Nur Alom Vs the Union of India and 5 Ors.

Date on which judgment is reserved : 30.04.2026 Date of pronouncement of judgment : 07.05.2026 Whether the pronouncement is of the operative part of the

¶32

judgment? : NA Whether the full judgment has been pronounced? : Yes

¶33

Page No.# 3/17

¶34

Judgment & Order

¶35

( S.K. Medhi , J.)

¶36

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 30.03.2019 passed by the learned Foreigners Tribunal No.2^nd , Barpeta in F.T. (2^nd ) Case No. 827/2016 [IM(D)T Case No.1240/B/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.

¶37

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

¶38

(i) A reference was made by the concerned Superintendent of Police (B), Barpeta against the petitioner giving rise to the aforesaid F.T. (2^nd ) Case No. 827/2016. 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.

¶39

(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 08.09.2017 along with certain documents.

¶40

(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 his and accordingly, the opinion was rendered declaring the petitioner to be

¶41

Page No.# 4/17

¶42

a foreign national post 25.03.1971.

¶43

We have heard Shri SC Biswas, 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 and Shri RKD Choudhury, learned Dy. SGI. We have also carefully examined the records which were requisitioned vide an order dated 16.09.2019.

¶44

Shri Biswas, 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 on affidavit and also the following documentary evidence.

¶45

(i) Ext-A certified copy of the voter list-1965;

¶46

(ii) Ext-B certified copy of the voter list -1989;

¶47

(iii) Ext-C certified copy of the voter list-1997;

¶48

(iv) Ext-D Elector Photo Identity Card of DW-II (Jubeda Bewa);

¶49

(v) Ext-E Photocopy of SLC dated 28.07.2017;

¶50

(vi) Ext-F Certificate dated 18.08.2017 issued by Gaonbura of vill – Chafakamar, Charge No.9;

¶51

(vii) Ext-G Elector Photo Identity Card of DW-2 (Kachem Ali); (viii) Ext-H Death Certificate dated 05.04.2018 of Jubeda Bewa.

¶52

Shri Biswas, 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 the petitioner is Noor Alam and his father’s name is Jahur Ali Mia.

¶53

Page No.# 5/17

¶54

He has proved the Voters List of the year 1965 containing the name of his projected father, Jahur Ali Mia and one Mahitan Nessa, projected step-mother. The next voter list exhibited is of the year 1989 containing the name of his mother – Jubeda Khatun followed by voter list of 1997 containing the name of Jubeda Bewa. He had also produced Certificates by the school and the Gaonbura. The petitioner has also relied upon a voter list of 1997. The petitioner had adduced evidence through his mother as DW2. However, before her crossexamination, the DW2 was stated to have expired and therefore, her deposition was not taken into consideration. The petitioner had also adduced evidence through one Kachem Ali – his projected step-brother as DW3.

¶55

Per contra, Shri Sarma, learned Standing Counsel, Home Department has categorically refuted the stand taken on behalf of the petitioner. He submits that a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 relates to determination as to whether the proceedee is a foreigner or not. Therefore, the relevant facts are especially within the knowledge of the proceedee and accordingly, the burden of proving citizenship rests absolutely upon the proceedee, notwithstanding anything contained in the Evidence Act, 1872 and this is mandated under Section 9 of the aforesaid Act, 1946. However, in the instant case, the petitioner utterly failed to discharge the burden. It is also submitted that rebuttal evidence is not mandatory in every case and would be given only if necessary. He further submits that the evidence of a proceedee has to be cogent, relevant, which inspire confidence and acceptable and only thereafter, the question of adducing rebuttal evidence may come in.

¶56

The learned Standing Counsel has further submitted that the written statement is the basic document which is supposed to lay down the foundation

¶57

Page No.# 6/17

¶58

of the case of the proceeding. He submits that in there is no credible materials to show any connection of the petitioner with Jahur Ali Mia. In the written statement, though it has been stated that the projected father of the petitioner had shifted to Safakamar, his name does not appear in any subsequent voter list. He has also submitted that while DW3, the projected step-brother of the petitioner (Kachem Ali) in his deposition had stated that their father expired 35 years ago, it transpires that the father had passed away in or about the year 1983 as the affidavit was filed by DW3 in the year 2018. However, the said DW3 could not establish any link with the projected father. He has also submitted that the written statement lacks the required information.

