IMPORTANT POINT
The burden of proving citizenship rests on the proceedee, and the court's jurisdiction under Article 226 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 23.02.2011 passed by the learned Foreigners Tribunal Nagaon in F.T. Case No. 41/2003. 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. 41/2003.

(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 17.04.2009 along with certain documents. Thereafter, though sufficient opportunity has been given to the petitioner till 13.12.2010 for filing of evidence on affidavit, neither the petitioner nor his counsel had appeared and accordingly on 23.02.2011, the impugned order has been passed.

(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 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. Chamuah, 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.

4. Shri Chamuah, the learned counsel for the petitioner has submitted that there are sufficient and cogent reasons for which the petitioner could not contest the proceedings after filing of the written statement. He submits that there are documents to show that the petitioner is a prima facie a citizen of the country. By referring to certain voter lists, Shri Chamua submits that the said documents would show that the petitioner is a citizen of India. He further submits that an application under Order 47, Rule 1, read with Section 151 of the Code of Civil Procedure was filed for review of the ex-parte order dated 23.02.2011. However, the learned Tribunal had rejected the said application which was registered as Misc. Case No. 10 / 2015 vide order dated 15.09.2016.

5. Shri Chamuah further submits that the documents which are available and annexed to the writ petition would ex facie demonstrate her citizenship. In this connection, the Voter Lists of 1965 and 1970 have been referred to containing the name of the projected father of the petitioner. Reference has also been made to the Voter Lists of 1993, 1997 and 2011 by contending that the same contain the name of the petitioner.

6. The learned counsel for the petitioner has accordingly submitted that she 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, Shri J. Payeng, learned Standing Counsel of the Department has however submitted that the reasons cited are not at all sufficient for interfering with the order dated 23.02.2011. He submits that there is a clear admission on the part of the petitioner of receipt of notice of the proceedings and the petitioner had also filed her written statement on 17.04.2009. By referring to the said written statement which has been brought to record by way of an additional affidavit, the learned Standing Counsel has submitted that there is no disclosure at all regarding the cla