IMPORTANT POINT
The burden of proof for citizenship lies with the proceedee, and reliable and acceptable documentary evidence is essential to substantiate oral evidence in matters of citizenship determination.

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 17.10.2022 passed by the learned Foreigners Tribunal Biswanath 1st, Biswanath Chariali, Biswanath in F.T. Case No. BNC/614/2016. 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), Sonitpur, Tezpur District, against the petitioner giving rise to the aforesaid F.T. Case No. BNC/614/2016.

(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 06.03.2017 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.U. Mondal, learned counsel for the petitioner. We have also heard Shr A. Kalita, learned Standing Counsel, Home Department, Assam; Shri A.I. Ali, learned Standing Counsel, Election Commission of India and Shri P. Sharma, learned Government Advocate, Assam.

4. Shri Mondal, the learned counsel for the petitioner has submitted that the petitioner could prove his 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 five numbers of witnesses and also the following documentary evidence.

i. Copy of land sale deed (Exbt -A)

ii. Registered land sale deed (Exbt - B)

iii. Certified copy of Electoral Roll of 2005 (Exbt - C)

iv. Certified copy of Electoral Roll of 2016 (Exbt - D)

v. Elector photo identity card and Copy of voter list of 1966 (Exbt.-E)

5. It is submitted that there was no effective cross-examination by the prosecution side of the said witnesses who had deposed and therefore, such evidence ought to have been accepted without any difficulty.

6. Per contra, Shri A. Kalita, 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 of proving citizenship rests absolutely upon the proceedee, notwithstanding anything contained in the Evidence Act, 1872 and this is mandated under Section 9 of the aforesaid Act, 1946. However, in the instant case, the petitioner utterly failed to discharge the burden. It is also submitted that rebuttal evidence is not mandatory in every case and would be given only if necessary. He 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. He further submits that so far as the documents relied upon by the petitioner are concerned, a part of the same cannot be relied upon and the document as a whole is to be read. It is also submitted that there are major discrepancies in the voters list regarding the names, age and address.

8. The learned Standing Counsel further submits that this Court in exercise of its Certiorari jurisdiction does not act as an Appellate Court and it is only the decision maki