JUDGMENT & ORDER : 1. Heard Mr. S. Huda, learned counsel for the petitioners, Mr. S.C. Keyal, learned Assistant Solicitor General of India and Mr. G. Pegu, learned Govt. Advocate, Assam. 2. By filing this petition under Article 226 of the Constitution of India, petitioners seek quashing of order dated 29.02.2012, passed by the Foreigners Tribunal (1st), Morigaon, in FT(C) Case No. 726/2006, declaring the petitioners to be foreigners who had illegally entered into India (Assam) from Bangladesh after 25.03.1971. 3. Six petitioners have joined together and have instituted the present common proceeding, as all of them were proceedees in FT (C) Case No. 726/2006. Petitioner No. 1 is the husband and petitioner No. 2 is the wife. Petitioner Nos. 3, 4 & 5 are sons of petitioner No. 1 whereas, petitioner No. 6 is the daughter of petitioner No. 1. 4. Initially, a reference was made by the State under the Illegal Migrants (Determination by Tribunals) Act, 1983 with the allegation that petitioners were illegal migrants as defined under the said Act. After the said Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal vs. Union of India, reported in (2005) 5 SCC 665 , the reference was re-registered under the provisions of Foreigners’ Act, 1946 and Foreigners’ (Tribunal) Order, 1964 as FT (C) Case No. 726/2006 and assigned to the Foreigners’ Tribunal (1st), Morigaon (Tribunal) for decision. Notice issued by the Tribunal was served upon the petitioners whereafter, they had entered appearance and had filed written statement denying the allegation made by contending that they were not foreigners but citizens of India by birth. While the petitioners did not adduce evidence, on behalf of the State, three witnesses gave evidence and four documents were exhibited. In the course of hearing, petitioners produced before the Tribunal a copy of order dated 24.10.1989, passed by the Foreigners’ Tribunal, Nagaon in FT Case No. 1347/1988 and contended that mother of petitioner No. 1, Sahera Khatun along with petitioner No. 1, Md. Abdul Rahman and one Ramjan Ali were declared by the Foreigners’ Tribunal to be not foreigners but citizens of India. Therefore, there was no basis for the reference against the petitioners. However, Tribunal did not accept the contention advanced on behalf of the petitioners. Abdul Rahman and one Ramjan Ali were declared by the Foreigners’ Tribunal to be not foreigners but citizens of India. Therefore, there was no basis for the reference against the petitioners. However, Tribunal did not accept the contention advanced on behalf of the petitioners. The contention was rejected; firstly, on the ground that a photo copy and not the certified copy of the order dated 24.10.1989 was produced and secondly and more importantly, the proceedees in FT Case No. 1347/1988 were not the same as the present petitioners. Moreover, no document was exhibited by the petitioners. Therefore, Tribunal passed the order dated 29.02.2012 declaring the petitioners to be foreigners who had illegally entered into India (Assam) from Bangladesh after 25.03.1971. The reference was answered accordingly. 5. Aggrieved, present writ petition has been filed. 6. This Court, by order dated 10.05.2012 had issued notice and passed an interim order to the effect that on appearance of the petitioners before the Superintendent of Police (B), Morigaon and on furnishing of adequate surety, they would not be taken into custody and deported from India. 7. Mr. S Huda, learned counsel for the petitioners strenuously argued that petitioner No. 1, Md. Abdul Rahman was also one of the proceedees in FT Case No. 1347/1988 in which case, the Foreigners’ Tribunal had declared him along with his mother and brother to be not foreigners but citizens of India. Tribunal committed a manifest error in ignoring the said order despite copy of the same being produced before the Tribunal. This has resulted in an erroneous decision causing serious prejudice to the petitioners. When petitioner No. 1 has been declared to be a citizen of India, there was no need for initiating further or fresh proceeding against petitioner No. 1 or for that matter against the other petitioners. In this connection, he submits that certified copy of the order dated 24.10.1989, passed in FT Case No. 1347/1988 has been placed before the Court in the present proceeding. He, therefore, submits that impugned order dated 29.02.2012 is wholly untenable and should be set aside and quashed. 