Abdul Ajid @ Md. Harzid Ali Vs the Union of India and 4 Ors.

Date of pronouncement of judgment : 05.04.2026 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 31.10.2016 passed by the learned Foreigners Tribunal no.10^th , Nagaon in F.T. (D) Case No. 216/2015 arising out of SP’s FT Case No. 313/2006. 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) The proceeding was initiated against the petitioner after receipt of

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the Enquiry Report and notice was issued to the petitioner in the aforesaid F.T. Case No. 216/2015.

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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 15.10.2015 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 him 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. S. Tapadar, learned counsel for the petitioner. We have also heard Shri J. Payeng, learned Standing Counsel, Home Department & NRC; Shri P. Sarma, learned GA, Assam, Shri A. I. Ali, learned Standing Counsel, Election Commission of India and Shri P.S. Lahkar, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 09.02.2017.

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4. Shri Tapadar, 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 the evidence on affidavit of the four numbers of witnesses and also the following documentary evidence:

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(i) Ext.-1 is the certified copy of the Voters list of 1965

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(ii) Ext.- 2 is the certified copy of the Voters list of 1970;

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(iii) Ext-3 is a residency certificate issued by the Govt. Gaonburah of Charlock village.

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(iv) Ext-4 accordingly to the OP/DW-1 is a downloaded copy of the NRC Legacy Data of 1951;

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(v) Ext-5 is the proved in Original copy of the Voter’s Photo I/D.

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5. Shri Tapadar, the learned counsel has submitted that in the written statement, all material disclosures were made. It is submitted that the name of the petitioner is Abdul Ajid @ Md. Harzid Ali, and his father’s name is Abdul Hussain. He had proved the Voters Lists of the years 1965 and 1970 containing the name of his father as Abdul Hussain. He has also produced the Voter Lists of the years 1975 and 1985 wherein the name of his projected father has been written as A. Hussain. The petitioner has proved the Voters List of 1993 wherein his name appears as A. Ajid and the subsequent Voters List of 1997 where his name appears as Abdul Ajid.

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6. The learned counsel has submitted that the petitioner has also proved the Residency Certificate by the Government Gaonburah of Charlock Village and has contended that his citizenship was duly proved.

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7. The learned counsel for the petitioner has also submitted that the reference was for the stream 1966-1971 and the comment in the Local Verification Officer (LVO) report was that the petitioner had stayed in India in the said period. He accordingly submits that the opinion could not have been rendered by the learned Tribunal holding the petitioner to be a foreigner post 1971. He contends that the learned Tribunal had erred both in law as well as in facts and accordingly the impugned judgment is liable to be interfered with.

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8. Per contra, Shri J. Payeng, 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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9. The learned Standing Counsel has further submitted that the written statement is the basic document which is supposed to lay down the foundation of the case of the proceeding. He submits that in the written statement, there is no reference regarding the date of birth of the petitioner, his siblings and other details. There is no statement regard the shifting of residence and the change in names. He has also pointed out the inconsistencies of the age of the projected father as well as the petitioner in different Voters Lists. As regards the certificate by the Gaonburah, he has submitted that the same was not proved by the concerned Gaonburah and therefore cannot be accepted as evidence. He has submitted that no link could be established with the projected father and the certificates issued by the Panchayat and Gaonburah could not be proved. Though there was another certificate by a Gaonburah, the Gaonburah, in his deposition had clarified that the evidence was hearsay.

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10. As regards the point sought to be raised by the petitioner on the Reference, the learned Standing Counsel has submitted that the Reference is post 1966 and no particular stream was mentioned. He has also submitted that the issue regarding acting beyond the Reference has now been settled by this Court in the Judgment dated 12.06.2023 rendered in the case of Rukia Begum Barbhuiya @ Rukia Begum Vs The Union Of India & Ors wherein the following have been laid down:

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In view of the provisions of Section 6 A of the Citizenship Act 1955, Clause 2(1) of the Foreigners Tribunal Order 1964 would now have to be understood that once a reference is made, the reference would be whether the person concerned is or is not a foreigner, meaning thereby, whether the person concerned is a foreigner, who had entered the Staten of Assam from the specified territory on or after 25.03.1971 or he is a person who belongs to any of the other categories i.e., a person who entered the State of Assam from the specified territory before 01.01.1966 or between 01.01.1966 and 25.03.1971. No other meaning can be attributed to the reference under Clause 2(1) of the Foreigners Tribunal Order 1964 i.e. whether a person is or is not a foreigner within the meaning of the Foreigners Act 1946. We further take note that even if a reference is made by setting up a question whether the person had entered the State of Assam from the specified territory between 01.01.1966 and 25.03.1971, the reference would have to be understood to be a reference under Clause 2(1) of the Foreigners Tribunal Order 1964 i.e., as to whether he is a foreigner or not. If the reference is worded whether the person concerned, is a person who had entered the State of Assam from the specified territory between 01.01.1966 and 25.03.1971, in order to arrive at any such conclusion that the reference itself is faulty inasmuch as, the decision of the Tribunal upon the materials on record would be that the person concerned had entered the

