IMPORTANT POINT
The burden of proof to establish citizenship lies on the proceedee, and the admissibility of evidence is crucial.

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 19.05.2020 passed by the learned Foreigners Tribunal no. 4, Kamrup in H.F.T. Case No. 1099/2015. 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), Kamrup District, against the petitioner giving rise to the aforesaid H.F.T. Case No. 1099/2015.

(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 30.03.2019 along with certain documents in the said H.F.T. case No. 1099/2015 before the learned Foreigners Tribunal No. 4, Kamrup.

(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 her and accordingly, the opinion was rendered declaring the petitioner to be a foreign national post 25.03.1971.

3. We have heard Shri A.W. Aman, learned counsel for the petitioner. We have also heard Ms. A. Verma, learned Standing Counsel, Home Department, Assam and Shri P. Sharma, learned Government Advocate, Assam. We have also carefully examined the records which were requisitioned vide an order dated 05.10.2020.

4. Shri Aman, the learned counsel for the petitioner has submitted that the petitioner could prove her 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 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. Photocopy of voter list of 1966 (Exbt -A)

ii. Photocopy of voter list of 1970 (Exbt – B)

iii. Photocopy of voter list of 1977 (Exbt – C)

iv. Photocopy of voter list of 1989 (Exbt – D)

v. Certified copy of Voter list of 2005 (Exbt – E)

vi. Photocopy of certified Voter list of 2010 (Exbt – F)

vii. Photocopy of certified Voter list of 2016 (Exbt- G )

viii. Elector Photo Identity Card (Exbt – H)

ix. Photocopy of Village Headman Certificate (Exbt – I)

x. Photocopy of Village Headman Certificate (Exbt – J)

xi. Photocopy of Village Headman Certificate (Exbt – K)

xii. Photocopy of certificate issued by secretary, Bamuni Gaon Panchayat (Exbt – L)

5. It is submitted that in the voters lists of 1966, 1970, 1977 and 1989, the names of the parents of the petitioner appears. Further, in the voters lists of 2005, 2010 and 2016, the name of the petitioner appears. The Certificates both dated 23.03.2019 issued by the village Headman pertain to the aspect of shifting of the father of the petitioner. The third Certificate also dated 23.03.2019 issued by the village Headman pertains to the petitioner. A certificate dated 26.06.2015 issued by the Secretary, Bamundi Gaon Panchayat was also proved by the said Secretary appearing as DW3.

6. The learned counsel for the petitioner accordingly submits that the impugned opinion is liable to be set aside inasmuch as, the same did not take into consideration the relevant factors.

7. Per contra, 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 relate 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 u