The burden of proof for establishing citizenship under the Foreigners Act lies with the proceedee, and mere submission of documents without adequate corroboration does not suffice.

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 13.09.2019 passed by the learned Foreigners’ Tribunal No. 7, Sonitpur in Case No. FTDC.624/16 arising out of Reference No. TZP(B) 471/07. 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. FTDC.624/16.

(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 21.05.2018 along with certain documents and had claimed to be an Indian Citizen. He had adduced evidence as DW1 and there are two other witnesses, namely, his father as DW2 and the School Headmaster as DW3.

(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 N. Bora, learned counsel for the petitioner. We have also heard Shri J. Payeng, learned Standing Counsel, Home Department & NRC, Assam; Ms. S. Katakey, learned Standing Counsel, Election Commission of India; Shri H.K. Hazarika, learned Government Advocate, Assam and Shri AK Dutta, learned CGC.

4. Shri Borah, 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 Identity Card (Exbt -A) ii. School Certificate (Exbt – B)

iii. Gaon Panchayat Certificate (Exbt – C)

iv. Voter list of 1971 (Exbt – D)

v. Voter Identity Card of the father of 2010 (Exbt – E)

vi. Voter list of 2010 (Exbt – F) vii. Voter list of 1966 (Exbt – G)

viii. School Admission Register (Exbt – H)

ix. Attendance Register (Exbt – I)

5. Shri Borah, the learned counsel for the petitioner has submitted that the petitioner was born on 05.01.1985 and had attended the Jiabharali HE School, Silonigaon and left School on 31.12.2001. In this regard, the Headmaster of the School had adduced evidence as DW3 and had exhibited the relevant documents. He has also relied upon the Certificate dated 02.07.2015 issued by the Secretary of the concerned Gaon Panchayat. He has submitted that the Voters Lists of the grandfather and father of the petitioner have been proved which would establish a link with the petitioner. He has also relied upon a Marriage Certificate given by the Gaonburah and an extract of the NRC dated 23.06.2015.

6. The learned counsel for the petitioner has relied upon the judgment of the Hon’ble Supreme Court reported in (2024) 15 SCC 152 [ Md. Rah