The burden of proving citizenship lies entirely on the proceedee, and failure to provide cogent and reliable evidence results in a declaration of foreign nationality under Section 9 of the Foreigners Act, 1946.

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 02.02.2018 passed by the learned Foreigners’ Tribunal No. 2, Bongaigaon, Abhayapuri in F.T. Case No. 3336/2008. 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), Morigaon District, against the petitioner giving rise to the aforesaid F.T. Case No. 3336/2008.

(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 23.02.2015 along with certain documents and had claimed to be an Indian Citizen. He had adduced evidence as the sole DW.

(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. H. Talukdar, learned counsel for the petitioner. We have also heard Ms. A. Verma, learned Standing Counsel, Home Department & NRC, Assam; Shri AI Ali, learned Standing Counsel, Election Commission of India; Shri P. Sarma, learned Additional Senior Government Advocate, Assam and Shri CKS Baruah, learned CGC.

4. Shri Talukdar, 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 and also the following documentary evidence-

i. Voter List, 1966 : Exbt -i

ii. Voter List, 1970 : Exbt – ii

iii. Voter List, 1985 : Exbt – iii

iv. Pan Card :Exbt- iv

v. Voter List, 1997 : Exbt – v

vi. Voter List, 2014 : (Exbt – vi

vii. Voter Identity Card :Exbt.vii

viii. Bank Pass Book : Exbt. – viii

ix. Affidavit : Exbt. –ix

x. Voter ID of mother of OP :Exbt.-x

5. The learned counsel has drawn the attention of this Court to the voter lists of 1966 containing the name of his grandfather, father and mother followed by the voter lists of 1970 containing the name of his father and mother. The petitioner claims to be enlisted in the voters list of 1985 where his name appears as Malusheikh son of Askeb Ali along with another name - Khayrun Nessa. He has also relied upon a voters list of 1997 wherein his name appears as Lalu Sheikh, son of Aksher Ali and the name of his wife as Sahera Khatun. He has also relied upon the EPIC of the mother. The petitioner has also relied upon an affidavit executed by him on the aspect of discrepancy of the two names of his father.

6. The learned counsel for the petitioner has submitted that an application was submitted for time for allowing the mother of the petitioner to adduce evidence. However, such evidence could not be given due to flood and accordingly, another date was given. However, even on this said date, the affidavit could not be filed due to ailment of the mother. The learned counsel is critical of the fact that no further chance was granted to adduce evidence through his mother.

7. The learned counsel has su