The burden of proof to establish citizenship under the Foreigners Act, 1946, rests on the proceedee and requires reliable, cogent, and acceptable evidence.

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 21.06.2018 passed by the learned Foreigners Tribunal (2nd), Nalbari, in F.T.(NAL) Case No. 21/2017. 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), Nalbari District, against the petitioner giving rise to the aforesaid F.T.(NAL) Case No. 21/2017.

(ii) As per requirement under Section 9 of the Foreigners Act, 1946 to prove that the proceedee is not a foreigner, the petitioner had filed the written statement on 21.02.2017 along with certain documents in said FT(NAL) Case No. 21/2017 before the learned Foreigners Tribunal (2nd), Nalbari.

(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 A. Mobaraque, learned counsel for the petitioner. We have also heard Shri J. Payeng, learned Standing Counsel, Home Department, Assam; 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 02.02.2024.

4. Shri A. Mobaraque, 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 five numbers of witnesses and also the following documentary evidence.

i. Revenue Payment Receipt (Ext.- 1 &2)

ii. copy of NRC of 1951 (Ext.-3).

iii. Electoral roll of 1955 (Ext.-4);

iv. Photocopy of Voter List of 1961 (Ext.-5).

v. Photocopy of Voter List of 1971 (Ext.-6).

vi. Photocopy of Voter List of 1985 (Ext.- 7)

vii. Photocopy of Voter List of 1989 (Ext-8).

viii. Photocopy of Voter List of 1997 (Ext-9).

ix. Certified copy of registered sale deed (Ext.-10)

x. Certified copy of Voter List of 2005 (Ext.-11)

xi. Elector Photo Identity card (Ext.-12)

xii. Certified copy of Voter List of 2016 (Ext.-13)

xiii. Certified copy of Voter List of 2017 (Ext.-14)

xiv. Certificate issued by Village Headman (Ext.- 15 & 16)

xv. Affidavit (Ext.-17)

5. The learned counsel for the petitioner has submitted that the village headman had deposed as OPW No. 4 and has proved the certificate issued by him. As regards the Voters List of 1989, it is contended that vide a communication dated 13.06.2017, the Electoral Registration Officer, 47 No. Chenga Legislative Assembly Constituency had verified the same. He accordingly submits that the impugned opinion dated 21.06.2018 of the learned Tribunal is liable to be interfered with as the relevant factors were not considered.

6. Per contra, Shri Payeng, 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. As such, the relevant facts are especially within the knowledge of the proceedee and therefore, 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 f