Ujjal Bhuyan, J.

Heard Mr. S. B. Rahman, learned counsel for the petitioner, Mr. C. Choudhury, learned Advocate General, Assam assisted by Mr. R. Dhar, learned Govt. Advocate, Assam and Mr. S.C. Keyal, learned Assistant Solicitor General of India assisted by Ms. G. Sharma, learned Central Government counsel.

2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 17.03.2016 passed by the Foreigners Tribunal No.5, Dhubri in FT Case No.FT-5/G/58/2015 declaring the petitioner to be a foreigner who had illegally entered into India (Assam) after 25.03.1971.

3. In the course of hearing, an issue of considerable public interest surfaced, namely, legality of the certificate issued by the Gaon Panchayat Secretary and counter-signed by Revenue Officer of the State certifying residentship of the certificate holder (petitioner) in an area within his jurisdiction, as a supporting document for inclusion in updated National Register of Citizens (NRC) which the petitioner relied upon in support of her contention of being a citizen of India and not a foreigner. We will discuss this issue in the second part of the judgment under the heading “Larger Issue”.

4. First we will attend to the challenge made in the writ petition, namely, declaration of the petitioner by the Foreigners Tribunal No.5, Dhubri as a foreigner of post 1971 stream.

WP(C) NO.2364/2016

5. A perusal of the order dated 17.03.2016 would go to show that initially a reference was made by the State under the Illegal Migrants (Determination by Tribunals) Act, 1983 with the allegation that petitioner was a foreigner who had illegally entered into India (Assam) after 25.03.1971. After the said Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal Vs. Union of India, (2005) 5 SCC 665, the reference was re-registered under the Foreigners Act, 1946 and Foreigners (Tribunals) Order, 1964. Ultimately, after creation of additional Tribunals, the reference was assigned to the Foreigners Tribunal No.5, Dhubri (Tribunal) as FT Case No.FT-5/G/58/2015.

6. Notice issued by the Tribunal was served upon the petitioner whereafter she had entered appearance and submitted her written statement. She also examined herself as her witness and exhibited five documents.

7. After due consideration, Tribunal took the view that petitioner had failed to discharge her burden under Section 9 of the Foreigners Act, 1946 to prove that she was not a foreigner but an Indian citizen and accordingly vide order dated 17.03.2016, declared the petitioner as a foreigner who had illegally entered into India (Assam) on or after 25.03.1971.

8. Learned counsel for the petitioner vehemently argued that petitioner had adduced sufficient evidence, both oral and documentary, to establish that she was not a foreigner but a citizen of India by birth. Thus, she had discharged her burden under Section 9. However, Tribunal taking a very technical and narrow approach, disbelieved the version of the petitioner and came to an erroneous conclusion by declaring the petitioner to be an illegal foreigner thereby visiting the petitioner with far reaching consequences. Referring to the documents placed on record including those annexed to the writ petition, he submits that view taken by the Tribunal is incorrect and requires interference by the Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. In support of his submissions, learned counsel for the petitioner placed reliance on the following decisions:-

(1999) 6 SCC 110 = Rajendra Prasad Vs. Narcotic Cell

(2009) 12 SCC 454 = Shyam Lal Vs. Sanjeev Kumar

9. On the other hand, learned counsel for the respondents support the order of the Tribunal and contend that being a finding of fact based on appreciation of evidence, the writ Court may not interfere with such finding of fact which is otherwise also fully justified in the facts and circumstances of the case.

10. Submission