The burden of proof lies on individuals claiming citizenship, requiring credible evidence of lineage and prior existence in the country, as emphasized in the Foreigners Act.

JUDGMENT :

MALASRI NANDI, J.

1. Heard Mr. H. Das, learned counsel for the petitioners. Also heard Mr. G. Sarma, learned Standing Counsel, FT; Ms. B. Sarma, learned CGC; Mr. P. Sarmah, learned Additional Senior Government Advocate; and Mr. M. Islam, learned counsel appearing on behalf of Mr. A.I. Ali, learned Standing Counsel, ECI.

2. By filing this writ petition under Article 226 of the Constitution of India, the petitioners have challenged the order of the Tribunal dated 09.01.2017 in F.T. Case No.3351/G/2011 and F.T. Case No.3350/G/2011 passed by the learned Member, Foreigners Tribunal, Goalpara.

3. The case of the petitioners in brief is that both the petitioners are husband and wife and a permanent resident of village – Baladmari in the district of Goalpara, Assam. Both the petitioners claimed that they are the citizens of India by birth. Initially 2 (two) IM(D)T case bearing IM(D)T Case No.546/2022 and IM(D)T Case No.547/2022 were registered against the petitioner no.1 and petitioner no.2 respectively. Thereafter, the same were re-numbered as F.T. Case No 3351/G/2011 and F.T. Case No.3350/G/2011.

4. On receipt of the notices from the Tribunal, both the petitioners filed their respective written statements along with relevant documents wherein it is stated that the name of the petitioner no.1 i.e. Dasarath Chandra Das was enrolled in the Electoral Roll of 1971. His name is also appeared in the voter lists with his wife i.e. petitioner no.2 in the year of 1985, 1997, 2009 and 2016. All such documents were exhibited before the learned Foreigners Tribunal, Goalpara. In spite of such relevant documents and other materials before the Tribunal, both the petitioners were declared as illegal migrants.

5. Being highly aggrieved and dissatisfied with the said opinion dated 09.01.2017, the petitioners have preferred this writ petition.

6. The learned counsel for the petitioners has submitted that the petitioners are Indian citizen prior to 1966 as their parents are also citizens of India by birth. All the exhibits as produced by the petitioners are genuine and reliable but the learned Member, Foreigners Tribunal, Goalpara has failed to properly exercise judicial mind to appreciate such documents and wrongly presumed and held that the petitioners are illegal migrants.

7. It is further submitted that being relevant documents of land and voter list prior to 1966 or 1971, it is established fact that the petitioners are Indian citizen. There being no failure on the part of the petitioners to discharge their burden u/s 9 of the FOREIGNERS ACT , 1946 as they are not at all illegal migrants.

8. By relying on the judgment of Moslem Mondal and Ors. Vs. Union of India , (2013) 1 GLT 809, the learned counsel for the petitioners has pointed out that in the said case, it was held by this Court that the principle of legal jurisprudence is justice should not only be done but it should also appear to have been done. At the same time, the Hon’ble Supreme Court also held that even if the party losses his/her case for their own default, at least one chance should be given to the party to place their case in the original court vide (2008) 4 SCC 701. Accordingly, the alternative submission of learned counsel for the petitioners is to remand the matters to the Tribunal for fresh adjudication.

9. Per contra, learned counsel for the F.T matters, G. Sharma submits that though the petitioners claime