Standing Counsel, Home Department & NRC; Shri P. Sarma, learned GA, Assam, Shri N. Kalita, learned counsel appearing on behalf of Shri A. I. Ali, learned Standing Counsel, Election Commission of India. We have also carefully examined the records which were requisitioned vide an order dated 08.12.2021.

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

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following documentary evidence. It may be mentioned that in the affidavit filed by the petitioner, though a number of documents were referred and marked as exhibits, only the following documents were actually produced and this aspect has been taken note of by the learned Tribunal:

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Ext-1: A certified copy of the Voter list 1966.

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Ext-2: A certified copy of the Voter list 1970.

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Ext-3: A copy of the Certificate issued by Panchayat Secretary.

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Ext-4: A certified copy of the Voter list 1997.

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Ext-5: A copy of the NRC Legacy Data of 1966.

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Ext-6: A Copy of the NRC Legacy Data of 1970.

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Ext-9: Legacy Data 1971.

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Ext-15: Gaonburha certificate of 2 No. Magurmari.

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Ext.16. Gaonburah Certificate.

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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 name of her parents appeared in the Voters Lists of 1966 and 1970. He has submitted that the certificate by the Gaon Panchayat has provided the link of the petitioner with her father and therefore the petitioner had discharged the burden. The petitioner had relied upon the Voter List of 1997 in which her name appears. She has also relied upon a Legacy Data.

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6. 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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7. Per contra, Shri G. Sarma, the learned Standing Counsel, Home Department has categorically refuted the stand taken on behalf of the petitioner. He submits

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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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8. 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 vague. There is no date or year of the births 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 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

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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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9 . He has submitted that there is not a single document to establish the citizenship of the petitioner. It is submitted that she has failed to establish any link with the projected parents. He further submits that so far as the Voters List of 1997 is concerned, the same is not a certified copy and in any case, the age of the petitioner is shown as 55 years and there is no previous Voters List which is astonishing. As regards the certificate issued by the Gaon Panchayat, by no means, the same could be deemed as a proof of citizenship, more so, when the Secretary (the author) of the Panchayat was not examined. He has submitted that use of national emblem on such certificate is also unauthorized. He has also submitted that though 28 documents were mentioned in the written statement, only 9 documents were placed.

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10. 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

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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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11 . 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 read 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 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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12. 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

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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. He has also submitted that NRC data cannot be treated as conclusive proof of citizenship.

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

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14 . The learned counsel for the other respondents have supported the submissions advanced by Shri Sarma, 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. It is further submitted 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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15 . 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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16 . 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

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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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17 . 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

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judgment of the High Court holding that onus of showing that he is not a foreigner was upon the respondent.”

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18 . 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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19 . 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 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

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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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20 . In the instant case, the written statement is absolutely vague and apparently, has not met the requirements, 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

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knowledge of the person concerned and not of the authorities of the State.

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21 . So far as the Voters Lists of 1966 and 1970 are concerned containing the names of the projected parents of the petitioner, it is found that in both the Voters Lists the ages have not changed. In any case, the same cannot serve as a link document with the petitioner.

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22 . So far as the certificate by the Gaon Panchayat is concerned, the same cannot be treated as an admissible evidence in absence of proof of the same. The records revealed that the author of the certificate, namely the Secretary was not examined and therefore the certificate would not have any evidentiary value. In this connection, this Court takes the aid of the judgment of the Hon’ble Supreme Court in the case of Rupjan Begum (supra) wherein the following observations have been made in a context of a certificate by the Gaon Panchayat:

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“15. The certificate issued by the G.P. Secretary merely acknowledges the shifting of residence of a married woman from one village to another. The said certificate by itself and by no means establishes any claim of citizenship of the holder of the certificate. This is made clear in the illustrative list of documents itself by specifying the same to be only a supporting document. The certificate in question only enables its holder to establish a link between the holder and the person from whom legacy is claimed. It has been made clear in the several reports of the learned State Coordinator, NRC, Assam that a claim accompanied by such a certificate, without details of the legacy person, is to be discarded and in the event information as to the legacy person has been furnished, the certificate in question is to be used for the limited purpose of providing a linkage after due enquiry and verification.

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The certificate issued by the G.P. Secretary, by no means, is proof of

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citizenship. Such proof will come only if the link between the claimant and the legacy person (who has to be a citizen) is established. The certificate has to be verified at two stages. The first is the authenticity of the certificate itself; and the second is the authenticity of the contents thereof. The latter process of verification is bound to be an exhaustive process in the course of which the source of information of the facts and all other details recorded in the certificate will be ascertained after giving an opportunity to the holder of the certificate. If the document and its contents is to be subjected to a thorough search and probe we do not see why the said certificate should have been interdicted by the High Court, particularly, in the context of the facts surrounding the enumeration and inclusion of the documents mentioned in the illustrative list of documents, as noticed above. In fact, the said list of illustrative documents was also laid before this Court in the course of the proceedings held from time to time and this Court was aware of the nature and effect of each of the documents mentioned in the list.

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The above apart, from a conjoint reading of the provisions of the Assam Panchayat Act, 1994 i.e. Sections 19(1)(vi), 21 and 122, it would appear that directions for issuance of such certificate can come within the ambit of the jurisdiction of the authorities under the Act in which event the view taken by the High Court and the contentions advanced on behalf of the State that the said document is a 'private document' would be legally fragile.”

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23 . So far as the Voters List of 1997 is concerned, no certified copy of the same was produced before the learned Tribunal and therefore is not an admissible evidence. Furthermore, what is intriguing is that in the Voters List of 1997 the petitioner is shown to be aged 55 years. However, there is not any single Voters List of previous years of the petitioner which raises a serious doubt. As regards the Legacy Data, it is a settled position of law that such Data

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cannot be construed as a conclusive proof of citizenship.

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24 . As regards the evidence adduced, it is found that DW 2 is a cousin and DW 3 is a projected brother. Their evidence have not been able to establish the citizenship of the petitioner by the documentary evidence. 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.

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25 . In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 20.11.2018 passed by the learned Foreigners Tribunal no. 4^th , Darrang, Mangaldai, Assam in F.T. 4^th Case No. 46/DHL/2016 arising out of Reference vide IM(D)T Case No. 482/98 does not call for any interference.

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26 . The writ petition accordingly stands dismissed. Interim order passed earlier stands vacated. The actions consequent upon the opinion rendered by the learned Tribunal would follow in accordance with law.

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27 . The records of the learned Tribunal be returned forthwith, along with a copy of this order.

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JUDGE JUDGE

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Comparing Assistant

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

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

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