The burden of proving citizenship rests upon the proceedee, and documents submitted must be proved in accordance with the law.

JUDGMENT :

S.K. Medhi, J.

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 14.11.2023 passed by the learned Foreigners Tribunal (3rd), Darrang in F.T.(3) Case No. 6280/2022 (Ref-FT Case No. 309/2009). 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. As per the projection made in the petition, the aforesaid order is an ex parte one.

2. The facts of the case may be put in a nutshell as follows:

(i) The reference was made by the Superintendent of Police (B), Darrang, Mangaldai District, against the petitioner giving rise to the aforesaid F.T. (3) Case No. 6280/2022.

(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 18.07.2023 along with certain documents. Thereafter, though at least 5 dates were fixed for filing of evidence on affidavit, neither the petitioner nor his counsel had appeared and accordingly on 14.11.2023, the impugned order has been passed.

(iii) The learned Tribunal after noticing the aforesaid 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 him and accordingly, the opinion was rendered declaring the petitioner to be a foreign national post 25.03.1971.

3. We have heard Shri A.T. Sarkar, learned counsel for the petitioner. We have also heard Ms. A. Verma, learned Standing Counsel, Home Department, Assam, Shri H. Kuli, learned counsel appearing on behalf of Shri A.I. Ali, learned Standing Counsel, Election Commission of India and Shri P. Sarma, learned Additional Senior Government Advocate, Assam. We have also carefully examined the records which were requisitioned vide an order dated 10.01.2024.

4. It is contended on behalf of the petitioner that the default in appearance was on account of the fault on the part of his counsel. It is submitted that the engaged lawyer neither appeared himself nor informed the petitioner about the dates and rather assured the petitioner that the matter was being taken care of. Shri Sarkar has however submitted that the written statement was indeed filed on 18.07.2023 and on the subsequent date i.e. 11.08.2023, time was taken to file the evidence on affidavit.

5. By referring to Order 4(e) of the Foreigners (Tribunals) Order, 1964, Shri Sarkar, learned counsel submits that the aforesaid provision vests powers upon the Tribunal to issue warrant of arrest to secure the attendance of a party and without exercising the said power, the decision to proceed ex parte is not proper.

6. Shri Sarkar further submits that the documents which are available and annexed to the writ petition would ex facie demonstrate his citizenship. In this connection, the Voter Lists of 1966 and 1977 have been referred to containing the name of the projected father of the petitioner. Reference has also been made to the Voter Lists of 1993, 1997, 2010 and 2023 by contending that the same contain the name of the petitioner.

7. The learned counsel for the petitioner has accordingly submitted that he was deprived from an opportunity to contest the case which proceeded ex parte and therefore, the instant petition may be allowed and the matter be remanded back for a fresh adjudication on merits.

8. Per contra, Ms. A. Verma, learned Standing Counsel, Home Department has at the outset emphatically refuted the primary contention made on behalf of the petitioner that the order dated 14.11.2023 of the learned Tribunal is an ex parte order. It is submitted that notices were duly served whereafter, the petitioner had also filed his written statement on 18.07.2023 and thereafter, on 11.08.2023 had taken time to fi