IMPORTANT POINT
The burden of proof on the proceedee to establish Indian citizenship, the requirement of continuous stay, and the evidentiary value of documents are crucial legal principles established in the judgment.

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 18.02.2019 passed by the learned Foreigners Tribunal no. 9th, Barpeta in F.T. 9th (BPT) Case No. 174/2017. 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.

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), Barpeta District, against the petitioner giving rise to the aforesaid F.T. 9th (BPT) Case No. 174/2017.

(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 13.10.2017 along with certain documents.

(iii) The learned Tribunal, after considering the 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 M. Hussain, learned counsel for the petitioner. We have also heard Shri G. Sarma, 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 Government Advocate, Assam. We have also carefully examined the records which were requisitioned vide an order dated 02.02.2024.

4. Sri Hussain, the learned counsel for the petitioner has submitted that to establish the linkage of her with her parents, she has produced the voter list of 1966, allegedly containing the names of the projected grandfather and grandmother. He has also referred to the voter list of 1997, allegedly containing the name of the projected father. It is submitted that apart from the two voters list, the Certificate of the Gaonburah of Charge No. 28 Bornagar Circle (Village-Balabhita) and the Certificate by the Secretary of the No.3 Golapara Banglapara Gaon Panchayat have been proved and therefore, there was no occasion on the part of the learned Tribunal to arrive at the impugned findings against the petitioner. In this regard, he has referred to the evidence on affidavit of the four numbers of witnesses and also the following documentary evidence.

i. Certified copy of Electoral Roll of 1966 (Ext-A)

ii. Certified copy of Electoral Roll of 1997 (Ext-B)

iii. Electoral Photo I.D. Card of Manacher Ali (Ext-C)

iv. Electoral Photo I.D. Card of Ancher Ali (Ext-D)

v. Electoral Photo I.D. Card of Nurul Islam (Ext-E)

vi. Ration Card of Moyful (Ext-F)

vii. Electoral Photo I.D. Card of Abdul Mazid (Ext. G)

viii. Ration Card of petitioner (Ext.H)

ix. 3 No. Goalpara Banglapara G.P. Certificate of (Ext-I)

x. Certificate of Gaonburah (Ext. K)

xi. Electoral Photo I.D. Card of Abdul Mazid (Ext.L)

xii. Register book of Gaonburah of village-Balavita (Ext. M).

5. The learned counsel for the petitioner accordingly submits that the impugned opinion dated 18.02.2019 be interfered with and the petitioner be declared as a citizen of India.

6. Per contra, Sri G. Sharma, the learned Standing Counsel, Home Department has submitted that none of the documents produced by the petitioner before the Tribunal and even in this petition are of any evidentiary value. He submits that the voters lists of 1966 and 1997 are not relevant as those do not contain the name of the petitioner and in any case, both the voters lists are uncertified copies. He submits that there is an unexplained gap in producing the voters lists of relevant years.

7. It is also submitted that translated copies of voters list cannot be treated as certified copies and therefore, cannot be treated as secondary evi