The burden of proof for establishing citizenship rests solely on the individual, as mandated by Section 9 of the Foreigners Act, 1946.

JUDGMENT :

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 the impugned order dated 14.09.2018 passed by the learned Foreigners’ Tribunal (2nd) Nagaon in F.T. Case No. 2223/2011 arising out of SPs F.T. Ref. Case No. 1258/1998. 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), Nagaon District, against the petitioner giving rise to the aforesaid F.T. Case No. 2223/2011 arising out of SPs F.T. Ref. Case No. 1258/1998;

(ii) Vide an opinion dated 31.10.2016, the learned Tribunal had declared the petitioner a foreigner. However, since the aforesaid opinion was an ex parte one, an application was filed for setting aside the ex parte order which was also rejected vide an order 14.09.2017. Both the aforesaid orders were assailed in WP(C)/2119/2018. The said writ petition was allowed by this Court vide an order dated 16.05.2018 with a direction to produce the petitioner before the learned Tribunal which was to proceed with the Reference.

(ii) As per the 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 along with certain documents and had adduced evidence through himself and three other witnesses.

(iii) The learned Tribunal, after considering the facts and circumstances and taking into account 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 T.K. Dey, learned counsel for the petitioner. We have also heard Shri G. Sarma, learned Standing Counsel, Home Deptt. & NRC; Shri P. Sarma, learned Addl. Sr. Govt. Advocate, Assam; Shri A.I. Ali, learned Standing Counsel, ECI and Shri M.R. Adhikari, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 03.12.2021.

4. Shri Dey, 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 petitioner and following documentary evidence:

(i) Certified copy of voter list in the year 2005 (Ext. – 1);

(ii) Certified copy of voter list in the years 1993 (Ext. – 2);

(iii) Certified copy of voter list in the year 2010 (Ext. – 3);

(iv) Certified copy of voter list in the year 2016 (Ext. – 4);

(v) Copy of Jamabandi (Ext. – 5) and

(vi) Certified copy of voter list in the year 1965 (Ext. – 6).

5. The learned counsel has submitted that the Head Master of the No.1 Sonajuri LP School had issued a certificate dated 16.11.2017 wherein the names of his father and mother are clearly stated. It further states that the petitioner had concluded his Class-III examination and left school on 31.12.1994 and in the Admission Register, his date of birth was recorded as 01.01.1984. He has thereafter referred to a Voters List of 195