The burden of proof lies with the individual claiming citizenship, under Section 9 of the Foreigners Act, requiring cogent evidence to substantiate the claim.

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 24.09.2018 passed by the learned Foreigners’ Tribunal No. 8, Tezpur in F.T. Case No. 1401/2017 corresponding to Police Enquiry No. TZP(B) Case No. 242/04. 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), Sonitpur District, against the petitioner giving rise to the aforesaid Case No. 1401/2017.

(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 dated 16.05.2018 along with certain documents and had claimed to be an Indian Citizen. He had adduced evidence as DW1.

(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 I. Hussain, learned counsel for the petitioner. We have also heard Shri J. Payeng, learned Standing Counsel, Home Department & NRC, Assam; Shri A.I. Ali, learned Standing Counsel, Election Commission of India; Shri H.K. Hazarika, learned Additional Senior Government Advocate, Assam and Shri CKS Baruah, learned CGC.

4. Shri Hussain, the learned counsel for the petitioner has submitted that the petitioner could prove his 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 held the petitioner to be a citizen of India. In this regard, he has referred to the evidence on affidavit by the petitioner as DW and also the following documentary evidence-

i. Voter List, 1965 (Exbt -A)

ii. Gift Deed, 1969 (Exbt – B) iii. Voter List, 1970 (Exbt – C) iv. Sale Deed, 1982 (Exbt – D)

v. Electoral Roll, 1997 (Exbt – E)

vi. Voter list, 2010 (Exbt – F)

5. Shri Hussain, the learned counsel for the petitioner has submitted that the petitioner was born in the year 1946. He has relied upon a voter list of 1965 containing the name of his projected father Amiruddin Kha. He has also relied upon a voter list of 1970 containing his name as son of Amir. Reliance has been placed on a Gift Deed of land dated 22.05.1969 by his father to himself and a Sale Deed executed by him in the year 1982. He has also relied upon a voter list of 1997 which contains his name along with his wife. He has submitted that though there is some variance of address, the aspect of migration has been stated in the written statement and cannot be a factor against the petitioner. He has submitted that minor inconsistencies in the documents so far as names and age are concerned, are to be ignored. In this regard, he has cited the case of Abdul Khalique Vs. UoI & Ors. reported in 2013 (1) GLT 941. He has further submitted that the standard of proof in such a case is preponderance of probabilities and in this regard, has relied upon the case of Haidar Ali Vs. UoI & Ors. reported in 2021 (3) GLT 85

6. The learned counsel for the petitioner accordingly submits that the impugned opinion is unsustainable in