IMPORTANT POINT
The burden of proof under Section 9 of the Foreigners Act, 1946 lies on the proceedee and does not shift. The written statement must disclose all relevant facts, and failure to do so may lead to adverse inference.

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 29.10.2019 passed by the learned Foreigners Tribunal No. 11th, Barpeta in F.T. Case No. 2307/2017 [(Ref-FT Case No. IM(D)T 112(A)/98)]. 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 (Border), Barpeta District, against the petitioner giving rise to the aforesaid F.T. Case No. 2307/2017

(ii) As per requirement u/S 9 of the Foreigners Act, 1946 to prove that the proceedee is not a foreigner, the petitioner had filed the written statement on 21.08.2019 along with certain documents before the Foreigners Tribunal, Barpeta 11th at Sarbhog, on receipt of notice under the 1946 Act, noted above, from the said Tribunal.

(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.A. Ahmed, learned counsel for the petitioner. We have also heard Shri. A. Kalita, 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 Government Advocate, Assam. We have also carefully examined the records which were requisitioned vide an order dated 01.06.2020.

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 three numbers of witnesses and also the following documentary evidence.

i. Copy of N.R.C. of 1951 (Exbt.-1).

ii. Copies of Voter List of 1965 (Exbt.- 2).

iii. Copy of Voter List of 1970 (Exbt.- 3).

iv. Copy of Voter List of 1985 (Exbt.-4).

v. Copy of Voter List of 1989 (Exbt.-5).

vi. Copy of Voter List of 1994 (Exbt.-6).

vii. Copy of Voter List of 1997 (Exbt.-7).

viii. Copy of Voter List of 2005 (Exbt.-8).

ix. Gaonburah Certificate (Exbt.-9).

5. The learned counsel for the petitioner has submitted that the name of the father of the petitioner is Jatra Sheikh whose name had appeared in the voter list of 1951. Reliance has also been placed on the voter lists of 1965 and 1970 containing the name of the projected brother of the petitioner as Abdul Gafur. The voter lists of 1985, 1989 and 1994 have been referred wherein the name of the petitioner appears.

6. The learned counsel for the petitioner has submitted that apart from the petitioner, his nephew Abdul Jalil had also deposed as DW2 and the Gaonburah - Shah Alom as DW3. In this connection, reference has been made to the voter lists of 1997 and 2005 containing the name of Abdul Jalil and a certificate of the Gaonburah.

7. In support of his submission, the learned counsel for the petitioner has relied upon the following case:

i. 2015 (2) GLT 617 [Abdul Matali Vs. UOI]

ii. 2020 (1) GLT 330 [Motior Rahman Vs. UOI]

iii. 2021 (3) GLT 85 [Haidar Ali Vs. UOI]

8. The cases of Abdul Matali (supra) and Motior Rahman (supra) have been cited to bring home the contention that minor discrepancy in names are to be ignored. The observations made in the case of Motior Rahman (supra) is as follows:

“11. We also find from the record that the learned Tribunal has declared the petitioner as a foreigner based on some minor discrepancies in recording of age and also for no