The burden of proof for citizenship lies with the alleged foreigner, and failure to establish this can lead to a declaration of illegal migration.

JUDGMENT :

MANASH RANJAN PATHAK, J.

1. Heard Mr. M I Hussain, learned counsel for the review petitioner/writ petitioner. Also heard Mr. A K Dutta, learned Central Government Counsel, for the respondent No. 1, Mr. J Payeng, learned Standing counsel, Home Department, Assam for the respondent Nos. 2, 6 & 7; Mr. M Islam, learned counsel on behalf of Mr. A I Ali, learned Standing counsel, Election Commission of India for the respondent No. 3; Mr. G Sarma, learned Standing counsel, NRC, Assam for the respondent No. 4 and Mr. H K Hazarika, learned Government Advocate, Assam for the respondent No. 5.

2. The petitioner filed this petition on 16.02.2021 for review of the judgment and order dated 25.07.2018 passed in WP(C) No. 7692/2017 by which a Co-ordinate Bench of this Court (comprising one of us, Justice Manash Ranjan Pathak) dismissed the said writ petition WP(C) No. 7692/2017 that was preferred against the order dated 03.02.2012 passed by Foreigners’ Tribunal-I, Goalpara in F.T. Case No. 1415/G/06 by which the said Tribunal opined the petitioner as an illegal migrant of post 1971 stream.

3. Perused the records of said F.T. Case No. 1415/G/06 that was called for by order dated 08.08.2022.

4. Brief facts of the case is that pursuant to the enquiry report of the Electoral Registration Officer, Goalpara, the Superintendent of Police (Border), Goalpara on 26.08.1998 referred the matter to the Chairman, Illegal Migrants (Determination) Tribunal, Goalpara, Assam under the Illegal Migrants (Determination by Tribunals) Act, 1983 seeking the opinion of the said Tribunal as to whether the petitioner is an illegal migrant or not. As such, a case being Case No. 5905/G(D)/01 was registered before the Illegal Migrants (Determination) Tribunal, Goalpara, during the force of the said IMDT Act, 1983, as amended.

5. In the judgment of the Hon’ble Apex Court in the case of Sarbananda Sonowal Vs. Union of India and Another decided on 12.07.2005, reported in (2005) 5 SCC 665 , the IMDT Act, 1983 as well as the IMDT Rules, 1984 were struck down being violative of Article 14 of the Constitution. The Hon’ble Supreme Court in the said case of Sarbananda Sonowal (supra), amongst others, directed that the cases pending before the IMDT Tribunals have to be taken up as a proceeding under the FOREIGNERS ACT , 1946 and those are to be considered under the provisions of the Foreigners (Tribunals) Order, 1964.

6. Consequently, the proceeding i.e., Case No. 5905/G(D)/01 pending against the petitioner before the IM(D)Tribunal, Goalpara was converted into a proceeding under the FOREIGNERS ACT and it was re-registered as F.T. Case No. 1415/G/06 before the Foreigners’ Tribunal-I, Goalpara, Assam.

7. A fresh notice was issued to the petitioner on 30.03.2009 in said F.T. Case No. 1415/G/06 under the Foreigners (Tribunals) Order, 1964 directing him to submit his written reply along with the relevant documents to establish that he is not a foreigner under the FOREIGNERS ACT , 1946, which the petitioner accordingly received and submitted his written statement on 22.03.2010.

8. The petitioner on 22.03.2010 after filing his written statement took time to adduce evidence by producing his witnesses.

9. The said Foreigners’ Tribunal, Goalpara fixed the case for evidence of the proceedee/petitioner on (i) 23.04.2010, (ii) 07.07.2010, (iii) 13.10.2010, (iv) 28.12.2010, (v) 23.02.2011, (vi) 18.04.2011, (vii) 04.06.2011, (viii)