¶59

On the aspect of the School Certificate, the learned Standing Counsel has submitted that the same would not come to the aid of the petitioner and in this connection, he has relied upon the case of Khudeja Khatoon Vs. Union of India reported in 2018 (3) GLT 347 and the following observations have been pressed into service:

¶60

“12. Ext. A. is a transfer certificate dated 09.01.2016 issued by the Head Master of Uttar Durabandhi Beel LP School certifying that Musstt. Khudeja Khatoon was the daughter of Lt. Jonab Ali of Durabandhi Beel village under Moirabari Police Station in the district of Morigaon. She had left the school on 31.12.1988 after passing Class-II. As per admission register, her date of birth was 12.01.1981. This certificate cannot be accepted as a valid piece of evidence for more than one reason. Firstly, the State Emblem of India is embossed in the certificate. The State Emblem of India (Regulation of Use) Rules, 2007 has been framed by the Central Government in exercise of powers conferred by Section 11 of the State

¶61

Page No.# 7/17

¶62

Emblem of India (Prohibition of Improper Use) Act, 2005. This Act was enacted by the Parliament to prohibit improper use of the State Emblem of India. Section 3 specifically prohibits improper use of the State Emblem.—It says that notwithstanding anything contained in any other law for the time being in force, no person shall use the emblem or any colourable imitation thereof in any manner which tends to create an impression that it relates to the Government or that it is an official document of the Central Government or the State Government, without the previous permission or authorisation. Head Master of LP School is not authorised to use the State Emblem of India in any manner. Such unauthorised use of the State Emblem of India has rendered Ext. A inadmissible in evidence. Secondly, as per this certificate, petitioner had left the school on 31.12.1988. This certificate was issued 28 years thereafter on 09.01.2016. Such belated issuance would naturally cast serious aspersion on the bona fides of such certificate which is heightened by the unauthorised use of the State Emblem of India, that too, not as per the statutory format. Thirdly and most importantly, the author of the said certificate did not appear before the Tribunal along with the school admission registerto prove the contents of the said certificate, more particularly, date of birth and relation with Lt. Jonab Ali. How the date of birth in school certificate has to be proved has been settled by the Supreme Court long back in Birad Mal Singhvi vs Anand Purohit reported in 1988 (Supl) SCC 604 and further reiteration is not necessary. Therefore, Ext. A besides not been proved, is also inadmissible in evidence.”

¶63

He has also submitted that the Certificate dated 18.08.2017 of the

¶64

Page No.# 8/17

¶65

Gaonbura cannot be considered as relevant evidence inasmuch as, the Gaonbura was not examined and in this connection, he has relied upon the following observations made by this Court in the case of Khudeja Khatoon (supra):

¶66

“15. Ext. D is a certificate dated 15.06.2015 issued by the Secretary, Goriabori Gaon Panchayat certifying that Khudeja Khatoon was the daughter of Jonab Ali. At the top of this certificate, “Government of Assam” was prominently printed. It was also mentioned in the certificate that the same was issued on the basis of the evidence placed before the Secretary.

¶67

15.1. Firstly, this document does not appear to be a genuine document inasmuch as a Gaon Panchayat is not a department of the Govt. of Assam. Therefore, Gaon Panchayat is not authorised to use a letter head with “Govt. of Assam” printed therein. Secondly, the Secretary of the Gaon Panchayat did not testify before the Tribunal along with the evidence on the basis of which Ext. D certificate was issued to prove the certificate as well as the contents thereof. Therefore, this certificate was not proved. Thirdly, Supreme Court has clarified in Rupjan Begum Vs Union of India reported in (2018) 1 SCC 579, that such a certificate of the Gaon Panchayat Secretary is by no means proof of citizenship. Such a certificate has to be verified at two stages. At the first stage, authenticity of the certificate itself is required to be verified to find out as to whether it is genuine or not. The second stage of verification relates to verification of the contents. There is nothing on record to show that Ext. D had undergone any such verification exercise. Therefore, Ext. D cannot be accepted as a valid piece of evidence.”

¶68

Page No.# 9/17

¶69

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.

