IMPORTANT POINT
The burden of proof lies on the proceedee to establish citizenship, and voter lists must be relied upon in their entirety to prove citizenship.

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 09.08.2019 passed by the learned Foreigners Tribunal No. 8 Barpeta, in F.T. Case No. 151/2018 [Ref- IM(D)T Case no. 10652/98] 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. 151/2018.

(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 03.10.2018 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 K.R. Patgiri 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 29.09.2023.

4. Shri Patgiri, the learned counsel for the petitioner has submitted that the petitioner could prove her case with cogent evidence and therefore, 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 three numbers of witnesses including that of the proceedee and also the following documentary evidence.

i. Copy of voter list, 1966 where petitioner’s father, mother and brother’s name reflected (Exbt -A)

ii. Copy of voter list, 1970 petitioner’s father, mother and grandmother’s name reflected (Exbt – B)

iii. Copy of voter list, 1966 name of the petitioner’s husband and herself reflected (Exbt – C)

iv. Voter list of 1970 (Exbt.-D)

iv. Voter list of 1985 (Exbt.-E)

v. Voter list of 1997 (Exbt.-F)

vi. Jamabandi copy (Exbt – G)

vii. Gaonburah Certificate (Exbt – H)

viii. Gaonburah Certificate (Exbt – I)

5. In support of his submission, the learned counsel for the petitioner has relied upon the case of Sirajul Hoque vs. State of Assam & Ors. reported in (2019) 5 SCC 534 to bring home the contention that minor discrepancies in the names in some documents may be overlooked.

6. Per contra, Ms. Verma, the learned Standing Counsel, Home Department has categorically refuted the stand taken on behalf of the petitioner. She 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 of proving citizenship rests absolutely upon the proceedee, notwithstanding anything contained in the Evidence Act, 1872. This is mandated under section 9 of the aforesaid Act, 1946. However, in the instant case, the petitioner utterly failed to discharge the burden. She further submits that the evidence of a proceedee has to be cogent, relevant, which inspire confidence and acceptable and only thereafter, the question of adducing rebuttal evidence may come in.

7. She further submits that so far as the documents are concerned, a part of the same cannot be relied upon and the document, as a whole is to