The burden of proof rests on the individual claiming citizenship, and failure to provide credible evidence results in designation as a foreign national under the Foreigners Act, 1946.

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 30.11.2016 passed by the learned Foreigners’ Tribunal No. 5, Morigaon in F.T.(D) Case No. 426/16. 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.(D)

Case No. 426/16.

(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 16.07.2016 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, a neighbour as DW2 and a cousin 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 post25.03.1971.

3. We have heard Shri S. Huda, learned counsel for the petitioner. We have also heard Shri J. Payeng, 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 MR Adhikari, learned CGC.

4. Shri Huda, 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 -A)

ii. Voter List, 1970 (Exbt – B) iii. Voter List, 1989 (Exbt – C)

iv. Copy of Jamabandi (Exbt – D)

v. Gaonburah Certificate (Exbt – E)

vi. Voter List, 1985 (Exbt – F)

5. The learned counsel for the petitioner has submitted that the linkage of the petitioner with his father has been properly established. In the voter lists of 1965 & 1970, the name of the father of the petitioner A Jabbar appears and in the voter list of 1989, the name of the petitioner is there, who is shown to be son of the A Jabbar. He has submitted that in the Jamabandi, which has been exhibited as Exbt. D, the name of the petitioner appears against Sl. No. 15. He has also referred to the Voter List of 1985 containing the name of the one Jamina Khatun stated to be the wife of A Jabbar. Reference has also been made to the voter list of 1993 where the name of the petitioner appears. Subsequent voters lists of 2010 and 2016 have been referred to containing the names of the petitioner along with one Habij Begum, stated to be his wife.

6. The learned counsel for the petitioner has submitted that the evidence was adduced by the petitioner as DW1 along with two others, namely, a neighbour a