¶70

“ 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. …”

¶71

He has relied upon the case of Nur Begum Vs. Union of India and Ors. reported in 2020 (3) GLT 347 with regard to the observations qua the exercise of Certiorari jurisdiction, which read as follows:

¶72

“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

¶73

Page No.# 10/17

¶74

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.”

¶75

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.

¶76

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

¶77

Shri N. Kalita, learned counsel for the ECI and Shri P. Sarma, learned GA, Assam have supported the submissions advanced by Shri Sharma, 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.

¶78

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.

¶79

With regard to the aspect of burden of proof as laid down in Section 9

¶80

Page No.# 11/17

¶81

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-

¶82

“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.”

¶83

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-

¶84

“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

¶85

Page No.# 12/17

¶86

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.”

¶87

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.

¶88

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:

¶89

“49. Before we close this matter, we would like to observe something

¶90

Page No.# 13/17

¶91

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.

¶92

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.

¶93

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

¶94

Page No.# 14/17

¶95

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.”

¶96

This Court has noticed that in the written statement filed, the petitioner has not made the relevant disclosures.

¶97

As regards the voter list of 1965 is concerned, the same pertained to village Nichuka whereas in the voter list of 1989, the village is Safakamar and only the name of the projected mother appears. Further, while the age of the mother was shown as 54 years in 1989, the same got reduced to 50 years in the voter list of 1997 and there is also a change in the name of his mother. So far as the voter list of 1997 is concerned, the same is uncertified copy and the age of the petitioner has been shown as 30 years. No voter list of any earlier period containing the name of the petitioner has been proved. We do not find any irregularity on the part of the learned Tribunal in not taking into consideration the evidence of DW2 who could not be cross-examined. So far as the evidence of DW3 is concerned, in his cross-examination he had stated that the petitioner never casted any vote. Further, it is a settled position of law that the aspect of citizenship cannot be proved by any oral evidence and there has to be documents which are trustworthy and genuine. As regards the Certificates of the School and by the Gaonbura, the authors of such certificates were not examined and therefore, the same were not proved. In this regard, this Court takes aid of the judgment rendered in the case of Rupjan Begum (supra) wherein the Hon’ble Supreme Court had made the following observations:

¶98

Page No.# 15/17

¶99

“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.

¶100

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

¶101

Page No.# 16/17

¶102

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.”

¶103

In the cases of Bijoy Das Vs. UoI reported in 2018 (3) GLT 118 and Nur Begum (supra), this Court has laid down that in proceedings of this nature, oral evidence alone would not be enough and such evidence is required to be supported and corroborated by documentary evidence and contemporaneous records.

¶104

This Court in the case of Musstt. Ayesha Khatun @ Aisha Khatun vs. Union of India reported in (2017) 3 GLJ 490 has laid down that there has to be full disclosure in the written statement. However, in the instant case, there was no full disclosure of the relevant facts.

¶105

In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 30.03.2019 passed by the learned Foreigners Tribunal No.2^nd , Barpeta in F.T. (2^nd ) Case No. 827/2016 [IM(D)T Case No.1240/B/98] does not call for any interference. Accordingly, this writ petition being devoid of merits is dismissed. The interim order stands vacated.

¶106

The actions consequent upon the opinion rendered by the learned Tribunal would follow in accordance with law.

¶107

The records of the aforesaid impugned order dated 30.03.2019 passed by the learned Foreigners Tribunal No.2^nd , Barpeta in F.T. (2^nd ) Case No. 827/2016 be returned to the concerned Foreigners Tribunal forthwith, along

¶108

Page No.# 17/17

¶109

with a copy of this order.

¶110

JUDGE JUDGE

¶111

Comparing Assistant

Nur Alom v. the Union of India and 5 Ors.

Case brief

What is this about?

Nur Alom v. the Union of India and 5 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Intaj Mandal Alias Intaj Ali Vs the Union of India and 7 Ors.

Abdus Chattar @ Sattar Ali Vs the Union of India and 7 Ors.

Mohiruddin @ Mohur Uddin @ Mohir Uddin Sheikh Vs the Union of India and 10 Ors.

Sangita Saharia and Ors. Vs Sabita Nath and Ors.

Jibon Ali Vs the Union of India and 5 Ors.

Ismail Ali @ Ismail Vs the Union of India and 5 Ors.