IMPORTANT POINT
The burden of proof to establish citizenship lies with the proceedee under Section 9 of the Foreigners Act, 1946, and the evidence presented must be cogent and relevant. The certiorari jurisdiction of the Writ Court is limited to examining the decision-making process and does not extend to reviewing findings of fact.

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 25.05.2001 passed by the learned Foreigners Tribunal no. 3rd, Morigaon in F.T. Case No. 279/2015. By the impugned judgment, the petitioners, who were the proceedees before the learned Tribunal, have 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), Morigaon District, against the petitioner no. 1 giving rise to the aforesaid F.T. Case No. 279/2015.

(ii) As per requirement under Section 9 of the Foreigners Act, 1946 to prove that the proceedees were not foreigners, the petitioners had filed their written statement on 18.09.2013 along with certain documents in said F.T. Case No. 279/2015 before the Foreigners Tribunal 3rd Morigaon.

(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 J. Ahmed, learned counsel for the petitioners. We have also heard Shri A. Kalita, 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 Ahmed, the learned counsel for the petitioners at the outset has submitted that the proceeding so far as the petitioner nos. 2 to 5 are concerned, is bad in law inasmuch as there was no specific order of reference against them. In this connection, the learned counsel has relied upon the case of Sudhir Roy vs. Union of India reported in 2019 (1) GLT 353. In the said case, a Coordinate Bench of this Court has laid down that though a presumption can be drawn against the family members of a proceedee who has been declared as foreigners, such presumption would per se not lead to such a conclusion and there has to be a specific reference in this regard.

5. The learned counsel for the petitioners has otherwise submitted that the petitioners more specifically the petitioner no. 1 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. Voter list of 1966 of Basanta, father of OP1 (Exbt -A)

ii. Voter list of 1970 of Basanta (Exbt – B)

iii. Voter list of 1989 OP1 (Exbt – C)

iv. Voter list of 1990 OP1 (Exbt – D)

v. Voter list of 1997 of OP1/OP2 (Exbt – E)

vi. Voter list of 1966 of Subal Malu, father of OP2 (Exbt – F)

vii. Voter list of 1970 of Subal Malu, father of OP2 (Exbt- G )

viii. Gaonbura Certificate of OP2 (Exbt – H)

ix. Gaonbura Certificate of OP1 (Exbt – I)

x. Birth Certificate of OP3 (Exbt – J)

xi. Birth Certificate of OP4 (Exbt – K)

xii. Birth Certificate of OP5 (Exbt – L)

6. It is submitted 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 without any difficulty.

7. Shri Ahmed, the learned counsel submits that in the written statement, it was stated that the petitioner no. 1 was born in village-Jengpari whereas the petitioner no. 2 (wife of the petitioner no. 1) was born at village Banmuri. The petitioner nos. 3, 4 & 5 are their sons who were born at Malputa. The father of the petitioner no. 1 is stated