IMPORTANT POINT
The burden of proof under Section 9 of the Foreigners Act, 1946 lies upon the person claiming citizenship, and the evidence presented must be supported by documentary evidence and contemporaneous records.

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 19.01.2017 passed by the learned Foreigners Tribunal no.11th , Barpeta in F.T. Case No. 151/2016 . 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. Case No. 151/2016.

(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 13.10.2016 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 her and accordingly, the opinion was rendered declaring the petitioner to be a foreign national post 25.03.1971.

3. We have heard Shri A. Roshid, learned counsel for the petitioner. We have also heard Shri J. Payeng, 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 R. Talukdar, learned Government Advocate, Assam. We have also carefully examined the records which were requisitioned vide an order dated 15.03.2021.

4. Shri Roshid, the learned counsel for the petitioner has submitted that the petitioner could prove her case with cogent evidence and in view of the fact that there was no rebuttal evidence, the learned Tribunal should have accepted the said proof and accordingly hold the petitioner to be a citizen of India. In this regard, he has referred to the evidence on affidavit of the two numbers of witnesses and also the following documentary evidence.

i. Copy of Voter list of 1965 (Exbt. -A)

ii. Linkage Certificate of Jalah Revenue Circle (Exbt. – B)

iii. Gaonburah certificate (Exbt. – C)

iv. Copy of Voter list of 1970 (Exbt. – D)

v. Copy of Voter list of 1997 (Exbt. – E)

5. Shri Roshid, the learned counsel for the petitioner submits that in the written statement, all material disclosures were made. It is submitted that the name of the petitioner is Jahanara Khatun @ Bewa, wife of late Majibar Rahman and daughter of late Ain Uddin Sarkar. She was born in village Alengamari under Mouza Gobardhana and her marriage was on 01.02.1985. He submits that three documents were exhibited to show her linkage with her father and in proof of her claim to be a citizen. In the voter list of 1965, the name of one Ain Uddin Sarkar appears who is the projected father of the petitioner. The second document is a Certificate by the Gaonburah and the third document is stated to be a Certificate by the Circle Officer.

6. Along with the petitioner, another witness had deposed as DW2 who claimed himself to be the younger brother of the petitioner. Sri Roshid, the learned counsel for the petitioner has also pointed out that there is a land document which would show a linkage of the petitioner with her father. It is accordingly submitted that in view of the aforesaid materials, the impugned opinion dated 19.01.2017 is unsustainable and liable to be set aside.

7. Per contra, Shri J. Payeng, learned Standing Counsel, Home Department has categorically refuted the stand taken on behalf of the petitioner. He submits that a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 relates to determination as to whether the proceedee is a foreigner or not. Therefore, the relevant facts are especially within the knowledge of the proceedee and accordingly, the burden