Failure to discharge the burden of proof under Section 9 of the Foreigners' Act, 1946, can result in a declaration of foreigner status.

JUDGMENT :

M. Thakuria, J.

Heard Mr. S.C. Biswas, learned counsel for the petitioner and Mr. G. Sarma, learned Standing counsel, Home Department, Assam for the respondent Nos. 2 & 6 as well as Mr. P. Sharma, learned Additional Senior Government Advocate, Assam for the respondent No. 5.

2. The respondent No.1, the Union of India as well as respondent No.3, the Election Commission of India remained unrepresented.

3. In pursuant to a Reference received from the Superintendent of Police (Border), Lakhimpur, North Lakhimpur, Assam, the learned Member, Foreigners’ Tribunal-1st, Lakhimpur, North Lakhimpur in F.T.(1st) Case No. 4057/2011 (District No.23/1997) had passed the impugned Final Order/Opinion dated 22.11.2019 declaring the petitioner to be a foreigner under the Foreigner Act, 1946, who had illegally entered into the territory of India (Assam) from the specified territory of Bangladesh after 25.03.1971.

4. On being highly aggrieved and dissatisfied with the impugned Final Order/Opinion dated 22.11.2019 passed by the learned Member, Foreigners’ Tribunal No. 1st, Lakhimpur, North Lakhimpur, the petitioner has preferred the instant petition under Article 226 of the Constitution of India for issuance of writ in the nature of Certiorari/Mandamus and/or any other appropriate writ, order or direction of like nature.

5. The petitioner stated that she is an Indian citizen by birth and was born and brought up at village Gopalpur, District-Cooch Behar, West Bengal; she studied up to Class-V (five) at Gopalpur High School and as per the School Certificate, her date of birth is 15th of April 1961; she got married with one Bishnu Barman, son of Late Shiben Chandra Barman of Harmoti Gaon, District-Lakhimpur. However, upon a reference being made by the Superintendent of Police (Border), Lakhimpur, Assam, the aforesaid F.T.(1st) Case No. 4057/2011 (District No.23/1997) was registered against her and on receipt of notice of the same, the petitioner appeared before the Tribunal and contested the case by filing her Written Statement, adduced her evidence-in-chief as D.W.1 along with relevant and supported documents to prove her nationality. But, the learned Member, Foreigners’ Tribunal No. 1st, Lakhimpur, North Lakhimpur did not consider the documents she relied on and passed the impugned Final Order/Opinion dated 22.11.2019 arbitrarily without appreciating evidence, thereby declaring the proceedee/petitioner to be a foreigner who had entered into the territory of India (Assam) illegally from the specified territory of Bangladesh after 25.03.1971.

6. Mr. S. C. Biswas, learned counsel for the petitioner has submitted that the petitioner as D.W.1 has exhibited the Voter Identity Card issued in her name as Exhibit-1 along with the School Transfer Certificate as Exhibit-2 to prove her linkage with her father. Mr. Biswas, learned counsel also stated that though the petitioner annexed a photo copy of a Ration Card and an affidavit sworn by her mother etc. before the Tribunal, but inadvertently those certificates were not exhibited by her. It is submitted by Mr. Biswas that the petitioner produced the School Transfer Certificate to prove her linkage with her father Lt. Monteswar Ray, stating further that father of the proceedee had purchased a parcel of land in the year 1960, but, due to flood the Sale Deed of the said land got damaged and therefore, the petitioner could not produce the original copy of said Sale Deed before the Tribunal.

7. Mr. Biswas, learned counsel also submits that the documents so provided by the petitioner/proceedee was sufficient to prove herself to be the Citizen of India; however, the learned Tribunal without considering the documents which were relied by the petitioner/proceedee, passed the impugned Final Order/Opinion dated 22.11.2019 arbitrarily and declared her as a foreigner of post 1971 stream, which is liable to be set aside and quashed.

8. In this context, Mr. G. Sarma, learned Standing counsel, Home Department, Assam has subm