IMPORTANT POINT
The burden of proving that a person is not a foreigner lies upon the said person under Section 9 of the Foreigners Act, 1946, and the provisions of the Indian Evidence Act would not be applicable.

JUDGMENT :

SANJAY KUMAR MEDHI, J.

1. 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 13.01.2023 passed by the learned Foreigners Tribunal Bongaigaon No. 2, Abhayapuri in F.T. Case No. 1603/2008 (Ref-BNGN IMDT case no. 456/04) 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), Bongaigaon District, against the petitioner giving rise to the aforesaid F.T. Case No. 1603/2008.

(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 24.05.2016 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 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. Alom, 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 materials placed before us.

4. Shri S. Alom 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 two numbers of witnesses including that of the proceedee and also the following documentary evidence:

5. Per contra, Ms 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.

6. 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 there are gross discrepancies in the name of the projected father of the petitioner and there is not even a single document to show the link of the petitioner with her father. She points out that the name of the father of the petition