8. Per contra, Mr. G. Pegu, learned Govt. Advocate submits that FT Case No. 1347/1988 was in respect of the following proceedees:- (1) Sahera Khatun W/o Abdul Harish (2) A Rahman S/o Abdul Harish (3) Ramjan Ali S/o. Abdul Harish On the other hand, petitioner No. 1 is Md. 8. Per contra, Mr. G. Pegu, learned Govt. Advocate submits that FT Case No. 1347/1988 was in respect of the following proceedees:- (1) Sahera Khatun W/o Abdul Harish (2) A Rahman S/o Abdul Harish (3) Ramjan Ali S/o. Abdul Harish On the other hand, petitioner No. 1 is Md. Abdul Rahman, S/o. Lt. Harej Ali. Therefore, petitioner No. 1 is not the same person as A Rahman (proceedee No. 2 of FT Case No. 1347/1988). The proceedees of FT Case No. 1347/1988 belonged to a different family and the petitioners are trying to take undue advantage on account of familiarity of name. No case for interference is made out, he submits. Writ petition should therefore, be dismissed. 9. Submissions made by Mr. Pegu, learned Govt. Advocate are supported by Mr. SC Keyal, learned Assistant Solicitor General of India. 10. Submissions made by learned counsel for the parties have received the due consideration of the Court. Also perused the materials on record. 11. At the outset, it would be apposite to advert to the order passed by the Tribunal dated 29.02.2012; relevant portion of which is extracted hereunder:- “(3) I have carefully perused the records and heard argument from both sides. As per provisions of section 9 of the Foreigners’ Act, 1946, it is a primary duty of the suspected nationals to establish that he/they is/are not foreigners of any particular class or description. In this reference, the OP submitted photocopy of the order, dated 24.10.1989 passed by the learned Member, FT, Nagaon in connection with FT Case No. 1347/1988, one revenue receipt, one photocopy of certificate from Pavakati Gaon Panchayat, one photocopy of voter list, 1965 in the name of Sahera Khatun, wife of Hafej, one photocopy of notice issued by the learned Member, FT, Nagaon in the name of Sahera Khatun, wife of Lt. Abdul Harish; Abdul Rahman, Ramjan Ali, sons of Lt. Abdul Harish. These photo copies of documents were not proved by the OP with the originals as required by the Evidence Act. The GP also submitted as many as 5 (five) Nos. of certificates issued by the Gaonburah of Naramari No. 1 Kisam, Shri Pitkan Bordoloi. These certificates were also not proved and exhibited in due manner of law. Abdul Harish. These photo copies of documents were not proved by the OP with the originals as required by the Evidence Act. The GP also submitted as many as 5 (five) Nos. of certificates issued by the Gaonburah of Naramari No. 1 Kisam, Shri Pitkan Bordoloi. These certificates were also not proved and exhibited in due manner of law. The learned counsel appearing for the OP submitted that since OP No. 1, Abdul Rahman; his mother, Sahera Khatun and brother, Ramjan Ali were already declared as not foreigners by the learned Member, FT, Nagaon vide its order, dated 24.10.1989 in FT Case No. 1347/1988, the present OP, Abdul Rahman and other members of his family are also not foreigners. Upon perusal of the certified copy of the order, dated 24.10.1989 in FT Case No. 1347/1988 passed by the learned Member, FT, Nagaon (though not exhibited), it appears that in that case, one Sahera Khatun, W/o. Abdul Harish along with Abdul Rahman and Ramjan Ali, sons of said Abdul Harish were parties of the reference, but in this case, OP No. 1, Abdul Rahman was the son of Lt. Harej Ali and Fatima Khatun was the wife of Abdul Rahman. Similarly, other Ops, namely, Hasen Ali, Husshin Ali, Yasin Ali and Hasnara Begum were the sons and daughter of Abdul Rahman. Hence, the photocopy of the certified copy of the order, dated 24.10.1989, passed by the learned Member, FT, Nagaon in FT Case No. 1347/1988 cannot be said to relate with the Ops mentioned in this reference. That apart, this copy of the order was not proved and exhibited as required by law. OP No. 1, Abdul Rahman while deposing as OPW 1 also stated that his father’s name was Abdul Harej and the police records also show that said Harej Ali was the father of OP No. 1 and OP No. 2. Fatima Khatun was the wife of Abdul Rahman. The evidence of the prosecution witnesses that the Ops mentioned in this reference illegally entered into India (Assam) after 25.03.1971 was not successfully challenged by the OP. The OP did not produce any voter list prior to 1971, but the only photocopy of the voter list, 1977 containing the name of Abdul Rahman (OP No. 1), S/o. Abdul Harish was also not proved in due manner of law. The OP did not produce any voter list prior to 1971, but the only photocopy of the voter list, 1977 containing the name of Abdul Rahman (OP No. 1), S/o. Abdul Harish was also not proved in due manner of law. It was held by the Hon’ble High Court in WP(C) No. 5497/2008 on 15.05.2009 that “Nothing has been shown to establish the linkage to pre 25.03.1971 period. Photocopies of the documents, needless to say are inadmissible in evidence.” Again Hon’ble Justice BP Katakey, in WP (C) No. 2405/2009 – State vs. Araf Ali & Others, was pleased to observe that “Mere filing of certain documents before the learned Tribunal constituted under the provisions of the 1946 Act, unless those documents