IMPORTANT POINT
The burden of proof to establish citizenship lies with the proceedee, and the evidence provided must be cogent and relevant to meet this burden.

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 28.03.2019 passed by the learned Foreigners Tribunal No. 7th, Lanka, Hojai in F.T. Case Nos. 1078/2016 and 1227/2016. By the impugned judgment, the petitioners, who were the proceedees before the learned Tribunal, have been declared to be foreigners post 25.03.1971.

2. The facts of the case may be put in a nutshell as follows:

(i)The references were made by the Superintendent of Police (Border), Hojai District, against the petitioners giving rise to the aforesaid F.T. Case Nos. 1078/2016 and 1227/2016.

(ii) As per requirement under Section 9 of the Foreigner’s Act, 1946 to prove that the proceedee is not a foreigner, both the petitioner no. 1 and petitioner no. 2 had filed the written statement on 06.08.2018 and 10.08.2018 respectively 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 petitioners, as opposite parties had failed to discharge the burden cast upon them and accordingly, the opinion was rendered declaring the petitioners to be foreign nationals post 25.03.1971.

3. We have heard Shri A.R. Sikdar, learned counsel for the petitioners. 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 28.09.2020.

4. Shri Sikdar, the learned counsel for the petitioners has submitted that the petitioners could prove their 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 petitioners to be a citizen of India. In this regard, he has referred to the evidence on affidavit of the two numbers of witnesses and also the following documentary evidence.

i. Computer generated statement of voter details (Exbt -1)

ii. Certified copy of Voter list of 1965 (Exbt – 2)

iii. Certified copy of Voter list of 1970 (Exbt – 3)

iv. Certified copy of Voter list of 1975 (Exbt – 4)

v. Certified copy of Voter list of 1993 (Exbt – 5)

vi. Certified copy of Voter list of 2005 (Exbt – 6)

vii. Certified copy of Voter list of 2011 (Exbt- 7 )

viii. Certified copy of Voter list of 2016 (Exbt – 8)

ix. Two miscellaneous receipts of Hojai Municipal Board [Exbt – 9 and 9(i)]

x. Driving License for Cycle Rickshaw (Exbt – 10)

xi. Two compared Voter photo identity cards (Exbt – 11 and 14)

xii. Certificate by Nilbagan Gaon Panchayat (Exbt – 12)

xiii. Aadhar Card (Exbt – 13 and 15)

5. He submits 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.

6. It is submitted that the voter list of 1965 was proved containing the name of Jahur Ali, aged 66 years, the projected father of the petitioners and Hazara Bhanu, aged 30 years, the projected mother. It is contended that the father of the petitioners had two wives- Aimona Nessa (first wife) and Hazara Bhanu (second wife) who is the projected mother of the petitioners.

7. It is contended by Shri Sikdar, the learned counsel that the name of the petitioner no.1 appears in the voter list of 1993, 2005, 2011 and 2016 which would establish his citizenship.

8. It is contended that the deposition of DW2 has not been considered in its proper perspective in the impugned judgment and therefore, the findings arrived at is not a correct finding.

9. Shri Sikdar, the learned counsel accordingly submits that the impugned opinion dated 28.03.2019 be interfered with. In supp