The burden of proving citizenship under the Foreigners Act lies on the petitioner, and a review petition cannot be used to reargue the case based on previously dismissed evidence.

JUDGMENT :

Manish Choudhury, J.

This review petition under Chapter-X of the Gauhati High Court Rules read with Order XLVII, Rule 1 and Rule 2, Code of Civil Procedure, 1908 [‘CPC’ or ‘the Code’, for short] is preferred seeking review of an Order dated 10.05.2019 passed in a writ petition, W.P.[C] no. 2853/2019.

2. The events leading to the passing of the Order dated 10.05.2019 can be recapitulated, in brief, at first.

2.1. A reference was made by the Superintendent of Police [Border], Baksa under Section 2 [1] of the Foreigners [Tribunals] Order, 1964 to the Foreigners Tribunal, Baksa at Tamulpur [‘the Tribunal’, for short] on the ground that on being asked, the proceedee-opposite party, that is, the petitioner could not produce within given time any documentary evidence in support of his entry into India prior to 25.03.1971, though he claimed to be a citizen of India. The reference was made to the Tribunal for its opinion as to whether the proceedee-opposite party-petitioner was a foreigner or not.

2.2. On receipt, the reference was registered as F.T. Case no. 17/BAKSA/2018. After registration, the Tribunal issued notice to the proceedee-opposite party-petitioner [hereinafter also referred to as ‘the petitioner’, at places, for easy reference] and on receipt of the notice, the petitioner duly entered appearance and contested the proceedings by filing a written statement denying the allegations and later on, by adducing his evidence on affidavit as O.P.W.1 along with documentary evidence. The proceedee also adduced evidence of two other witnesses, O.P.W.2 and O.P.W.3 in support of his claim as an Indian citizen and the witnesses were duly cross-examined.

2.3. In the written statement, it was inter-alia contended by the petitioner that the name of his father was Insan Ali, who was a citizen of India by birth and was born at Village – Narayangaon, Police Station – Ghograpar, District – Nalbari and the names of his family were enrolled in the Electoral Roll of 1966 in the then 64 no. Barbhag LAC. It was further claimed that Insan Ali migrated from Nalbari District to Kamrup District in the year 1962-1963 and since then, the parents of the petitioner along with their family were permanently residing at Village – Salmara, Police Station – Tamulpur, District – Baksa and his father’s name was enrolled in the Electoral Roll of 1979 in the said village. It was also mentioned that the petitioner’s name was not enrolled in the voters list. In the written statement, the petitioner declared his age as 40 years as on 05.09.2018.

2.4. When the petitioner adduced evidence as O.P.W.1, he for the purpose of discharging the burden as not being a foreigner and to establish his linkage with his projected father, Insan Ali, produced and exhibited six nos. of documents as Ext.-1 to Ext.-6. A photocopy of extract of Electoral Roll of 1966 was also submitted. The evidence of O.P.W.3 was adduced in relation to Ext.-4 whereas the evidence of O.P.W.2 was adduced to establish the linkage.

2.5. The Tribunal after consideration and evaluation of the exhibited documents and the evidence of the witnesses, came to a finding that the petitioner failed to discharge the burden as required under Section 9 of the FOREIGNERS ACT , 1946 and held that the petitioner was not successful to prove his citizenship. In its Opinion/Order dated 21.01.2019 passed in F.T. Case no. 17/BAKSA/2018, the Tribunal held th