Point of Law : 12, 16. Under Section 9 of Foreigners' Act, 1946, burden is on proceedee to prove that she is not a foreigner, but a citizen of India and this burden never shifts.

JUDGMENT :

Heard Mr. A. M. Ahmed, learned counsel appearing for the petitioner. Also heard Mr. U.K. Goswami, learned Central Government Counsel for respondent No. 1; Mr. J. Payeng, earned Standing Counsel Foreigners’ Tribunal, Assam for respondent No. 2, 4 and 5 and Ms. U. Das, learned Government Advocate, Assam for respondent No. 3.

2. This is an application under Article 226 of the Constitution of India whereby the opinion dated 31.10.2016, passed by the learned Member, Foreigners’ Tribunal, Nagaon Court No. 10th at Sankardev Nagar, Hojai, passed in F.T. Case No. 111/2015 is under challenge.

3. On the basis of a reference made by the competent authority, notice was issued to the petitioner to prove his Indian citizenship. The notice was served upon the petitioner and he appeared before the Tribunal and filed his written statement along with all original documents which were exhibited as Ext. 1 to 6 and also adduced his evidence as DW-1. The petitioner claimed that he is a Indian Citizen by birth and permanent resident of village – Sorupathar, under Jamunamukh Police Station in the District of Hojai, (earlier Nagaon) Assam. He claimed himself to be the son of Late Sonahar Ali and Late Piarun Nessa, who died in the year 2001 and 1994 respectively. He further claims that his grandparents Late Sabed Ali and Samsul Nessa were also Indian Citizen by birth and the name of his grandmother, paternal uncle (Asman Ali) his father Sonahar Ali and mother Piarun Nessa appeared in the voter list of 1966 (Ext.1) at village Ujan Kupa, Pt. I, under Hailakandi Police Station of 9 Hailakandi Legislative Assembly Constituency (In short “LAC”). The name of his father appeared in the voter list of 1970 (Ext. 2) at village Sorupather under Jamunamukh Police Station of 92 Jamunamukh LAC. Petitioner further stated that his father shifted his residence from Hilakandi to present village Sorupather in the search of livelihood in the year 1969 but unfortunately, his mother’s name did not appear in the voter list of 1970 along with his father. But, his mother’s name appeared in the voter list 1970 at village Ujankupa under Hailakandi Police Station of 9 Hailakandi LAC. The father of the petitioner along with paternal uncles purchased a plot of land from one Samsul Hoque of village-84, No. Block, Mouza-Jamunamukh, by registered Sale Deed dated 12.04.1969. A Photocopy of the sale deed dated 12.04.1969 is annexed vide Annexure-D.

4. The petitioner stated that he was born on 11.10.1967 and brought up at village Sorupather and he had passed Class VII from Jamunamukh M.E. Madrassa. In this regard, he also exhibited one School certificate dated 06.10.2015 (Ext.6), issued by the Head Master of that School, showing his date of birth as 11.10.1967 as per admission register of the School.

5. It is pertinent to mention here that the name of the petitioner first appeared in the voter list of 1997 (Ext.3) along with his wife and father under 90 Jamunamukh LAC, Village Sarupathar, the then district Nagaon, where the name of petitioner is written as Saber Ahmed instead of Sabir Ahmed. The concerned Gaonburah of village Sarupather also issued a certificate in his name (Ext.5) and Election Commission also issued an Electro Photo Identity Card to the petitioner (Annexure-H).

6. Despite having all the documents, the Enquiry Officer without making any proper enquiry submitted false report before the Superintendent Police (Border), Nagaon for making reference to Foreigners’ Tribunal and accordingly, the Superintendent of Police (B), Nagaon, without ascertaining the correctness of enquiry report, referred his name to Foreigners’ Tribunal, alleging that the petitioner is a Foreigner. On the basis of the reference and report, the learned Member of Foreigners’ Tribunal issued notice dated 10.09.2014, without any specific ground and asked the petitioner to appear before the Foreigners’ Tribunal for filing his representation and to adduce his evidence and witness.

7. After going through th