IMPORTANT POINT
The burden of proof for establishing citizenship under the Foreigners Act, 1946 lies solely with the proceedee, and the evidence must be credible and consistent to meet this burden.

JUDGMENT :

S.K. Medhi, J.

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 17.05.2023 passed by the learned Foreigners Tribunal no. 9, Barpeta in F.T. Case No. 637/2018 [Ref-SP Ref. IM(D)T Case No. 4684(A)]. 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 (B), Barpeta District, against the petitioner giving rise to the aforesaid F.T. Case No. 637/2018.

(ii) As per requirement u/s 9 of the Foreigner’s Act, 1946 to prove that the proceedee is not a foreigner, the petitioner had filed the written statement on 22.05.2019 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 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 J. Islam, learned counsel for the petitioner. We have 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 P. Sharma, learned Government Advocate, Assam.

4. Shri Islam, 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. Certified copy of Chitha (Exbt -A)

ii. Certified copy of Voter list of 1966 (Exbt – B)

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

iv. Certified copy of Voter list of 1985 (Exbt – D)

v. Certified copy of Voter list of 1989 of elder brother (Exbt – E)

vi. Certified copy of Voter list of 1989 of petitioner with name Khodeja Nessa (Exbt – F)

vii. Certified copy of Voter list of 1993 (Exbt- G )

viii. Certified copy of Voter list of 2010 (Exbt – H)

ix. Certified copy of Voter list of 2013 (Exbt – I)

x. Certified copy of Voter list of 2017 (Exbt – J)

5. The learned Tribunal had also taken into consideration two further documents namely;

(a) Gaonburah certificate (Exbt – K)

(b) Copy of an Elector Photo I.D. Card (Exbt – L)

6. 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 without any difficulty.

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 relates to determination as to whether the proceedee is a foreigner or not. Therefore, the relevant facts are especially within the knowledge of the proceedee and accordingly, the burden of proving citizenship rests absolutely upon the proceedee, notwithstanding anything contained in the Evidence Act, 1872 and this is mandated under Section 9 of the aforesaid Act, 1946. However, in the instant case, the petitioner utterly failed to discharge the burden. It is also submitted that rebuttal evidence is not mandatory in every case and would be given only if necessary. She further submits that the evidence of a proceedee has to be cogent, relevant, which inspire confidence and acceptable and only thereafter, t