IMPORTANT POINT
The burden of proof under Section 9 of the Foreigners' Act, 1946 lies on the proceedee, who must provide cogent and reliable evidence 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 judgment an order dated 18.06.2018 passed by the learned Foreigners’ Tribunal No. 9, Nagaon in F.T. Case No. 746/2016. 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), Nagaon District, against the petitioner giving rise to the aforesaid F.T. Case No. 746/2016.

(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 25.08.2017 along with certain documents.

(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 Shri S. Ahmed, 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 R. Talukdar, learned Government Advocate, Assam. We have also carefully examined the records which were requisitioned vide an order dated 31.07.2019.

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

i. Identification Certificate issued by Government Gaonbura as Ext. 1.

ii. Certified copies of Voter List of 1993 of 82 Raha LAC as Exts. 2, 3 and 4.

iii. Certified copy of Voter List of 2016 of 82 Raha Lac as Ext. 5.

iv. Certified copy of sale deed executed in the year 1950 in favour of Araj Ali, grandfather of the proceedee as Ext. 6.

v. Certified copies of the Voter List of 1966 of 92 Jamunamukh LAC as Ext.7.

5. In support of his submission, the learned counsel for the petitioner has relied upon the case of Samad Ali Vs. UOI reported in 2012 (5) GLT 162 and has submitted another opportunity may be granted.

6. Percontra,Ms. A. Verma, 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 be read. In any case, she submits that the name of the grand-father, father along with the villages are different in different Voter Lists. The name of the grand father is changed from Aabar to Araaz Ali; the name of the father in one Voter List is Md. Re