The burden of proving citizenship lies with the proceedee under the Foreigners Act, 1946; insufficient evidence can lead to a declaration of foreignness.

Judgment :

Sanjay Kumar Medhi, J.

1.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 29.01.2022 passed by the learned Foreigners’ Tribunal No. 6, Nagaon in F.T. Case No. 281/2016 arising out of Police Reference – F.T. “D” Case No. 831/98. 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) A reference was made by the Superintendent of Police (B), Nagaon District, against the petitioner giving rise to the aforesaid Case No. 281/2016.

(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 15.03.2013 along with certain documents and had claimed to be an Indian Citizen. He had adduced evidence as OPW1 and there were three other witnesses, namely, a neighbour as OPW2, the Gaonburah as OPW3 and the Headmistress of Rajabari Sologuri High School as OPW4.

(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 M. Alam, learned counsel for the petitioner. We have also heard Shri G. Sarma, learned Standing Counsel, Home Department & NRC, Assam; Ms. S. Katakey, learned Standing Counsel, Election Commission of India; Shri H.K. Hazarika, learned Additional Senior Government Advocate, Assam and Shri AK Dutta, learned CGC.

4. Shri Alam, 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 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. Voter List, 1965 (Exbt -1)

ii. School Transfer Certificate (Exbt – 2) iii. School Transfer Certificate (Exbt – 3)

iv. Gaonburah (Exbt –4)

v. Sale Deed, 1974 (Exbt – 5)

vi. Pension Calculation Sheet (Exbt – 6)

5. The learned counsel for the petitioner has submitted that the petitioner was born on 01.02.1974 and in the voter list of 1965 the name of his father A. Hakim appears. He has also referred to the voter lists of 1970, 1977, 1985, 1997 and 2011 where the name of his father appears. He has also referred to a Sale Deed of the year 1979 executed by his grandfather and another Sale Deed of the year 1980 executed by his father. The petitioner claims to have attended the Rajabari Sologuri ME Madrassa and thereafter, the Rajabari Sologuri High School and in this regard, had proved the School Certificates as Exhibits 2 & 3. He had also relied upon a pension paper of his father which was proved as Exbt. 6. Reliance has also been placed upon the certificate of the Gaonburah, who had deposed as OPW3, wherein it has been stated that the petitioner is a citizen of India and is the son of A. Hakim.

6. The learned counsel for the pe