are proved and marked as exhibits as required under Indian Evidence Act, would not be enough.” (4) In view of the above, I am of the opinion that the Ops in this reference miserably failed to prove their Indian nationality as required by law. (5) In the result, I hold and declare that all the surviving Ops are foreigners U/S 2 (a) of the Foreigners’ Act, 1946 who illegally entered into India (Assam) after 25.03.1971 as alleged by the State. The names of the foreigners if enrolled in any voter list in Assam be deleted forthwith as per relevant law.” 12. From a perusal of the order passed by the Tribunal, it is seen that petitioners had submitted the following documents:- (1) Revenue receipt. (2) Photo copy of certificate of Pavakati Gaon Panchayat. (3) One photo copy of voters list of 1965. However, these documents were not exhibited by the petitioners. Therefore, Tribunal did not accept these documents by observing that mere filing of documents without proving the contents thereof and the truthfulness of the same would not be enough. It is also seen that petitioners had produced a copy of order dated 24.10.1989, passed by the Foreigners’ Tribunal, Nagaon in FT Case No. 1347/1988 contending that in the said case, mother of petitioner No. 1, Sahera Khatun, petitioner No. 1 himself and his brother, Ramjan Ali were declared as Indian citizens. However, Tribunal disbelieved the contention of the petitioners. On the other hand, evidence adduced on behalf of the State was accepted and thereafter, Tribunal returned the finding, as above. 13. However, Tribunal disbelieved the contention of the petitioners. On the other hand, evidence adduced on behalf of the State was accepted and thereafter, Tribunal returned the finding, as above. 13. To appreciate the correctness or otherwise of the finding of the Tribunal, let us briefly examine and analyse the materials on record. 14. Petitioners in their written statement filed on 29.06.2009 had stated that they were citizens of India by birth. They had all the documents to prove their citizenship and it was stated that those documents would be produced at the time of hearing. It was stated that a proceeding was drawn up against the petitioners before the Nagaon Foreigners’ Tribunal in which they were declared to be not foreigners. 15. From a perusal of the said written statement what is noticeable is that petitioner Nos. 1 & 2, who are husband and wife and parents of petitioner Nos. 3 to 6 did not disclose about their years, if not date and months of birth, as well as their places of birth. They also did not disclose the names of their respective parents and grand-parents. Further, they remained totally silent as to when they got married and when the petitioner Nos. 3 to 6 were born and their respective years of birth, if not dates of birth. These were material facts, which were within the knowledge of petitioner Nos. 1 & 2 and as held by the Supreme Court in Sarbananda Sonowal vs. Union of India, reported in (2005) 5 SCC 665 , these materials facts would have to be disclosed by a proceedee when his citizenship status is questioned. Failure to disclose such material facts clearly raises serious doubts about the version projected by the petitioners. 16. Be that as it may, it is well settled that filing of written statement is not enough. Averments made in the written statement are required to be proved by adducing cogent and reliable evidence. Again, mere filing of documents is not enough. The documents will have to be proved in accordance with law. In the related proceeding, petitioners did not exhibit any document and, therefore, they had failed to discharge the burden which was on them under section 9 of the Foreigners’ Act, 1946 to prove that they were not foreigners but citizens of India. The documents will have to be proved in accordance with law. In the related proceeding, petitioners did not exhibit any document and, therefore, they had failed to discharge the burden which was on them under section 9 of the Foreigners’ Act, 1946 to prove that they were not foreigners but citizens of India. However, petitioner No. 1 deposed as a witness but did not say anything tangible except that his wife and one son had died. 17. On the other hand, on behalf of the State, Sri Kanakeswar Das, a co-villager of the petitioners deposed as PW-1 wherein, he stated that petitioner No. 1 had come from Bangladesh about 17/18 years back and that he could not produce any document in support of Indian citizenship at the time of inquiry. PW-2, Sri Pitkan Bordoloi, the Government Gaonburah deposed that he found petitioner No. 1 and family members in the village after 1972. He was present at the time of inquiry by the police where petitioner No. 1 could not produce any document. The third witness, Sri PC Bora was the Inquiry Officer who was the Sub-Inspector of Police (B) in the Dharamtul Police Station at the relevant point of time. It was he who had conducted the inquiry against the petitioners and in the course of inquiry, which he carried out in front of PW-1 and PW-2, petitioners could not produce any document to show that they were citizens of India. Infact, petitioner No. 1 had disclosed that they had come from Dupikona village under Sumanganj Police Station in the district of Sylhet of Bangladesh in an unauthorized manner after 25.03.1971 in search of livelihood and settled in the present address. Authority letter dated 28.03.2001, issued by the Superintendent of Police (B), Morigaon to PW-3 to conduct inquiry against the petitioners was exhibited as Ext.