The burden of proving citizenship under the Foreigners Act remains with the individual, regardless of representation, and failure to provide evidence justifies a tribunal's determination of foreign nationality.

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 24.04.2019 passed by the learned Foreigners Tribunal Jorhat in F.T.G. (D) 474/2010. By the impugned opinion, the petitioner who was the proceedee before the learned Tribunal has been declared to be a foreigner post 25.03.1971. As per the projection made in the petition, the aforesaid order is an ex parte one.

2. The facts of the case may be put in a nutshell as follows:

(i) The reference was made by the Referral Authority against the petitioner giving rise to the aforesaid F.T.G. (D) 474/2010.

(ii) The learned F.T., Jorhat had issued notice to the proceedee on 21.01.2019 whereafter she had appeared before the learned Tribunal on 08.02.2019. 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 on 28.02.2019 along with certain documents. Thereafter, though at least 5 dates were fixed for filing of evidence on affidavit, neither the petitioner nor her counsel had appeared and accordingly on 24.04.2019, the impugned order has been passed.

(iii) The learned Tribunal after noticing the aforesaid 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 her and accordingly, the opinion was rendered declaring the petitioner to be a foreign national post 25.03.1971.

3. We have heard Shri S.A. Ahmed, learned counsel for the petitioner. We have also heard Shri G. Sarma, learned Standing Counsel, Home Department & NRC, Assam, Ms. S. Katakey, learned Standing Counsel, Election Commission of India and Shri P. Sarma, learned Additional Senior Government Advocate, Assam and Shri M.R. Adhikari, learned CGC. We have also carefully examined the records of the Tribunal which were requisitioned vide order dated 13.10.2025. It may however be mentioned that while notice was issued on the said date, the issue of maintainability on the ground of inordinate delay in approaching the Court was kept open.

4. Shri Ahmed, the learned counsel for the petitioner has contended that the default in appearance of the petitioner was on account of the fault on the part of her counsel. It is submitted that the engaged lawyer did not inform the petitioner about the dates. He has however submitted that the written statement was indeed filed on 28.02.2019, whereafter, there was no appearance.

5. He has submitted that the presence of the petitioner could have been secured by the learned Tribunal by which the petitioner could have been given an effective opportunity to defend her case. He has also submitted that on 25.05.2025, the police had come in search of the petitioner and only thereafter, the petitioner could know about the impugned opinion.

6. The learned counsel has further submitted that the documents which are available and annexed to the writ petition would ex facie demonstrate her citizenship. Though in exercise of certiorari jurisdiction, this Court is not required to look into any materials which were not placed before the decision making authority whose decision is the subject matter of challenge