The burden of proof to establish citizenship lies solely with the individual under Section 9 of the Foreigners Act, 1946, and must be met with sufficient evidence, without relying on rebuttal evidence.

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 the impugned judgment dated 26.12.2016 passed by the learned Foreigners’ Tribunal (4th ) Goalpara in F.T.88 Case No. 283/2015 (ERO Case No. 656 / ). By the impugned judgment, the 38 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), Goalpara District against the petitioner giving rise to the aforesaid F.T. Case No.88283/2015 (DRO Case No. 656 / );38

(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.

(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 A.R. Sikdar, learned counsel for the petitioner. We have also heard Shri G. Sarma, learned Standing Counsel, Home Deptt. & NRC; Shri H.K. Hazarika, learned Jr. Govt. Advocate, Assam; Shri M. Islam, learned counsel appearing on instructions of Shri A.I. Ali, learned Standing Counsel, ECI and Shri R.K.D. Choudhury, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 22.06.2017.

4. Shri Sikdar, 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 held 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:

(1) Xerox certified copy of electoral Roll of 1966 (Grand Parents);

(2) Xerox certified copy of electoral Roll of 1979 (Grand Parents+ Father+ Step Mother);

(3) Xerox certified copy of electoral Roll of 1985 (Parents); (4) Xerox certified copy of electoral Roll of 1993 (Mother); (5) Xerox certified copy of electoral Roll of 1997 (Mother);

(6) Xerox certified copy of electoral Roll of 2005 (Mother+ Proceedee) and (7) Xerox certified copy of electoral Roll of 2015 (Mother+ Proceedee).

5. The learned counsel for the petitioner has submitted that in the written statement filed on 29.12.2015, he had stated about his grandparents and that they were citizens of India birth. The names of grandparents of the petitioner appeared in the Voters List of 1966 as Kamal Ali Sheikh and Aysha Nessa. Such names also appeared in the Voters Lists of 1970 and 1979. He has also relied upon the Voters List of 1985 containing the name of his father and one Rahimon Nesa and thereafter Voters Lists of 1993 and 1997 containing the name of Rahimon Nesa. The name of the petitioner finds place in the Voters List of 2005 though it is prefixed with ‘D’.

6. The learned counsel for the petitioner has submitted that evidence was adduced by the petitioner and there was n