JUDGMENT :

UJJAL BHUYAN, J.

Heard Mr. G. Baishya, learned counsel for the petitioner; Mr. A. Kalita, learned special counsel, Foreigners Tribunal (FT); and Mr. D.K. Roy, learned standing counsel, Board of Secondary Education, Assam.

2. By filing this petition under article 226 of the Constitution of India, petitioner seeks quashing of order dated 30.9.2016 passed by the Foreigners Tribunal 5th, Morigaon in Case No. FT(D) 226/2015 (State v. Abdul Rashid) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh on or after 25.3.1971.

3. In the writ petition, petitioner has identified himself as Abdur Rashid, son of late Abdul Rejak of Moirabari. This court by order dated 13.12.2016 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to his appearance before the Superintendent of Police (Border), Morigaon and furnishing of adequate surety.

4. One Sri Kamal Ch. Das, Deputy Superintendent of Police (Border), Morigaon has filed an affidavit on behalf of the Superintendent of Police (Border), Morigaon, i.e., respondent No. 4 supporting the impugned order passed by the Tribunal.

5. Petitioner has filed a reply affidavit to the affidavit filed on behalf of respondent No. 4.

6. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record.

7. In his written statement filed before the Tribunal on 6.1.2016 petitioner denied the allegation that he was a foreigner and claimed that he was a citizen of India by birth. In support of his contention that he was a citizen of India petitioner filed a total of 8 documents without, however, pleading any materials fact. In the verification column petitioner identified himself as son of Abdur Rajjak.

8. At this stage, it may be mentioned that in the reference made by the State petitioner was referred to as Abdul Rashid, son of Kamaluddin.

9. Be that as it may, the written statement filed by the petitioner as above was wholly inadequate to establish the identity of the petitioner as a citizen of India having regard to the mandate of section 9 of the Foreigners Act, 1946 as explained by the Supreme Court in paragraph 26 of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665, which is extracted hereunder:

“26. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth, (ii) place of birth, (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under section 6A(1)(d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

10. In his written statement, petitioner did not mention his date or year of birth. Consequently, his age on the date of filing the written statement remained undisclosed. Petitioner also did not mention the names of his paternal grandparents and mother, not to speak of his brothers and sisters, if any. Though petitioner filed matriculation certificate issued by the Board of Secondary Education, Assam (SEBA), he did not mention in which school he had studied and from w