-1. Particulars in Form No. 1 filled up by the Inquiry Officer was marked as Ext.-2. Report of the Inquiry Officer was marked as Ext.-3. In this report, it was clearly stated that petitioners had come to India from village-Dupikona under Sumanganj Police Station in the district of Sylhet of Bangladesh after 25.03.1971. This report was prepared when the Illegal Migrants (Determination by Tribunals) Act, 1983 was in force where, unlike the Foreigners’ Act, 1946, burden was on the State to prove that proceedee was a foreigner and not a citizen of India. This report was prepared when the Illegal Migrants (Determination by Tribunals) Act, 1983 was in force where, unlike the Foreigners’ Act, 1946, burden was on the State to prove that proceedee was a foreigner and not a citizen of India. This report was approved by the Screening Committee which was the system followed under the Illegal Migrants (Determination by Tribunals) Act, 1983. The reference dated 28.07.2002 made by the Superintendent of Police (B), Morigaon under Section 8(1) of the aforesaid Act was marked as Ext.-4. 18. Neither the evidence tendered by the witnesses on behalf of the State nor the documents exhibited were subjected to any questioning on behalf of the petitioners. On the other hand, as noticed above, petitioners did not exhibit any document to prove that they were not foreigners but citizens of India. 19. Having said that, let us now examine the order dated 24.10.1989, passed by the Foreigners’ Tribunal, Nagaon in FT Case No. 1347/1988 whereby, one Sahera Khatun, W/o. Abdul Harish, A Rahman and Ramjan Ali, sons of Sahera Khatun were declared as citizens of India and not foreigners. 20. From a perusal of the order dated 24.10.1989, it is seen that Sahera Khatun was the wife of Abdul Harish of village-Naramari Reserve under Dharamtul Police Station in the then district of Nagaon. A Rahman and Ramjan Ali were her sons. It was stated that Ramjan Ali was 22 years of age and A Rahman was 20 years of age. In contradistinction, petitioner No. 1, Md. Abdul Rahman has disclosed himself as son of Lt. Harej Ali. There is no document on record to show that Abdul Harish and Harej Ali is one and the same person. On the contrary, in their written statement, petitioner No. 1 did not say that Sahera Khatun was his mother. 21. In the absence of any documents to show that Abdul Harish and Harej Ali is one and the same person, it cannot be said that petitioner No. 1 was a proceedee in FT Case No. 1347/1988 where he was declared to be a citizen of India. Nowhere petitioner No. 1 had disclosed his mother’s name as Sahera Khatun and his father’s name as Abdul Harish. Nowhere petitioner No. 1 had disclosed his mother’s name as Sahera Khatun and his father’s name as Abdul Harish. In the absence of any proof to show that Sahera Khatun was the mother of petitioner No. 1 and Abdul Harish and Harej Ali is one and the same person being the husband of Sahera Khatun and father of petitioner No. 1, attempt of the petitioners to get the benefit of the order dated 24.10.1989 cannot succeed and is accordingly rejected. 22. Petitioner No. 1 had examined himself as witness No. 1. He had deposed that his wife, Fatima Begum had died about 15 years back whereas, his son, Hasen Ali died about 10/12 years back. Interestingly, there is no statement to that effect in the writ petition. On the contrary, both Fatima Khatun and Hasen Ali have been arrayed as petitioners in the present proceeding which again raises grave doubt as to the version of the petitioners. 23. End result of the above discussion is the complete failure of the petitioners to prove that they were not foreigners, but citizens of India as per requirement of section 9 of the Foreigners’ Act, 1946. In such circumstances, we do not find any error or infirmity in the view taken by the Tribunal which stands fortified by our reasonings as given above. There is no merit in the writ petition, which is accordingly dismissed. Interim order passed on 10.05.2012 stands vacated. 24. Registry to send down the LCR forthwith with due intimation to the concerned Foreigners’ Tribunal, Deputy Commissioner and Superintendent of Police (B) for necessary follow-up steps.