IMPORTANT POINT
The burden of proving citizenship rests upon the proceedee, and the court's jurisdiction under Article 226 of the Constitution of India is limited to examining the decision-making process.

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 13.02.2008 passed by the learned Foreigners Tribunal (2nd), Nagaon in F.T. Case No. 278/2006. 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), Nagaon District, against the petitioner giving rise to the aforesaid F.T. Case No. 278/2006.

(ii) As per requirement u/s 9 of the Foreigner’s Act, 1946 to prove that the proceedee is not a foreigner, the petitioner was duty bound to file written statement to prove his citizenship. But in contrast the petitioner remained absent at least for 5 consecutive dates and as a result there was no written statement filled.

(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 Ms. P. Bora, learned counsel for the petitioner. We have also heard Ms. A. Verma, learned Standing Counsel, Home Department, Assam, and Shri P. Sarma, learned Additional Senior Government Advocate, Assam.

4. It is contended on behalf of the petitioner that earlier a proceeding was initiated against the petitioner under the I.M.D.T. Act in which the petitioner had filed his Written Statement. However, vide an order dated 01.08.2005, the earlier proceeding under the IMDT Act was kept pending in view of the fact that the Act was struck down by the Hon’ble Supreme Court followed by an order dated 12.07.2006 whereby the case of the petitioner was transferred to the present Tribunal wherein notice was issued on 21.07.2006. It is however admitted that in the preset proceeding, the petitioner had appeared before the learned Tribunal on 13.09.2006 and had taken time to file the written statement. It is submitted that the subsequent 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.

5. Ms. Bora 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 1965 and 1989 have been referred to containing the name of the projected uncle of the petitioner in the former and containing the name of the projected father and another uncle in the latter. Reference has also been made to copies of Transfer certificate, Gaon Burha certificate, certificate issued by Gaon Panchayat and Jamabandi by contending that the same contain either the name of the petitioner or name of any of the relatives from whom he claim linkage.

6. The learned counsel for the petitioner has accordingly submitted that the petitioner 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.

7. 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 13.02.2008 of the learned Tribunal is an ex parte order. It is submitted that notices were duly served whereafter, the petitioner had taken time file written statement. However, there was continuous default thereafter and only after giving adequate oppor