Saif Uddin @ Md. Sarif Uddin Vs the Union of India and 4 Ors.

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GAHC010012342017

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

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Case No. : WP(C)/760/2017

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SAIF UDDIN @ MD. SARIF UDDIN S/O LT. IBRAHIM ALI, R/O CHARLOCK, P.O. JANGAL BLOCK, P.S. JAMUNAMUKH, DIST- HOJAI, ASSAM

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VERSUS THE UNION OF INDIA and 4 ORS. REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI 2:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-6 3:THE DY. COMMISSIONER HOJAI DIST- HOJAI ASSAM 4:THE SUPERINTENDENT OF POLICE B HOJAI DIST- HOJAI ASSAM 5:THE OFFICER IN CHARGE HOJAI POLICE STATION DIST- HOJAI ASSA

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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.S. Tapadar. Advocates for the respondents : Shri G. Sarma, SC- Home Deptt& NRC, Shri P. Sarma, GA, Assam; Shri N. Kalita (representing Shri A.I. Ali, SC, ECI.) Shri R.K.D. Choudhury, DSGI.

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Date on which judgment is reserved : 28.04.2026 Date of pronouncement of judgment : 05.05.2026 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 at Sankardev Nagar, Hojai in F.T. (D) Case No. 209/2015. 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 concerned Superintendent of Police (B), against the petitioner giving rise to the aforesaid F.T. (D) Case No. 209/2015.

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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 05.10.2015 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 his and accordingly, the opinion was rendered declaring the petitioner to be a foreign national post 25.03.1971.

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We have heard Shri A.S. Tapadar, 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 DSGI. We have also carefully examined the records which were requisitioned vide an order dated 25.09.2019.

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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 his evidence on affidavit and also the following documentary evidence.

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(i) Ext-1 certified copy of the voter list-1966; (ii) Ext-2 certified copy of the voter list -1970; (iii) Ext-3 certified copy of the voter list-2011;

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(iv) Ext-4 certified copy of voter list -2014;

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(v) Ext-5 Residency Certificate of Gaonbura;

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(vi) Ext-6 voter Identity Card of the petitioner.

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(vii) Ext-7 Certificate of the Gaon Panchayat.

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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 Saif Uddin @ Md. Sarif Uddin and his father’s name is Ibrahim Ali. He has proved the Voters Lists of the years 1966 and 1970 containing the name of his projected father, Ibrahim Ali. Further, three nos. of Voters Lists of the years 1977, 1985 and 1989 have been enclosed to the writ petition which however were not produced before the learned Tribunal and therefore under Certiorari jurisdiction, this Court is not obligated in law to consider the same. However, for the interest of justice, when those Voters Lists have been examined, it is found that there are inconsistencies in the House Nos., villages and ages. While in the Voters List of 1977 containing the name of the projected father with age as 50 years, in the subsequent Voters List of the year 1985, the age of the father gets reduced to 45 years and suddenly, in the Voter List of 1989, the age becomes 72 years. He had also produced Residency Certificates of Gaon Burah and the Gaon Panchayat. However, the authors of such certificates were not examined

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Per contra, Shri Sarma, the 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)

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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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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. He has submitted that no link could be established with the projected father.

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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

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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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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 exercise of Certiorari jurisdiction 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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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 and in the instant case, the same has not been done.

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

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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

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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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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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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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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

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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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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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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 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

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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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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 her siblings. There is no disclosure of the family tree.

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The petitioner had relied upon the Voters Lists of 1966 and 1970 containing the names of his father. However, no link documents could be proved. Further, three nos. of Voters Lists of the years 1977, 1985 and 1989 have been enclosed to the writ petition which however were not produced before the learned Tribunal and therefore under certiorari jurisdiction, this Court is not obligated in law to consider the same. However, for the interest of justice, when those Voters List have been examined, it is found that there are inconsistencies in the House Nos., villages and ages. While in the Voters List of 1977 containing the name of the projected father with age as 50 years, in the subsequent Voter List of the year 1985, the age of the father gets reduced to 45 years and suddenly, in the Voter List of 1989, the age becomes 72 years. He had also produced Residency Certificates of Gaon Burah and the Gaon Panchayat. However, the authors of such certificates were not examinedand therefore, the same were not proved. In this regard, this Court takes aid of the judgment rendered in the case of Rupjan Begum (supra).

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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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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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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 at Sankardev Nagar, Hojai in F.T. (D) Case No. 209/2015 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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The actions consequent upon the opinion rendered by the learned Tribunal would follow in accordance with law.

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The records of the aforesaid impugned order dated 31.10.2016 passed by the learned Foreigners Tribunal No.10^th , Nagaon at Sankardev Nagar, Hojai in F.T. (D) Case No. 209/2015 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

Saif Uddin @ Md. Sarif Uddin v. the Union of India and 4 Ors.

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Saif Uddin @ Md. Sarif Uddin v. the Union of India and 4 Ors.

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