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State of Assam from the specified territory on or after 25.03.1971, in such circumstance, the only situation that can be envisaged is that the Tribunal first arrives at a conclusion of its own that the person concerned had entered the State of Assam from the specified territory on or after 25.03.1971, meaning thereby that the reference itself had been answered by the Tribunal. After having answered the reference, it would be an inconceivable situation that merely because the reference is worded whether the person had entered the State of Assam from the specified territory between 01.01.1966 and 25.03.1971 it has to be referred back to the referral authority to make a fair reference now putting up a question whether the person concerned had entered the State of Assam on or after 25.03.1971. In such situation, as the matter would have to be referred back only after a final decision has been arrived at and now if the reference is again made with a corrected expression in the questions framed, the same may lead to further complications that the subsequent reference would be barred by the principles of res judicata inasmuch as it would be a subsequent reference on the same issue between the same set of parties where an earlier decision had already been arrived at. It is noticed that in Falani Bibi (supra) the aforesaid aspect of the further implication of a corrected reference being again made had not been gone into and from such point of view, it can be said that the view taken therein would be per Incuriam of the further consequences of a fresh reference being made.

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The term stare decisis is defined in the Black’s Law Dictionary to mean the doctrine of precedent under which a Court must follow earlier judicial decisions when the same point arise again in a litigation. We are in complete agreement with the principles of precedent and stare decisis that the Court must follow the earlier judicial decisions when the same point arise in a litigation, but at the same time, it is also an accepted principle of law that the doctrine of per

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incuriam is an exception to the doctrine of stare decisis. The doctrine of per incuriam is defined to be a judicial decision, which was wrongly decided because the judge or the judges were ill informed about the applicability of the law. In the instant case, when the decision in Falani Bibi (supra) was rendered, the further technical complication that may arise upon a fresh and corrected reference being made that it may be barred by the principles of res judicata was neither urged upon, nor was gone into by the Court. The question whether the reference is faulty or not can only be determined after there is a decision being rendered that the person concerned entered the State of Assam from the specified territory on or after 25.03.1971, whereas the referred question was whether he entered the State of Assam between 01.01.1966 and 25.03.1971. In other words, the conclusion as to whether the reference is faulty or not can be arrived at only after the final decision has been rendered on the materials being produced and, therefore, as a decision had been rendered upon the materials being produced, the same issue if again referred back with any correction in the wordings in the reference may invoke the principles of res judicata that it cannot be referred and answered again as it would be a subsequent reference on the same issue which is between the same parties and was decided in a prior proceeding. In the circumstance, we are of the view that the principle of per incuriam would be applicable in the instant case rather than the principle of stare decisi.”

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11 . In support of his submission that a certificate has to be proved from contemporaneous records, the learned Standing Counsel has relied upon the judgment passed in the case of Romila Khatun vs. Union of India reported in 2018 (4) GLT 373 and the following observations have been pressed into service.

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“ 20. It is trite that documentary evidence would have to be proved on the

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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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12 . He has relied upon the case of Nur Begum vs. Union of India and Ors. reported in 2020 (3) GLT 347 on the aspect of exercise of Certiorari jurisdiction while examining a decision of the Tribunal, the relevant observations of 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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13 . Shri Payeng, the learned Standing Counsel has also relied upon the case of

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

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15 . Shri A. I. Ali, learned Standing Counsel, ECI and Shri P. Sarma, learned GA, Assam have supported the submissions advanced by Shri Payeng, the learned Standing Counsel, Home Deptt. & NRC and have prayed for dismissal of the writ petition. They have submitted that this Court, in exercise of its Certiorari jurisdiction does not act as an Appellate Court and it is only the decision making process which can be the subject matter of scrutiny. He submits that there is no procedural impropriety or illegality in the decision making process and therefore, the instant petition is liable to be dismissed.

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16 . 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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17 . 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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18 . 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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19 . 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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20 . 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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21 . This Court has noticed that in the written statement filed, the petitioner has not made the relevant disclosures. There is no mention regarding the date or year of birth of the petitioner or any information about any siblings. There is no disclosure of the family tree. There is no disclosure regarding shifting or the variations and inconsistencies in the names of both the petitioner and his projected father in the Voters Lists including the age. This Court has also noticed that the first Voters List containing the name of the petitioner is of 1993 when his age was 25 years and there is no Voters Lists of prior period in spite of the fact that the petitioner had attained the age of right to franchise earlier.

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22 . With regard to the submission that the Tribunal had traversed beyond the Reference, apart from the judgment of Rukia Begum Barbhuiya (supra) holding the field, on a verification with the records, it is found that no stream, as such was there and it was only written as post 1966. Though the LVO report contains a comment that the petitioner stayed in India between 1966-1971, when the petitioner was admittedly born in or around 1976 such comment would not have any relevance in the adjudication process. It may be mentioned that the accompanying affidavit of the present writ petition filed in February, 2017, the petitioner had disclosed his age as 41 years.

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23 . 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.

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24 . 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.

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25 . In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 31.10.2016 passed by the learned Foreigners Tribunal no. 10^th , Nagaon in F.T. (D) Case No. 216/2015 arising out of SP’s FT Case No. 313/2006 does not call for any interference. Accordingly, this writ petition being devoid of merits is dismissed. The interim order stands vacated.

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26 . 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 concerned Foreigners be returned forthwith, along with

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a copy of this order.

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JUDGE JUDGE

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Comparing Assistant

Abdul Ajid @ Md. Harzid Ali v. the Union of India and 4 Ors.

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Abdul Ajid @ Md. Harzid Ali v. the Union of India and 4 Ors.

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